RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION
Dennis Mooney participated in a robbery of the Budget Host Motel inWaterville, Maine in which he and two others temporarily made off with$195 and a de-corded Playstation. He is now serving a 330 month sentenceafter a jury found that he was guilty of one count of conspiracy tocommit robbery and one count of using or carrying a firearm in connectionwith a crime of violence, a sawed-off pump shotgun having been wieldedduring the trio's raid. Mooney has now filed a 28 U.S.C. § 2255motion identifying four grounds. (Civil No. 3-210-B-S, Docket No. 1.) TheUnited States has responded. I now recommend that the CourtDENY the motion as, for the reasons identified below, Mooney isnot entitled to collateral relief from his sentence.
Mooney pursued a direct appeal to the First Circuit. The Panel offeredthis summary of the events leading up to Mooney's conviction: In the early morning hours of November 27, 2000, Matthew Sliker ("Sliker"), the overnight clerk of the Budget Host Motel in Waterville, Maine had just completed his duties. Sliker was playing a copy of the video game "Syphonfilter 2," which had been rented from a store called "Movie Gallery," on a Sony Playstation in the lobby when the defendant, Dennis Mooney ("Mooney") and his brother, David Mooney ("David"), entered and inquired about a room. After asking about the price, Mooney told Sliker they needed to get money and both men left the hotel. Sliker followed them outside to smoke a cigarette and watched the two men approach other men standing next to a dark gray Volkswagen Jetta. After Sliker returned to the lobby, David and Mooney came back into the motel. David asked to play the video game, and Sliker began filling out a registration form with Mooney. Marquis Craig ("Craig") then entered the lobby and approached the registration desk. Wearing a blue bandana over his face, Craig pulled out a sawed-off pump shotgun with a scope, pointed it toward the ceiling, loaded a round into the chamber, and then put the gun on the counter. The defendant ordered Sliker to raise his hands and not to set off any alarms. Craig demanded money, and after Sliker unlocked the cash drawer, the defendant took $195. David then used a telephone cord to tie Sliker's ankles to his wrists. Pointing the gun in Sliker's face, Craig warned him that if he waited less than two hours to call the police, he would be killed. One of the robbers grabbed the Sony Playstation, and they fled in the Jetta. In the car, Mooney divided the money among the robbers and his other co-conspirators, Nathan D'Amico. ("D'Amico") and Manuel Roderick ("Roderick"). Eventually, Sliker's hands became untied and he called the police. He described the defendant as a white male, 18-21 years old, with thin sideburns and a red tinted jaw-line goatee, wearing a dark blue or black bandana and a black or tan jacket with the word "American" across the back. The police intercepted the robbers on the highway as they headed toward Portland. The defendant, David, D'Amico. and Roderick were arrested at the scene and brought to the Portland police station. Craig exited the vehicle and fled into the woods, but was later found and arrested. In the car, the police found a Sony Playstation, a Syphonfilter 2 video game from Movie Gallery, two dark blue bandanas, and a sawed-off pump shotgun with a scope. Later that night, on the way to the Portland police station, Sliker and two detectives stopped to inspect the dark gray Jetta that the police had pulled over earlier. Sliker recognized it as the car used in the robbery. He also identified the shotgun. Once Sliker arrived at the station, he identified one of the robbers, David, in a photographic lineup. Sliker then waited in the lobby. In an attempt to isolate him from the suspects in custody, a member of the police department who was not involved in the robbery investigation brought Sliker to the back of the station. During the escort, Sliker passed the defendant, who was in handcuffs. Sliker recognized him right away and told one officer that the defendant was the robber who took the money out of the cash register. At the trial, cooperating witnesses Craig, David, and D'Amico. identified the defendant as one of the three men who committed the robbery. They also testified that the defendant had suggested robbing the Budget Host Motel. Sliker corroborated their testimony by identifying the defendant as one of the robbers. In addition, the defendant's former girlfriend and the government's handwriting expert testified that Mooney authored letters in which he admitted his participation in the robbery. After deliberating for two hours, the jury found Mooney guilty of the robbery conspiracy and using or carrying a firearm in the commission of a violent crime. The defendant was sentenced to a term of twenty-seven years and six months.
