United States v. Lattanzio

232 F.Supp.3d 220

UNITED STATES of America

v.Vincent LATTANZIO, Defendant.

Case No. 93–CR–30017–MAP

United States District Court, D. Massachusetts.

Signed February 8, 2017

C. Jeffrey Kinder, Fierst, Pucci & Kane LLP, Northampton, MA, Karen L. Goodwin, United States Attorney's Office, Springfield, MA, for Plaintiff.

MEMORANDUM AND ORDER REGARDING DEFENDANT'S MOTION TO CORRECT SENTENCE UNDER 28 U.S.C. § 2255

PONSOR, U.S.D.J.

I. INTRODUCTION

Defendant Vincent Lattanzio has brought this petition pursuant to 28 U.S.C. § 2255, seeking to vacate his sentence based on his incorrect designation as an armed career criminal. The government opposes. For the reasons that follow, the court will allow Defendant's motion.

II. BACKGROUND

On April 21, 1995, the late Judge Frank H. Freedman sentenced Defendant to an aggregate term of 353 months for robbing an armored car, being a felon in possession of a firearm, and using a firearm during the commission of a crime of violence. The length of the sentence was enhanced substantially by the court's finding that Defendant qualified as an armed career criminal under 18 U.S.C. § 924(e). The Armed Career Criminal Act ("ACCA") dictates that, to receive an enhanced sentence, a defendant must have been convicted on at least three separate, prior occasions of a predicate "violent felony or a serious drug offense." § 924(e)(1).

The ACCA, as passed by Congress, defined a "violent felony" in two ways: first as a crime that "has as an element the use, attempted use, or threatened use of physical force against the person of another"; or, alternatively, as one of several specified crimes or an equivalent crime that "presents a serious potential risk of physical injury to another." § 924(e)(2)(B)(i) & (ii). These two ways of qualifying for an enhanced sentence under the ACCA are sometimes referred to as the "force" clause and the "residual" clause.

In 2015, the Supreme Court held that the "residual" clause (excluding the specified crimes) was unconstitutionally vague. Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) ("Johnson II "). Today, that portion of the statute is no longer available to anchor a sentence enhancement under the ACCA, and defendants previously sentenced under that section of the statute can move to amend their sentences. Welch v. United States , ––– U.S. ––––, 136 S.Ct. 1257, 1265, 194 L.Ed.2d 387 (2016).

Five years earlier, the Supreme Court construed the "force" clause of the ACCA as requiring "violent force—that is, force capable of causing physical pain or injury to another person." Johnson v. United States , 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (emphasis in original) ("Johnson I "). Unless a defendant has been convicted of one of the crimes specifically enumerated under § 924(e)(B)(ii), this narrowed "force" clause offers the only basis today for an ACCA enhancement based upon prior convictions for a violent felony.

Defendant in this case was found at the time of his sentencing to qualify for an enhanced sentence under the ACCA based on four predicate offenses: (1) a 1973 conviction purportedly for assault by means of a dangerous weapon (ADW);¹ (2) a 1977 conviction for assault and battery by means of a dangerous weapon (ABDW) and armed robbery; (3) a 1977 conviction for armed robbery, kidnapping, and ABDW; and (4) a 1982 conviction for possession of a sawed-off shotgun.

Defendant contends, based on the Johnson cases, that none of these convictions any longer qualifies as a predicate offense for purposes of the enhanced sentencing provisions of the ACCA and that he is therefore entitled to re-sentencing. He argues that at re-sentencing his likely maximum sentence will be substantially lower than the term he has already served.

III. DISCUSSION

In opposition to this petition, the government offers essentially two arguments.² First, it contends that Defendant is barred from bringing this petition because he has procedurally defaulted and cannot demonstrate the required "cause and prejudice" to seek relief now. Second, it argues that at least three of the four convictions relied upon by Judge Freedman at the 1995 sentencing remain valid predicates under the ACCA.

A. Procedural Default

This argument may be quickly disposed of. The undersigned has recently rejected the identical contention, finding that a Johnson -based claim under 28 U.S.C. § 2255 satisfies the novelty requirement for cause set forth in Reed v. Ross , 468 U.S. 1, 15, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984). United States v. Aponte , No. 11–CR–30018–MAP, 208 F.Supp.3d 347, 349, 2016 WL 5338505, at *1 (D. Mass. Sept. 22, 2016). This case is even stronger than Aponte . In 1995, when Defendant here was sentenced, any argument based on the rationales approved twenty years later in the Johnson cases would have been not only novel, but practically unimaginable. The likelihood that the successful outcome of this proceeding will result in a lower sentence is sufficient to demonstrate prejudice. Judges from this district have unanimously rejected this "cause and prejudice" argument. Virden v. United States , No. 09–10325–LTS, 2017 WL 470891 (D. Mass. February 3, 2017), slip op. at 6 (collecting cases); Cruz v. United States , No. 09–CR–10104–RWZ (D. Mass. Jan. 26, 2017); United States v. Webb , Nos. 01–CR10267–WGY & 06–CR–10251–WGY, 217 F.Supp.3d 381, 2016 WL 6647929 (D. Mass. Nov. 9, 2016).

