Boulanger v. United States
| Decision Date | 21 December 2017 |
| Docket Number | Case No. 16-cv-266-PB |
| Citation | 2017 DNH 253 |
| Parties | Gerard Boulanger v. United States of America |
| Court | U.S. District Court — District of New Hampshire |
Gerard Boulanger was convicted of several crimes stemming from a pharmacy robbery, including one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). Boulanger's sentence on the felon in possession charge was subject to a sentencing enhancement authorized by the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(1), that applies when a felon in possession has three or more prior convictions for a "violent felony or a serious drug offense." As a result, Boulanger was subject to a 15-year mandatory minimum sentence and a maximum sentence of life on the felon in possession charge rather than the ten-year maximum sentence that ordinarily applies to such charges.
Boulanger has filed a motion pursuant to 28 U.S.C. § 2255 challenging his sentence on the felon in possession count. His argument is that he no longer qualifies as an armed career criminal after the Supreme Court's decision in Johnson v. United States ("Johnson II"), 135 S. Ct. 2551, 2563 (2015).
On October 8, 2004, a jury convicted Boulanger of: robbery involving controlled substances, in violation of 18 U.S.C. § 2118(a)-(c)(1) (Count One); use of a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c) (Count Two); possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Count Three); and possession of a controlled substance with intent to distribute, in violation of 18 U.S.C. 841(a)(1) (Count Five).
Boulanger's presentence investigation report ("PSR") detailed his lengthy criminal history and outlined appropriate sentencing options. As the PSR explained, multiple prior felony convictions had a significant impact on his eventual sentence by triggering certain statutory enhancements and Sentencing Guidelines adjustments. The relevant convictions included:
The PSR concluded that Boulanger's sentence on the felon in possession charge was subject to the ACCA's sentencing enhancement based on at least three prior violent felony convictions.1 PSR, Addendum II (Mar. 25, 2005). The PSR also noted that Boulanger faced an 84-month consecutive sentence for the use of a firearm during a crime of violence. Finally, thePSR determined that Boulanger should be treated as a career offender based on his escape conviction and one of his 1984 robbery convictions. After taking this information into account, the PSR concluded that Boulanger's applicable guideline range was 360 months to life.
On March 8, 2005, I adopted the PSR and sentenced Boulanger to concurrent sentences of 376 months on the felon in possession charge, 300 months on the robbery charge, and 240 months on the possession with intent to distribute charge. I then imposed a consecutive sentence of 84 months on the use of a firearm during a crime of violence charge, which resulted in a total sentence of 460 months.
Boulanger's conviction and sentence were affirmed on appeal. United States v. Boulanger, 444 F.3d 76 (1st Cir. 2006). I denied his first § 2255 petition on September 24, 2007. Nearly a decade later, Boulanger sought permission from the First Circuit Court of Appeals to file a second § 2255 motion. His request presented three arguments: (1) his current challenge to the ACCA enhancement; (2) a claim that he was improperly treated as a career offender; and (3) a challenge to his conviction for using a firearm during a crime of violence. On June 20, 2016, the court of appeals granted Boulanger permission to proceed with his ACCA challenge and instructed meto determine whether he should be permitted to proceed with his other claims. See Judgment, Boulanger v. United States, No. 16-1488 (1st Cir. June 20, 2016). Boulanger's career offender challenge became moot in light of the Supreme Court's decision in Beckles v. United States, 137 S. Ct. 886 (2017), and I determined in Kucinski v. United States, 2016 DNH 163, that his challenge to his conviction for using a firearm during a crime of violence was premature. Thus, the only issue that remains to be decided is Boulanger's challenge to the ACCA enhancement.
Boulanger contends that he is entitled to be resentenced on the felon in possession charge because he can no longer be treated as an armed career criminal after the Supreme Court's decision in Johnson II. The government responds by claiming that Johnson II does not alter Boulanger's status as an armed career criminal because he has multiple New Hampshire state court convictions for robbery and armed robbery that continue to qualify as violent felonies.2 I analyze the parties' argumentsby first explaining how the ACCA has been affected by Johnson II and then apply the Act to Boulanger's robbery and armed robbery convictions.
