Opinion
Criminal No. 09-10377-NMG
07-05-2016
UNITED STATES OF AMERICA v. CLEVELAND BRANDON
REPORT AND RECOMMENDATION RE: PETITIONER'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255
(DOCKET ENTRY # 29) BOWLER, U.S.M.J.
Pending before this court is a motion to vacate the sentence of pro se defendant Cleveland Brandon ("Brandon") under 28 U.S.C. § 2255 ("section 2255"). (Docket Entry # 29). The government opposes the motion which is ripe for review. (Docket Entry # 31).
On December 2, 2009, a grand jury convened in the United States District Court for the District of Massachusetts indicted Brandon on one count of being a felon in possession of a firearm and ammunition pursuant to 18 U.S.C. § 922(g)(1). On December 13, 2010, Brandon pled guilty to the one count Indictment and was subsequently sentenced to 180 months imprisonment, three years of supervised release, no restitution and a mandatory special assessment of $100. (Docket Entry # 27).
In the section 2255 motion, Brandon seeks to vacate his sentence and requests re-sentencing without any enhancement under 18 U.S.C. § 924(e), the Armed Career Criminal Act ("ACCA"). (Docket Entry # 29, p. 12). Brandon relies on Johnson v. United States, 135 S.Ct. 2551 (2015), as the basis for his section 2255 motion and argues that the decision exempts certain predicate offenses from contributing to a sentence enhancement under the ACCA. (Docket Entry # 29, pp. 7, 11). Ultimately, Brandon's argument calls for review of his status under the ACCA, in light of Johnson, to determine the propriety of an ACCA sentence enhancement.
An evidentiary hearing is not required to undertake this review. As discussed below, even accepting Brandon's non-conclusory statements of fact as true, he is not entitled to relief. See, e.g., David v. United States, 134 F.3d 470, 477 (1st Cir. 1998) (setting forth evidentiary hearing standard in section 2255 proceeding); United States v. McGill, 11 F.3d. 223, 225 (1st Cir. 1993) ("court need not give weight to conclusory allegations"); Myatt v. United States, 875 F.2d 8, 11 (1st Cir. 1989) (hearing not necessary if section 2255 motion "is conclusively refuted as to the alleged facts by the files and records of the case") (internal quotations omitted). Brandon fails to meet his burden of establishing the need for such a hearing. See United States v. McGill, 11 F.3d at 225 (recognizing that petitioner bears burden to establish need for evidentiary hearing in section 2255 proceeding).
BACKGROUND
On December 2, 2009, the one count Indictment issued against Brandon charging him with a violation of 18 U.S.C. § 922(g)(1). (Docket Entry # 1, p. 1). The Indictment charged Brandon with being a felon in possession of a firearm and ammunition; specifically, "a Colt .45 caliber semi-automatic pistol . . . and six rounds of .45 caliber ammunition." (Docket Entry # 1, p. 1). The Indictment also included a criminal forfeiture allegation.
On December 13, 2010, Brandon pled guilty to the one count Indictment. On April 4, 2011, the court sentenced Brandon to 180 months imprisonment, three years of supervised release, no restitution and a mandatory special assessment of $100. (Docket Entry # 27).
At the sentencing hearing, neither the government nor Brandon objected to the presentence investigation report ("PSR"). After adjusting the base level of the offense (24) downward by three points for Brandon's acceptance of responsibility, the court made a finding that Brandon was subject to the ACCA because he had at least three prior convictions. The court did not identify the prior predicate convictions at the sentencing hearing but did adopt the PSR without change in the judgment entered the following day. (Docket Entry # 27, p. 9). At the sentencing and in the judgment, the court imposed the statutory mandatory minimum sentence of 180 months, which exceeded the minimum guideline range of 168 months noted by the court during the sentencing and reflected in the PSR.
The criminal history portion of the PSR, as adopted by the court, includes six predicate offenses that provide a basis to classify Brandon as an armed career criminal under the ACCA. The six predicate offenses are as follows: (1) a June 14, 1995 plea of guilty in Massachusetts Superior Court (Plymouth County) to distribution of a Class A controlled substance, heroin, based on conduct that occurred in Brockton, Massachusetts on or about October 11, 1991; (2) another June 14, 1995 plea of guilty in Massachusetts Superior Court (Plymouth County) to distribution of a Class A controlled substance, heroin, based on conduct that occurred in Brockton on or about July 9, 1993; (3) an October 3, 1995 admission to sufficient facts and a guilty finding in the Massachusetts District Court Department (Brockton Division) to distribution of a Class A controlled substance, heroin, based on conduct that occurred in Brockton on or about June 11, 1992; (4) another October 3, 1995 admission to sufficient facts and a guilty finding in the same court to distribution of a Class A controlled substance, heroin, based on conduct that occurred in Brockton on or about July 20, 1992; (5) an October 29, 1998 plea of guilty in the Massachusetts District Court Department (Taunton Division) to distribution of a Class B controlled substance, cocaine, based on conduct that occurred in Taunton, Massachusetts on or about June 3, 1998; and (6) a February 26, 2003 plea of guilty in Massachusetts Superior Court (Bristol County) to distribution of a Class B controlled substance, cocaine, based on conduct that occurred in Taunton on or about February 28, 2001 and March 2, 2001. (PSR, pp. 8-10, 15, 17-19).
