United States District Court, D. Massachusetts
For USA, Plaintiff: John A. Capin, LEAD ATTORNEY, United States Attorney's Office, Boston, MA.
MEMORANDUM AND ORDER ON PETITIONER'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE
F. Dennis Saylor IV, United States District Judge.
Petitioner Miguel Almenas pleaded guilty in March 2006 to distribution of
cocaine base and aiding and abetting. After pleading guilty, he was sentenced to a term of imprisonment. He now moves to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, contending that he was unlawfully subjected to career offender status. For the reasons stated below, the motion will be denied.
On March 31, 2006, Almenas pleaded guilty to a three-count indictment charging him with distribution of cocaine base in violation of 21 U.S.C. § 841(a)(1), and aiding and abetting in violation of 18 U.S.C. § 2. At a sentencing hearing on October 12, 2006, the Court found that the career-offender guidelines applied to defendant, as he was over 18 at the time of the offense, the offense involved a controlled substance, and he had two prior felony convictions of either a crime of violence or a controlled substance offense. See, U.S.S.G. § 4B1.1(a). Those prior convictions include resisting arrest, which the Court found to be a crime of violence. (Sent. Tr. 5). The Court sentenced him, as a career offender, to 192 months in prison. ( Id. at 23-24).
Almenas appealed his sentence, contending that his prior conviction for resisting arrest was incorrectly categorized as a crime of violence, and thus was not a predicate offense for the purposes of career offender status. On January 12, 2009, the First Circuit affirmed his sentence. United States v. Almenas, 553 F.3d 27 (1st Cir. 2009). On May 18, 2009, the Supreme Court denied his petition for a writ of certiorari. United States v. Almenas, 556 U.S. 1251, 129 S.Ct. 2415, 173 L.Ed.2d 1320 (2009).
On November 18, 2013, Almenas moved to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. He contends that the Court erred in classifying his prior conviction for resisting arrest as a crime of violence in light of the Supreme Court's decision in Descamps v. United States, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), decided after his sentencing hearing. In Descamps, the Supreme Court held that when a defendant is convicted under a divisible statute that creates several different versions of a crime, and one version of the crime may qualify as a crime of violence but another version may not, courts should use a " modified categorical approach" in determining whether a past conviction is a crime of violence within the meaning of the Armed Career Criminal Act. 18 U.S.C. § 924(e)(2)(B); Descamps, 133 S.Ct. at 2281. Under that approach, a sentencing court must determine, based on extra-statutory materials (for example, indictment, plea colloquy, jury instructions), whether the defendant's particular conviction meets the definition of " crime of violence" under the Guidelines. Id.
A court may grant post-conviction relief under 28 U.S.C. § 2255 on the grounds that the sentence (1) was imposed in violation of the Constitution or laws of the United States, (2) was imposed by a court that lacked jurisdiction, (3) was in excess of the statutory maximum, or (4) was otherwise subject to collateral attack. David v. United States, 134 F.3d 470, 474 (1st Cir. 1998). Petitioner's claim here is not based on a constitutional or jurisdictional defect and his sentence was not in excess of the statutory maximum; the claim thus must be analyzed under the fourth category.
A. The Limitations Period and the Savings Clause of 28 U.S.C. § 2255
Petitioner moved to vacate, set aside, or correct his sentence under ...