United States District Court, D. Massachusetts
MEMORANDUM AND ORDER REGARDING DEFENDANT'S MOTION
TO CORRECT SENTENCE UNDER 28 U.S.C. § 2255 (DKT. NO.
MICHAEL A. PONSOR, U.S. DISTRICT JUDGE
Vincent Lattanzio has brought this petition pursuant to 28
U.S.C. § 2255, seeking to vacate his sentence based on
his incorrect designation as an armed career criminal. The
government opposes. For the reasons that follow, the court
will allow Defendant's motion.
April 21, 1995, the late Judge Frank H. Freedman sentenced
Defendant to an aggregate term of 353 months for robbing an
armored car, being a felon in possession of a firearm, and
using a firearm during the commission of a crime of violence.
The length of the sentence was enhanced substantially by the
court's finding that Defendant qualified as an armed
career criminal under 18 U.S.C. § 924(e). The Armed
Career Criminal Act (“ACCA”) dictates that, to
receive an enhanced sentence, a defendant must have been
convicted on at least three separate, prior occasions of a
predicate “violent felony or a serious drug
offense.” § 924(e)(1).
ACCA, as passed by Congress, defined a “violent
felony” in two ways: first as a crime that “has
as an element the use, attempted use, or threatened use of
physical force against the person of another”; or,
alternatively, as one of several specified crimes or an
equivalent crime that “presents a serious potential
risk of physical injury to another.” §
924(e)(2)(B)(i) & (ii). These two ways of qualifying for
an enhanced sentence under the ACCA are sometimes referred to
as the “force” clause and the
2015, the Supreme Court held that the “residual”
clause (excluding the specified crimes) was
unconstitutionally vague. Johnson v. United States,
135 S.Ct. 2551 (2015) (“Johnson II”).
Today, that portion of the statute is no longer available to
anchor a sentence enhancement under the ACCA, and defendants
previously sentenced under that section of the statute can
move to amend their sentences. Welch v. United
States, 136 S.Ct. 1257, 1265 (2016).
years earlier, the Supreme Court construed the
“force” clause of the ACCA as requiring
“violent force --that is, force capable of
causing physical pain or injury to another person.”
Johnson v. United States, 559 U.S. 133, 140 (2010)
(emphasis in original) (“Johnson I”).
Unless a defendant has been convicted of one of the crimes
specifically enumerated under § 924(e)(B)(ii), this
narrowed “force” clause offers the only basis
today for an ACCA enhancement based upon prior convictions
for a violent felony.
in this case was found at the time of his sentencing to
qualify for an enhanced sentence under the ACCA based on four
predicate offenses: (1) a 1973 conviction purportedly for
assault by means of a dangerous weapon (ADW); (2) a 1977
conviction for assault and battery by means of a dangerous
weapon (ABDW) and armed robbery; (3) a 1977 conviction for
armed robbery, kidnapping, and ABDW; and (4) a 1982
conviction for possession of a sawed-off shotgun.
contends, based on the Johnson cases, that none of
these convictions any longer qualifies as a predicate offense
for purposes of the enhanced sentencing provisions of the
ACCA and that he is therefore entitled to re-sentencing. He
argues that at re-sentencing his likely maximum sentence will
be substantially lower than the term he has already served.
opposition to this petition, the government offers
essentially two arguments. First, it contends that Defendant is
barred from bringing this petition because he has
procedurally defaulted and cannot demonstrate the required
“cause and prejudice” to seek relief now. Second,
it argues that at least three of the four convictions relied
upon by Judge Freedman at the 1995 sentencing remain valid
predicates under the ACCA.
argument may be quickly disposed of. The undersigned has
recently rejected the identical contention, finding that a
Johnson-based claim under 28 U.S.C. § 2255
satisfies the novelty requirement for cause set forth in
Reed v. Ross, 468 U.S. 1, 15 (1984). United
States v. Aponte, No. 11-CR-30018-MAP, ___ F.Supp.3d
___, 2016 WL 5338505, at *1 (D. Mass. Sept. 22, 2016). This
case is even stronger than Aponte. In 1995, when
Defendant here was sentenced, any argument based on the
rationales approved twenty years later in the
Johnson cases would have been not only novel, but
practically unimaginable. The likelihood that the successful
outcome of this proceeding will result in a lower sentence is
sufficient to demonstrate prejudice. Judges from this
district have unanimously rejected this “cause and
prejudice” argument. Virden v. United States,
No. 09-10325-LTS (D. Mass. February 3, 2017), slip op. at 6
(collecting cases); Cruz v. United States, No.
09-CR-10104-RWZ (D. Mass. Jan. 26, 2017); United States
v. Webb, Nos. 01-CR10267-WGY & 06-CR-10251-WGY, ___
F.Supp.3d ___, 2016 WL 6647929 (D. Mass. Nov. 9, 2016).
as noted, challenges all four convictions as proper ACCA
predicate offenses. The government does not contest
Defendant's position that possession of a sawed-off
shotgun is no longer a crime of violence under the ACCA. It
argues, however, that all three remaining convictions
constitute legitimate predicate offenses. The
government's argument is unpersuasive, as the discussion
of each of these convictions below will demonstrate.
The Ambiguous 1973 Conviction for ADW
to the Pre-Sentence Report, the government contends that
Defendant was convicted in 1973 of assault with a dangerous
weapon (“ADW”). (Dkt. No. 368, Attach. 6.) If
Defendant was convicted of this crime, it would constitute a
predicate ACCA offense, under controlling First Circuit law.
United States v. Whindleton, 797 F.3d 105, 116 (1st
by no means clear, however, that the 1973 conviction was for
ADW, rather than ABDW. The evidence on this point is
decidedly mixed, with the ...