Discussion
I. Standard of Review
A prisoner may seek post-conviction relief from his sentence when that sentence is imposed: (1) in violation of the Constitution or the laws of the United States; or (2) by a court that lacked jurisdiction; or if that sentence (3) exceeded the statutory minimum or (4) is otherwise subject to collateral attack. 28 U.S.C. § 2255; see also Damon v. United States, 731 F.3d 1, 4 (1st Cir. 2013). "Section 2255 is not a surrogate for a direct appeal" and a petitioner bears the burden of establishing the necessity of relief from the sentence imposed. David v. United States, 134 F.3d 470, 474 (1st Cir. 1998); United States v. Cruz, 2015 WL 9272852, at *1 (D.Mass. Dec. 18, 2015).
II. Analysis
Brandon argues that the decision in Johnson v. United States, 135 S.Ct. 2551 (2015), exempts certain predicate offenses from contributing to his sentence enhancement under the ACCA and therefore asks this court to grant his section 2255 motion. (Docket Entry # 29, pp. 7, 11). Under the ACCA, three or more prior convictions "for a violent felony or a serious drug offense, or both, committed on occasions different from one another," may warrant a sentence enhancement where, as here, 18 U.S.C. § 922(g) is violated. 18 U.S.C. § 924(e)(1). A plea of guilty is regarded as a "conviction" for purposes of establishing predicate offenses under the ACCA. See Shepard v. United States, 544 U.S. 13 (2005) ("We agree with the First Circuit (and every other Court of Appeals to speak on the matter) that guilty pleas may establish ACCA predicate offenses"); cf. United States v. Moore, 286 F.3d 47, 50 (1st Cir. 2002) (considering defendant's plea of guilty to distribution of cocaine as a predicate offense under ACCA). The ACCA defines the terms "violent felony" and "serious drug offense."
A "violent felony" is a crime punishable for over one year of imprisonment that: "(i) has an element, the use, attempted use, or threatened use of physical force . . . [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)(2)(B) (emphasis added). The italicized portion of the definition pertaining to a violent felony is referred to as the ACCA's "residual clause." Johnson v. United States, 135 S.Ct. at 2555-56. The Court in Johnson faced the issue of whether "this part of the definition of a violent felony survives the Constitution's prohibition of vague criminal laws" and decided that the residual clause did not survive constitutional analysis, thereby barring certain offenses which would fall under the clause from contributing to an ACCA sentence enhancement. See id. at 2555, 2557.
As relevant here, a "serious drug offense" is a state law offense "involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance . . . for which a maximum term of imprisonment of ten years or more is prescribed by law." 18 U.S.C. § 924(e)(2)(A)(ii). "The plain text of ACCA requires a federal sentencing court to consult the maximum sentence applicable to a defendant's previous drug offense at the time of his conviction for that offense." McNeil v. United States, 563 U.S. 816, 820 (2011). The decision in Johnson did not alter the definition of a serious drug offense, but only the residual clause pertaining to certain violent felonies as predicate offenses. See Johnson v. United States, 135 S.Ct. at 2556.
Brandon's argument that his sentence enhancement must be re-evaluated in light of Johnson is misplaced because that Court singularly invalidated the residual clause of 18 U.S.C. § 924(e) pertaining to the definition of violent felonies, not any aspect of a "serious drug offense" considered to be a predicate offense under the ACCA. See Welch v. United States, 136 S.Ct. 1257, 1261 (2016) (reiterating that "Johnson Court held the residual clause unconstitutional under the void-for-vagueness doctrine") (emphasis added); Johnson v. United States, 135 S.Ct. at 2555-57 (deciding strictly that the residual clause definition of violent felony is unconstitutional); see also United States v. Darling, 619 Fed.Appx. 877, 880 n.5 (8th Cir. 2015) (commenting on irrelevance of Johnson to "serious drug offense" assessment); United States v. Turner, 624 Fed.Appx. 624, 626 (10th Cir. 2015) (suggesting impact of Johnson is restricted to residual clause, not to serious drug offense calculation). An ACCA sentence enhancement is valid on the basis of three prior convictions for either a "violent felony" or a "serious drug offense," or some combination thereof. 18 U.S.C. § 924(e)(1). This court specifically turns to whether three or more serious drug offenses — a category of offenses which remain unaltered in light of Johnson — exist to support Brandon's ACCA sentence enhancement.
