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United States v. Franco

United States District Court, D. Massachusetts

March 1, 2018

UNITED STATES OF AMERICA,
v.
ERIC FRANCO, Petitioner.

          MEMORANDUM AND ORDER

          Denise J. Casper United States District Judge

         I. Introduction

Petitioner Eric Franco (“Franco”) has moved to vacate and correct his sentence pursuant to 28 U.S.C. § 2255 on the basis that the sentence imposed under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”) is no longer permissible because, among other things, two of his ACCA predicates for assault and battery with a dangerous weapon (“ABDW”) under Massachusetts law no longer qualify as violent felonies after Johnson v. United States, 135 S.Ct. 2551 (2015) (“Johnson II”), D. 164. Agreeing with Franco's argument on this point, for the reasons stated below, the COURT ALLOWS Franco's petition, vacates his sentence and shall schedule the matter for resentencing.

         II. Standard of Review

         “Under 28 U.S.C. § 2255, a petitioner may collaterally attack a conviction after it has become final.” Stampley v. United States, No. 11-cr-10302-IT, 2016 WL 4727136, at *1 (D. Mass. Sept. 9, 2016). The Court will vacate and correct a petitioner's sentence if such “sentence (1) was imposed in violation of the Constitution, or (2) was imposed by a court that lacked jurisdiction, or (3) exceeded the statutory maximum, or (4) was otherwise subject to collateral attack.” David v. United States, 134 F.3d 470, 474 (1st Cir. 1998) (citing Hill v. United States, 368 U.S. 424, 426-27 (1962)). The petitioner bears the burden of demonstrating that there is cause for relief under § 2255. Id.

         III. Relevant Background

         After a jury trial, Franco was found guilty on one count of possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). D. 103. At the March 12, 2013 sentencing, the Court determined that the ACCA applied, relying upon his two convictions for assault and battery by dangerous weapon (“ABDW”) and one for indecent assault and battery on a person 14 or over. PSR ¶¶ 42, 47, 48; D. 135 at 25-26. With a guidelines sentencing range of 262 months to 327 months, Id. at 4, the Court sentenced Franco to 262 months. Id. at 28. Franco appealed his sentence to the First Circuit, but did not raise the argument that the residual clause in 18 U.S.C. § 924(g) was void for vagueness. See D. 122.

         IV. Discussion

         A. The ACCA Post-Johnson II

         The ACCA provides that any person convicted of possessing a firearm in violation of 18 U.S.C. § 922(g) and who was previously convicted of at least three prior “violent felony” or “serious drug” offenses, shall be imprisoned for a minimum of fifteen years. 18 U.S.C. § 924(e)(1). A violent felony is defined as a crime punishable by more than one year in prison that (1) has as an element the use, attempted use, or threatened use of physical force against the person of another (the “force clause”) or (2) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another (the “residual clause”). Since the Supreme Court held that the residual clause was unconstitutionally vague in Johnson II, 135 S.Ct. at 2557-60, a predicate is a violent felony under the ACCA only if it satisfies the force clause. Accordingly, the central issue to resolving Franco's petition is whether two of the predicates upon which the Court relied to sentence him, the ABDW convictions, still qualify as ACCA predicates.

         Since the parties' principal filings in this case, the First Circuit has decided two cases that resolve this issue adverse to the government's position. First, in United States v. Tavares, 843 F.3d 1, 12 (1st Cir. 2016), the court ruled that Massachusetts ABDW is divisible since it prohibits both the intentional version of the offense and a reckless version of the offense. Second, after Tavares, the First Circuit decided that “Massachusetts reckless ABDW is not a violent felony under the force clause.” United States v. Windley, 864 F.3d 36, 39 (1st Cir. 2017). Where an ACCA predicate is divisible and one of the forms of the offense would not qualify as a violent felony, the Court must proceed to determine the form of the offense of which the defendant was convicted, relying upon Shepard documents. United States v. Faust, 853 F.3d 39, 52-53 (1st Cir. 2017) (citing Shepard v. United States, 544 U.S. 13 (2005)).

         While the underlying burden for establishing a basis for habeas relief lies with the petitioner, see Wilder v. United States, 806 F.3d 653, 658 (1st Cir. 2015), the government has the separate burden to offer Shepard documents in opposition to a § 2255 motion pursuant to Johnson II. See, e.g., Aponte v. United States, No. 11-cr-30018-MAP, D. 65 at 4 (D. Mass. Sept. 22, 2016) (“Contrary to the government's assertion, he is not required to bear the burden of demonstrating that his state court conviction fell outside the category of violent offenses that qualified as predicates to support his Career Offender classification. The government must carry this burden”); Turner v. United States, 03-cr-10166-PBS, D. 218 at 6:25-7:1 (D. Mass. April 27, 2016) (“I don't

         ORDER

         have Shepard documents, and I don't view it as the defendant's burden”); McFarlane v. United States, 05-cr-10130-RWZ, D. 73 at 5:8-17 (D. Mass. Jan. 12, 2016) (confirming government has no Shepard documents, and on this basis finding “there was a fundamental miscarriage of justice” and “allow[ing] the motion”). The government's previous filings in this case do not indicate the availability of Shepard documents in regard to the two ...


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