Bennett v. United States

GEORGE BENNETT, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Docket no. 1:16-cv-251-GZS

Docket no. 1:94-cr-11-GZS

UNITED STATES DISTRICT COURT DISTRICT OF MAINE

July 6, 2016

ORDER GRANTING MOTION FOR RELIEF UNDER 28 U.S.C. § 2255

Before the Court is Petitioner George Bennett's Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 (ECF No. 255 in 1:94-cr-11-GZS). For reasons briefly explained herein, the Motion is GRANTED.

Bennett is currently serving a 360-month sentence, which is the result of being convicted on three counts: (1) conspiracy to possess with intent to distribute marijuana in violation of 21 U.S.C. § 841(b)(1)(D) (Count I), (2) use or carrying of a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c) (Count II), and (3) possession of a firearm by a convicted felon in violation of 19 U.S.C. § 922(g)(1) (Count IV). With respect to Count IV, Bennett was found to be an armed career criminal under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e).¹ Specifically, the Court referenced four prior felony convictions in sentencing Bennett under ACCA (PSR ¶ 32): (1) a January 3, 1986 Maine Aggravated Assault conviction (PSR ¶ 57); (2) a December 14, 1979 Maine Aggravated Assault conviction (PSR ¶ 53); (3) a December 14, 1979 Maine Criminal Threatening with a Dangerous Weaponconviction (PSR ¶ 53); and (4) a September 28, 1978 Maine Aggravated Assault conviction (PSR ¶ 51).

Following the Supreme Court's decision in Johnson v. United States, 135 S. Ct. 2551 (2015) (Johnson II), Bennett now argues that he no longer has the three requisite convictions for an increased sentence under ACCA. See Welch v. United States, 136 S. Ct. 1257, 1265 (2016). Rather, Bennett argues that his convictions yield a statutory maximum term of imprisonment of fifteen years, thereby entitling him to immediate release.

A. ACCA's Different Occasions Requirement

The first issue the Court must address is whether the two convictions listed in paragraph 53 of the PSR should be considered one or two convictions for purposes of ACCA. This issue turns on whether the two counts of conviction, one for aggravated assault and one for criminal threatening with a dangerous weapon, were "committed on occasions different from one another." 18 U.S.C. § 924(e)(1). Under governing First Circuit precedent,

The "occasions" inquiry conceivably may turn upon any combination of circumstances, including (but not limited to) the identity of the victim; the type of crime; the time interval between the crimes; the location of the crimes; the continuity vel non of the defendant's conduct; and/or the apparent motive for the crimes. SeeUnited States v. Letterlough, 63 F.3d 332, 335-36 (4th Cir. 1995). Thus, the "occasions" inquiry requires a case-by-case examination of the totality of the circumstances. See, e.g., United States v. Riddle, 47 F.3d 460, 462 (1st Cir. 1995).

United States v. Stearns, 387 F.3d 104, 108 (1st Cir. 2004); see also United States v. Jenkins, 770 F.3d 507, 510 (6th Cir. 2014) (finding nine burglaries were committed on different occasions), cert. denied, 135 S. Ct. 1511 (2015). Based on the information submitted by the Government (Ex. GX-1 (ECF No. 261-1)) as well as the description contained in the PSR, the Court recognizes that there were two different victims, but nonetheless concludes that the two convictions contained in paragraph 53 occurred on the same occasion. (See PSR ¶ 53 (explaining how Bennett encounteredthe two victims in the same place at the same time and that Counts I & II occurred "on this same occasion").)²

Having determined that the convictions listed in paragraph 53 may only count as a single ACCA-qualifying offense, the Court readily finds that Bennett's conviction for Criminal Threatening with a Dangerous Weapon in violation of 17-A M.R.S.A. § 209 & 1252(4) categorically qualifies as a violent felony under the force clause. See, e.g., United States v. Collins, 811 F.3d 63, 66-69 (1st Cir. 2016) (finding a Maine conviction for criminal threatening with a dangerous weapon qualifies as "a crime of violence under the Force Clause" of the career offender guidelines); United States v. Whindleton, 797 F.3d 105 (1st Cir. 2015) (holding that a Massachusetts conviction for assault with a deadly weapon qualifies as a violent felony under ACCA's force clause).

