U.S. v. Shepard, CRIM. 98-10262-NG.

• Decision Date: 23 January 2002
• Docket Number: No. CRIM. 98-10262-NG.,CRIM. 98-10262-NG.
• Citation: 181 F.Supp.2d 14
• Parties: UNITED STATES of America v. Reginald SHEPARD, Defendant.
• Court: U.S. District Court — District of Massachusetts

181 F.Supp.2d 14

UNITED STATES of America v. Reginald SHEPARD, Defendant.

No. CRIM. 98-10262-NG.

United States District Court, D. Massachusetts.

January 23, 2002.

Nadine Pellegrini, United States Attorney's Office, Boston, MA, for Plaintiff.

Linda J. Thompson, Jacobson & Thompson, P.C., Springfield, MA, for Defendant.

MEMORANDUM RE: RESENTENCING

GERTNER, District Judge.

On July 14, 1999, I sentenced Reginald Shepard to 46 months in prison after he pled guilty to a violation of 18 U.S.C. § 922(g) (felon in possession of a firearm).¹ With a criminal history of VI, the presentence report ("PSR") calculated Mr. Shepard's sentencing guideline range to be 30 to 37 months.

The government moved for two enhancements: First, it sought an enhancement to a 15 year mandatory minimum term under the Armed Career Criminal Act ("ACCA") 18 U.S.C. § 924(e) (" § 924(e)").² I rejected that enhancement on the grounds that Mr. Shepard's conviction history did not meet the statutory requirements. I concluded that on the record before me, I could not determine that he had at least "three prior convictions ... for a violent felony or serious drug offense" within the meaning of the statute. 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4.

Shepard was charged with the crime of breaking and entering under Mass. Gen. L. Ch. 266 § 16, which outlines a generic breaking and entering offense, including offenses that qualify as predicate convictions under the ACCA, Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), namely, breaking and entering into a building, and offenses that do not, namely breaking and entering a car or vessel. While police reports attached to the applications for state criminal complaints suggested that at least five of Mr. Shepard's convictions involved a building, those details were not reflected in the complaints themselves. Rather, the complaints tracked the boilerplate language of the statute. Mr. Shepard pled guilty to the complaints.

After ruling against applying the ACCA enhancement, I invited the government to move for an upward departure on the ground that the criminal history score of VI did not adequately reflect the seriousness of Mr. Shepard's criminal history. Since it was clear that Mr. Shepard's record justified an upward departure, I granted the motion.

The sentence which I imposed represented a two level upward departure, from a level 12 base offense level to a level 14, with 46 months being the highest sentence available in the range. My reasons are recorded in United States v. Shepard, 125 F.Supp.2d 562 (2000) ("Shepard I").

The government appealed. The decision was then vacated and remanded in United States v. Shepard, 231 F.3d 56 (1st Cir. 2000) ("Shepard II"). The First Circuit found that I had erred in two respects: First, Shepard I suggested that the trial court could never use police reports to determine the crime to which the defendant had pled (and therefore, the charge of which he was convicted). Second, Shepard I implied that in order for me to find that the defendant had admitted to the predicate offenses, at either the state plea colloquy or during the federal sentencing, the defendant had to admit to the offense explicitly ("in the sense of `yes, I struck the victim in the face,'") Shepard II, 231 F.3d at 66.³

The court directed the consideration of police reports and complaint applications to determine if they "constituted sufficiently reliable evidence of the government and the defendant's shared belief that the defendant was pleading guilty to the unlawful entry of a building." Shepard II, 231 F.3d at 70. The court also directed a review of the defendant's submissions at sentencing to evaluate whether, under the circumstances, the defendant admitted that he had pled to the predicate offenses. Id. at 66.

At the first hearing on remand, I addressed two issues: First, what was the question to be answered on remand? Was it — what did Mr. Shepard plead to? Or, was it — what did Mr. Shepard do to provoke the charges? Both parties agreed that the answer was: What did Mr. Shepard plead to on those prior occasions? Second, with respect to that question, who bears the burden of proof? With some qualifications noted below, both parties agreed that the government bears the burden of proof.

