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United States v. Roy

United States District Court, D. Massachusetts

October 13, 2017

United States of America
Charles F. Roy, Jr., Defendant.



         Defendant Charles F. Roy, Jr. (“defendant” or “Roy”) pled guilty in May, 2003 to conspiracy to distribute and distribution of cocaine base, in violation of 21 U.S.C. §§ 846 and 841(a)(1). In February, 2004, defendant pled guilty to use of a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c). Defendant was sentenced as a career offender to 271 months of incarceration followed by five years of supervised release.

         In June, 2016, defendant petitioned to vacate his sentence pursuant to 28 U.S.C. § 2255 based upon the decision in Johnson v. United States, 135 S.Ct. 2551 (2015) (“Johnson II”). For the reasons that follow, defendant's motion to vacate, set aside or correct his sentence will be allowed.

         I. Background

         In November, 2000, defendant was charged in a nine-count superseding indictment with conspiracy to distribute cocaine base (Count 1), possession of cocaine base with intent to distribute and distribution of cocaine base (Count 2), conspiracy to distribute marijuana (Count 4), interstate travel in aid of a racketeering enterprise (Count 5), possession of marijuana with intent to distribute (Count 6), use of a firearm during and in relation to drug trafficking crime (Count 7), witness tampering (Count 8) and retaliation against a witness (Count 9).

         In April, 2003, the Court denied defendant's motions to dismiss Counts Six and Seven of the indictment for failure of venue and defendant's motion to sever Count 8 for purposes of trial. The Court allowed motions to sever Counts 1-3 and Count 9 from the remaining charges for purposes of trial.

         Defendant pled guilty to Counts 1 and 2 on May 23, 2003 and Count 7 on February 12, 2004. Pursuant to the terms of the plea agreement dated September 20, 2003, the government agreed to dismiss Counts Four, Five, Six, Eight and Nine “provided that Defendant is found to be a Career Offender and is sentenced as such”.

         At the March 29, 2004 sentencing, the Court found that defendant qualified for the Career Offender enhancement under the Sentencing Guidelines. U.S.S.G. § 4B1.1 (“the career offender guideline”). Defendant was over eighteen at the time he committed the charged controlled substance offenses and he had two prior felony convictions that the Court determined were predicate offenses for the career offender designation. The two predicate offenses were both assault and battery convictions, one in Westborough District Court in 1997 and the second in Framingham District Court in 1998.

         Defendant was sentenced to a term of imprisonment of 271 months, followed by five years of supervised release. The Court noted that: 1) the base offense level of Counts 1 and 2 was 22 and no adjustments applied, 2) the base offense level for Count 7, taking into account defendant's designation as a career offender, was 32 and 3) the defendant was entitled to a three level downward adjustment for acceptance of responsibility, resulting in a total offense level (“TOL”) of 29. The Court determined that the defendant had 13 criminal history points, resulting in a criminal history category (“CHC”) of VI. A TOL of 29 and a CHC of VI resulted in a guideline range of 151 to 188 months. Under 18 U.S.C. § 924(c)(1)(D)(ii), the firearm offense imposed a ten-year mandatory minimum to be applied consecutively, resulting in a final guideline range of 271 to 308 months.

         On June 22, 2016, defendant filed a petition under 28 U.S.C. § 2255, alleging that his original sentence must be vacated because, after Johnson II, his state court convictions for assault and battery no longer qualify as “crime[s] of violence” under the Sentencing Guidelines. In April, 2017, the Court directed parties to submit supplemental memoranda to explain their positions with respect to how the United States Supreme Court's holding in Beckles v. United States, 137 S.Ct. 886 (2017), affects defendant's petition. Parties submitted their supplemental memoranda in July, 2017.

         II. Motion to Vacate Sentence

         A. Legal Standard

         A prisoner in federal custody may collaterally attack his sentence under 28 U.S.C. § 2255. Section 2255 contemplates four bases on which a federal prisoner may obtain relief:

(1) that the sentence was imposed in violation of the Constitution or laws of the United States; (2) that the court was without jurisdiction to impose the sentence; (3) that the sentence was in excess of the maximum authorized by law; or (4) that the sentence is otherwise subject to collateral attack.

Damon v. United States, 732 F.3d 1, 3 (1st Cir. 2013) (internal quotation marks omitted). The burden of proof is on the petitioner. Wilder v. United States, 806 F.3d 653, 658 (1st Cir. 2015).

         Generally, a federal prisoner challenging his sentence under § 2255 may not rely on a new rule of constitutional law that was announced after his conviction became final. Butterworth v. United States, 775 F.3d 459 (1st Cir. 2015). The Supreme Court has recognized two categories of decisions that fall outside of that general bar on retroactivity: “new substantive rules” and “watershed rules of criminal procedure”. Welch v. United States, 136 S.Ct. 1257, 1264 (2016) (citing Teague v. Lane, 489 U.S. 288 (1989)). A prisoner seeking review under § 2255 must bring the motion within one year of the date on which the rule was “newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” § 2255(f)(3).

         B. Application

         1. Residual clause of the career offender guideline

         In June, 2015, the Supreme Court held that the residual clause of the Armed Career Criminal Act of 1984 (“ACCA”), 18 U.S.C. § 924(e)(2)(B), was unconstitutionally vague. Johnson II, 135 S.Ct. at 2257. The ACCA applies to a defendant convicted of being a felon in possession of a firearm under 18 U.S.C. § 922(g) and mandates an increase in sentence when the defendant has been convicted of three or more “serious drug offense[s]” or “violent felon[ies]”. § 924(e)(1).

         The ACCA defines “violent felony” to include any crime punishable by imprisonment for a term exceeding one year that 1) “has as an element the use, attempted use, or threatened use of physical force against the person of another” (“the force clause”), 2) falls within a list of certain enumerated offenses or 3) “otherwise involves conduct that presents a serious potential risk of physical injury to another” (“the residual clause”). § 924(e)(2)(B). The Supreme Court struck down the residual clause as unconstitutionally vague. Johnson II, 135 S.Ct. at 2257. It explained that the residual clause was problematic because it

combin[ed] indeterminacy about how to measure the risk posed by a crime with indeterminacy about how much risk it takes for the crime to qualify as a violent felony.

Id. at 2258. Those indeterminacy concerns led the Court to conclude that the residual clause created more unpredictability and arbitrariness than was permissible under ...

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