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Bartelho v. United States

United States District Court, D. Maine

August 8, 2018

THOMAS J. BARTELHO, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent

          RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION

          John C. Nivison U.S. Magistrate Judge.

         Petitioner Thomas J. Bartelho filed a second or successive motion, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Motion, ECF Nos. 158, 171.)[1] The First Circuit granted Petitioner leave to file the motion “to pursue in the district court a challenge to his ‘career offender' designation based on [Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551 (2015)].” (Bartelho v. United States, No. 15-1996 (1st Cir. Nov. 17, 2017).)[2]

         Following a review of the motion and the record, and after consideration of the parties' arguments, I recommend the Court dismiss the motion.

         I. Factual Background and Procedural History

         Petitioner was convicted in 1996 on three counts of armed bank robbery, 18 U.S.C. § 2113(a), (d), § 2 (Counts 1, 3, 5); three counts of using and carrying firearms in relation to a crime of violence, 18 U.S.C. § 924(c)(2), § 2 (Counts 2, 4, 6); and one count of interference with commerce by threats of violence, 18 U.S.C. § 1951 (Hobbs Act), § 2 (Count 7). (Judgment, ECF No. 70 at 1, 1.01.)

         The Court sentenced Petitioner to a total prison term of 278 months on Counts 1, 3, 5, and 7, and to a total prison term of 45 years on Counts 2, 4, and 6, to be served consecutively to the 278-month prison term. (Id. at 2.) The prison terms were to be followed by supervised release of five years on Counts 1, 3, and 5, and three years on Counts 2, 4, 6, and 7, to be served concurrently. (Id. at 3.)

         The Court noted the parties' disagreement as to whether two prior Rhode Island convictions for breaking and entering qualified as crimes of violence for purposes of Petitioner's career offender status under USSG § 4B1.1. (Sentencing Tr., ECF No. 181 at 34-35.) The Court found the convictions were crimes of violence under the residual clause contained in the version of USSG § 4B1.2 in effect when Petitioner was sentenced in 1996. (Id. at 35-38.) The Court observed the issue was “a close question, ” based on First Circuit dicta, and the Court also explicitly found that an obstruction of justice enhancement and a multiple-count adjustment together supported the guidelines sentence, independent of the career offender finding.[3] (Id. at 35-40.) The Court stated:

I therefore make two alternative findings. First, that Mr. Bartelho is a career offender because of the two previous crimes of violence. As a result, the total offense level is 34, together with a criminal history of Category VI. If the First Circuit changes its view concerning the definition of crime of violence as expressed in the dictum that I've described, then I find in the alternative that the total offense level after the multiple count adjustment and given my finding of obstruction of justice is 33. The Category VI criminal history still applies because Mr. Bartelho satisfies Category VI by calculation of points independently of any career offender status.

(Id. at 40.)

         The Court determined that the career offender guidelines range was from 262 to 327 months, based on a total offense level of 34 and a criminal history of Category VI. (Id. at 40, 42.) However, the Court alternately determined the guidelines calculation as if the Court were sentencing Petitioner on a previous felon-in-possession conviction and Counts 1, 3, 5, and 7 together.[4] (Id. at 42-43.) The Court concluded that a guidelines range of 235 to 293 months applied, based on a total offense level of 33 and a criminal history of Category VI. (Id. at 42-43.) The Court noted that the total offense level of 33 was based on the obstruction of justice enhancement and a multicount adjustment of the felon-in-possession count and Counts 1, 3, 5, and 7. (Id. at 40, 42-43.)

         The Court then determined the prison term of 278 months on Counts 1, 3, 5, and 7 as follows: The Court's calculation began from the high end of the 235 to 293 month range that applies to a total offense level of 33 and a criminal history Category VI. The Court subtracted 120 months from the high of 293 months to account for the 10-year (120-month) term on the felon-in-possession charge on which Petitioner had already been sentenced, to arrive at the 173 month (293 - 120 = 173) portion of the guidelines term that would have been served consecutively to the felon-in-possession charge if all charges had been sentenced at the same time. (Id. at 43.) The Court noted Petitioner had served about fifteen months of the felon-in-possession sentence; the Court thus imposed a 278-month guidelines term (293 - 15 = 278), to commence on the date of sentencing, on Counts 1, 3, 5, and 7. (Id. at 41, 43.) The 45-year prison term on Counts 2, 4, and 6 was to be served consecutively to the 278-month term. (Id. at 43.)

         Petitioner initially filed the Johnson claim on August 28, 2015, in the First Circuit, in an application for leave to file a second or successive section 2255 motion.[5] (Bartelho v. United States, No. 15-1996, First Circuit Docket Record.) In June 2016, Petitioner filed a section 2255 motion in this Court, and he moved to stay the matter pending authorization from the First Circuit. (Motion, ECF No. 158 at 1.)

         In November 2017, the First Circuit granted the application, and ordered the matter transferred to this Court for filing as a section 2255 motion. (Bartelho, No. 15-1996 (1st Cir. Nov. 17, 2017) at 2.) The Court directed the motion to be “deemed filed in the district court on the date petitioner's original second or successive application was filed” in the First Circuit. (Id.) The Johnson claim, therefore, is deemed filed in this Court on August 28, 2015. In accordance with the First Circuit's order regarding the transfer of the matter to this Court, Petitioner's amended application to the First Circuit for authorization to file a second or successive section 2255 motion was filed in this Court as Petitioner's section 2255 motion. (Amended Application, ECF No. 171.)

         Petitioner's Johnson claim is based on the premise that he was sentenced as a career offender under the sentencing guidelines, USSG § 4B1. (Reply, ECF No. 184 at 1.) He contends that under Johnson, he is entitled to relief from the sentence because his career offender status was determined before United States v. Booker, 543 U.S. 220 (2005), and thus the Supreme Court's decision in Beckles v. United States, ___ U.S. ___, 137 S.Ct. 886 (2017), does not preclude relief.

         II. Discussion

         In Johnson, the Supreme Court held that the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e) (ACCA), was unconstitutionally vague.[6]Johnson, 135 S.Ct. at 2557. In Beckles, the Supreme Court held that Johnson does not apply to career offender sentences imposed after the sentencing ...


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