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Bennett v. United States

United States District Court, D. Maine

July 6, 2016

GEORGE BENNETT, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          KIMBERLY COSTA, Interested Party, represented by BRETT D. BABER, LANHAM, BLACKWELL & BABER, P.A..

          USA, Plaintiff, represented by F. MARK TERISON, U.S. ATTORNEY'S OFFICE, JAMES M. MOORE, OFFICE OF THE U.S. ATTORNEY, MARGARET D. MCGAUGHEY, U.S. ATTORNEY'S OFFICE, RAYMOND C. HURLEY, MCCLOSKEY, MINA, CUNNIFF, LLC & JONATHAN R. CHAPMAN, U.S. ATTORNEY'S OFFICE.

          ORDER GRANTING MOTION FOR RELIEF UNDER 28 U.S.C. § 2255

          GEORGE Z. SINGAL, District Judge.

         Before the Court is Petitioner George Bennett's Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 (ECF No. 255 in 1:94-cr-11-GZS). For reasons briefly explained herein, the Motion is GRANTED.

         Bennett is currently serving a 360-month sentence, which is the result of being convicted on three counts: (1) conspiracy to possess with intent to distribute marijuana in violation of 21 U.S.C. § 841(b)(1)(D) (Count I), (2) use or carrying of a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c) (Count II), and (3) possession of a firearm by a convicted felon in violation of 19 U.S.C. § 922(g)(1) (Count IV). With respect to Count IV, Bennett was found to be an armed career criminal under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e).[1] Specifically, the Court referenced four prior felony convictions in sentencing Bennett under ACCA (PSR ¶ 32): (1) a January 3, 1986 Maine Aggravated Assault conviction (PSR ¶ 57); (2) a December 14, 1979 Maine Aggravated Assault conviction (PSR ¶ 53); (3) a December 14, 1979 Maine Criminal Threatening with a Dangerous Weapon conviction (PSR ¶ 53); and (4) a September 28, 1978 Maine Aggravated Assault conviction (PSR ¶ 51).

         Following the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015) (Johnson II), Bennett now argues that he no longer has the three requisite convictions for an increased sentence under ACCA. See Welch v. United States, 136 S.Ct. 1257, 1265 (2016). Rather, Bennett argues that his convictions yield a statutory maximum term of imprisonment of fifteen years, thereby entitling him to immediate release.

         A. ACCA's Different Occasions Requirement

         The first issue the Court must address is whether the two convictions listed in paragraph 53 of the PSR should be considered one or two convictions for purposes of ACCA. This issue turns on whether the two counts of conviction, one for aggravated assault and one for criminal threatening with a dangerous weapon, were "committed on occasions different from one another." 18 U.S.C. § 924(e)(1). Under governing First Circuit precedent,

The "occasions" inquiry conceivably may turn upon any combination of circumstances, including (but not limited to) the identity of the victim; the type of crime; the time interval between the crimes; the location of the crimes; the continuity vel non of the defendant's conduct; and/or the apparent motive for the crimes. See United States v. Letterlough, 63 F.3d 332, 335-36 (4th Cir. 1995). Thus, the "occasions" inquiry requires a case-by-case examination of the totality of the circumstances. See, e.g., United States v. Riddle, 47 F.3d 460, 462 (1st Cir. 1995).

United States v. Stearns, 387 F.3d 104, 108 (1st Cir. 2004); see also United States v. Jenkins, 770 F.3d 507, 510 (6th Cir. 2014) (finding nine burglaries were committed on different occasions), cert. denied, 135 S.Ct. 1511 (2015). Based on the information submitted by the Government (Ex. GX-1 (ECF No. 261-1)) as well as the description contained in the PSR, the Court recognizes that there were two different victims, but nonetheless concludes that the two convictions contained in paragraph 53 occurred on the same occasion. (See PSR ¶ 53 (explaining how Bennett encountered the two victims in the same place at the same time and that Counts I & II occurred "on this same occasion").)[2]

         Having determined that the convictions listed in paragraph 53 may only count as a single ACCA-qualifying offense, the Court readily finds that Bennett's conviction for Criminal Threatening with a Dangerous Weapon in violation of 17-A M.R.S.A. § 209 & 1252(4) categorically qualifies as a violent felony under the force clause. See, e.g., United States v. Collins, 811 F.3d 63, 66-69 (1st Cir. 2016) (finding a Maine conviction for criminal threatening with a dangerous weapon qualifies as "a crime of violence under the Force Clause" of the career offender guidelines); United States v. Whindleton, 797 F.3d 105 (1st Cir. 2015) (holding that a Massachusetts conviction for assault with a deadly weapon qualifies as a violent felony under ACCA's force clause).

         B. Categorical Analysis of Maine's Aggravated Assault Statute

         With one ACCA-qualifying violent felony stemming from his December 14, 1979 conviction, the Court must next consider whether Bennett's convictions under Maine's Aggravated Assault statute qualify as a violent felonies under 18 U.S.C. § 924(e)(1) & (2)(B)(i). Applying a pure categorical approach, the Court first examines the Maine statute, which provides:

1. A person is guilty of aggravated assault if that person intentionally, knowingly ...

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