United States District Court, D. Maine
For USA, Plaintiff: JAMES L. MCCARTHY, LEAD ATTORNEY, OFFICE OF THE U.S. ATTORNEY, DISTRICT OF MAINE, BANGOR, ME; MARGARET D. MCGAUGHEY, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, PORTLAND, ME.
RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION
John C. Nivison, United States Magistrate Judge.
In this action, Petitioner Melvin Lee Vitko moves to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. (Motion, ECF Nos. 32, 32-1.)
In 2009, following Petitioner's guilty plea to a charge, by indictment, that he was a felon in the possession of five firearms, the Court sentenced Petitioner to 188 months in prison. (Amended Judgment, ECF No. 31 at 1-2.) Although Petitioner filed this section 2255 motion more than one year after the date of final judgment, citing Descamps v. United States, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), he asserts that he is entitled to relief pursuant to section 2255(f)(3). (Motion, ECF No. 32 at 12.) Petitioner more particularly argues that he should not have been sentenced as a career offender under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), because the prior convictions on which the determination of his status as a career offender was based should not be considered " violent felonies" under the ACCA. (Id. at 4.)
The Government requests summary dismissal. (Response, ECF No. 50.) As explained below, after consideration of the parties' arguments, the recommendation is that the Court deny relief and dismiss Petitioner's section 2255 motion.
I. Factual Background and Procedural History
Petitioner was indicted in September 2008 on a charge that he was a felon in possession of five firearms (count one), in violation of 18 U.S.C. § 922(g)(1), and on a charge of possessing the same five firearms knowing they were stolen (count two), in violation of 18 U.S.C. § 922(j). (Indictment at 1-3.) The indictment alleged seventeen prior convictions, all under the laws of the state of Florida. (Id. at 1-3.) The prior convictions were comprised of eight burglaries, four grand thefts, escape, uttering a forged check, conspiracy to escape, felonious possession of firearms, and dealing in stolen property. (Id.) If the Government could prove that Petitioner had at least three prior convictions for violent felonies, as the term " violent felony" is defined in 18 U.S.C. § 924(e)(2)(B), Petitioner would be subject to a mandatory minimum of fifteen years in prison under 18 U.S.C. § 924(e)(1).
Pursuant to a plea agreement, Petitioner pled guilty to count one of the indictment in November 2008. (Plea Agreement, ECF No. 13; Minute Entry, ECF No. 15.) According to the terms of the plea agreement, Petitioner understood that he was subject to a mandatory minimum sentence of 15 years. (Plea Agreement at 2.) In exchange for Petitioner's guilty plea, the Government agreed (1) to recommend a three-level reduction for acceptance of responsibility if the Court determined that Petitioner's adjusted United States Sentencing Guidelines (U.S.S.G.) offense level was 16 or higher, and (2) to move for the dismissal of count two of the indictment. (Id. at 2-3.)
The revised presentence investigation report provided the following offense level computations under the 2008 edition of the sentencing guidelines: Pursuant to U.S.S.G. § 2K2.1(a)(6)(A), because as a convicted felon, Petitioner was prohibited under 18 U.S.C. 922(g)(1) from shipping, transporting, or possessing a firearm at the time of the offense, a base offense level of 14 applied; pursuant to U.S.S.G. § 2K2.1(b)(1)(A), two points were added because the offense involved five firearms; pursuant to section 2K2.1(b)(4)(A), an additional two points were added because the firearms were stolen; four points were added, pursuant to section 2K2.1(b)(6), because Petitioner possessed the firearms in connection with another offense, in this case burglary; and pursuant to U.S.S.G. § 3E1.1, three points were subtracted for Petitioner's acceptance of responsibility, for an adjusted offense level of 19.
The revised presentence investigation report also identified five prior violent felonies (paragraphs 29, 31, 32, 35, and 39 of the report) consisting of four burglary convictions and one conviction for conspiracy to escape. Two of the burglaries involved unlawful entry into homes, and two involved unlawful entry into businesses, all with the intent to commit theft and all in violation of Florida statute section 810.02. (Attachment, ECF No. 50-1 at 1-5.)
The Government maintained that with any three of Petitioner's prior convictions, Petitioner would be considered an armed career criminal under the ACCA. In the report, due to Petitioner's status as a career criminal under the ACCA and his use or possession of the firearms in connection with a burglary, pursuant to U.S.S.G. § 4B1.4(b)(3)(A), the adjusted offense level was determined to be 34 rather than the lower level of 19. From the adjusted level of 34, three points were subtracted for Petitioner's acceptance of responsibility, which resulted in a total offense level of 31.
The revised sentencing report included Petitioner's objection based on his contention that he did not possess firearms in connection with a crime of violence. The Government did not change the revised report in response to the objection, and Petitioner's sentencing memorandum did not object to the ACCA predicate crimes or the Government's ACCA recommendation. (Sentencing Memorandum, ECF No. 23.)
At the sentencing hearing, in response to the Court's questioning, Petitioner told the Court that he had read the revised presentence investigation report and that he had time to discuss the report with counsel. (Sentencing Tr. at 3-4, ECF No. 44.) The Court informed Petitioner that the Court intended to rely on the presentence investigation report in determining the sentence, and the Court asked Petitioner if the report contained any inaccuracies. (Id. at 4.) Petitioner's counsel identified some issues regarding Petitioner's aliases and the counties in which the pending burglary, theft, and firearms charges were filed, but counsel did not object to the prior convictions listed in the indictment or to Petitioner's status as an armed career criminal. (Id. at 4-6.) The Court then asked Petitioner directly whether anything else in the revised presentencing report was inaccurate, and Petitioner responded, " No, sir." (Id. at 6-7.) In response to the Court's inquiry, counsel affirmed that there were no other issues to address before sentencing. (Id. at 7.)
The Government recommended a guidelines sentence of 188 months; Petitioner recommended a variant sentence of 180 months, which represented ...