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United States v. Lattanzio

United States District Court, D. Massachusetts

February 8, 2017

UNITED STATES OF AMERICA
v.
VINCENT LATTANZIO, Defendant.

          MEMORANDUM AND ORDER REGARDING DEFENDANT'S MOTION TO CORRECT SENTENCE UNDER 28 U.S.C. § 2255 (DKT. NO. 355)

          MICHAEL A. PONSOR, U.S. DISTRICT JUDGE

         I. INTRODUCTION

         Defendant 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.

         II. BACKGROUND

         On 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).

         The 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 “residual” clause.

         In 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).

         Five 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.

         Defendant 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);[1] (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.

         Defendant 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.

         III. DISCUSSION

         In opposition to this petition, the government offers essentially two arguments.[2] 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.

         A. Procedural Default

         This 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).

         B. Predicate Convictions

         Defendant, 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.

         1. The Ambiguous 1973 Conviction for ADW

         Pointing 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 Cir. 2015).

         It is 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 ...


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