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United States v. Grupee

United States District Court, D. Massachusetts

November 29, 2016

UNITED STATES OF AMERICA,
v.
AUSTIN GRUPEE, Defendant.

          MEMORANDUM AND ORDER

          WILLIAM G. YOUNG, DISTRICT JUDGE

         I. INTRODUCTION

         This case presents this Court with the narrow issue of whether, in light of Johnson v. United States, 135 S.Ct. 2551 (2015), and the Court's interpretation of Johnson in United States v. Ramirez, No. 10-10008-WGY, 2016 WL 3014646 (D. Mass. May 24, 2016), petitioner Austin Grupee ("Grupee") is entitled to relief under 28 U.S.C. § 2255, where Grupee was not deemed a career offender under the residual clause of the United States Sentencing Guidelines ("Sentencing Guidelines"), U.S.S.G. §§ 4B1.1, 4B1.2(a)(2), but had his sentencing range calculated based on two prior offenses qualifying as crimes of violence under the residual clause of the Sentencing Guidelines, id. §§ 2K2.1, 4B1.2(a)(2).

         A. Grupee's Sentencing and Direct Appeal

         After being charged with being a felon in possession of a firearm and possession of cocaine with intent to distribute in 2008, Grupee pled guilty in 2010 and was sentenced by this Court on March 10, 2011. Sealed Indictment, ECF No. 1; Electronic Clerk's Notes, ECF No. 37; Electronic Clerk's Notes, ECF No. 47. In sentencing Grupee, this Court considered two relevant prior convictions, one for assault and battery on a police officer ("ABPO") and one for resisting arrest. Tr. Disposition, ECF No. 53. This Court concluded that ABPO was not a crime of violence under the Sentencing Guidelines but held that resisting arrest was, resulting in a base offense level of 25. Id. at 15:2-5, 27:4-9. This conclusion led this Court to calculate an applicable sentencing range of 110 to 137 months, from which the Court departed downward, sentencing Grupee to 102 months "in light of the sentences imposed on other similarly situated offenders, " while noting that Grupee's crimes were "extraordinarily serious crimes." Id. at 27:8-13. Grupee appealed his conviction and sentence, arguing, inter alia, that none of his predicate convictions were crimes of violence under the Sentencing Guidelines. United States v. Grupee, 682 F.3d 143, 148 (1st Cir. 2012). The First Circuit affirmed the judgment and the sentence after holding that in addition to resisting arrest, ABPO was also a crime of violence under the residual clause of the Sentencing Guidelines. Id. at 149. The Supreme Court denied certiorari the same year. Grupee v. United States, 133 S.Ct. 581 (2012).

         B. Legal Backdrop

         After Grupee's sentence became final, the Supreme Court decided Johnson, holding that the residual clause of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), violated due process. Johnson, 135 S.Ct. at 2556. In Welch v. United States, 136 S.Ct. 1257, 1268 (2016), the Supreme Court confirmed that Johnson was retroactive as applied to the ACCA, under the Teague v. Lane, 489 U.S. 288 (1989), framework.

         The ACCA increases the sentencing range of a defendant convicted of being a felon in possession of a firearm under 18 U.S.C. § 922(g) from a maximum of ten years in prison to a minimum of fifteen years in prison if they have three or more prior convictions for a "serious drug offense" or a "violent felony." 18 U.S.C. § 924(e)(1). The ACCA defined "violent felony" as "any crime punishable by imprisonment for a term exceeding one year, " 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." Id. § 924(e) (2) (B) (emphasis placed on what is known as the "residual clause" of the ACCA).

         The Sentencing Guidelines include an identically worded definition for "crime of violence" -- its "otherwise" clause known as the Sentencing Guidelines' residual clause. U.S.S.G. § 4B1.2(a)(2). The term "crime of violence" serves multiple functions in the Sentencing Guidelines. An important one is defining who qualifies as a career offender under U.S.S.G. § 4B1.1:

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.

Id. § 4B1.1(a). A designation as career offender increases an offender's criminal history to Category VI, the maximum possible, and may also increase their offense level - two variables that determine the initial suggested sentencing range. Ramirez, 2016 WL 3014646, at *7.

         Following Johnson and Welch, this Court posed a two-part question in Ramirez: 1) whether the Sentencing Guidelines' residual clause also violated due process and 2) whether Johnson as applied to the career offender sentencing enhancement under the advisory Sentencing Guidelines' residual clause was retroactively applicable to collateral petitions. Id. at *2. The Court then answered both questions "yes." Id. at *10.

         The term "crime of violence, '' however, supports an increase in an offender's offense level or criminal history category in a multitude of other circumstances throughout the Sentencing Guidelines. See, e.g., U.S.S.G. §§ 2K2.1(a) (receipt, possession, transportation, and transaction of firearms and ammunition), 2L1.2(b) (unlawfully entering and remaining in the United States), 2S1.1(b) (money laundering), 3B1.5 (use of body armor), 4A1.1 (criminal history category); see also Id. §§ 5K2.17 (upward departures for certain possession of semiautomatic firearm), 7B1.1 (classification of probation and supervised release violations). This Court's narrow answer in Ramirez did not address the entire extent of the deployment of the term "crime of violence" and its definitional residual clause within the Sentencing Guidelines.

         Here, Grupee's sentencing range calculation under Sentencing Guidelines Section 2K2.1(a)(3) increased his offense level if, inter alia, at least one of his prior convictions qualified as a crime of violence under the ...


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