Concluding that a prior conviction constitutes a "serious drug offense" calls for comparison of the pertinent state statute with 18 U.S.C. § 924(e)(2)(A)(ii). See, e.g., United States v. Moore, 286 F.3d 47, 49 (1st Cir. 2002); United States v. McMahon, 91 F.3d 1394, 1398 (10th Cir. 1996); United States v. Jefferson, 88 F.3d 240, 241-43 (3rd Cir. 1996); United States v. Williams, 20 F.3d 125, 132, 134 (5th Cir. 1994). Here, four of Brandon's offenses involve the distribution of heroin, a Class A substance, (PSR, pp. 8-10, 15) in violation of Massachusetts General Laws chapter 94C, section 32, which reads:
any person who knowingly or intentionally manufactures, distributes, dispenses, or possesses with intent to manufacture, distribute, or dispense a controlled substance in Class A of section thirty-one shall be punished by imprisonment in the state prison for not more than ten years or in a jail or house of correction for not more than two and one-half years or by a fine of not less than one thousand nor more than ten thousand dollars, or by both such fine and imprisonment.(emphasis added.) The state statute setting forth the offense for which Brandon has been convicted comports with the definition of a "serious drug offense" in 18 U.S.C. § 924(e)(2)(A)(ii) given that those convictions relate to "manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance [heroin] . . . for which a maximum term of imprisonment of ten years or more is prescribed by law." 18 U.S.C. § 924(e)(2)(A)(ii); see United States v. Matthews, 498 F.3d 25, 36 (1st Cir. 2010) (deciding that conviction for possession of heroin with intent to distribute is a "serious drug offense" under ACCA); cf. United States v. Weekes, 611 F.3d 68, 72 (1st Cir. 2010) (indicating that drug offenses in violation of Massachusetts law qualify as predicate offenses when state law authorizes maximum imprisonment of up to ten years). Accordingly, Brandon's convictions involving heroin are serious drug offenses.
Additionally, Brandon has two convictions for distribution of a Class B substance, cocaine, (PSR, pp. 17-19) which likewise constitute serious drug offenses under the ACCA. Massachusetts General Laws chapter 94C, section 32A ("section 32A") provides that:
any person who knowingly or intentionally manufactures, distributes, dispenses, or possesses with intent to manufacture, distribute, or dispense a controlled substance in Class B of section thirty-one shall be punished by imprisonment in the state prison for not more than ten years or in a jail or house of correction for not more than two and one-half years or by a fine of not less than one thousand nor more than ten thousand dollars, or by both such fine and imprisonment.(emphasis added). Brandon's two convictions for distribution of cocaine, a Class B substance, are thus properly considered serious drug offenses in light of this state law, given their nature and the maximum imprisonment term of ten years. See United States v. Hudson, 2016 WL 2621093, at *3 (1st Cir. May 9, 2016) ("a Massachusetts conviction for possession with intent to distribute a class B substance continues to qualify as a 'serious drug offense' under the ACCA"); United States v. Moore, 286 F.3d 47, 48-49 (1st Cir. 2002) (concluding that prior conviction under section 32A for possession of cocaine establishes "serious drug offense"); United States v. Gunn, 962 F.Supp. 214, 215-16 (D.Mass. 1997) (finding section 32A conviction comports with ACCA definition of "serious drug offense" notwithstanding possible maximum house of correction term of two and one-half years). In sum, Brandon has six serious drug offenses, mandating the conclusion that he qualifies as an armed career criminal properly subject to the ACCA sentence enhancement applied in his case.
CONCLUSION
In accordance with the foregoing discussion, this court RECOMMENDS that the motion to vacate, set aside, or correct sentence under section 2255 (Docket Entry # 29) be DENIED.
Any objections to this Report and Recommendation must be filed with the Clerk of Court within 14 days of receipt of the Report and Recommendation to which objection is made and the basis for such objection should be included. See Fed.R.Civ.P. 72(b). Any party may respond to another party's objections within 14 days after service of the objections. Failure to file objections within the specified time waives the right to appeal the order.
/s/ Marianne B. Bowler
MARIANNE B. BOWLER
UNITED STATES MAGISTRATE JUDGE