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Brichetto v. United States

United States District Court, D. Maine

September 10, 2018

THOMAS PAUL BRICHETTO, JR., Petitioner,
v.
UNITED STATES OF AMERICA, Respondent

          RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION AND MOTION TO STRIKE

          John C. Nivison U.S. Magistrate Judge.

         In this action, Petitioner Thomas Paul Brichetto, Jr., moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Motion, ECF No. 168.) 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)].” (Brichetto v. United States, No. 16-1796 (1st Cir. Nov. 30, 2017).)[1]

         Petitioner's motion to strike two exhibits attached to the Government's response is also pending; the Government submitted the exhibits as evidence of two prior Maine state court burglary convictions. (Motion to Strike, ECF No. 181; Response, ECF No. 177 at 22 & n.10; Attachments, ECF Nos. 177-2, 177-3.)

         Following a review of the section 2255 motion and the record, and after consideration of the parties' arguments, I recommend the Court dismiss the section 2255 motion, and recommend the Court dismiss as moot the motion to strike.

         I. Factual Background and Procedural History

         In December 2001, Petitioner and three accomplices robbed at gunpoint a branch of a credit union in Gorham, Maine. United States v. Brichetto, 121 Fed.Appx. 876, 876 (1st Cir. 2005). In 2004, following a jury trial, Petitioner was convicted of one count of armed bank robbery, 18 U.S.C. § 2113(a), (d), § 2 (Count 1), and one count of using and carrying a firearm in relation to a crime of violence, 18 U.S.C. § 924(c)(1)(A)(ii) (Count 2).[2] (Indictment, ECF No. 4; Jury Verdict, ECF No. 96; Judgment, ECF No. 119 at 1.) The Court sentenced Petitioner to prison terms of 300 months on Count 1, and 84 months on Count 2, to be served consecutively to the term on Count 1. (Judgment at 2.) The prison terms were to be followed by terms of supervised release of five years on each count, to be served concurrently. (Id. at 3.)

         At sentencing, the Court found Petitioner was a career offender under the sentencing guidelines, pursuant to USSG § 4B1.1, based on two or more prior felony crimes of violence, as set forth in the revised presentence investigation report. (Sentencing Tr., ECF No. 123 at 32-34; Report, ¶¶ 28-36.) The addendum to the revised presentence investigation report and the sentencing transcript reflect that Petitioner did not object to the finding that he had five career offender predicate convictions (Sentencing Tr. at 32-34.) Two of the prior offenses (¶¶ 28, 29) were Maine residential burglaries; three were non-residential burglaries - two in Maine (¶¶ 31, 34) and one in Massachusetts (¶ 33).[3]

         The uncontroverted record does not reflect that the Court found as fact, either at sentencing or in a prior habeas proceeding, that Petitioner's prior Maine burglary offenses were predicates based on the career offender residual clause then in effect, USSG § 4B1.2(a)(2). (Response at 10; Reply, ECF No. 180 at 5-6.) Petitioner, however, contends the Court's citation to United States v. Rodriguez, 311 F.3d 435 (1st Cir. 2002), in one of his prior habeas proceedings, demonstrates that he had been sentenced based on the Court's determination that the prior Maine burglaries qualified as career offender predicates under the residual clause. (Reply at 5-6.)

         Because the Court found that Petitioner qualified as a career offender, the Court determined the total offense level was 34, rather than the lower level of 26 that otherwise would have applied to Count 1.[4] (Sentencing Tr. at 32-33.) The Court also found a criminal history Category VI; according to a portion of the presentence investigation report on which the Court relied at sentencing, Category VI applied based on either Petitioner's career offender status or his 21 criminal history points. (Id. at 33-35; Report ¶¶ 35-36.) The Court noted that because Petitioner was convicted under 18 U.S.C. § 2113(d), which provides a statutory maximum of 25 years (300 months), the guidelines range was 262 to 300 months, rather than the otherwise applicable range of 262 to 327 months. (Sentencing Tr. at 34-35.)

         The Court sentenced Petitioner to the statutory maximum of 300 months on Count 1, pursuant to 18 U.S.C. § 2113(d), and to the statutory minimum of 84 months in prison on Count 2, pursuant to 18 U.S.C. § 924(c)(1)(A)(ii), to be served consecutively to the term on Count 1, pursuant to section 924(c)(1)(D)(ii). (Sentencing Tr. at 36-37; Judgment at 1-2.) The Court assessed the sentencing factors, pursuant to 18 U.S.C. § 3553(a), relevant to the sentence, and explained the bases of the sentence:

The reasons for this sentence are that I consider this defendant to be a principal actor in the offense conduct, that this was severely egregious conduct posing inordinate and unjustifiable risk to the public safety, specifically to the safety of those who happened to be in the institution that was the subject of the robbery and more specifically to the safety of [a teller at the credit union].

(Sentencing Tr. at 38-39.)

         Petitioner argued on appeal that the jury verdict was inconsistent given the acquittal on the felon-in-possession charge; the First Circuit concluded there was “more than sufficient evidence” to find Petitioner guilty on Counts 1 and 2, and the Court affirmed the conviction.[5] Brichetto, 121 Fed.Appx. at 876-78.

         In this action, Petitioner contends he is entitled to relief under Johnson from both the career offender sentence on Count 1 and the 18 U.S.C. § 924(c) sentence on Count 2.[6](Motion at 5-6.)

         II. Discussion

         A. Background on Johnson

         Petitioner challenges the Court's career offender sentence enhancement, which was based on prior “crimes of violence” under the sentencing guidelines; his claim, and the First Circuit's authorization, are based on Johnson, which addressed a sentencing enhancement pursuant to the Armed Career Criminal Act, 18 U.S.C. § 924(e) (ACCA). Section 924(e)(1) provides in part that a defendant “who violates [18 U.S.C. § 922(g)] and has three previous convictions . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one another, . . . shall be . . . imprisoned not less than fifteen years . . . .” Section 924(e)(2)(B) provides:

[T]he term “violent felony” means any crime punishable by imprisonment for a term exceeding one year, . . . that-
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

         Section 924(e)(2)(B)(i) is known as the “force” clause or the “elements” clause; the provision of section 924(e)(2)(B)(ii) that references burglary, arson, extortion, or the use of explosives is known as the “enumerated offenses” clause; the remainder of section 924(e)(2)(B)(ii), i.e., the provision “or otherwise involves conduct that presents a serious potential risk of physical injury to another, ” is known as the “residual” clause. Uni ...


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