United States v. Mooney, 315 F.3d 54, 57-58 (1st Cir. 2002).In that direct appeal Mooney challenged his conviction on three grounds:"(1)the prosecutor made improper remarks in her opening statement thatdenied him a fair trial; (2) the trial judge erred in allowing thegovernment's handwriting expert to opine that the defendant was theauthor of letters implicating his participation in the robbery; and (3)he was unduly prejudiced by the government's delayed disclosure ofevidence." Id. at 57. None of these grounds are reiterated byMooney in any way in this collateral attack.
Scope of § 2255 Relief
In a passage that nicely frames the legal framework of Mooney's four§ 2255 grounds, the First Circuit has explained: Although the language of 28 U.S.C. § 2255 is quite general, the Supreme Court has restricted collateral attack for claims that do not allege constitutional or jurisdictional errors; such claims are said to be cognizable only where the alleged error presents "a fundamental defect which inherently results in a complete miscarriage of justice" or "an omission inconsistent with the rudimentary demands of fair procedure." Hill v. United States, 368 U.S. 424, 428 (1962). Thus, a guideline violation alone is not automatically a basis for relief under 28 U.S.C. § 2255. Knight v. United States, 37 F.3d 769, 772-73 (1st Cir. 1994). However, if the claim is repackaged as one of ineffective assistance of counsel, as [the § 2255 movant's] is here, it becomes a constitutional claim. Not every error amounts to ineffectiveness. See Lema v. United States, 987 F.2d 48, 51 (1st Cir. 1993). An ineffective assistance of counsel claim will succeed only if the defendant-who bears the burden on both points, Scarpa v. DuBois, 38 F.3d 1, 8-9 (1st Cir. 1994)-shows (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that but for the error or errors, the outcome would likely have been different, Strickland, 466 U.S.[668,] 687 [(1984)]. Since the absence of any error in sentencing would eliminate any prejudice, and therefore [the § 2255 movant's] ineffectiveness claim, it is useful to begin by considering the correctness of the [sentencing] calculation. Cofske v. United States, 290 F.3d 437, 441 (1st Cir. 2002).
Ground I: Ineffective Assistance in Not Challenging Mooney'sCareer Offender Status
In his first § 2255 ground Mooney contends that at the time of hisappeal his attorney was ineffective because he did not appeal theDistrict Court's determination that Mooney qualified as a careeroffender. Mooney believes that his attorney should have reasserted theargument made to the sentencing judge that one of his predicate offensesfor that status — a January 1999 breaking and entering conviction— was not an actual crime of violence because no violence wasinvolved in the crime.
For purposes of the Career Offender status, United States SentencingGuideline § 4B1.1 (a) provides: A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
U.S.S.G. § 4B1.1(a). The United States Sentencing Guidelinesdefines the term "crime of violence"
(a) The term "crime of violence" means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that — (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. U.S.S.G. § 4B1.2(a).
The conduct underlying Mooney's guilty plea conviction was a 1999conviction for breaking and entry when he entered the building of DingoloConstruction and Realty. (PSI at 9 ¶ 30.) Mooney claims in his §2255 pleadings that, in fact, all that happened was that he and his threefriends were intoxicated and in need of shelter, so they entered thebasement of an unlocked apartment building and fell asleep in a storagebin. (Sec. 2255 Mot. at 7.)
At the sentencing proceeding, Mooney's attorney challenged the use ofthe 1999 breaking and entry conviction as a predicate offense for hiscareer offender status. During the pre-sentence conference counsel statedthat he understood that technically the conviction qualified but that hewanted to continue to press the objection, stating: "As a fundamentalmatter and as a factual matter, Judge, it did not present a crime ofviolence." (Pre-sentence Conference Tr. at 8.) During the sentencinghearing, Mooney's attorney articulated the challenge in the followingmanner: [O]ffence 30, the breaking and entering offense, Your Honor, although technically may qualify as a crime of violence under the definitions that are established in the sentencing guidelines, I want to point out to the court[,] did not, in fact, even raise the specter of any violence. Although it was, as the police reports indicate, a nighttime entry into a dwelling, they also made clear that this was an entry into a basement area, that the defendant was hiding in a storage locker, and that — and that he was doing so implicitly for the purpose of gaining shelter from the elements. And that being said, I would suggest that the basis upon which the courts and most notably the Supreme Court have stated that entry for the purposes of committing an offense into a structure may well carry with it a risk, if you will, of violence, that that was not the case here and hence is distinguishable, and entry for the purpose of merely acquiring some shelter would not carry the same risk. Now, unfortunately, the court, we understand and acknowledge, must go by the statutory language of conviction here, but I think it is appropriate that the court understand and recognize our position is that the facts attendant to this matter were such that they are distinguishable from your average burglary or breaking and entry, and hence did not bring the risk of violence.
