United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANT'S MOTIONS TO APPOINT COUNSEL AND TO VACATE, CORRECT, OR SET ASIDE HIS SENTENCE
F. DENNIS SAYLOR, District Judge.
Defendant Junior Alexander Lopez pleaded guilty in October 2011 to two separate and unrelated indictments. He pleaded guilty to one count of being a felon in possession of a firearm and one count of possession with intent to distribute cocaine base. In a separate indictment, he pleaded guilty to one count of conspiracy to defraud the government with respect to claims and sixteen counts of false, fictitious, and fraudulent claims. After pleading guilty, he was sentenced to a term of imprisonment.
Lopez has now moved to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, contending that he was unlawfully sentenced as a career offender because one of his predicate convictions was reduced (from assault and battery on a police officer to assault and battery) by the state court after he was sentenced. The state court expressly reduced the conviction in order to permit Lopez to seek a lower sentence in this Court by means of a § 2255 petition. He has also moved for appointment of counsel. For the reasons stated below, the motions will be denied.
On December 9, 2011, Junior Alexander Lopez pleaded guilty to two separate indictments charging him with one count of felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e); one count of possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a); one count of conspiracy to defraud the government with respect to claims, in violation of 18 U.S.C. § 286; and sixteen counts of false, fictitious, and fraudulent claims, in violation of 18 U.S.C. § 287.
On May 10, 2012, this Court sentenced Lopez to a term of 262 months. The Court determined that he was a career offender based on two prior convictions: a Worcester District Court conviction for assault and battery on a police officer and a Dudley District Court conviction for possession with intent to distribute a Class B substance in a school zone. On April 10, 2013, the First Circuit affirmed his sentence.
Meanwhile, on October 18, 2012, Lopez had filed a "Motion to Set Aside Guilty Plea and Vacate Convictions with Grounds" in the Worcester District Court as to his conviction for assault and battery on a police officer. In that motion, he claimed that his counsel failed to inform him of the elements of the offense, the possible consequences of a conviction, and his possible defenses.
On March 27, 2013, the Worcester District Court reduced his sentence from assault and battery on a police officer to assault and battery. The hearing lasted approximately two-and-ahalf minutes. The defendant was not present. There is no evidence that the victim of the crime was aware of the hearing or the change in disposition.
During the hearing, Lopez's counsel simply argued that Lopez was classified as a career offender and had received a lengthy sentence in federal court. Counsel stated that if the judge granted the motion, Lopez would have the "opportunity to go back in front of Judge Saylor and try to have the sentence reduced to 18 years instead of 24 [sic]." Counsel never mentioned any of the grounds raised in the motion, and the judge did not state any reasons for granting it. There is no evidence that the judge who reduced the charge was the same judge who had accepted the plea in the first instance.
The entire transcript of the hearing is reproduced here:
Clerk: Alexander Lopez.
Clerk: This matter was on today for a motion and they turned in a plea.
Judge: Attorney O'Hara, good morning.
O'Hara: Good morning your honor.
Judge: Agreed upon recommendation?
O'Hara: Yes, you (unk) uh, Mr. Lopez is in federal custody. I am here representing him pro bono, ...