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Fagan v. United States

United States District Court, D. Massachusetts

June 20, 2017

MAURICE J. FAGAN
v.
UNITED STATES OF AMERICA

          MEMORANDUM OF DECISION

          RYA W. ZOBEL SENIOR UNITED STATES DISTRICT JUDGE

         Petitioner Maurice J. Fagan moves this court to vacate and correct his sentence pursuant to 28 U.S.C. § 2255. He claims that in light of the Supreme Court's decisions in Johnson v. United States, 135 S.Ct. 2551 (2015) (“Johnson II”) and Welch v. United States, 136 S.Ct. 1257 (2016), he is no longer an armed career criminal under the Armed Career Criminal Act of 1984 (“ACCA”). Specifically, he contends that after these decisions, two of his prior convictions, assault and battery with a dangerous weapon (“ABDW”) and assault and battery (“A&B”)[1] do not qualify as “violent felonies” such that they lead to his classification as an armed career criminal. See 18 U.S.C. § 924(e)(1)-(2). The government maintains that because Fagan has five prior convictions for “serious drug offenses, ” he remains an armed career criminal.

         I. Background

         As relevant to the instant motion, on March 18, 2008, Fagan was convicted by a jury of possession of cocaine base with intent to distribute, 21 U.S.C. § 841(a)(1), and being a felon in possession of ammunition, 18 U.S.C. § 922(g)(1). Prior to his trial, the government filed two Informations, pursuant to 21 U.S.C. § 851, giving notice that it would seek increased punishment based on the following criminal convictions:

1. Manufacturing/Distribution/Dispense of Class B Substance, Mass. Gen. Laws ch. 94C, § 32A; date of conviction 07/20/1992.
2. Possession with Intent to Distribute Class B Substance, Mass. Gen. Laws ch. 94C, § 32A; date of conviction 09/21/1993.
3. Possession of Class B Substance with Intent to Distribute/Manufacture, Mass. Gen. Laws ch. 94C, § 32A, and Conspiracy to Violate the Controlled Substance Laws, Mass. Gen. Laws ch. 94C, § 40; date of conviction 09/21/1993.
4. Distribution/Manufacturing of a Class B Substance, Mass. Gen. Laws ch. 94C, § 32A; date of conviction 09/24/1996.
5. Distribution/Manufacturing of a Class B Substance, Mass. Gen. Laws ch. 94C, § 32A; date of conviction 09/24/1996.

See Docket ## 42, 44, 45; see also Presentence Investigation Report (“PSR”) ¶¶ 47-51.

         Fagan was sentenced on June 11, 2008. At sentencing, the court found that his United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) range was 262 to 327 months of imprisonment. See Docket # 80, at 3. This range was based on the Career Offender Guideline, U.S.S.G. §§ 4B1.1, 4B1.2, with Fagan's five prior drug convictions as well as his ABDW and A&B convictions qualifying him as a career offender. See PSR ¶ 59. These same underlying convictions qualified Fagan as an armed career criminal under the ACCA, see PSR ¶ 60, which meant that he faced a mandatory minimum sentence of 15 years (180 months) of imprisonment.

         The government recommended 262 months of imprisonment, and Fagan asked for the 15-year mandatory minimum under the ACCA. The court noted that Fagan went to trial and so was not getting a reduction in his Guidelines range for acceptance of responsibility. See Docket # 80, at 7. Fagan went to trial, the court recalled, “only because he was facing a life sentence and literally had nothing to lose.” Id. The court stated that “under other circumstances [it] would say he is entitled to acceptance of responsibility, ” in which case his Guidelines range would have been 168 to 210 months of imprisonment. Id. at 8. The court found that to be “a more rational guideline, ” and accounting for this Guidelines range as well as Fagan's “lengthy record, ” sentenced Fagan to 210 months - 17.5 years - of imprisonment. Id.

         On June 21, 2016, petitioner filed the instant § 2255 motion seeking to vacate and correct his sentence in light of Johnson II. See Docket # 81.[2]

         II. ...


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