(Sentencing Tr. at 26-27.) The United States argued then, as it doeshere, that there is no dispute in the First Circuit that breaking andentering into a dwelling (or commercial building)1 qualifies as aU.S.S.G. § 41B.1 crime of violence because of the risk that theperson breaking in will use violence or that a person in the buildingwill use violence to stop the entry. (Id. at 27-28.) Theprosecutor also indicated that there was no reason for the Court to lookbeyond the charging instruments and the elements of the predicate offenseat the defendant's motivations. (Id. at 27.)
The Court concluded that the fact that Mooney broke in to gain shelterwas irrelevant: "The risk is that because individuals may be present orsome other issue that may arise resulting in violence." "So," the Courtobserved, "it certainly does involve conduct that presents a serious riskof physical injury to another." (Id. at 28.) Accordingly, theCourt determined that Mooney qualified as a career offender.(Id. at 28, 38.)
Citing Taylor v. United States, 495 U.S. 575 (1990) andUnited States v. Payne, 966 F.2d 4, 6 (1st Cir. 1992), Mooneyfaults his attorney for not arguing to the First Circuit on direct appealthat this offense was not in fact a violent offense. Mooney is notarguing that he did not plead guilty to breaking and entering, nor doeshe challenge the fact that he and his friends entered the building in thenighttime and remained there until discovered. Mooney also does notdispute the fact that he received an eighteen-month sentence from theMassachusetts court. Rather, his contention is that his actual conduct vis-a-vis the entry was not at all violent but was a passiveunauthorized entry in pursuit of shelter.
In Taylor the United States Supreme Court set out todetermine the meaning of 18 U.S.C. § 924(e)(2)(B)'s word "burglary"in view of the diverse definitions amongst the states whose convictionsgenerated the predicate offense. 495 U.S. at 577-78, 580. The Courtrejected the Eighth Circuit's conclusion that Congress intended"burglary" for § 924(e)(2)(B)'s purposes to turn on the definition ofburglary used by the state of conviction. Id. at 590. It alsorejected the position of some other circuits that the appropriatedefinitional fulcrum was the common-law meaning of burglary.Id. at 592-96.2 The Court settled on a definition of"burglary" in "the generic sense in which the term is now used in thecriminal codes of most States." Id. at 598. "Although the exactformulations vary," the Court observed, "the generic, contemporarymeaning of burglary contains at least the following elements: an unlawfulor unprivileged entry into, or remaining in, a building or otherstructure, with the intent to commit a crime." Id. (citingLaFave & Scott, Substantive Criminal Law § 8.13(a),(c), (e), pp.466, 471, 474 (1986)).
However, the import of Taylor for Mooney is not the substanceof the preceding discussion because the viability of this ground turnsnot on whether Mooney's Massachusetts conviction met the Taylorburglary elements. Taylor also answers that more generalquestion of how a Court undertakes the 18 U.S.C. § 924(e) andU.S.S.G. § 41B.2(a)(2) analysis vis-a-vis a defendant's prior crimesfor any sort of predicate offense, including the U.S.S.G. §41B.1(a)(2) inquiry into whether the predicate crime "otherwise involvesconduct that presents a serious potential risk of physical injury to another."3 The Court concluded: "We think the only plausibleinterpretation of § 924(e)(2)(B)(ii) is that, like the rest of theenhancement statute, it generally requires the trial court to look onlyto the fact of conviction and the statutory definition of the prioroffense." Id. at 602 (footnote omitted). The First Circuit hasapplied the Taylor categorical approach in many ACCA/careeroffender situations. See, e.g., United States v. Delgado,288 F.3d 49 (1st Cir. 2002); United States v. Shepard, 231 F.3d 56(1st Cir. 2000); United States v. De Jesus, 984 F.2d 21 (1stCir. 1993); United States v. Harris, 964 F.2d 1234 (1st Cir.1992).
