U.S. v. Shepard, No. Crim. 98-10262-NG.

CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
Writing for the CourtGertner
Citation125 F.Supp.2d 562
PartiesUNITED STATES of America v. Reginald SHEPARD, Defendant.
Docket NumberNo. Crim. 98-10262-NG.
Decision Date20 January 2000
125 F.Supp.2d 562
UNITED STATES of America
v.
Reginald SHEPARD, Defendant.
No. Crim. 98-10262-NG.
United States District Court, D. Massachusetts.
January 20, 2000.

Nadine Pellegrini, U.S. Attorney's Office, Boston, MA, for plaintiff.

Linda J. Thompson, Jacobson & Thompson, P.C., Springfield, MA, for defendant.

SENTENCING MEMORANDUM

GERTNER, District Judge.


 I. GUIDELINE CALCULATIONS ........................................... 564
                 II. FACTS ............................................................ 564
                 A. Background .................................................... 564
                 B. Criminal History .............................................. 565
                 1. The Breaking and Entering Convictions ...................... 565
                 a. April 18, 1989 .......................................... 566
                

Page 563

 b. May 23, 1989 ............................................ 566
                 c. March 29, 1991 .......................................... 566
                 d. July 18, 1991 ........................................... 567
                 e. February 4, 1994 ........................................ 567
                 2. The Remainder of Shepard's Record .......................... 567
                 C. This Incident ................................................. 567
                 D. Other Facts ................................................... 567
                III. LEGAL ANALYSIS ................................................... 568
                 A. Armed Career Criminal ......................................... 568
                 B. Inadequate Criminal History Category .......................... 570
                 1. Whether an Upward Departure is Warranted ................... 571
                 2. Extent of Departure ........................................ 572
                 a. Degree of Departure ..................................... 572
                

Reginald Shepard ("Shepard") pleaded guilty to one count of Felon in Possession of a Firearm, in violation of 18 U.S.C. § 922(g). At the time of the offense, Shepard had a number of prior state criminal convictions for breaking and entering. The government argued that at least five of these convictions were "violent felonies" within the meaning of the Armed Career Criminal Act ("ACC") because they qualified as "burglaries" under 18 U.S.C. § 924(e)(2). See U.S.S.G. § 4B1.4. Shepard disagreed. The resolution of this dispute was critical: Shepard faced an increase in his sentence of approximately twelve years if I adopted the government's position.1

The substantive issue, whether Shepard's breaking and entering convictions constitute "burglaries," raised an even more fundamental one — how far may a court look beyond the language of the indictment to which the defendant pled guilty or of which he was convicted, to determine the character of a defendant's prior convictions.

The Sentencing Guidelines and the ACC attach substantial penalties not merely to the fact of a prior record, but to the nature of that record. Since these extraordinary consequences were never anticipated when the defendant pled guilty or was convicted in state court, they were never adjudicated by a court or jury, much less admitted to by the defendant. A sentencing court has two choices: On the one hand, she can look only to the formalities of the record — the language of the indictment to which the defendant pled, the meaning of the jury verdict as interpreted by the jury instructions — or the facts which the defendant admitted. On the other hand, she can try to evaluate the record post hoc, without the safeguards of a trial, to determine what the offense was "really" about — what the police report says, what the complaint application indicated.

Both the First Circuit and the Supreme Court have chosen the former. It plainly saves judicial resources. It avoids the legal equivalent of an archeological dig into past records. More importantly, it is by far the fairest approach. As a general matter, we, as a society, reject punishing someone based on facts that were never adjudicated, particularly where the defendant had no idea that the facts would have this added resonance. As I describe below, based on the formal record, I concluded that Shepard did not qualify as an Armed Career Criminal.

But concluding that Shepard did not qualify as an Armed Career Criminal did not mean that his substantial record would be ignored. The government also moved for an upward departure pursuant to U.S.S.G. § 4A1.3 (p.s.) based on the seriousness

Page 564

of Shepard's criminal history.2 Again, evaluating only the formal record of Shepard's convictions, I found that the number of convictions, their timing, and their nature, all suggest that Shepard's criminal history understated his culpability and the likelihood of his recidivism. Accordingly, an upward departure was warranted.