The penalty for a felon in possession conviction is enhanced under the ACCA if the defendant has three prior qualifying convictions for "a violent felony or a serious drug offense." 18 U.S.C. § 924(e)(1). A "violent felony" is "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, [or] involves use of explosives"; or (iii) "otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(i)-(ii). These three clauses are known respectively as the "elements clause,"3 the "enumerated offenseclause," and the "residual clause." United States v. O'Shea, 256 F. Supp. 3d 72, 77-78 (D. Mass. 2017); see United States v. Starks, 861 F.3d 306, 314 (1st Cir. 2017).
The Supreme Court determined in Johnson II that the ACCA's residual clause was unconstitutionally vague. 135 S. Ct. at 2563. It also later ruled in Welch v. United States, 136 S. Ct. 1254, 1265 (2016), that Johnson II applies retroactively to cases on collateral review. In light of these decisions, Boulanger cannot be deemed to be an armed career criminal under the residual clause. Further, because the government does not argue that any of Boulanger's prior convictions qualify as violent felonies under the enumerated offense clause, his right to resentencing turns on whether he is subject to the enhancement under the elements clause.
A prior conviction qualifies as a violent felony under the elements clause if it is for a crime that has as an element the use, attempted use, or threatened use of "physical force." 18 U.S.C. § 924(e)(2)(B)(1). "Physical force" means "violent force - that is force capable of causing physical pain or injury to another person." Johnson v. United States (Johnson I), 559 U.S. 133, 140 (2010).
I use the so-called "categorical approach" to determine whether any of Boulanger's convictions qualify as a violentfelony under the elements clause. See Starks, 861 F.3d at 315. When using this approach, a court may consider only "the statutory definitions - i.e., the elements - of a defendant's prior offense[] and not . . . the particular facts underlying [the offense]" in deciding whether that offense qualifies as a violent felony. Descamps v. United States, 133 S. Ct. 2276, 2283 (2013) (emphasis in original) (internal quotes and citations omitted).
To do so, I focus on the "minimum conduct criminalized" or, stated differently, the "least serious conduct for which there is a 'realistic probability' of a charge and conviction." Starks, 861 F.3d at 315; United States v. Edwards, 857 F.3d 420, 423 (1st Cir. 2017). If the "minimum conduct criminalized" necessarily involves the use, attempted use, or threatened use of "violent force," i.e. "force capable of causing physical pain or injury to another person," see Johnson I, 559 U.S. at 140, the prior conviction is categorically an ACCA predicate. United States v. Mulkern, 854 F.3d 87, 90-91 (1st Cir. 2017); Edwards, 857 F.3d at 423. By contrast, if the "minimum conduct criminalized" does not necessarily involve such force, then the prior conviction categorically fails to qualify as a violent felony. See United States v. Fish, 758 F.3d 1, 5 (1st Cir.2014) (citing Karimi v. Holder, 715 F.3d 561, 567 (4th Cir. 2013)).
Importantly, this "minimum-conduct focus 'is not an invitation to apply legal imagination to the state offense.'" Edwards, 857 F.3d at 423 (quoting Moncrieffe v. Holder, 569 U.S. 184, 133 S. Ct. 1678, 1684-85 (2013)) (other internal quotes and citations omitted). Rather, the minimum conduct criminalized is conduct that has a "realistic probability, not a theoretical possibility," of supporting a conviction under the law or statute in question. See id.; Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007) (); Fletcher v. United States, 858 F.3d 501, 507 (8th Cir. 2017); United States v. Hill, 832 F.3d 135, 142 (2d. Cir. 2016). "Decisions from the state supreme court best indicate a 'realistic probability,'" United States v. Harris, 844 F.3d 1260, 1264 (10th Cir. 2017).
The New Hampshire robbery statute "creates two offenses ...
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