The record before me does not indicate what Massachusetts statutoryprovision Mooney was charged under, as Mooney notes on his copy of thePresentence Investigation Report. In Payne the First Circuitheld, addressing this very area of Massachusetts law, that "a sentenceimposed for a previous crime may be used to resolve uncertainties aboutthe maximum sentence allowable for that crime." 966 F.2d at 5. With respect to identifying the actual provision to which Mooney pledguilty, Massachusetts has one statutory provision for "Breaking andEntering at Night": Whoever, in the night time, breaks and enters a building, ship, vessel or vehicle, with intent to commit a felony, or who attempts to or does break, burn, blow up or otherwise injures or destroys a safe, vault or other depository of money, bonds or other valuables in any building, vehicle or place, with intent to commit a larceny or felony, whether he succeeds or fails in the perpetration of such larceny or felony, shall be punished by imprisonment in the state prison for not more than twenty years or in a jail or house of correction for not more than two and one-half years.
Mass. Gen. Laws Ann. ch. 266 § 16. It has another provision forentering without breaking at night or breaking and entering in day time:
Whoever, in the night time, enters without breaking, or breaks and enters in the day time, a building, ship, vessel, or vehicle, with intent to commit a felony, the owner or any other person lawfully therein being put in fear, shall be punished by imprisonment in the state prison for not more than ten years. Whoever commits any offense described in this section while armed with a firearm, rifle, shotgun, machine gun or assault weapon shall be punished by imprisonment in the state prison for not less than five years or in the house of correction for not more than two and one-half years.
Id. § 17. Payne, upon which Mooney relies, held"that [even] an attempt to violate Mass.Gen.Laws Ann. ch. 266, § 17or 18 is a `"violent felony,'" 966 F.2d at 5 (emphasis added).
Vis-à-vis the commercial building facet of Mooney's breaking andentry conviction the First Circuit addressed this concern in UnitedStates v. Fiore, 983 F.2d 1, 4-5 (1st Cir. 1992). Fiore argued thatthe commercial identity of the building in question meant that his priorconviction was not a "burglary" for purposes of the career offenderguidelines. Noting that the defendant had overlooked the "otherwise"clause, the First Circuit reasoned: In this case, the `otherwise' clause gets the grease from the goose. No less an authority than the Supreme Court has observed that commercial burglaries often "pose a far greater risk of harm" than burglaries of dwelling places. Taylor, 495 U.S. at 594. Moreover, this court has held with echolalic regularity, albeit in the ACCA context, that burglary of a commercial building poses a potential for episodic violence so substantial as to bring such burglaries within the violent felony/crime of violence ambit. See Payne, 966 F.2d at 8 & n 6; United States v. Wilkinson 926 F.2d 22, 29 (1st Cir.), cert. denied, 501 U.S. 1211 (1991); United States v. Pattersoa 882 F.2d 595, 604 (1st Cir. 1989). cert. denied, 493 U.S. 1027 (1990). The fact that we made this determination in interpreting the ACCA's identically worded `otherwise' clause is a distinction without a difference. See United States v. Doe, 960 F.2d 221, 225 (1st Cir. 1992); see also supra note 2. Hence, Fiore's state court conviction for conspiracy to commit breaking and entering of a commercial structure comprises a crime of violence under the career offender guideline because the object of the conspiracy satisfies the "otherwise" clause of U.S.S.G. § 4B1.2(1)(ii) (Nov. 1991).
Id. at 4-5. And, needless to say, Mooney is not arguing inthis case that his was not a violent offense in the sense that he wasactually pleading guilty to breaking and entering a vehicle or the like.Cf. Delgado, 288 F.3d 49.
What Mooney faults his attorney for not doing is not presenting thisground in his direct appeal and asking the First Circuit to examine theactual circumstance underlying his prior conviction. SeeDeJesus, 984 F.2d at 23. However, under the categorical approach thequestion is not whether there was a probability of physical harm givenMooney's conduct on the night in question, but whether there is a"probability of physical harm presented by the mine-run ofconduct that falls within the heartland of the statute." Id. at24 (emphasis added). Fiore stands for the proposition thatbreaking into a commercial building "poses a potential for episodicviolence so substantial as to bring such burglaries within the violentfelony/crime of violence ambit." 983 F.2d at 4. It is clear that theFirst Circuit would have disapproved if the Sentencing Court had inquiredinto the circumstances of the crime beyond the definitional documentsbefore it, see United States v. Sacko, 178 F.3d 1, 5 (1st Cir. 1999);United States v. Damon, 127 F.3d 139, 145 (1st Cir. 1997),4and certainly it would not have embraced efforts by counsel on appeal tohave the Panel itself call for such an inquiry. Mooney conceded duringsentencing and concedes now that the facts alleged in the PSR —that Mooney entered the commercial building at nighttime, plead guilty tobreaking and entering, and was sentenced to eighteen-months — wereaccurate. The First Circuit had stated that such, "admissions during thesentencing process are an example of reliable evidence that would permita sentencing court to conclude that the defendant's guilty plea to aprior offense constituted an admission to a generic violent felony orcrime of violence." Shepard, 231 F.3d at 68.