B. Categorical Analysis of Maine's Aggravated Assault Statute

With one ACCA-qualifying violent felony stemming from his December 14, 1979 conviction, the Court must next consider whether Bennett's convictions under Maine's Aggravated Assault statute qualify as a violent felonies under 18 U.S.C. § 924(e)(1) & (2)(B)(i). Applying a pure categorical approach, the Court first examines the Maine statute, which provides:

1. A person is guilty of aggravated assault if that person intentionally, knowingly or recklessly causes:

A. Bodily injury to another that creates a substantial risk of death or extended convalescence necessary for recovery of physical health. Violation of this paragraph is a Class B crime;

A-1. Bodily injury to another that causes serious, permanent disfigurement or loss or substantial impairment of the function of any bodily member or organ. Violation of this paragraph is a Class A crime;

B. Bodily injury to another with use of a dangerous weapon. Violation of this paragraph is a Class B crime; or

C. Bodily injury to another under circumstances manifesting extreme indifference to the value of human life. Such circumstances include, but are not limited to, the number, location or nature of the injuries, the manner or method inflicted, the observablephysical condition of the victim or the use of strangulation. For the purpose of this paragraph, "strangulation" means the intentional impeding of the breathing or circulation of the blood of another person by applying pressure on the person's throat or neck. Violation of this paragraph is a Class B crime.

17-A M.R.S.A. § 208.³ Bennett asserts that this statute does not categorically qualify as a "violent felony" under the force clause, 18 U.S.C. § 924(e)(2)(B)(i), due to the fact that recklessness is an insufficient mens rea for purposes of ACCA.⁴

Section 208, in fact, contains three different levels of mens rea, which are listed disjunctively. As the Supreme Court recently explained when examining the same disjunctive mens rea requirement as it appears in Maine's general assault statute, 17-A M.R.S.A. § 207:

To commit an assault recklessly is to take that action with a certain state of mind (or mens rea)—in the dominant formulation, to "consciously disregard[ ]" a substantial risk that the conduct will cause harm to another. ALI, Model Penal Code § 2.02(2)(c) (1962); Me. Rev. Stat. Ann., Tit. 17-A, § 35(3) (Supp. 2015) (adopting that definition); seeFarmer v. Brennan, 511 U.S. 825, 836-837 (1994) (noting that a person acts recklessly only when he disregards a substantial risk of harm "of which he is aware"). For purposes of comparison, to commit an assault knowingly or intentionally (the latter, to add yet another adverb, sometimes called "purposefully") is to act with another state of mind respecting that act's consequences—in the first case, to be "aware that [harm] is practically certain" and, in the second, to have that result as a "conscious object." Model Penal Code §§ 2.02(2)(a)-(b); Me. Rev. Stat. Ann., Tit. 17-A, §§ 35(1)-(2).

Voisine v. United States, --- S. Ct. ---, No. 14-10154, 2016 WL 3461559, at *4 (June 27, 2016).⁵ The Court necessarily acknowledges that most decisions to address the question have found that aconviction that requires a mens rea of only recklessness does not satisfy ACCA's force clause. See, e.g., United States v. Parnell, 818 F.3d 974, 981 & n.5 (9th Cir. 2016) (concluding that a Massachusetts conviction for assault and battery with a dangerous weapon did not qualify under the force clause and noting "the ACCA's force clause reaches only offenses requiring an intentional use of force"); United States v. Dixon, 805 F.3d 1193, 1197 (9th Cir. 2015) (explaining that under ACCA's force clause "the use of force must be intentional, not just reckless or negligent"); United States v. Duran, 696 F.3d 1089, 1095 (10th Cir. 2012) (holding that "aggravated assault under Texas law with a mens rea no higher than recklessness . . . is not categorically a crime of violence" under the career offender guidelines); United States v. Holloway, 630 F. 3d 252, 261-62 (1st Cir. 2011) (declining to categorically find that a reckless battery would be a "violent felony" for purposes of ACCA); United States v. McMurray, 653 F.3d 367, 374-75 (6th Cir. 2011) (holding that Tennessee's aggravated assault statute was not an ACCA-qualifying violent felony because "the 'use of physical force' clause of ACCA . . . requires more than reckless conduct"); see also Cutshaw v. United States, No. 209CR70RLJMCLC1, 2016 WL 3212269, at *2 (E.D. Tenn. June 7, 2016) (granting post-Johnson habeas relief upon finding that petitioner's conviction for Class D aggravated assault under Tennessee statute no longer qualified as a "violent felony" under the Force Clause since the statute defined that offense as "recklessly committing an assault that results in serious bodily injury, death, or the display of a weapon"). The Government itself acknowledges that "authorities are divided" on this issue and further notes that an appeal currently pending before the First Circuit may provide further guidance. (See Gov't Response (ECF No. 261) at 11-12.)

To add another wrinkle to the Court's analysis, after the parties completed their briefing of this Motion, the Supreme Court issued its decision in United States v. Voisine, --- S. Ct. ---, No.14-10154, 2016 WL 3461559, at *4 (June 27, 2016). In Voisine, the Supreme Court held that the categorical possibility of an assault conviction having only a reckless mens rea would not foreclose its consideration as a "misdemeanor...