Two hearings were held. The first, on July 7, 1999, focused on the ACC issue. The government asked the Court to accept facts taken from police reports and complaint applications as evidence to support its argument that at least five of Shepard's breaking and entering convictions were really burglaries (and thus "violent felonies") for purposes of the ACC enhancement. The second, on July 14, 1999, focused on the upward departure issue. The government urged the Court to consider the number, and "sheer industrious nature," of Shepard's prior convictions in enhancing his sentence. It then sought a sentence which, in effect, would have achieved the same result as an ACC finding.

In its objections to the pre-sentence report, Shepard opposed any factual recitations beyond the face of the complaints and specifically, any reference to police reports and complaint applications.

I departed upward by two levels. I sentenced Shepard to a term of imprisonment of forty-six months, followed by three years of supervised release. Furthermore, I ordered that Shepard participate in a 500 hour Comprehensive Drug Treatment Program, and attend a Batterer's Intervention Program.

I. GUIDELINE CALCULATIONS

Base Offense Level:

The base level under U.S.S.G. § 2K2.1(a)(6)(A) is 14.3

Acceptance of Responsibility:

Due to Shepard's guilty plea, he is entitled to a 2 level reduction under U.S.S.G. § 3E1.1(a). Minus 2

Upward Departure:

As discussed below, I concluded that an upward departure of two levels to 14 was appropriate. Plus 2

Total Offense Level:

Shepard's total offense level of 14, and a criminal history category of VI, yields a sentencing range of 37-46 months. I sentenced him to the high end, at 46 months, and further, directed that he participate in a 500 hour Comprehensive Drug Treatment Program, and a Batterer's Intervention Program.

II. FACTS

A. Background

Shepard is a 37 year old man who has been involved with the criminal justice system for almost twenty years. As a young man, he witnessed his alcoholic father physically abuse his mother. Although his mother eventually kicked his father out when Shepard was 10 years old, she later became involved with another man who repeated the pattern, physically and emotionally abusing her, as well as Shepard and his sister. At age 16, Shepard finally moved out. He also withdrew from school, got a job as a security guard, and significantly, began using drugs.

Shepard's history of abuse, and his continued use of cocaine and marijuana limited his capacity to keep a job, or to maintain positive relationships. In at least

Page 565

three of his relationships, drug use seemed to be what the couple shared most — in a rooming house in Mattapan, a rented apartment in Hyde Park, a Dorchester home. At the same time, perhaps the other side of drug filled days, at least four of the women obtained restraining orders against him.4

In 1988, Shepard tried to stop his drug habit by entering a rehabilitation program at Dimock Detoxification Center. After only six months of staying clean, however, he returned to drug use.

At sentencing, Shepard represented to the Court that he had voluntarily stopped using drugs since 1996. During part of that period, he was in the House of Correction. After his release in 1998, his girl-friend, Kathleen Cole, confirmed that he began attending Alcoholics Anonymous/Narcotics Anonymous ("A.A./N.A.") meetings. Shepard's family, who had largely rejected him because of his drug use, as I describe below, appeared in force at the sentencing hearing to buttress the claim that he had finally addressed his problem.

B. Criminal History

Since 1980, when he was 18 years old, Shepard has been on an 18-year crime spree.5 But while lengthy, it is also the criminal history of a drug addict — a series of opportunistic, seemingly unplanned crimes, involving inappropriate targets with little chance of success. He is immediately apprehended; he pleads guilty and as soon as he is released, starts again.

