327 F.Supp.2d 54 (2004) | Cited 2 times | D. Maine | August 2, 2004


I. Introduction

Facing the sentencing provisions of 18 U.S.C. § 924(e) andU.S.S.G. § 4B1.4 as an Armed Career Criminal, Defendant DavidSanford challenged whether his four prior convictions constitutepredicate offenses under § 924(e)(2)(A) & (B). This Courtconcludes each of Mr. Sanford's prior convictions is either a"serious drug offense" within the meaning of § 924(e)(2)(A)(ii)or a "violent felony" within the meaning of § 924(e)(2)(B)(i).The Court will, therefore, apply the statutory and guidelineprovisions for Armed Career Criminal to Mr. Sanford.

II. Facts

On February 9, 2004, the Defendant, David Sanford, pleadedguilty to committing the following crimes on July 6, 2003: aHobbs Act Robbery, 18 U.S.C. § 1951(a); possession of a stolenfirearm, 18 U.S.C. § 922(j); felon in possession of a firearm,18 U.S.C. § 922(g)(1); and, possession with intent to distribute acontrolled substance, 21 U.S.C. § 841(a)(1), (b)(1)(C). In thepre-sentence investigation report, the Probation Officer listedthe following offenses as predicates to the Defendant beingsentenced as an armed career criminal: (1) a 1990 Massachusettsconviction for assault and battery with a dangerous weaponagainst James Sanford; (2) a 1995 Massachusetts conviction for possession of aClass B controlled substance with intent to distribute; and, (3)a 1997 Massachusetts conviction for larceny from a person. Sherecommended the Defendant be sentenced as an armed careercriminal under 18 U.S.C. § 924(e)1 and U.S.S.G. §4B1.4.2 Although the Probation Officer counted only the1990 assault and battery by a dangerous weapon conviction as apredicate offense, the PSR listed two Massachusetts convictionsfor assault and battery by a dangerous weapon: (1) a 1989conviction, when he assaulted Lawrence Bancroft with a baseballbat; and, (2) a 1990 conviction, when he assaulted James Sanfordwith a knife. At his sentencing hearing on July 20, 2004 during a colloquyconcerning the contents of the PSR, the Defendant raised aconcern about the accuracy of the criminal history. He claimedthe 1990 assault conviction had been mixed up with the 1989assault conviction and both convictions were for simple assault,not assault by a dangerous weapon. Although the issue was notsquarely raised, the implicit question is not only whether theconvictions were for simple assault, but also whether they shouldstill be counted as predicate convictions for a "violent felony"within the meaning of § 924(e).

Mr. Sanford's second question about criminal history waswhether the 1995 conviction for possession of a Class Bcontrolled substance with intent to distribute should be counted.He said he pleaded to possession, which carried a maximumsentence of 2 ½ years. He went on to say he understood that inorder to count as a predicate offense for armed career criminalstatus, the drug charge had to carry a ten-year maximum. He saidhe received a ninety-day sentence in the house of corrections.

In response, the Government submitted a series of exhibitsattesting to four prior convictions it alleged qualified aspredicate offenses under § 924(e): the 1989 conviction forassault and battery3 and the three convictions counted inthe PSR. Defendant's counsel represented he had fully exploredthese issues and ultimately concluded armed career criminalstatus would be applicable. He explained that Mr. Sanford wascorrect in stating the 1989 baseball assault had been reduced toa simple assault, but the 1990 knife assault had not. Inaddition, he had concluded under First Circuit precedent, the1995 Class B drug conviction counted as a predicate convictionand, when combined with the 1990 assault and battery by adangerous weapon and the 1997 larceny convictions, there were three predicate offensesmandating application of § 924(e).

During the ensuing colloquy, there was also a discussion aboutwhether Mr. Sanford qualified as a career offender under U.S.S.G.§ 4B1.1. Unlike the armed career criminal provisions, thepredicate offenses for career offender status are time-limited.The provisions of U.S.S.G. § 4A1.2 apply to the counting ofconvictions under U.S.S.G. § 4B1.1. See U.S.S.G. § 4B1.2 App.Note 3. If the conviction for assault by a dangerous weapon wasthe 1989 conviction, if a simple assault would not constitute a"crime of violence," and, if the 1995 drug charge did not count,career offender status would not be applicable because therewould be only one countable predicate offense: the 1997Massachusetts conviction for larceny from a person.

As the issues were presented unexpectedly and their resolutioncould have a significant impact on Defendant's sentence, theCourt continued the sentencing hearing to determine whether theDefendant should be classified as an armed career criminal under§ 924(e).

