United States District Court, D. Massachusetts
MEMORANDUM & ORDER REGARDING DEFENDANT'S
MOTION TO VACATE UNDER 28 U.S.C. § 2255 (DKT. NO.
MICHAEL A. PONSOR U.S. District Judge
Jose Cruz has brought this petition pursuant to 28 U.S.C.
§ 2255, based on Johnson v. United States, 135
S.Ct. 2551 (2015) (Johnson II), and Johnson v.
United States, 559 U.S. 133 (2010) (Johnson I),
seeking to vacate and correct his 2006 sentence. For the
reasons that follow, the court will deny the petition.
December 22, 2005, Defendant pleaded guilty to a single
charge of being a felon in possession of a firearm and
ammunition in violation of 18 U.S.C. § 922(g)(1). On
August 31, 2006, Defendant was sentenced to a minimum
mandatory term of 180 months under the Armed Career Criminal
Act (“ACCA”), 18 U.S.C. § 924(e).
Eligibility for sentencing under this statute requires three
prior predicate convictions. The convictions that mandated
this designation at the time of Defendant's sentencing
were a 1996 conviction for assault and battery with a
dangerous weapon (ABDW) and two other convictions for
distribution of a class A substance. It is undisputed that
the drug convictions were, and remain, proper predicates.
Defendant contends, however, that after Johnson I
and Johnson II his conviction for ABDW can no longer
constitute a valid predicate for his ACCA designation. With
only two predicates, he argues, the mandatory fifteen-year
sentence was improper and must be vacated.
addressing the merits of Defendant's argument, the court
must first dispose of the government's assertion of
procedural default. This can be done quickly, as the court
has previously addressed this issue. United States v.
Lattanzio, No. 93-CR-30017-MAP, slip op. at 5-6 (D.
Mass. Feb. 8, 2017) (citing other cases); United States
v. Aponte, No. 11-CR-30018-MAP, __ F.Supp.3d__, 2016 WL
5338505, at *1 (D. Mass. Sept. 22, 2016). Briefly, Defendant
satisfies both the cause and prejudice requirements for
collateral review. Cause may be found in the fact that, as of
2006, the Supreme Court's holdings in the
Johnson cases could scarcely have been anticipated.
The possibility of a sentence reduction if Defendant is no
longer ACCA-eligible establishes prejudice.
to the merits of Defendant's petition, the issue before
the court is whether Defendant's conviction for ABDW
continues to qualify as a predicate offense under the ACCA.
Defendant's argument is two-fold. First, he contends that
the crime of ABDW in Massachusetts is indivisible. See
Descamps v. United States, 133 S.Ct. 2276, 2283 (2013)
(stating that where a statute is indivisible, a conviction
cannot serve as an ACCA predicate if the statute
“sweeps more broadly” than a generic version of
the crime). Second, he argues that, because the Massachusetts
statute for ABDW encompasses conduct that may be either
intentional or reckless, his ABDW conviction cannot serve as
a predicate offense under the ACCA. See Johnson I,
559 U.S. at 140 (finding that “in the context of a
statutory definition of ‘violent felony, '
the phrase ‘physical force' means violent
force -- that is, force capable of causing physical pain or
injury to another”).
is correct that the crime of ABDW in Massachusetts
encompasses both intentional and reckless conduct. United
States v. Tavares, 843 F.3d 1, 12 (1st Cir. 2016).
However, in Tavares the First Circuit also held,
contrary to Defendant's argument, that in Massachusetts
the common law crime of ABDW is divisible.
Id. at 13. Moreover, the First Circuit concluded
that the intentional version of ABDW “qualifies as a
crime of violence” for purposes of an armed career
criminal designation. Id. The question of whether
the reckless form of ABDW might also qualify as an
ACCA predicate offense was explicitly left open by the First
Circuit in Tavares. Id. at 19 (stating
“we stop short of finally deciding now whether a
conviction under the reckless version of ABDW qualifies as a
crime of violence”).
faced this question after the Tavares decision, this
court, joining several others, has concluded that the
reckless form of ABDW does not qualify as a
predicate offense. Lattanzio, slip op. 16.
at least before this court as the law stands now, Defendant
might be entitled to relief from his sentence if he was
convicted of the reckless form of ABDW. Here, unfortunately,
is where Defendant's argument founders. Given that the
crime of ABDW is divisible, the court must examine the
record, under Shepard v. United States, 544 U.S. 13,
26 (2005), to determine whether cognizable documents exist
that will clarify whether Defendant was convicted in 1996 of
the reckless form of ABDW, which cannot form a predicate
under the ACCA, or the intentional version, which can.
government asserts that it is Defendant's burden to
produce these Shepard documents to show he was
not convicted of the intentional form of the felony.
This assertion is incorrect. In Tavares, the First
Circuit held that this burden lies with the government.
Tavares, 843 F.3d at 20 (stating that the
government, not the defendant, would have “the
opportunity to put forth Shepard documents”).
for Defendant, the government in this case, in fact, has
identified Shepard-approved documents clearly
demonstrating that Defendant's 1996 ABDW conviction was
for the intentional version of ABDW that unquestionably
qualifies, under Tavares, as an ACCA predicate. The
transcript of Defendant's 1996 trial on the ABDW charge
(among other charges) included the jury
instructions.These unambiguously demonstrate that
Defendant was charged and convicted of the intentional
version of ABDW; the trial court did not instruct at all on
the reckless version of the offense. (1996 Trial Tr.
4-137:20-21 (instructing that the second element of the ABDW
charge required a “touching [that] was intentional,
intentional in that it didn't happen by accident”),
Dkt. No. 43, Attach. 2.)
though Defendant is correct that not all forms of ABDW
qualify as a crime of violence for purposes of an armed
career criminal designation, Shepard documents
offered by the government establish that Defendant was in
fact convicted in 1996 of the version of ABDW that qualifies
as a crime of violence. Tavares, 843 F.3d at 13.
Indeed, Defendant's brief does not argue otherwise. With
a qualifying ABDW conviction, as well as two serious drug
offenses, Defendant remains in the category of an armed
career criminal. See 18 U.S.C. § 924(e)(1).
foregoing reasons, Defendant's Motion to Vacate (Dkt. No.
27) is hereby DENIED. The case may now be closed.