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Boria v. United States

United States District Court, D. Massachusetts

December 9, 2019

Michael Boria, Plaintiff,
v.
United States of America, Defendant.

          MEMORANDUM & ORDER

          Nathaniel M. Gorton United States District Judge

         Michael Boria (“Boria” or “petitioner”) contends that he was sentenced pursuant to an unconstitutionally vague provision of the United States Sentencing Guidelines (“the Sentencing Guidelines”) under Johnson v. United States, 135 S.Ct. 2551 (2015). Pending before the Court is Boria's motion to correct his sentence pursuant to 28 U.S.C. § 2255 (Docket No. 159).

         I. Factual Background

         In 2001, a four-day jury trial resulted in Boria's conviction on five counts of distribution of heroin and two counts of distribution of methamphetamine in violation of 21 U.S.C. § 841(a)(1). At his sentencing in March, 2003, the Court found that Boria qualified for an enhanced offense level under the career offender provision of the Sentencing Guidelines. U.S.S.G. § 4B1.1 (“the Career Offender enhancement”).

         The Court determined that Boria had a base offense level of 32 which was increased by 2 levels pursuant to the Career Offender enhancement resulting in a total offense level of 34. The Court also scored 31 criminal history points which placed the defendant in Criminal History Category VI (two and one-half times over).

         Boria's total offense level and criminal history category yielded a guidelines sentencing range of 262-327 months. The government moved for an upward departure based on Boria's extensive criminal history which this Court denied. The Court then sentenced Boria to the high-end sentence of 327 months imprisonment, followed by five years of supervised release.

         II. Procedural Background

         Boria appealed to the United States Court of Appeals for the First Circuit, which affirmed his conviction and sentence (Docket No. 123). In 2005, he filed his first § 2255 motion to vacate claiming ineffective assistance of counsel and Apprendi error, which this Court denied (Docket No. 125). In January, 2015, Boria filed a motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) and U.S.S.G. Amendment 782, which this Court also denied (Docket No. 151).

         In June, 2016, Boria filed the instant § 2255 petition with this Court (Docket No. 159). The petition was stayed while Boria applied to the First Circuit for leave to file a second or successive § 2255 petition (Docket No. 162). The First Circuit granted Boria's application in November, 2017, (Docket No. 163) and this Court ordered briefing on the petition (Docket No. 166).

         III. Statutory Background

         Boria was convicted under 21 U.S.C. § 841(a)(1). The applicable Sentencing Guideline for a conviction under § 841(a)(1) is U.S.S.G. § 2D1.1. Boria also qualified for the Career Offender enhancement because his offense involved a controlled substance and the Court determined he had the requisite prior criminal offenses. U.S.S.G. § 4B1.1

         The Career Offender enhancement provides that a Court shall enhance a defendant's offense level if the instant offense of conviction is a “controlled substance offense” and the defendant has prior convictions for one or more felony “controlled substance offense[s]” or “crime[s] of violence.” Id. A “crime of violence” under § 4B1.1 incorporates the definition of that term in § 4B1.2. At the time of Boria's sentencing, an offense qualified as a crime of violence under § 4B1.2 if it was punishable by at least one year imprisonment and 1) involved the use, actual, attempted or threatened, of physical force, 2) was one of several enumerated offenses or 3) qualified under the “residual clause” which covered offenses that

otherwise involve[d] conduct that present[ed] a serious potential risk of physical injury to others.

         (“the Career Offender residual clause”) § 4B1.2.

         At sentencing, the Court found that Boria qualified for the Career Offender enhancement because he committed a controlled substance offense and had four other felony convictions that qualified as crimes of violence under § 4B1.2: robbery (under California law) and armed robbery, assault with intent to rob and assault and battery with a deadly weapon (under Massachusetts law).

         IV. Motion To Correct Sentence Under § 2255

         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 ...


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