Ferguson v. United States
| Decision Date | 16 January 2018 |
| Docket Number | Criminal Action No. 12-10241-FDS |
| Parties | JAMES FERGUSON, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — District of Massachusetts |
MEMORANDUM AND ORDER ON PETITION TO VACATE AND CORRECT A SENTENCE
This is a proceeding to vacate and correct a sentence pursuant to 28 U.S.C. § 2255. Petitioner James Ferguson pleaded guilty on May 23, 2013, to one count of armed bank robbery in violation of 18 U.S.C. § 2113. On September 19, 2013, the Court sentenced him to a term of imprisonment of 152 months followed by a term of supervised release of five years.
At his sentencing, the Court found that petitioner was a "career offender" within the meaning of § 4B1.1 of the United States Sentencing Guidelines (although he received a sentence below the low end of the guideline range). That conclusion was based on the fact that he had previously been convicted in Massachusetts for a variety of qualifying offenses, including multiple armed bank robberies. Petitioner was not, however, adjudged to be an "armed career criminal" under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e).1
In 2016, after the sentencing, the Supreme Court issued its opinion in Mathis v. United States, 136 S. Ct. 2243 (2016). Mathis involved a challenge to the ACCA, not the career-offender provisions of the Sentencing Guidelines. The Supreme Court held that a prior conviction does not qualify as the generic form of a predicate violent felony offense under the ACCA if an element of the crime of conviction is broader than an element of the generic offense. 136 S. Ct. at 2257.
Ferguson has moved to vacate and correct his sentence. The basis of his petition is not entirely clear, but he appears to contend that the principles of Mathis () should apply to the career-offender provisions of the Sentencing Guidelines, and that therefore the Court should not have found that he qualified as a career offender. He also appears to contend that his counsel did not provide effective assistance of counsel for failing to raise that issue at his sentencing. For the reasons set forth below, the petition will be denied.
The following facts are taken largely from the September 19, 2013 sentencing hearing and the Presentence Investigation Report ("PSR"), unless otherwise noted. See United States v. Connell, 960 F.2d 191, 192-93 (1st Cir. 1992); United States v. Garcia, 954 F.2d 12, 14 (1st Cir. 1992).
James Ferguson has lived a life of crime and spent almost the entirety of his adult life in prison. In 1975, at ages 15 and 16, he committed several armed robberies and was eventually sentenced to a term of imprisonment of 12 years and one day. (PSR ¶¶ 44-49). In 1977, while in prison, at age 18, he committed assault and battery on a corrections officer and assault and battery with a dangerous weapon. (Id. at ¶ 50). In 1978, he again committed assault and battery on a corrections officer. (Id. at ¶ 51).
He was released on parole on February 24, 1981, when he was 21 years old. (Id. at ¶ 49). Three days after being released on parole, he committed another armed robbery, assault with intent to murder, kidnapping, and illegal firearm possession. (Id. at ¶ 52). He was sentenced to a term of imprisonment of 15 to 20 years, which was later reduced to 12 to 15 years. (Id.). He was released from custody on November 3, 1989. (Id.).
Over the next 14 months, he proceeded to commit a string of armed bank robberies with several co-conspirators. (Id. at ¶¶ 54-55). His modus operandi was to use cutting tools to enter the bank through the roof overnight, and ambush employees the following morning. (Id. at ¶ 55). He was eventually arrested on January 3, 1991. (Id. at ¶ 54).
Ferguson was prosecuted in state court with respect to one of the robberies, which was committed on October 18, 1990. (Id.). He was found guilty of armed assault with intent to commit robbery, armed robbery, and assault with a dangerous weapon. On February 27, 1992, the state court sentenced him to a term of imprisonment of 12 to 15 years. (Id.).
