U.S. v. Birkett

• Citation: 501 F.Supp.2d 269
• Decision Date: 21 August 2007
• Docket Number: Criminal Action No. 06-10139-WGY.
• Parties: UNITED STATES of America, Plaintiff, v. Kern BIRKETT, Defendant.
• Court: U.S. District Court — District of Massachusetts

501 F.Supp.2d 269

UNITED STATES of America, Plaintiff, v. Kern BIRKETT, Defendant.

Criminal Action No. 06-10139-WGY.

United States District Court, D. Massachusetts.

August 21, 2007.

Theodore B. Heinrich, United States Attorney's Office, Boston, MA, for Plaintiff.

SENTENCING MEMORANDUM

YOUNG, District Judge.

I. FACTUAL AND PROCEDURAL BACKGROUND

On May 25, 2006, the United States indicted Kern Birkett ("Birkett") for possession of a firearm and ammunition by a felon in violation of 18 U.S.C. § 922(g)(1).

Birkett initially pled not guilty. Birkett subsequently challenged the incriminating physical and testimonial evidence collected against him through a motion to suppress. The hearing on the motion to suppress commenced on November 27, 2006. At the hearing, Birkett took the stand and was cross-examined by the government. Despite Birkett's testimony, in light of the evidence introduced by the government, this Court denied the motion to suppress.

After the denial of the motion to suppress, Birkett decided to change his plea. On December 18, 2006, Birkett pled guilty to the charge pursuant to Federal Rule of Criminal Procedure 11.

Following the guilty plea, the Probation Office prepared a Presentence Investigation Report ("PSR"). The Probation Office found that Birkett had two felony convictions for crimes of violence under United States Sentencing Guidelines ("U.S.S.G.") section 2K2.1(a)(2), and calculated the base offense level for the advisory sentencing guidelines at 24. PSR ¶ 18. Birkett's criminal history category was calculated as V. Id. ¶ 38. These calculations led to an advisory sentencing guideline range of 92 to 115 months.

On May 10, 2007, the Court held a sentencing hearing. Birkett objected to the PSR's base offense level calculation by challenging the use of a continuation without a finding for a Massachusetts assault and battery charge as a predicate "crime of violence" offense under U.S.S.G. § 2K2.1(a)(2). In light of this argument, the Court continued the sentencing until July 9, 2007.

II. DISCUSSION

A. Predicate Offense for a Violent Felony Under U.S.S.G. 2K2.1

United States Sentencing Guidelines section 2K2.1(a)(2) provides that a defendant who is sentenced for the unlawful possession of a firearm or ammunition ought receive a base offense level of 24 if the defendant already has "at least two felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 2K2.1(a)(2). Application Note 1 defines by cross-reference to U.S.S.G. section 4B1.2(a) and Application Note 1 of the Commentary to section 4B1.2, which define a "crime of violence" for sentencing a "career offender" pursuant to section 4B1.1. The definition provided in section 4B1.2 includes offenses specifically enumerated (e.g., aggravated assault and robbery) as well as any offense that "has as an element the use, attempted use, or threatened use of physical force against the person of another." U.S.S.G. § 4B1.2 (a)(1) & cmt. n. 1 (2006).

The definition for a "crime of violence" provided by section 4B1.2 closely tracks the definition of a "violent felony" for purposes of the Armed Career Criminal Act of 1984 ("ACCA"), Pub.L. 98-473 (Oct. 12, 1984) (codified in scattered sections), that created a mandatory minimum penalty of fifteen years for any person convicted under that statute who had three other applicable predicate offenses. See 18 U.S.C. § 924(e)(1)-(2). Courts alternatively refer to convictions under the category of a "violent felony" as constituting a "crime of violence." See, e.g., United States v. Santos, 363 F.3d 19, 22 (1st Cir.2004). Due to the similarity of the two provisions, cases pertaining to either provide guidance as to the proper inquiry to apply to an allegedly applicable predicate conviction.¹ Id. at 22 n. 5; United States v. Delgado, 288 F.3d 49, 52 n. 5 (1st Cir.2002).

A "categorical approach" is applied to determine whether an offense satisfies the definition of a "crime of violence." Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). In Taylor v. United States, the Supreme Court addressed the question of whether a state conviction for burglary constituted a predicate conviction for sentencing enhancement purposes where the state crime of burglary included conduct more inclusive than a generic burglary statute. Id. at 577-79, 110 S.Ct. 2143. The Supreme Court recognized that Congress intended that the sentencing enhancement provisions be triggered by specified elements and not simply by specific crimes so defined in various ways by various state legislatures. Id. at 588-89, 110 S.Ct. 2143. Congress, by designating predicate offenses, had in mind categorical definitions of generic offenses. Id. at 590, 110 S.Ct. 2143. Where a state statute varies from this generic definition² and is more inclusive with regard to punishable conduct, a district court must look only to the statutory definition of the offense and the fact of conviction to determine whether the prior conviction satisfies the definition of a "crime of violence." Id. at 599-602, 110 S.Ct. 2143.

