U.S. v. Madera

Decision Date05 March 2007
Docket NumberCriminal No. 03:04 cr 316(CFD).
Citation521 F.Supp.2d 149
CourtU.S. District Court — District of Connecticut
PartiesUNITED STATES v. Victor MADERA.

Terence S. Ward, Federal Public Defender's Office, Hartford, CT, for Victor Madera.

RULING ON APPLICATION OF ARMED CAREER CRIMINAL-ACT

CHRISTOPHER F. DRONEY, District Judge.

On April 26, 2006, Victor Madera pled guilty to a one count indictment charging him with possession of ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The government contends that the Armed Career Criminal Act applies to Madera, and Madera contests this conclusion. In anticipation of sentencing, the Court rules as follows as to this issue.

I. The Armed Career Criminal Act

The Armed Career Criminal Act ("ACCA") provides that:

a person who violates section 922(g) of this title and has three previous convictions ... for a violent felony or a serious drug offense, or both, committed on occasions different from one another ... shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g).

18 U.S.C. § 924(e)(1). As used in the ACCA:

(A) the term "serious drug offense" means ... an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of ten years or more is prescribed by law;

(B) the term "violent felony" means any crime punishable by imprisonment for a term exceeding one year ... that (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

18 U.S.C. § 924(e)(2).

The Supreme Court of the United States has explained that "the ACCA generally prohibits the later court from delving into particular facts disclosed by the record of conviction, thus leaving the court normally to look only to the fact of conviction and the statutory definition of the prior offense ... [A]n exception to this `categorical approach' [exists] only for a narrow range of cases where a jury ... was actually required to find all the elements of a predicate offense. Shepard v. United States, 544 U.S. 13, 17, 24, 125 S.Ct. 1254, 1257-1258, 1262, 161 L.Ed.2d 205 (2005) (internal quotation marks omitted). "[E]nquiry under the ACCA to determine whether a plea of guilty ... necessarily admitted elements of [an ACCA predicate offense] is limited to the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information." Shepard, 544 U.S. at 26, 125 S.Ct. 1254 (2005).

II. Madera's Criminal History

Madera has a lengthy Connecticut state criminal history including six possible ACCA predicate offenses: (1) on December 22, 1991, he was convicted of escape; (2) on March 13, 1992, he was convicted of possession of narcotics with intent to sell; (3) on January 9, 1997, he was convicted of possession of narcotics with intent to sell; (4) on August 8, 1997, he was convicted of sale of narcotics; (5) on May 12, 1999, he was convicted of escape; and (6) on September 18, 2000, he was convicted of possession of narcotics with intent to sell. However, the government has not met its burden of proving that at least three of these were violent felonies or serious drug offenses as defined in the ACCA. Instead, the Court finds that only two of these offenses "necessarily" involved facts equating to a violent felony or a serious drug offense.

A. Madera's ACCA Predicate Offenses

First, the Court finds that Madera's 1991 escape conviction is an ACCA predicate. The Courts have consistently held that escape is a violent felony. See, e.g., Canada v. Gonzales, 448 F.3d 560, 570 (2d Cir.2006) (noting that "the courts have regularly found that the crime of prison escape involves the inherent risk of violence, even if the escapee is able to flee the prison without detection"); United States v. Jackson, 301 F.3d 59, 63 (2d Cir.2002) (holding that escape, even by peacefully walking away from a work site, is a crime of violence). Thus, Madera's escape conviction was for a violent felony.

Second, the Court finds that Madera's August 1997 conviction for sale of heroin is an ACCA predicate. Madera argues that this was not a "serious drug offense" because he was only an accessory. This argument fails for two reasons. Under Connecticut law, an accessory may be prosecuted and punished as a principal:

A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.

Conn. Gen.Stat. § 53a-8. Also, because the ACCA includes offenses "involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance," 18 U.S.C. 924(e)(2)(A) (emphasis added), aiding and abetting convictions have been held to be serious drug offenses. See, e.g., United States v. Groce, 999 F.2d 1189, 1191-92 (7th Cir.1993) (holding that conviction of aiding and abetting commission of predicate felony is itself predicate felony conviction for purposes of ACCA because aider and abettor is treated the same as principal for criminal punishment purposes); United States v. Presley, 52 F.3d 64, 69 (4th Cir.1995) (same); United States v. Smith, 33 Fed.Appx. 462, 466 (10th Cir. April 12, 2002) (ACCA "does not distinguish between principals and accessories."). Cf. United States v. King, 325 F.3d 110, 113 (2d Cir.2003) ("the word `involving' itself suggests that the subsection [defining serious drug offenses] should be read expansively"). Accordingly, Madera's conviction for accessory to the sale of heroin, is a serious drug offense under the ACCA.

B. Madera's Non-ACCA Predicate Convictions

Three of Madera's other relevant convictions are for possession of narcotics with intent to sell or sale of narcotics in violation of Connecticut General Statutes § 21a-277(a). As described below, the Court concludes that this section proscribes both conduct which does and which does not constitute a "serious drug offense" as defined in 18 U.S.C. § 924(e)(2)(A). Under the "modified categorical approach" endorsed by Shepard, the government is required to submit records showing that Madera's convictions necessarily involved facts equating to a serious drug offense. The government has not presented such information.

1. Madera's Three Unspecified Narcotics Convictions

On March 13, 1992, Madera was convicted of possession of narcotics with intent to sell in violation of Connecticut General Statute § 21a-277(a). The Court has been provided with a certified copy of the information which charged him with this offense, and a report of the defendant's arrest. However, the information does not identify the substance Madera is accused of possessing. The arrest report also fails to identify the substance, and even if it did, Shepard would bar this Court from considering such evidence.1 No transcript of the guilty plea proceedings has been presented. Without additional information, the Court cannot determine the substance involved in Madera's 1992 conviction.

On January 9, 1997, Madera entered an Alford plea to a charge of possession of narcotics with intent to sell in violation of Connecticut General Statute § 21a-277(a). An Alford plea results in a conviction that may be used as an ACCA predicate. See Burrell v. United States, 384 F.3d 22, 28 (2d Cir.2004) (noting that under Connecticut law the only distinction between an Alford plea and a standard guilty plea is in the evidentiary use that can be made of these pleas as factual admissions, and not of the fact of conviction); Abimbola v. Ashcroft, 378 F.3d 173, 181 (2d Cir.2004). However, as with any other conviction, the Government is required to submit materials consistent with Shepard to establish that the conviction `necessarily' involved facts equating to an ACCA predicate offense.

The Court has been provided with a copy of the certified information and a transcript of the plea colloquy for this conviction. The information does not identify the narcotic Madera was convicted of possessing. The transcript of the plea colloquy reveals that the prosecutor stated that the substance tested positive for heroin. However, after Shepard, the Court may rely on the transcript only to the extent it contains "explicit factual finding by the trial judge to which the defendant assented" or other statements "confirmed by the defendant." Shepard, 544 U.S. at 16, 26, 125 S.Ct. 1254 (rejecting use of police reports to determine whether offense of conviction was generic burglary). Connecticut generally rejects the view that nolo contendere or Alford pleas "`indubitably ... admit the [charged] facts and [are] intended to do so.'" Burrell v. United States, 384 F.3d 22, 29-30 (2d Cir.2004) (quoting Pfotzer v. Aqua Systems, 162 F.2d 779, 785 (2d Cir.1947)). "Connecticut considers any `tacit admission' implicit in nolo contendere and Alford pleas as too `inconclusive and ambiguous' to be given `currency beyond the particular case' in which the plea was entered." Id. (quoting Lawrence v. Kozlowski, 171 Conn....

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