III. Discussion

A. The 1989 and 1990 Convictions.

The Court must first clarify what the criminal history recordsreveal. Government Exhibit #1 confirms that on July 12, 1989, theDefendant was convicted of assault in Massachusetts DistrictCourt. This incident was initially charged as assault and batteryby a dangerous weapon; the victim was Lawrence Bancroft. Thecomplaint alleges that on March 11, 1989, Mr. Sanford "did, bymeans of a dangerous weapon, baseball bat, assault and beatLawrence Bancroft." Mr. Sanford was sentenced to three months inthe house of corrections, but the sentence was suspended withprobation to July 11, 1991. When Mr. Sanford was convicted of the 1990 assault by a dangerous weapon, he was also found tohave violated his probation and ordered to spend three months inthe house of corrections.

On April 23, 1990, Mr. Sanford was involved in another assault.This time the victim was his brother, James Sanford, Jr. Thecustody report indicates that the Defendant was taken intocustody because of an assault by means of a knife. The policereport confirms that the brothers were involved in analtercation.4 James Sanford, Jr. claimed David Sanfordhad tried to cut him with a knife and their father led policeinside the house and pointed to a butcher knife beside the sink.On November 14, 1990, the District Court found David Sanfordguilty of assault by a dangerous weapon and sentenced him to oneyear in the house of corrections, ninety days direct, the balanceconcurrent with the 1989 assault, suspended with probation toNovember 14, 1991.

B. Factual Findings.

1. The Mixed-Up Allegation.

The records confirm beyond any reasonable doubt that Mr.Sanford's memory of which assault took place first is incorrect:in 1989, he assaulted his friend, Lawrence Bancroft; in 1990, heassaulted his brother, James Sanford.

2. The Reductions to Simple Assault.

Mr. Sanford is correct that the 1989 Bancroft conviction wasreduced from assault and battery by a dangerous weapon to simpleassault. He is incorrect that the 1990 assault and battery by adangerous weapon was reduced to simple assault.5 3. The Class B Possession With Intent To Distribute.

Mr. Sanford is partially correct on the 1995 Massachusettsconviction for Class B possession with intent to distributecocaine. He was initially charged with trafficking in cocaine, aviolation of Mass. Gen. L. ch. 94C, § 32E. According toGovernment Exhibit #3, he pleaded guilty on August 24, 1995 to asmuch of the charge that alleged Possession Class B With Intent ToDistribute and he was convicted of violating Mass. Gen. L. ch.94C, § 32A. He was sentenced to ninety days in the house ofcorrections on and after the sentence he was then currentlyserving, with seventy-one days credit for time held. The penaltyprovision for violating Possession Class B with Intent toDistribute was "imprisonment in the state prison for not morethan ten years, or in a jail or house of correction for not morethan two and one-half years. . . ." Mass. Gen. L. ch. 94C, §32A(a).

C. The Predicate Offenses Under 18 U.S.C. § 924(e) andU.S.S.G. § 4B1.4.

1. The 1989 Assault Conviction as a Predicate Offense.

The Court turns to the Defendant's 1989 assault and batteryconviction under Mass. Gen. L. ch. 265, § 13A.6 Gov't Ex.1. Whether a conviction for simple assault in violation of thisMassachusetts statute constitutes a "violent felony" for purposesof § 924(e)(2)(B)(i) is a question the First Circuit hasconsidered. United States v. Santos, 363 F.3d 19 (1st Cir.2004); United States v. Mangos, 134 F.3d 460, 463-64 (1st Cir.1998); United States v. Harris, 964 F.2d 1234 (1st Cir. 1992);United States v. Bregnard, 951 F.2d 457, 459-60 (1st Cir.1991); cert. denied, 504 U.S. 973 (1992); Caggiano v. UnitedStates, 1992 U.S. App. LEXIS 35533, *8 n. 5 (unpublishedopinion) ("Assault and battery unquestionably comes within thesection 924(e)(2)(B)(i) definition of violent felony since one element ofthe crime is the use of physical force against the person ofanother").

Under Taylor v. United States, the Supreme Court wrote §924(e) "mandates a formal categorical approach, looking only tothe statutory definitions of the prior offenses, not to theparticular facts underlying those convictions." 495 U.S. 575, 600(1990). The problem presented by § 13A is that the Massachusettsassault and battery statute "covers two separate crimes — oneinvolving actual (or potential) physical harm and the otherinvolving a `nonconsensual' but harmful touching." Harris, 964F.2d at 1236; see also Santos, 363 F.3d at 23; Mangos,134 F.3d at 463. Harris reviewed the PSR to determine the factsunderlying the assault and battery convictions and easilyconcluded the § 13A convictions in that case was the "physicallyharmful" or "potentially physically harmful" variety. FollowingHarris, the First Circuit has discussed whether and in whatcircumstances the sentencing court may "peek beneath thecoverlet" to determine whether the predicate crime was a crime ofviolence under § 924(e). United States v. Winter, 22 F.3d 15,18 (1st Cir. 1994).

