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United States v. Bowers

United States District Court, D. Maine

November 6, 2018




         Applying binding First Circuit law, the Court concludes that a defendant who has four state of Maine burglary convictions is subject to the enhanced penalty provisions of the Armed Career Criminal Act (ACCA) and its corresponding guideline provision. The Court does not conclude that the defendant possessed a firearm in connection with another felony offense, obstructed justice, or should be denied acceptance under the guidelines.


         On November 10, 2016, a federal grand jury indicted Jonathan Bowers for possession of a firearm after having been convicted of a number of felonies, an alleged violation of 18 U.S.C. § 922(g)(1). Indictment (ECF No. 1). On September 14, 2017, Mr. Bowers pleaded guilty to being a felon in possession of a firearm. Minute Entry (ECF No. 56). On February 7, 2018, the Court held a presentence conference and counsel requested that the Court schedule an evidentiary hearing to resolve some sentencing issues. Minute Entry (ECF No. 67); Notice of Hr'g (ECF No. 68). After some delay, the Court held the evidentiary hearing on July 24, 2018. Minute Entry (ECF No. 82). A transcript of the hearing was filed on August 7, 2018. Tr. of Proceedings, Evidentiary Hr'g (ECF No. 85) (Tr.).

         On September 4, 2018, the parties filed simultaneous memoranda. Mem. in Aid of Sentencing (ECF No. 86) (Def.'s Mem.); Gov't's Sentencing Mem. (ECF No. 87) (Gov't's Mem.). On September 18, 2018, the parties filed simultaneous responses. