United States District Court, D. Maine
KIMBERLY COSTA, Interested Party, represented by BRETT D.
BABER, LANHAM, BLACKWELL & BABER, P.A..
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. §
Z. SINGAL, District Judge.
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.
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). 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).
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
ACCA's Different Occasions Requirement
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
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
Categorical Analysis of Maine's Aggravated Assault
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
1. A person is guilty of aggravated assault if that person
intentionally, knowingly ...