APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. Richard G. Stearns, U.S. District Judge.
Linda J. Thompson, with whom Thompson & Thompson, PC was on brief, for appellant.
Michael A. Rotker, Attorney, United States Department of Justice, Criminal Division, with whom Carmen Ortiz, United States Attorney, Timothy E. Moran, Assistant United States Attorney, Leslie R. Caldwell, Assistant Attorney General, and Sung-Hee Suh, Deputy Assistant Attorney General, were on brief, for appellee.
Before Lynch, Chief Judge, Thompson and Barron, Circuit Judges.
LYNCH, Chief Judge.
This appeal requires us to decide a narrow question: Does a criminal defendant whose federal sentence was increased based on state convictions that have since been vacated for the reasons here and who seeks to obtain resentencing on the federal charge have a claim that is cognizable under 28 U.S.C. § 2255? We hold that the claim is cognizable. We reverse the district court's contrary determination and remand for prompt further proceedings consistent with this opinion.
On August 12, 2011, Alexander Cuevas was convicted by a jury of one count of conspiracy to possess with intent to distribute less than 100 grams of heroin and four counts of distributing and possessing with intent to distribute heroin. The Presentence Report calculated Cuevas's base offense level at 24 and his criminal history category at IV, yielding a Guidelines imprisonment range of 77 to 96 months. The district court adopted the probation office's calculations -- which Cuevas agrees were correct -- and sentenced Cuevas to 84 months imprisonment and a six-year term of supervised release. Judgment was entered on December 6, 2011. Cuevas appealed his conviction (but not his sentence), and this court affirmed. United States v. Cuevas, No. 11-2473 (1st Cir. Apr. 5, 2013).
Before Cuevas's trial, the government had filed an Information to Establish a Prior Conviction which alleged that Cuevas had two felony drug convictions in Massachusetts
state court: an October 3, 2007, conviction for possession of a Class A substance in Lynn District Court (No. 0713-CR-1371) and a November 30, 2007, conviction for possession with intent to distribute a Class A substance in Lynn District Court (No. 0613-CR-7061). These convictions influenced Cuevas's sentence on the federal charges in two ways relevant here. First, the conviction in No. 0613-CR-7061 added two criminal history points to Cuevas's criminal history score, bringing it to 7, which translates to a criminal history category of IV. Second, the fact of the convictions triggered a mandatory minimum supervised release term of six years. See 21 U.S.C. § 841(b)(1)(C).
While the direct appeal in this case was pending, it came to light that Annie Dookhan, a chemist at the Massachusetts Department of Public Health's Hinton Drug Laboratory, had falsified certificates of drug analysis and contaminated negative samples so that they would test positive. It was difficult to ascertain which samples under her supervision resulted in falsified reports and which did not. Dookhan had participated in the drug analysis leading to both of Cuevas's state drug convictions, so Cuevas filed motions for a new trial in both cases. On December 5, 2012, the state court vacated the drug count in No. 0713-CR-1371. The court's order reads: " Ms. Dookhan was the confirmatory chemist; this fact was not known to the jury. The interests of justice mandate a new trial under these circumstances."  On April 11, 2013, the state court vacated the conviction in No. 0613-CR-7061, noting that Dookhan was the chemist and that the government did not object to Cuevas's motion for a new trial. The state filed a nolle prosequi as to both of the vacated convictions.
These developments had two potential effects on Cuevas's Guidelines calculation. First, the vacatur and dismissal of the conviction in No. 0613-CR-7061 eliminated two of his seven criminal history points. This would have reduced his criminal history category from IV to III and his Guidelines imprisonment range from 77-96 months to 63-78 months. Second, the combined effect of the vacaturs and dismissals was to extinguish both convictions forming the basis for the government's Information to Establish a Prior Conviction, thereby reducing the mandatory minimum term of supervised release from six years to three years. See 21 U.S.C. § 841(b)(1)(C).
Cuevas's current projected release date is December 10, 2015. His release on that date is contingent on successful completion of a drug abuse program and transition to a halfway house. Were he to be resentenced at the high end of his revised Guidelines range (78 months), his projected release date would be June 15, 2015.
On June 3, 2013, Cuevas, acting pro se, filed a motion to vacate under 28 U.S.C. § 2255. He argued that, under Johnson v. United States,544 U.S. 295, 125 S.Ct. 1571, 161 L.Ed.2d 542 (2005), United States v. Pettiford, 101 F.3d 199 (1st Cir. 1996), and like cases, he was entitled to reopen his federal sentence in light of the vacatur of the underlying state convictions. The government ...