B. Predicate Convictions

Defendant, as noted, challenges all four convictions as proper ACCA predicate offenses. The government does not contest Defendant's position that possession of a sawed-off shotgun is no longer a crime of violence under the ACCA. It argues, however, that all three remaining convictions constitute legitimate predicate offenses. The government's argument is unpersuasive, as the discussion of each of these convictions below will demonstrate.

1. The Ambiguous 1973 Conviction for ADW

Pointing to the Pre–Sentence Report, the government contends that Defendant was convicted in 1973 of assault with a dangerous weapon ("ADW"). (Dkt. No. 368, Attach. 6.) If Defendant was convicted of this crime, it would constitute a predicate ACCA offense, under controlling First Circuit law. United States v. Whindleton , 797 F.3d 105, 116 (1st Cir. 2015).

It is by no means clear, however, that the 1973 conviction was for ADW, rather than ABDW. The evidence on this point is decidedly mixed, with the balance tipping somewhat in favor of Defendant.

The government offers a photocopy of a complaint and disposition document from the district court of Newton, Massachusetts, dated August 14, 1973, which appears to charge Defendant with ADW and includes a handwritten note on the reverse side indicating a conviction and one-year suspended sentence, imposed on October 9, 1973. (Dkt. No. 368, Attach. 7.) This document apparently provided the basis for the reference to the ADW conviction in the Pre–Sentence Report, dated March 1, 1995, which Defendant did not object to at sentencing.³ The document in its current form is unauthenticated, and Defendant has moved to strike it. (Dkt. No. 371.) The government has offered to present a witness to attempt to authenticate the document.

On the other hand, Defendant offers an authenticated copy of a page from the criminal docket book of the Newton District Court, clearly indicating a charge of ABDW, not ADW, on August 14, 1973, and a conviction for this offense on October 9, 1973. This record contains no reference to any ADW. (Counsel's Aff., Dkt. No. 355, Attachs. 1 & 2.) Defendant's counsel offers, in addition, Defendant's current Court Activity Record Information report, which lists the same charge and conviction as ABDW, not ADW. (Id. , Attach. 3.) Finally, Defendant points to the sentencing transcript in which Judge Freedman, reviewing Defendant's criminal record, mentioned ABDW, but not ADW. (Sent. Hr'g Tr. 8:22–23–9:1–2, id. , Attach. 4.)

The government, as noted, has indicated a willingness to bring in a witness currently employed by the Newton District Court to attempt to authenticate the photocopy of the 43-year-old complaint and disposition record (it concedes the original is no longer available) and to offer testimony that these documents "would have been the source of the information on the docket entry." (Gov't Opp'n 1, Dkt. No. 375.)

Even assuming the witness testified as the government predicts, this evidence would not enlighten the court. The complaint and disposition record, in this case, clearly did not provide the basis for the authenticated, original docket entry, because the former says Defendant was charged with ADW, and the latter says ABDW. In a congested state district court, charges may frequently be altered on a busy court day as a result of plea discussions or for other reasons. A record-keeping mistake was made in memorializing Defendant's conviction, obviously, but by whom and regarding what now lies in impenetrable shadow.

As will be seen below, the resolution of this issue will have substantial bearing on Defendant's continued loss of liberty. The interests of justice here are simply too grave to rely, to Defendant's detriment, on such an intractably doubtful documentary record. The court will therefore, for purposes of this petition, assume that the 1973 conviction was for the ordinarily more serious crime of ABDW and not ADW.

This makes a difference. Whindleton , as noted, made clear that an ADW conviction was a valid ACCA predicate. On the other hand, the First Circuit's recent decision in United States v. Tavares , 843 F.3d 1, 18–20 (1st Cir. 2016), suggested, with regard to ABDW, maybe yes, maybe no.

2. The Ambiguous 1973 Conviction for ABDW .

Tavares noted that under Massachusetts law, two independent versions of the crime of ABDW existed: first, the intentional and unjustified use of force however slight ("ABDW–1"); second, the intentional commission of a wanton or reckless act that causes physical injury to another ("ABDW–2"). Id. at 12. In Tav...