United States District Court, D. Massachusetts
MEMORANDUM & ORDER REGARDING DEFENDANT'S
MOTIONS TO VACATE OR CORRECT SENTENCE (DKT. NOS. 39 &
MICHAEL A. PONSOR, UNITED STATES DISTRICT JUDGE
has moved for resentencing based on the fact that he was
mis-designated under the Armed Career Criminal Act, 18 U.S.C.
§ 924(e) (“ACCA”). He has also moved to
withdraw his guilty plea on the ground that the chemist who
evaluated the drug sample supporting his guilt was
subsequently found to be corrupt.
reasons set forth below, the motion for resentencing will be
allowed (Dkt. No. 39), and the motion to vacate the guilty
plea will be denied (Dkt. No. 74).
facts are straightforward. At the time Petitioner was
considering whether to plead guilty, he appeared to be facing
a sentencing guideline range of 248 to 295 months. This range
was based upon his career offender status under § 4B1.1
of the sentencing guidelines, which generated a total offense
level of 31 and a criminal history category of VI, fixing a
confinement range of 188 to 235 months, plus a mandatory
consecutive sentence of 60 months. At the same time, he faced
what appeared to be a granite floor to his sentence of 180
months, the mandatory term given that he was designated --
incorrectly, as we now know -- an armed career criminal.
these circumstances, the plea offer made to Petitioner by the
government of 188 months was one no minimally prudent person
could refuse. With the government agreeing to drop the 60
month consecutive sentence, Petitioner would be serving only
eight months more than the mandatory minimum under the ACCA.
It is hard to conceive of anyone turning down this offer.
government now essentially concedes that, under subsequent
Supreme Court authority, the 180-month ACCA floor was, as a
constitutional matter, illusory. At the time of sentencing,
Petitioner appeared to have at least three predicate
convictions that would qualify him for the enhanced sentence:
one for resisting arrest, two for assault and battery (AB),
one for assault and battery on a police officer (ABPO), and
one for assault by means of a dangerous weapon (ADW). While
Petitioner's conviction for ADW continues to qualify as a
predicate offense, United States v.
Whindleton, 797 F.3d 105 (1st Cir. 2015), the conviction
for resisting arrest unequivocally does not. United
States v. Faust, 853 F.3d 39, 55 (1st Cir. 2017)
(concluding that the offense of resisting arrest is neither
categorically a crime of violence nor divisible). As for the
convictions for AB and ABPO, those offenses are not
categorically crimes of violence, but they are divisible.
Id. at 58; United States v. Martinez, 762
F.3d 127 (1st Cir. 2015). However, the government cannot show
through Shepard-approved documents that Petitioner
was convicted of the violent forms of these crimes.
Accordingly, Petitioner did not, in fact, qualify as an armed
these circumstances, even though Petitioner remains a career
offender, the fact that the court approved the 188 month
sentence in the shadow of what appeared to be the minimum
mandatory ACCA 180-month term, requires the court to
significant that both in Petitioner's pro se submission
and in the supplemental submission of counsel for Petitioner,
the only remedy explicitly requested was a resentencing.
After filing his initial petition, Petitioner then moved to
withdraw his guilty plea, arguing that his plea was not
entered willingly, freely, and voluntarily since he was not
informed at the time of corruption by the government's
chemist and this misconduct was material to Petitioner's
choice to plead guilty. (Dkt. No. 74.) The argument for this
more fundamental remedy is weak.
one hand, Petitioner has filed an affidavit stating that if
he had known of the chemist's lengthy corrupt behavior,
he would not have pled guilty. The objective facts, however,
press overwhelmingly against this assertion. Petitioner was
arrested following a lengthy high-speed motor vehicle chase,
a foot race, and two physical struggles. During this fracas,
he was seen discarding a hand gun. When apprehended, he was
found in possession of a large amount of what the arresting
officer identified as crack cocaine. The grand jury testimony
of the officer, based on his extensive experience, strongly
supported the government's argument that the substance
seized was indeed crack cocaine.
sincere as Petitioner's protestations may be now, it is
virtually inconceivable that anyone facing the factual
scenario confronted by Petitioner would have chosen to go to
trial just because the government lacked a chemist's
testimony. The law is clear, and Petitioner concedes, that an
expert chemist was not essential to get the issue to the
jury. The testimony of the officer identifying the crack
cocaine would have been enough.
foregoing reasons, the motion for resentencing is hereby
ALLOWED, and the motion to withdraw the guilty plea is hereby
DENIED. The clerk will set this matter for a resentencing.
Petitioner is cautioned not to indulge in false hope. It is
possible the court will impose the same sentence.