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Bartolomeo v. United States

United States District Court, D. Massachusetts

June 12, 2018

JOHN BARTOLOMEO
v.
UNITED STATES OF AMERICA

          MEMORANDUM OF DECISION

          DATE RYA W. ZOBEL, SENIOR UNITED STATES DISTRICT JUDGE

         On May 21, 1998, petitioner - then a member of the Hells Angels Motorcycle Club - pleaded guilty to twelve counts of a superseding indictment charging him with possession with intent to distribute, and conspiracy to distribute, cocaine and methamphetamines. In conjunction with a plea agreement, the parties filed a joint motion for upward departure pursuant to United States Sentencing Guideline § 4A1.3(e) in which petitioner agreed to accept a 35-year term of imprisonment. In exchange, state and federal authorities agreed not to charge him with the beating of one rival gang member and the killing of another. In calculating the applicable guideline range, the sentencing judge found petitioner to be a career offender. He then allowed the joint motion for upward departure, and imposed its recommended 35-year term of imprisonment.

         Petitioner now moves for resentencing because his predicate offenses no longer trigger career offender enhancements after the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015) (“Johnson II”). Specifically, he argues that he was willing to accept the upward departure only because he believed himself already exposed to high sentencing guidelines as a career offender; absent that status, he contends, the departure would no longer have represented a good deal. The government, on the other hand, insists that petitioner's sentence was entirely based on the joint motion for upward departure, which never contemplated career offender status. Accordingly, it avers, petitioner is not entitled to resentencing under Johnson II. For the reasons that follow, petitioner's motion is denied.

         I. Factual Background

         I examine several sources in an effort to better understand the basis for petitioner's sentence: (1) the presentence report (“PSR”) prepared by the Probation Office; (2) the plea agreement; (3) the joint motion for upward departure; and (4) the transcript of the combined change of plea and sentencing hearing.

         A. Presentence Report

         Probation prepared a pre-plea PSR, dated April 23, 1998, to aid the court in sentencing. A May 13, 1998 addendum indicated that both parties had reviewed the report and made no objections. As of the date of the PSR's preparation, both parties had informed probation of petitioner's intent to plead guilty on all counts, ¶ 205, but no plea agreement had yet been signed. ¶ 271.

         1. Uncharged Criminal Conduct

         Petitioner admitted responsibility for two violent acts against rival gang members: the beating of Girard Giorgio on July 1, 1995, and the killing of William Michaels on July 29, 1995. In the first incident, petitioner and other Hells Angels members chased Giorgio - a member of the rival Devil's Disciples Motorcycle Club - down the highway as he rode his motorcycle. Having caught up with him, petitioner and others beat Giorgio badly, stripped him of his “colors”-clothing attesting to his gang affiliation- and hung the clothing upside down as a “trophy” in the Hells Angels clubhouse.

         In the second incident, petitioner accelerated the car he was driving into William Michaels, a Devil's Disciples member riding his motorcycle at the time. The collision lodged Michaels's motorcycle in the grill of petitioner's car, rendering it inoperable. Michaels died as a result of the collision. Petitioner fled the scene and hid in the woods until nightfall; he then traveled to New York, where he stayed for several weeks.

         2. Guidelines Calculations for Charged Offense Conduct

         Probation calculated petitioner's base offense level at 32 based on a drug quantity equivalent to between 1, 000 and 3, 000 kilograms of marijuana. United States Sentencing Guidelines (“USSG”) § 2D1.1 (1995). PSR ¶ 209. A three-level increase was applied to reflect petitioner's managerial role in the offense. USSG § 3B1.1(b). PSR ¶ 211. Finally, probation applied a career offender enhancement because petitioner had two prior convictions of either a crime of violence or an applicable controlled substance violation. The corresponding offense level was 37. USSG § 4B1.1. PSR ¶¶ 217-18.

         Moving to petitioner's criminal history category, probation calculated that his criminal history score alone would yield a category of III, but that his career offender designation directed an ultimate category of VI. USSG § 4B1.1. PSR ¶ 228. The predicate convictions for the career offender classification are not entirely clear. The PSR refers to paragraphs 229 and 230, but those paragraphs detail the uncharged killing of Michaels. The government attributes this reference to “a clerical error, ” Docket # 542 at 3, n.2, and the parties agree that the likelier predicates are “presumably” petitioner's convictions for assault and battery and assault and battery on a police officer. Docket # 540 at 18; Docket # 542, at 2-3. Those incidents occurred on December 27, 1993, and June 10, 1995. PSR ¶¶ 223-24.

         Anticipating a three-level reduction for acceptance of responsibility at the time of plea, probation calculated a guideline sentencing range (“GSR”) of 262 to 327 months' imprisonment based on total offense level 34 and criminal history category VI. Probation further noted, without so recommending, that the uncharged conduct involving Giorgio and Michaels could serve as the basis for an upward departure pursuant to USSG § 4A1.3(e), appropriately applied when a defendant's criminal history category does not adequately reflect the seriousness of past criminal conduct.[1] ¶¶ 288-290.

         B. The Plea Agreement

         The plea agreement, dated May 18, 1998, makes no mention of a career offender designation. Rather, it identifies petitioner's base offense level as 32, citing USSG § 2D1.1(a)(3) (setting offense level by drug quantity). The agreement further indicates a three-level increase for managerial role and three-level decrease for acceptance of responsibility, for a total offense level of 32. Critically, the parties reached no agreement as to petitioner's criminal history category. In any event, the agreement did not posit a GSR. Instead, the offense level and criminal history sections are followed by the below provisions:

(e) Upward Departure As set forth in the joint motion for upward departure attached to this agreement, the parties agree that the undisputed facts contained in the Defendant's Presentence Report concerning the Defendant's participation in the assault and battery of Girard Giorgio on July 1, 1995 and the Defendant's responsibility for the death of William Michaels on July 29, 1995 warrant an upward departure pursuant to § 4A1.3(e) of the Sentencing Guidelines.
4. Sentence RecommendationThe parties agree to recommend the following sentence:

         (a) Incarceration The parties will make a joint recommendation to the Court at the Defendant's sentencing hearing that the Court depart upwards from the guideline range otherwise applicable to the Defendant and impose a sentence of 35 years' imprisonment.

         Docket # 540-1, at 6. The agreement further provides:

In the event that the Court allows the parties' Joint Motion For An Upward Departure and sentences the Defendant to a 35-year term of imprisonment, the U.S. Attorney will not charge the Defendant with the violation of any federal criminal law committed by the Defendant with respect to events occurring on July 1, 1995 and July 29, 1995. Similarly, in the event that the Court allows the parties' Joint Motion For An Upward Departure and sentences the Defendant to a 35-year term of imprisonment, the District Attorney will not charge the Defendant with the violation of any state law committed by the Defendant with respect to events occurring on July 29, 1995.

Id. at 11-12.

         Finally, the agreement explicitly preserves petitioner's right “to petition the Court, pursuant to 28 U.S.C. § 2255, at any time for application of any future decision, ruling, change in law or change in the Sentencing Guidelines, which may result in a reduction in the total time of the Defendant's incarceration.” Id. at 11. This stands in contrast to a draft agreement dated March 25, 1998, which had waived without qualification petitioner's right “to bring any collateral attack ...


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