This Court begins by focusing on the charging document.Santos, 363 F.3d at 23-24; United States v. Damon,127 F.3d 139, 145 (1st Cir. 1997). The 1989 assault complaint charged thatMr. Sanford "did, by means of a dangerous weapon, baseball bat,assault and beat Lawrence Bancroft." Without more, this chargealone is sufficient to establish the crime charged was the"physical harm," not the "nonconsensual, but harmful touching"variety. Santos, 363 F.3d at 23-24; Mangos, 134 F.3d at 464.There is no evidence in the record that the subsequent reductionof the charge to simple assault was based on a change in theunderlying facts from physical harm to nonconsensual touching. Tothe extent the sentencing court should venture further, theevidence is overwhelming that Mr. Sanford's 1989 § 13A convictionwas of the physical harm type. During the sentencing hearing, Mr. Sanford explained thecircumstances of the Bancroft assault conviction to the Court. Hestated that this was "another fight with — with a friend that Ihad grown up with, after a night of drinking, which was foolish."This Court concludes that the 1989 conviction for assault inviolation of Mass Gen. L. ch. 265, § 13A constituted a crimewithin the meaning of § 924(e)(2)(B)(i)'s definition of the "use,attempted use, or threatened use of physical force against theperson of another."

Finally, although the First Circuit did not explicitly addressthe significance of imprisonment in a "house of corrections," asopposed to state prison, Bregnard concluded the penalty under §13A satisfied the "greater than two years" requirement of thecareer criminal provision. Bregnard, 951 F.2d at 460-61.Accordingly, this Court holds the Defendant's 1989 convictionunder this Massachusetts statute constitutes a "violent felony"under § 924(e) and treats the 1989 conviction as a predicateoffense under the Armed Career Criminal provisions of federalstatutory law and the Sentencing Guidelines.

2. The 1990 Assault and Battery With Dangerous WeaponConviction.

Next, the Court addresses the Defendant's 1990 conviction forassault and battery with a dangerous weapon under Mass. Gen. L.ch. 265, § 15A(b).7 Gov't Ex. 2. The docket sheetreflects that Mr. Sanford was charged with and pleaded guilty toa violation of chapter 265, § 15B, assault by a dangerous weapon.Since the conviction carried a maximum term of imprisonment"exceeding one year," 18 U.S.C. § 924(e)(2)(B); and had as anelement the use of physical force against the person of another,id.; it is a "violent felony" within the meaning of §924(e)(2)(B)(i). 3. The 1995 Possession of a Class B Controlled SubstanceConviction.

The Court next looks to the Defendant's 1995 conviction forpossession of a Class B controlled substance with intent todistribute under Mass. Gen. L. ch. 94C, § 32A.8 Gov't Ex.3. Mr. Sanford was punished under the two and one-half yearmaximum for a house of correction sentence. Mass. Gen. L. ch.94C, § 32A(a). To constitute a "serious drug offense" under §924(e)(2)(A)(ii), the offense under state law must carry a"maximum term of imprisonment of ten years or more."18 U.S.C. § 924(e)(2)(A)(ii). Mr. Sanford contended that because the lowerpenalty was applied, the Class B Possession conviction should notcount as a predicate offense under § 924(e).

The Government cites Bregnard as dispositive. It is not.Bregnard involved a similar state statutory scheme, but underthe "violent felony" provision of § 924(e), which requires afelony for which the term of imprisonment exceeds one year,18 U.S.C. § 924(e)(2)(B)(i). Bregnard, 951 F.2d at 459-60. TheFirst Circuit in Bregnard easily concluded a maximum penalty oftwo and one-half years met this requirement. Id. at 460-61. Bycontrast, in the "serious drug crime" provision, the statutorydefinition is different; it requires the drug offense be subjectto at least a ten year maximum prison term. Bregnard did notresolve the question of whether a defendant who is sentenced inthe Massachusetts District Court for a violation of § 32A(a) andwhose sentence is jurisdictionally limited to a 2 ½ year term inthe house of corrections, has committed a "serious drug crime"under § 924(e)(2)(A)(ii), which requires conviction of a drugcrime for which the maximum term of imprisonment is at least tenyears.