Ground II: Ineffective Assistance of Counsel for Allowing Mooneyto Be Convicted of Both Carrying and Possessing the Same Firearm
Mooney complains that he was indicted on three separate firearm countsall for the same conduct. (Sec. 2255 Me. at 11-12.) Mooney states: "It isa fact of Federal Law that a Petitioner can not be charged nor convictedfor carrying and possessing a firearm that was the same gun  [b]ecausethis constitutes impermissible pyramiding of penalties for the sameoffense." (Id.) Counsel, Mooney, argues, should have objectedto the Court's instructions. (Id. at 12.)
However, as indicated by the United States, Mooney was found guilty ofonly one of the three firearm counts and was acquitted on the other two.There simply was no "impermissible pyramiding" in fact and, so, Mooney cannotdemonstrate prejudice, a showing essential under Strickland.See 466 U.S. at 687.5
Somewhat disjointedly, Mooney also complains that the Court instructedthe jury that Mooney could be convicted of using or carrying a firearmeven if Mooney was not the one who actually used the firearm, if the juryconcluded that Mooney aided and abetted whoever used the firearm. (Sec.2255 Mem at 11.) However, this count also charged Mooney as an aider andabettor under 18 U.S.C. § 2, and no purpose would have been served bylodging a challenge to these instructions as it would have been aposition contrary to the law in this Circuit, see United States v.Sullivan, 85 F.3d 743, 747-48 (1st Cir. 1996), as well as manyothers, see United States v. Price, 76 F.3d 526, 529 (3d Cir.1996) (collecting cases). Accordingly, lodging such a challenge couldhave only ill served Mooney's position with the Court; there was nodeficiency of performance on this score. See Strickland, 466U.S. at 687.
Grounds III and IV: Section 2255 Challenges to Sentencing Court'sCareer Offender Determination and Assertion that Mooney's PriorConvictions Over-Represented the Seriousness of his Prior CriminalHistory
In his third ground Mooney argues that this Court improperly consideredfour of his prior offenses as four discrete offenses when determiningMooney's criminal history category rather than treating them as relatedcases under United States Sentencing Guideline § 4A1.2(a). Mooneycontends that the four cases were "functionally consolidated" as theywere all treated at the same time and Mooney received the same concurrentsentence as to all four convictions. In a related vein, in his fourth andfinal ground, Mooney contends that the criminal history relied on atsentencing overrepresented the seriousness of Mooney's prior convictions.These were crimes, Mooney observes, that he committed when he was onlyeighteen and nineteen and the 1999 burglary conviction did not eveninvolve any form of violence. Mooney believes that he should havereceived a downward departure under United States Sentencing Guideline§ 4A1.3 and that this would have been appropriate to remedy the factthat he had fallen in a career offender guideline range.