1. The Breaking and Entering Convictions

Of particular importance to this case are Shepard's eleven convictions for breaking and entering,6 at least five of which the government argues constitute burglaries. Probation and the defense disagreed, relying only on the language in the charging documents, the criminal complaints.7 These complaints recite the boiler-plate language of the statutes, G.L. ch. 266 §§ 16, 18. And that language covers both

Page 566

breaking and entering into a commercial structure or dwelling, which is "generic burglary," as I describe below, and breaking and entering into a vehicle or vessel, which is not.8

In an effort to prove the actual conduct involved, in particular the location of the crime (i.e. in a structure or a vehicle), the government supplied additional materials, such as complaint applications and police reports. While the Probation Department described the content of these materials in its amended Pre-Sentence Report ("PSR"), it did not alter its conclusion. It continued to maintain that it was bound to rely only on the formalities of the charges.

In each case, Shepard pleaded guilty to the generally worded complaint. Nothing suggested that the facts alleged in the complaint applications or the police reports were ever...

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4 practice notes
  • U.S. v. Gautier, Criminal No. 06cr0036-NG.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • December 23, 2008
    ...161 L.Ed.2d 205 (2005), is how far that "peek" can go. "Not very far, is the answer." United States v. Shepard, 125 F.Supp.2d 562, 569 (D.Mass.2000) (citing Taylor, 495 U.S. at 600-02, 110 S.Ct. 2143; Damon, 127 F.3d at 142-46.) If the defendant was convicted after a tri......
  • U.S. v. Shepard, No. 02-1216.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • November 3, 2003
    ...under the Act, imposing instead a sentence of 46 months (which included a two-level upward departure). United States v. Shepard, 125 F.Supp.2d 562, 572 (D.Mass.2000) ("Shepard I"). On the government's appeal, this court reversed, ruling that there was no "absolute bar" t......
  • U.S. v. Shepard, No. CRIM. 98-10262-NG.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • January 23, 2002
    ...to a level 14, with 46 months being the highest sentence available in the range. My reasons are recorded in United States v. Shepard, 125 F.Supp.2d 562 (2000) ("Shepard The government appealed. The decision was then vacated and remanded in United States v. Shepard, 231 F.3d 56 (1st Cir......
  • Shepard v. United States, No. 03-9168.
    • United States
    • United States Supreme Court
    • March 7, 2005
    ...burglary, the District Court ruled that Taylor barred counting any of the prior convictions as predicates for the mandatory minimum. 125 F. Supp. 2d 562, 569 (Mass. 2000). In Taylor we read the listing of "burglary" as a predicate "violent felony" (in the ACCA) to refer ......
4 cases
  • U.S. v. Gautier, Criminal No. 06cr0036-NG.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • December 23, 2008
    ...161 L.Ed.2d 205 (2005), is how far that "peek" can go. "Not very far, is the answer." United States v. Shepard, 125 F.Supp.2d 562, 569 (D.Mass.2000) (citing Taylor, 495 U.S. at 600-02, 110 S.Ct. 2143; Damon, 127 F.3d at 142-46.) If the defendant was convicted after a tri......
  • U.S. v. Shepard, No. 02-1216.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • November 3, 2003
    ...under the Act, imposing instead a sentence of 46 months (which included a two-level upward departure). United States v. Shepard, 125 F.Supp.2d 562, 572 (D.Mass.2000) ("Shepard I"). On the government's appeal, this court reversed, ruling that there was no "absolute bar" t......
  • U.S. v. Shepard, No. CRIM. 98-10262-NG.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • January 23, 2002
    ...to a level 14, with 46 months being the highest sentence available in the range. My reasons are recorded in United States v. Shepard, 125 F.Supp.2d 562 (2000) ("Shepard The government appealed. The decision was then vacated and remanded in United States v. Shepard, 231 F.3d 56 (1st Cir......
  • Shepard v. United States, No. 03-9168.
    • United States
    • United States Supreme Court
    • March 7, 2005
    ...burglary, the District Court ruled that Taylor barred counting any of the prior convictions as predicates for the mandatory minimum. 125 F. Supp. 2d 562, 569 (Mass. 2000). In Taylor we read the listing of "burglary" as a predicate "violent felony" (in the ACCA) to refer ......

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