However, the First Circuit resolved this issue in the case ofUnited States v. Moore, 286 F.3d 46, 49 (1st Cir. 2002) ("Therelevant state statute here, Mass. Gen. Laws ch. 94C, § 32A(a), allows for a maximum possible penalty of ten years'incarceration, and, thus, fits comfortably within the ambit of`serious drug offense' as that term is defined in18 U.S.C. § 924(e)(2)(A)(ii)"); see United States v. Gunn, 962 F. Supp. 214,215-16 (D. Mass. 1997), aff'd 141 F.3d 1150 (1st Cir.1988); cf. McCarthy v. United States, 135 F.3d 754, 756-57(11th Cir. 1998) (treating statutory maximum penalty underFlorida law as dispositive, notwithstanding that the Floridasentencing guidelines effectively capped the defendant's sentencefor the prior offense at four and one-half years). Mr. Sanford's1995 Possession of a Class B Controlled Substance With Intent toDistribute counts as a predicate offense under §924(e)(2)(A)(ii).

4. The 1998 Larceny From a Person Conviction.

Finally, the Court evaluates the Defendant's 1998 convictionfor larceny from a person under Mass. Gen. L. ch. 266, §25.9 Gov't Ex. 4. The First Circuit has held larceny froma person under this Massachusetts statute bears an inherent riskof violent outbreak and constitutes a crime of violence withinthe meaning of § 924(e). United States v. De Jesus,984 F.2d 21, 25 (1st Cir. 1993). Accordingly, this Court must count thiscrime towards the Defendant's armed career criminal status.

D. The Career Offender Issue.

For unexplained reasons, the parties argued about theapplication of U.S.S.G. § 4B1.1, the career offender provision ofthe Sentencing Guidelines. This Court declines to address whetherthe career offender provision could be applied to Mr. Sanford.The Court concludes the Armed Career Criminal provisions offederal statutory law and the Sentencing Guidelines apply and,therefore, to consider the career offender question would be toissue an advisory ruling. IV. Conclusion

This Court concludes all four of the Defendant's priorconvictions qualify as predicate offenses under18 U.S.C. § 924(e).


1. 18 U.S.C. § 924(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 — (A) the term "serious drug offense" means — (i) an offense under the Controlled Substances Act (21 U.S.C. § 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. § 951 et seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901 et seq.), for which a maximum term of imprisonment of ten years or more is prescribed by law; or (ii) an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. § 802), for which a maximum term of imprisonment of ten years or more is prescribed by law; (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. . . .

2. U.S.S.G. § 4B1.4(a): A defendant who is subject to an enhanced sentence under the provisions of 18 U.S.C. § 924(e) is an armed career criminal.

3. The PSR originally listed the 1989 conviction as assault bya dangerous weapon and this was the source of some confusion atthe sentencing hearing. However, the docket entries establishthat the 1989 conviction was reduced from assault and battery bya dangerous weapon to simple assault.

4. The First Circuit has discussed whether the sentencingcourt should rely upon police reports to determine whether aconviction fits within § 924(e)'s definition of a "violentfelony." See United States v. Delgado, 288 F.3d 49, 55-56(1st Cir. 2002). However, the question raised by Mr. Sanford waswhich assault occurred first. Whatever its limitations as thefactual basis for the ultimate conviction, the police report,which was admitted without objection as part of GovernmentExhibit #2, is probative evidence as to which crime took placefirst.

5. As it turns out, it makes no difference. The Courtconcludes that both convictions count as predicate offenses under§ 924(e)(2)(B)(i)'s definition of a "violent felony."

6. Mass. Gen. L. ch. 265, § 13A(a): Whoever commits an assault or an assault and battery upon another shall be punished by imprisonment for not more than 2 ½ years in a house of correction or by a fine of not more than $1,000.

7. Mass. Gen. L. ch. 265, § 15A(b): Whoever commits an assault and battery upon another by means of a dangerous weapon shall be punished by imprisonment in the state prison for not more than 10 years or in the house of correction for not more than 2 ½ years, or by a fine of not more than $5,000, or by both such fine and imprisonment.

8. The crime was originally charged under Mass. Gen. L. ch.94C, § 32E but the Defendant pled to a violation of Mass. Gen. L.ch. 94C, § 32A.

9. Mass. Gen. L. ch. 266, § 25(b): Whoever commits larceny from a person by stealing from the person of another shall be punished by imprisonment in the state prison for not more than five years or in jail for not more than two and one-half years.

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