United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
WILLIAM G. YOUNG, DISTRICT JUDGE
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).
Grupee's Sentencing and Direct Appeal
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).
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),
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).
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.
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.
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.
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.
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