United States District Court, D. Maine
ORDER DENYING DEFENDANT’S MOTIONS FOR ATTORNEY DAVID BENEMAN TO FILE CLAIMS AND FOR APPOINTMENT OF COUNSEL
JOHN A. WOODCOCK, JR., UNITED STATES DISTRICT JUDGE.
The Court rejects the Defendant’s demand that the Court order an attorney to file a claim that he should not have been deemed subject to the provisions of the Armed Career Criminal Act and should not have been sentenced based on the Armed Career Criminal guidelines provision. The Court determines that because the Defendant had previously been convicted of seven burglaries under state laws that are consistent with the definition of generic burglary, the ACCA was applicable to the instant felon-in-possession offense. It also determines that the Armed Career Criminal guidelines provision was not used to calculate his guidelines sentence range.
I. PROCEDURAL HISTORY
On March 17, 2014, this Court sentenced Lauren MacArthur to 216 months of incarceration, five years of supervised release, and a $200.00 special assessment based on his convictions for possession of a firearm by a felon, a violation of 18 U.S.C. § 922(g)(1), and possession of stolen firearms, a violation of 18 U.S.C. § 922(j). J. (ECF No. 78) (J.). At his sentencing hearing, the Court counted two of his prior convictions as “crimes of violence” under United States Sentencing Guideline (U.S.S.G.) § 2K2.1, thereby making him an Armed Career Criminal and raising his base offense level to 26. See United States v. MacArthur, 805 F.3d 385, 386 (1st Cir. 2015). Mr. MacArthur’s criminal history category was VI. Tr. of Proceedings, Sentencing Proceedings 50:19 (ECF No. 86) (Sentencing Tr.). His guidelines range for imprisonment was 262 to 327 months. Id. 50:20-22. This Court’s sentence was forty-six months under the bottom of the guidelines range. J. at 2. Mr. MacArthur appealed his sentence to the Court of Appeals for the First Circuit, and on November 9, 2015, the First Circuit affirmed the sentence. MacArthur, 805 F.3d at 391.
On March 7, 2016, Mr. MacArthur moved this Court to appoint counsel for him, contending that Johnson v. United States, 576 U.S. __, 135 S.Ct. 2551 (2015) might apply to his case and requesting counsel be appointed to represent him. Pet. for Legal Counsel on Said Facts Below (ECF No. 91). On March 7, 2016, the Magistrate Judge appointed David R. Beneman, the Federal Defender, to review his case to determine whether Johnson afforded Mr. MacArthur a basis for post-conviction relief. Order Appointing Counsel (ECF No. 92). On March 29, 2016, Federal Defender Beneman moved to withdraw as Mr. MacArthur’s counsel on the ground that Mr. MacArthur’s sentence “does not involve a potential Johnson claim.” Mot. to Withdraw at 3 (ECF No. 94) (Mot. to Withdraw). Mr. Beneman observed that Mr. MacArthur is still well within the one year date of the denial of his direct appeal should he choose to proceed with a 28 U.S.C. § 2255 petition. Id. The Court granted Mr. Beneman’s motion on March 31, 2016. Order (ECF No. 95).
On March 31, 2016, Mr. MacArthur filed a motion to force Mr. Beneman to brief ineffectiveness of counsel claims against both his trial and appellate counsel. Pet. for Legal Counsel David Beneman to Also Br. the Issue of Strickland v. Washington (ECF No. 96) (Def.’s Mot.). Then on April 28, 2016, Mr. MacArthur filed a motion to appoint counsel to represent him on his attack against the application of the Armed Career Criminal Act in his case. Pet. for Appointment of Counsel on Said Facts Below (ECF No. 97) (Def.’s Pet.). These motions are currently before the Court.
II. LAUREN MCARTHUR’S SENTENCING HEARING AND APPEAL
A. The Indictment and Guilty Plea
On May 17, 2012, a federal grand jury issued a two-count indictment against Mr. MacArthur: (1) for being a felon in possession, and (2) for possession of stolen firearms. Indictment (ECF No. 4) (Indictment). On November 26, 2012, Mr. MacArthur pleaded guilty to both counts. Min. Entry (ECF No. 37).
B. The Sentencing Hearing
1. The Presentence Report
On March 12, 2014, the Probation Office (PO) issued its third revised Presentence Investigation Report (PSR). The PO calculated Mr. MacArthur’s guidelines sentence range under § 2K2.1 as follows:
1) Base Offense Level: noting that U.S.S.G. § 2K2.1(a)(1) applies, the PO began with an offense level of 26 because Mr. MacArthur had twice previously been convicted of crimes of violence ...