I also considered on remand two types of questions raised by the court — those which related to whether the police report was made part of, referred to, or used in any way in the plea colloquy⁴ and those which related to whether Mr. Shepard admitted that he had pled to the predicate offenses.⁵

After two hearings, myriad briefs, and additional submissions of the parties, I have evaluated the police reports and complaint applications as well as the defendant's affidavit. I concluded that the police reports did not provide reliable evidence on the central question, what did the defendant plead to in the state court? There is no evidence that the defendant and the government "shared [the] belief" that Shepard was pleading guilty to the unlawful entry of a building. Shepard II, 231 F.3d at 66.

As I describe below in greater detail, there was no transcript of the state plea colloquy, no presentence report containing the police reports, and no written plea agreement. The only account of the plea process that I have comes from the defendant's affidavit. The government offered no other version — no account from the state prosecutor or any other participant, no recitation of whether it was "standard practice" of the judge to review the report in open court. The defendant indicated that the police reports were never read or mentioned at his plea colloquies. They were never made a part of the plea process at all, either by way of exhibit or orally. Furthermore, Mr. Shepard points to instances in which the reports were vague or obviously based on hearsay.

Apart from the state plea colloquy, nothing the defendant said at the instant sentencing hearing or in his various court submissions qualifies as an admission that he had in fact pled to the crime of breaking and entering into a building in state court.

While I could not conclude by a fair preponderance of the evidence that Mr. Shepard had pled to the qualifying crimes of violence, I reiterated my conclusion that an upward departure was appropriate. Mr. Shepard's criminal history score, I found, understated the seriousness of his record under U.S.S.G. § 4A1.3, p.s. As a result, I reimposed the original sentence.

I. FACTS

Mr. Shepard pled guilty to a number of state offenses; at least five have been cited by the government as predicate offenses to ACCA. In each case, the state complaints tracked the Massachusetts statute (Mass. Gen. L. Ch. 266 § 16, 18,)⁶ a statute which includes breaking and entering into a building as well as breaking and entering into a ship, vessel or vehicle. Case law under the ACCA identifies only breaking and entering into a building or other structure with intent to commit a crime as a crime of violence under the ACCA. Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). In contrast, breaking and entering into a ship, vessel or vehicle is not a crime of violence under the ACCA. Id.

The government introduced certified copies of police reports related to four offenses. In some instances, these reports were made part of applications for complaints. Significantly, the complaints themselves did not reflect the information contained in the reports on the issues relevant to this case; in each case, the complaints just tracked the boilerplate language of the statute.⁷

Mr. Shepard filed an affidavit on remand.⁸ His affidavit focused on each of the police reports, which he reviewed one by one. He indicated that none of the details in these reports were ever mentioned at his pleas. Moreover, he indicated that the reports themselves were never read by the judge to him during the plea colloquy; nor was he ever asked if the information contained in the Incident Reports were true. He noted further that parts of the reports were ambiguous and based on hearsay.⁹ He added with respect to each report: "I did not admit the truth of the information contained in the Incident Report as part of my plea and I have never admitted in court the facts alleged in the report are true."

No transcript of the plea colloquy was offered for any of the pleas cited by the government. The government represented that none was available. Likewise, no one offered any presentence reports which might have contained a police report or written plea agreements. There was no evidence suggesting that the police reports had ever been made part of the plea colloquy, in writing or orally.¹⁰

Apart from Mr. Shepard, no witness described what had occurred at the plea colloquy — no police officers, prosecutors or attorneys. In short, no document was offered rebutting Mr. Shepard's account of what went on.¹¹

II. ANALYSIS

A. The Question to Be Answered on Remand Is: What Did Mr. Shepard Plead To?

The question on remand, and indeed, the central question under the ACCA is: What did Mr. Shepard plead to? As the First Circuit noted, the question is "not what Shepard did to provoke the criminal charges to which he pled guilty." Shepard II, 231 F.3d at 68.¹²

I will briefly review the ACCA case law and statutory language for two purposes — to put the government's arguments in context and to demonstrate the ways in which the government's approach would require me to do precisely what Taylor and its progeny forbid.

The ACCA imposes a mandatory sentence of at least fifteen years, and up to life imprisonment for illegal possession of a firearm, by anyone who has three prior convictions for violent felonies or serious drug offenses. The linchpin is the word "conviction." While some judges believed that the "mere" fact of three prior felonies, without more, was not enough to make a career criminal, and hesitated or even refused to send the...