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United States v. Lopez

United States Court of Appeals, First Circuit

May 16, 2018

UNITED STATES OF AMERICA, Appellee,
v.
LUIS LÓPEZ, Defendant, Appellant.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Richard G. Stearns, U.S. District Judge]

          James L. Sultan, with whom Kerry A. Haberlin and Rankin & Sultan were on brief, for appellant.

          Mark T. Quinlivan, Assistant United States Attorney, with whom William D. Weinreb, Acting United States Attorney, was on brief, for appellee.

          Before Torruella, Lipez, and Thompson, Circuit Judges.

          THOMPSON, CIRCUIT JUDGE.

         We have before us a case of déjà vu: an all too familiar argument that we have rejected in at least three prior decisions. Not to beat a dead horse, but today, adhering to our precedent, we necessarily reject the argument once more.

         Luis López pled guilty to being a felon in possession of a firearm and possession with intent to distribute heroin. The Probation Office for the District of Massachusetts (the "Probation Office") determined that López was subject to a mandatory minimum sentence of fifteen years imprisonment under the Armed Career Criminal Act ("ACCA") because he had previously been convicted of at least three qualifying ACCA predicate offenses. Before us, López challenges the sufficiency of his prior convictions to serve as ACCA predicates, alleging that direction from the Supreme Court requires us to revisit existing First Circuit precedent. We find no intervening law that alters the validity of our prior decisions concerning ACCA predicate offenses and thus affirm his sentence.

         A. Getting Our Factual Bearings

         We won't dwell on the circumstances leading to López's most recent arrest and convictions because they are undisputed. López's objections focus instead on five prior Massachusetts convictions identified by the Probation Office that qualify as "serious drug offense[s]" or "violent feloni[es]" as defined by ACCA. Our recitation of the facts therefore follows López's lead and only briefly addresses the circumstances leading to his most recent convictions. We then shift gears, focusing primarily on the Probation Office's presentence report ("PSR") and the district court's subsequent sentencing determination.

         1. López's Most Recent Criminal Convictions

         The New Bedford, Massachusetts police department executed a search warrant on López's girlfriend's residence on December 31, 2014, following an investigation indicating that López was selling heroin at the house. Although López initially denied the presence of anything illegal, he eventually told the officers he was hiding heroin and a pistol. Officers found three individually packaged bags of heroin and several Percocet pills in López's jeans pocket, in addition to four grams of heroin elsewhere in the house. Police also recovered a loaded Glock 9mm with sixteen rounds of ammunition in the magazine. The pistol was traced by the Bureau of Alcohol, Tobacco, Firearms, and Explosives and was determined to have been reported stolen in North Carolina three months earlier.

         On March 17, 2016, a federal grand jury in the District of Massachusetts returned an indictment charging López with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and possession with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1). López pled guilty to both charges.

         2. Presentence Report and Sentencing

         Following López's guilty plea, the Probation Office prepared a PSR. The PSR concluded that López was subject to a sentencing enhancement under 18 U.S.C. § 924(e), known colloquially as ACCA, because he had at least three prior convictions for "serious drug offense[s]" or "violent felon[ies]." 18 U.S.C. §§ 924(e)(2)(A), (B). In fact, the PSR identified five Massachusetts convictions that qualified as predicate offenses under ACCA: (1) a 2007 conviction for distribution of a class B drug prosecuted in the New Bedford District Court; (2) a May 2009 conviction for assault with a dangerous weapon ("ADW") prosecuted in the New Bedford District Court; (3) an October 2009 conviction for possession to distribute a class A drug prosecuted in the New Bedford District Court; (4) a 2012 conviction for breaking and entering in the nighttime for a felony prosecuted in the New Bedford District Court; and (5) a 2013 conviction for unlawful distribution of a class B substance (cocaine) prosecuted in the Bristol Superior Court.

         Therefore, under ACCA, López was subject to a fifteen-year (180-month) mandatory minimum sentence. After scoring the severity of L√≥pez's offenses and his criminal history against the U.S. Sentencing Guidelines, the PSR further ...


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