United States District Court, D. Massachusetts
MEMORANDUM OF DECISION
RYA W. ZOBEL, SENIOR UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
Uncharged Criminal Conduct
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
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.
Guidelines Calculations for Charged Offense Conduct
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.
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.
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. ¶¶ 288-290.
The Plea Agreement
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:
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.
# 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.
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 ...