This categorical approach prevents a court from considering the particular facts underlying the conviction. Id. at 600, 110 S.Ct. 2143. The only exception occurs when the government can show from evidence such as the indictment, information or jury instructions that a jury necessarily had to find all elements of the generic offense to convict the particular defendant. Id. at 602, 110 S.Ct. 2143; see Shepard v. United States, 544 U.S. 13, 20, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (referring to these examples of adequate judicial record evidence as illustrative, not limitative).

The Supreme Court in Taylor also considered the problematic situation where a defendant enters into a plea bargain. See id. at 601-02, 110 S.Ct. 2143. The Supreme Court addressed this situation directly in Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), where the defendant's prior convictions stemmed from a guilty plea, not a jury verdict. When faced with a guilty plea, the Supreme Court held that the Taylor categorical approach remained the appropriate framework. Id. at 19, 125 S.Ct. 1254. The key question is what constitutes an adequate judicial record evidence in this context. Id. at 20-21, 125 S.Ct. 1254.

This question presents possible Sixth and Fourteenth Amendment problems if the sentencing district judge is allowed to "make a disputed finding of fact about what the defendant and state judge must have understood as the factual basis of the prior plea." Id. at 25, 125 S.Ct. 1254. A sentencing district judge who makes such a disputed factual finding runs afoul of the oft-cited bright line rule of Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Jones v. United States, 526 U.S. 227, 243 n. 6, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), that "any fact other than a prior conviction sufficient to raise the limit of the possible federal sentence must be found by a jury." Shepard, 544 U.S. at 24, 125 S.Ct. 1254. In addition, the sentencing district judge cannot take shelter within the authority recognized by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (a prior conviction is a sentencing factor that need not be proved beyond a reasonable doubt) when the disputed fact is "too far removed from the conclusive significance of a prior judicial record," Shepard, 544 U.S. at 25, 125 S.Ct. 1254.

In Shepard, the Supreme Court reversed the First Circuit's holding that complaint applications and police reports may count as "sufficiently reliable evidence for determining whether a defendant's plea of guilty constitutes an admission to a generically violent crime." Id. at 18, 125 S.Ct. 1254 (quoting United States v. Shepard, 231 F.3d 56, 67 (1st Cir.2000)). In such a case, a sentencing judge's inquiry 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." Id. at 26, 125 S.Ct. 1254.

In this case, Birkett cites the Taylor and Shepard framework in challenging the Probation Office's base offense level calculation. Def. Sentencing Mem. [Doc. No. 18] at 4-9. The Probation Office suggests that Birkett's prior continuation without a finding for assault and battery, PSR If 30, and conviction for distribution of marijuana, id. ¶ 33, satisfy the predicate offense requirement for a sentencing enhancement under section 2K2. 1(a)(2), id. ¶ 18.³

The application of the Taylor framework governs whether a prior conviction meets the definition of a "crime of violence" under section 2K2.1. United States v. Mangos, 134 F.3d 460, 463-64 (1st Cir.1998); see also United States v. Bell, 445 F.3d 1086, 1089, 1091 (8th Cir. 2006); United States v. Hubbarcl, 120 Fed. Appx. 49, 50 (9th Cir.2005) (unpublished opinion). The question is, therefore, whether Birkett's continuation without a finding⁴ under Massachusetts' assault and battery statute, Mass. Gen. Laws ch. 265, § 13A, satisfies the categorical approach required by Taylor and Shepard.

Fitting the Massachusetts assault and battery statute within the federal sentencing scheme has proved to be especially problematic. See Santos, 363 F.3d at 23; United States v. Jones, 235 F.3d 342, 346 (7th Cir.2000) (applying Massachusetts law); Mangos, 134 F.3d at 463-64; Caggiano v. United States, 977 F.2d 566, 1992 WL 295141, at *2 n. 5 (1st Cir.1992) (unpublished opinion); United States v. Harris, 964 F.2d 1234, 1236 (1st Cir.1992) abrogated on other grounds by Shepard, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205; United States v. Bregnard, 951 F.2d 457, 459-60 (1st Cir.1991); United States v. Sanford, 327 F.Supp.2d 54, 59 (D.Me. 2004).

Massachusetts statutory law makes assault and...