Ferguson was also prosecuted in federal court with respect to other robberies committed during his 14-month period of freedom. (Id. at ¶ 55). He eventually pleaded guilty on February 16, 1996, to nine counts of armed bank robbery, three counts of attempted armed bank robbery, conspiracy to commit armed bank robbery, and use of a firearm during a violent crime. (Id.). The same day, he pleaded guilty to other federal charges of conspiring to possess and transfer a sawed-off shotgun, conspiracy to distribute heroin, tax evasion, and money laundering. (Id. at ¶¶ 56-58). He was essentially sentenced to a term of imprisonment of fifteen years, to be served consecutively to the sentence he already received in state court. (Id. at ¶ 55).2
He was released from federal imprisonment in late April 2012. (Sen. Tr. at 11).However, within weeks, he robbed the Cambridge Trust Company on June 28, 2012, while wielding a pellet gun. (PSR at ¶¶ 9, 13; Sen. Tr. at 32). He stole $63,616 in cash, of which approximately $53,000 was recovered by law enforcement officers. (Sen. Tr. at 6). He was indicted for armed bank robbery in violation of 18 U.S.C. § 2113 on August 14, 2012, and pleaded guilty on May 23, 2013. (Docket Nos. 1, 55).
His sentencing hearing was held on September 19, 2013. (Docket No. 67). At the sentencing hearing, the Court noted that because of his extraordinary criminal record, before Ferguson robbed the Cambridge Trust Company, he had spent "36 or 37 of the previous 38 years in prison." (Sen. Tr. at 48). He had been released for less than two months when he "walked into a bank with a mask and a gun (or what appeared to be a gun) and robbed it." (Id.).
The Court, relying on the presentence investigation report and without objection by Ferguson, conducted the following guideline calculation: first, excluding the career-offender enhancement, the Court noted that the base offense level for robbery was 20. U.S.S.G. § 2B3.1. Because Ferguson used a firearm to rob a bank of more than $50,000, the offense level was adjusted to 27. (Id. at 7).
However, Ferguson qualified as a career offender, based on his prior convictions for crimes of violence and drug trafficking. U.S.S.G. § 4B1.1 (a)-(c). Because the statutory maximum penalty for robbery is 25 years, the offense level was increased to 34. U.S.S.G. § 4B1.1(b). Applying the three-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1 yielded an offense level of 31. (Sen. Tr. at 7).
Ferguson's criminal-history score of 11 would normally result in a criminal-history category of V. However, because of the career-offender provisions, his criminal-history category was instead VI. (Id. at 8). Therefore, the guideline sentencing range was 188 to 235months. (Id.).
Ferguson's counsel requested a sentence of 115 months, which would be at the high end of the sentencing range without the career-offender enhancement. (Id. at 30). The Court imposed a below-guideline sentence of 152 months, followed by a term of supervised release of 5 years. (Id. at 54).3 Although Ferguson had a lengthy criminal history, the Court noted that he had displayed a "degree of self-awareness and contrition that is extraordinary." (Id. at 49). The Court also noted that there were "glimmers of light" in his personal life, including the presence of supportive family members and friends. (Id. at 50).
The present motion to vacate the sentence was filed with this Court on May 16, 2017. In the motion, Ferguson appears to contend that his 1992 state armed robbery conviction should not qualify as a "crime of violence" for sentencing purposes because the Massachusetts armed robbery statute "sweeps more broadly than the generic offense," violating the principles of Mathis. (Pet'r Mot. at 5).
In its opposition, the government first contends that petitioner's motion is untimely. Congress has established a one-year limitation period governing motions for relief under § 2255. 28 U.S.C. § 2255(f). The one-year period begins to run from the latest of one of four dates:
Id. Because petitioner never appealed to the First Circuit, his conviction became final on October 11, 2013, 14 days after the entry of judgment. Fed. R. App. P. 4(b)(1)(A)(i). However, the present motion was not filed until May 16, 2017. That was more than three years since the date his conviction became final.
Nevertheless, petitioner appears to invoke § 2255(f)(3) as justification for why he did not file an appeal. In his motion, he stated: (Pet'r Mot. at 6).
In Mathis, the Supreme Court held that a prior conviction does not qualify as the generic form of a predicate violent felony offense under the ACCA if an element of the crime of conviction is broader than an element of the generic offense. 136 S. Ct. at 2257. In making that holding, it compared the definition of burglary under Iowa state law with the "generic" definition under the ACCA. Id. at 2250. The Court concluded that because Iowa...
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