U.S. v. Gautier

• Decision Date: 23 December 2008
• Docket Number: Criminal No. 06cr0036-NG.
• Citation: 590 F.Supp.2d 214
• Parties: UNITED STATES of America, v. Eddie GAUTIER, Defendant.
• Court: U.S. District Court — District of Massachusetts

590 F.Supp.2d 214

UNITED STATES of America, v. Eddie GAUTIER, Defendant.

Criminal No. 06cr0036-NG.

United States District Court, D. Massachusetts.

December 23, 2008.

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Oscar Cruz, Jr., Timothy G. Watkins, Federal Defender's Office District of Massachusetts, Boston, MA, for Eddie Gautier.

William D. Weinreb, United States Attorney's Office, John A. Wortmann, Jr., United States Attorney's Office, Boston, MA, for United States of America.

SENTENCING MEMORANDUM

GERTNER, District Judge:

TABLE OF CONTENTS

                  I. INTRODUCTION ..........................................................219
                 II. FACTS .................................................................220
                III. DISCUSSION ............................................................221
                     A. Whether Gautier's 2001 Crime of Resisting Arrest under Mass. Gen
                         Laws Ch. 268, § 32B Is a Violent Felony ......................221
                        1. Whether the Crime Defined by Prong (2) of § 32B Is a Violent
                             Felony Under 18 U.S.C. § 924(e)(2)(B)(i) ............223
                

                        2. Whether the Crime Defined by Prong (2) of § 32B Is a Violent
                            Felony Under 18 U.S.C. § 924(e)(2)(B)(ii) ............223
                     B. Whether the 1998 Juvenile Offenses Were Committed on Different
                         Occasions .........................................................229
                        1. Legal Standard ..................................................229
                        2. Whether the Inquiry Is Limited, to Shepard-approved Source
                            Material .......................................................230
                        3. The 1998 Offenses ...............................................232
                 IV. THE SENTENCE ..........................................................234
                     A. The Guidelines Computation .........................................234
                     B. 18 U.S.C. § 3553(a) Factors ........................................234
                        1. Nature and Circumstances of the Offense .........................234
                        2. Deterrence; Public Safety .......................................234
                     C. Rehabilitation .....................................................235
                

I. INTRODUCTION

Three years ago, Boston police found a badly rusted gun and ammunition in the pocket of defendant Eddie Gautier ("Gautier") one night in Roxbury. The offense stemmed from a night of drunken carousing; the gun was completely inoperable.¹ Though he was originally arrested by state officers, possession of an inoperable gun did not constitute a crime under state law. The federal government took up the case, charging Gautier with being a felon in possession of a firearm, pursuant to 18 U.S.C. § 922(g)(1), because of his prior record. His prior convictions include two armed robberies from 1998, when he was 16, and a resisting arrest charge from 2001, when he was 20. (He is presently 27.) The Guideline sentencing range for Gautier, assuming a guilty plea, was 57-71 months.

But the government wanted more punishment for Gautier. It contended that these convictions compelled the application of a fifteen-year mandatory minimum sentence under the Armed Career Criminal Act ("ACCA"). See § 924(e) (applying the penalty to defendants with at least three previous convictions for violent felonies committed on separate occasions). I disagree.

In passing the ACCA, "Congress focused its efforts on career offenders— those who commit a large number of fairly serious crimes as their means of livelihood, and who, because they possess weapons, present at least a potential threat of harm to persons." Taylor v. United States, 495 U.S. 575, 587-88, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Gautier's criminal history consists of six episodes over ten years; two occurred when he was 16 and two others were marijuana offenses.² The predicate offenses for the ACCA enhancement are the two serious juvenile offenses, and resisting.

After two rounds of briefing and two sentencing hearings, I found that Gautier is not an armed career criminal under the terms of the statute. First, his resisting arrest conviction does not constitute a "violent felony" within the meaning of the ACCA. Second, and in the alternative, court records were ambiguous on the question of whether his 1998 offenses were "committed on occasions different from one another" as the statute requires. As a result, Gautier lacks the requisite three predicate offenses and the mandatory minimum does not apply.