With respect to these sentencing issues Counsel argued at the time ofsentencing: Based upon the record that's before the court, the court should be satisfied that Mr. Mooney is obviously a young man, age 22 at this point in time. That the predicate offenses upon which his career offender status is based were offenses committed by him at age 18 and 19, that they were resolved together, and although they might not be related by virtue of an order of consolidation, Your Honor, that concurrent sentences were imposed upon the defendant, that they were imposed by the same court at the same time, and it seems evident that they were resolved as part of a plea resolution, Your Honor, by him at the time. It's highly unlikely that anyone at that point in time advised him that these offenses could qualify for career offender treatment, but such is the case. And the fact that he resolved them by way of a plea agreement or plea bargain is not really relevant towards career offender status but it's something I believe the court can consider, along with the totality of the circumstances in determining that the defendant's criminal history by virtue of his career offender status over represents the — his actual criminal history, Your Honor. He's listed as a — and qualifies for criminal history treatment as a Category VI. Yet, here's an individual who the longest amount of time he's ever done is 90 days. Now he's looking at a sentence by career offender terms in the 15-, 16-, 18-, 20-year range, Your Honor, and as well, I think the court is within its discretion to consider the effect of a sentence that would be imposed on Count 2, which is a mandatory, consecutive ten-year sentence. So what we've got is — is an individual who jumps from 90 days, on the basis of a plea bargain, to now a potential 28-or 30-year sentence. And I think that the court is authorized, if you will, and has the discretion to depart downward on the sentence to be imposed on Count 1, and we'd ask that the court do so. Now, that doesn't in any way suggest that I'm attempting to diminish the underlying conduct or his involvement in it, but I think that the courts have indicated in the past and this court is authorized to consider the fact that, you know, essentially we're going from one end of the spectrum to the extreme other end on a very, very young individual, who is looking at a whopping amount of time and — and mostly by virtue of the fact that his career offender overstates his actual position before the court. That's the basis of our argument, and hence we suggest that this case lies outside the heartland of most. Significantly, all career offender cases are individuals that come before the court who are disposed very differently that Mr. Mooney in terms of youth, age, the age he committed the underlying offenses, the extent to which the underlying offenses, you know, generated sentences, the — quality, if you will, of the underlying offense, and the extent of his criminality involved therein.
(Sentencing Tr. at 30-32.) In response to the United States' sentencingarguments, counsel stated, in part:
Judge, you know, we've got a 22-year-old man who's facing, at the maximum end of things, 30-plus years in prison for this incident. And when we talk about rehabilitation and general deterrence and — and public safety and, you know, all the legitimate goals of sentencing, I think that the sentence that Mr. Mooney, on the high end, could face here, even on the low end, is extreme and significant and more than as is necessary in order to send a message to him specifically and others generally for deterrence purposes, and ask, then, that you exercise some measure of discretion, depart downward, and impose a sentence that is commensurate with, you know, his foreseeable involvement in the offense. (Id. at 36-37.) Alas, the Court reflected: With regard to the downward departure, let me preface my remarks with my understanding in my view that I have discretion to make a downward departure. I, however, decline to so. I don't believe that the criminal history under — understates his background here. Those offenses, prior offenses were close in time to this offense. There was no plea agreement involving those prior offenses, two separate dates for those prior offenses, no order of consolidation. Obviously, I'm concerned that the defendant did 90 days and is now facing a serious offense here. That's really because of the defendant's own actions. The request for downward departure is therefore denied. Truly the seriousness of this offense is quite great and the court certainly sees the need to protect the public from further crimes of this defendant. This is truly a tragic case. It's tragic for the — Mr. Sliker, who was involved in this, and it's truly tragic for the defendant. [Mooney's attorney is] entirely correct that this defendant has gone from 90 days' incarceration to a huge amount of time at such a young age. The Court cannot ignore, however, the violence that this defendant has engaged in from age — just as a young adult right up to the present. (Id. at 37-38, 41.)
United States Sentencing Guideline § 4A1.2(a), provides: "Priorsentences imposed in related cases are to be treated as one sentence forpurposes of § 4Al.l(a), (b), and (c)." Application Note 3 explains:
Related Cases. Prior sentences are not considered related if they were for offenses that were separated by an intervening arrest (i.e., the defendant is arrested for the first offense prior to committing the second offense). Otherwise, prior sentences are considered related if they resulted from offenses that (1) occurred on the same occasion, (2) were part of a single common scheme or plan, or (3) were consolidated for trial or sentencing. U.S.S.G. § 4A1.2, cmt. n.3.
