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L'italien v. United States

United States District Court, D. Maine

October 23, 2018

ARIEN L'ITALIEN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent

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

          JOHN C. NIVISON U.S. MAGISTRATE JUDGE.

         In this action, Petitioner Arien L'Italien moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Motion, ECF No. 37.) In 2012, following a guilty plea, Petitioner was convicted of assault of a federal officer, possession of firearms as a felon, and use of a firearm in furtherance of a crime of violence; he was sentenced to a total prison term of 220 months. (Judgment, ECF No. 31 at 1-2.) Petitioner did not appeal from the conviction or the sentence.

         Petitioner asserts a claim pursuant to Johnson v. United States, --- U.S. ---, 135 S.Ct. 2551 (2015). (Motion at 1.) Following a review of Petitioner's motion, the Government's request for dismissal, and the record, I recommend the Court grant the Government's request to dismiss Petitioner's section 2255 motion.

         I. Factual Background and Procedural History

          Petitioner was convicted of assault of a federal officer, 18 U.S.C. § 111(a), (b) (Count 1); possession of firearms as a felon, 18 U.S.C. § 922(g)(1) (Count 2); and use of a firearm during the commission of a federal crime of violence, 18 U.S.C. § 924(c)(1)(A)(iii) (Count 3).[1] (Judgment at 1.)

         The Court found the sentencing guidelines calculation as follows: the base offense level was 20, pursuant to USSG § 2K2.1(a)(4)(A), based on a 2008 Maine conviction of assault of an officer, 17-A M.R.S. 752-A(1)(B); six levels were added, pursuant to USSG § 3A1.2(c)(1); and three levels were subtracted, pursuant to USSG 3E1.1. (Sentencing Tr., ECF No. 51 at 52.) The Court found a criminal history category of V, which, combined with the total offense level of 23, resulted in a guidelines range of 204-225 months. (Id. at 52-53.) The Court found no basis to justify a departure from the sentencing guidelines range. (Id. at 53-54.)

         The Court considered the sentencing factors, pursuant to 18 U.S.C. § 3553; it noted Petitioner was “a very violent young man, ” based on his criminal history; and it focused particularly on the need to protect the public. (Id. at 55-60.) The Court sentenced Petitioner to prison terms of 100 months each on Counts 1 and 2, to run concurrently; and 120 months on Count 3, to run consecutively to Counts 1 and 2, for a total prison sentence of 220 months. (Judgment at 2.) The prison terms were to be followed by supervised release terms of three years on Counts 1 and 2, and five years on Count 3, with all supervised release terms to run concurrently. (Judgment at 3.)

         Petitioner filed a pro se section 2255 motion on June 13, 2016, in which motion he included a Johnson claim and a request for counsel. (Pro Se Motion, ECF No. 35.) Counsel was appointed to represent Petitioner with respect to the Johnson claim. (Order, ECF No. 36.) Petitioner, represented by counsel, filed a motion for relief under Johnson. (Motion, ECF No. 37.) Following the Court's order to show cause, Petitioner agreed the operative motion is the motion filed at ECF No. 37, and the Court terminated without prejudice the pro se motion as unnecessary. (Orders, ECF Nos. 40, 43.)

         Petitioner argued in the section 2255 motion, which was filed before the Supreme Court decided Beckles v. United States, --- U.S. ---, 137 S.Ct. 886 (2017), that he was entitled to relief under Johnson from the USSG § 2K2.1 increase in the base offense level in the sentencing guidelines calculation. (Motion at 1.) Petitioner also argued, based on Johnson, that the section 924(c) conviction (Count 3) should be vacated. (Id.)

         II. Discussion

         In Johnson, the statute at issue was the Armed Career Criminal Act, 18 U.S.C. § 924(e) (ACCA), which imposes a 15-year mandatory minimum prison term when a defendant is convicted of a violation of 18 U.S.C. § 922(g) and has three previous convictions, committed on separate occasions, “for a violent felony or a serious drug offense, or both.” 135 S.Ct. at 2555-57. Section 924(e)(2)(B) defines the term “violent felony” and 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 ...

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