Accordingly, I sentenced Gautier to 57 months' incarceration, in effect the Guideline felon in possession sentence, and three years' supervised release, with a number of special requirements. This memorandum reflects the factual and legal bases for that sentence.

II. FACTS

On the night of January 6, 2006, Eddie Gautier had come to the Archdale Housing Project to visit his mother. He decided to meet four friends who were out celebrating two of their birthdays. About 10:30 p.m., two Boston police officers patrolling the Archdale Housing Project in an unmarked police car approached the group. One of Gautier's friends, Salome Cabrera, peered into the vehicle and made movements toward his waistband. The officers exited the car, badges displayed, and walked to Cabrera. Cabrera then allegedly shouted "get the burner" (slang for gun), a comment Gautier claimed he did not hear, and the police responded by drawing their weapons on the group. They arrested and searched all five, finding a .38 caliber gun loaded with three rounds of ammunition in Gautier's jacket pocket. An examination later revealed that the gun was completely inoperable.³

Gautier was transferred to federal custody on February 8, 2006, and indicted on February 15, 2006, on one count of felon in possession of a firearm and one count of felon in possession of ammunition, both pursuant to 18 U.S.C. § 922(g)(1). Subsequent to his arrest, he agreed to speak to federal agents and police investigators, admitted to possessing the gun, and divulged where it had come from. Indeed, according to his counsel, the defendant repeatedly offered to plead guilty to the charge, but was advised against it because of the possibility of an ACCA minimum mandatory sentence of 15 years.

Counsel for Gautier sought a pre-plea Pre Sentence Report ("PSR"). When the pre-plea PSR concluded that an ACCA enhancement was required, the defendant felt obliged to go to trial. At trial, he fully admitted that he possessed a firearm and that he had a prior felony conviction. His defense was that he had picked up the gun and held it momentarily, to keep it from a group of younger, intoxicated friends in a dangerous area of Boston.

The jury rejected his claim, convicting him of both counts on July 18, 2008. He has been incarcerated since his arrest on January 6, 2006.

At the first sentencing hearing on October 15, I asked the government to brief whether resisting arrest qualifies as an ACCA predicate, an issue raised in the defendant's objections to the presentence report. On that date, I also raised sua sponte the issue of whether the juvenile offenses Gautier committed in 1998 were clearly separate predicates. At the final sentencing hearing on December 15, 2008, after reviewing the parties' submissions, I concluded that the ACCA enhancement was not warranted, principally because of the resisting arrest conviction but based on alternative findings concerning the two 1998 convictions, as well.

III. DISCUSSION

Gautier's conviction for being a felon in possession of a firearm pursuant to 18 U.S.C. § 922(g)(1) subjects him to the enhancement provision of the Armed Career Criminal Act. That statute provides:

In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years....

18 U.S.C. § 924(e)(1). Gautier's sentencing memorandum and recent Supreme Court decisions raise two potential obstacles to the applicability of the sentencing enhancement: First, Gautier's conviction for resisting arrest may not be a "violent felony" under the ACCA. Second, the government may have difficulty establishing, on the basis of source material deemed appropriate by the Supreme Court, that the 1998 offenses were "committed on occasions different from one another."

A. Whether Gautier's 2001 Crime of Resisting Arrest under Mass. Gen. Laws Ch. 268, § 32B Is a Violent Felony

The ACCA defines "violent felony" as any crime punishable 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)(B).

Courts are obliged to apply a categorical approach to determining whether a criminal offense is a violent felony; that is, they look to the statutory definition of the prior offense and not to the facts underlying the conviction. See Taylor, 495 U.S. at 600, 602, 110 S.Ct. 2143. Put simply, the issue is what the defendant was convicted of, or what he pled to, or what he admitted in the sentencing proceeding, not what he actually did. United States v. Shepard, 181 F.Supp.2d 14, 16 (D.Mass.2002).⁴ Where such a substantial enhancement is involved as with the ACCA, the case law expressly cautions courts against engaging in a post hoc archeological dig of prior convictions to determine what really happened.

Problems of interpretation arise when a state statute on which the predicate charge was based encompasses both violent felonies, which may qualify for ACCA treatment, and nonviolent felonies, which do not. In such a case, while the...