The four offenses at issue were: A May 15, 1998, arrest for domesticassault of Mooney's girlfriend; an October 13, 1998, arrest for Assaultand Battery with a dangerous weapon, to wit, Mooney plead guilty toassaulting a man with a metal chain; a December 17, 1998, arrest fornighttime breaking and entry into a building (but which may have involvedvehicles instead)6; and the January 16, 1999, arrest for breaking andentry into the Dingolo Construction and Realty building discussed abovein relation to Mooney's first ground. Each of these convictions had aseparate docket number. As indicated above, Mooney was arrested for each offense prior to hisarrest on his next offense.7 The § 4A1.2 otherwise analysis isfacially inapplicable. Furthermore, there was no order of consolidationto present at the time of sentencing, as Counsel and the Court observed,and Mooney has not now produced any evidence but a conclusory assertionin support of his § 2255 motion.8
It is also worth noting that Application Note 3 discussed above furtherprovides that "where prior related sentences result from convictions ofcrimes of violence, § 4A1.1(f) will apply." United States sentencingGuideline § 4A1.1(f) counsels: Add 1 point for each prior sentence resulting from a conviction of a crime of violence that did not receive any points under (a), (b), or (c) above because such sentence was considered related to another sentence resulting from a conviction of a crime of violence, up to a total of 3 points for this item. Provided, that this item does not apply where the sentences are considered related because the offenses occurred on the same occasion. U.S.S.G. § 4A1.1(f).
Furthermore, with respect to Mooney's efforts to collaterally attackthe failure to downward depart, the sentencing excerpts quoted above makeit clear that on counsel's rather strenuous urging the Court fullyconsidered the contours of Mooney's criminal history in light of theseverity of his sentence, declining to exercise the discretion itrecognized it had. Even on direct appeal, Mooney could not succeed onthis score. United States v. Gendraw, 337 F.3d 70, 72 (1st Cir.2003) ("As a general rule, this Court has no authority to review DistrictCourt decisions to deny a downward departure."). Once again, collateral attack for claims that do not allegeconstitutional or jurisdictional errors are not cognizable unless thealleged error presents "a fundamental defect which inherently results ina complete miscarriage of justice" or "an omission inconsistent with therudimentary demands of fair procedure." Hill, 368 U.S. at 428;see also Knight, 37 F.3d at 772-73. Mooney's two challenges tothe Court's sentencing determinations fall far shy of raising concerns ofthis magnitude.
For the foregoing reasons, I recommend that the Court DENYMooney's 28 U.S.C. § 2255 motion.
A party may file objections to those specified portions of a magistrate judge's report or proposed findings or recommended decisions entered pursuant to 28 U.S.C. § 636(b)(1)(B) for which de novo review by the district court is sought, together with a supporting memorandum, within ten (10) days of being served with a copy thereof. A responsive memorandum shall be filed within ten (10) days after the filing of the objection. Failure to file a timely objection shall constitute a waiver of the right to de novo review by the district court and to appeal the district court's order.
1. There was some discussion about the fact that the structure,initially identified as a dwelling, was in fact a commercial building.However, defense counsel conceded that, while he could make some argumentalong this line, he did not think this factor would change the complexionof the issue. (Id. at 29.)
2. The Court also rejected the petitioner's own definition whichrequired that the predicate conviction had to have an element that theconduct presented a serious risk of physical injury to another.Id. at 596-97.
3. With respect to Armed Career Criminal prosecutions at issue inTaylor, 18 U.S.C. § 924(e)(2)(B) provides: (e)(1) In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g). (2) As used in this subsection — (B) the term "violent felony" means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that — (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another; 18 U.S.C. § 924(e). The First Circuit looks at cases interpretingboth the ACCA and the career offender provisions when undertaking acategorical approach to the predicate offense determination. UnitedStates v. Winn, ___ F.3d___, 2003 WL ___, * n.1 (1st Cir. Apr. 9,2004); United States v. Delgado, 288 F.3d 49, 52 n.5 (1st. Cir.2002).
4. Damon is a case that represents the flip-side of thisconcern. There, the United States was trying to prove that thedefendant's conduct actually qualified as a violent offense even thoughthe predicate state statutory crime had been determined to be typicallynon-violent.
5. The United States also proffers substantial alternative reasonswhy this claim has no merit. (Gov't Response Sec. 2255 Mot. at 32.)
6. In the presentence conference there was some discussion of theDecember 17, 1998, breaking and entry not qualifying for career offenderpurposes because police reports indicated that the property entered was avehicle and would not be considered a violent crime.
7. The United States contends that the subsequent criminal conductwas after each preceding arrest but that is not evident on thisrecord.
8. It is Mooney's burden to produce this evidence. See UnitedStates v. Correa, 114 F.3d 314, 318 (1st Cir. 1997) (section 2255movant has burden of producing a "formal indicia of consolidations; themere fact that sentencing occurred at the same time is not sufficientevidence that the convictions were consolidated for purposes ofsentencing).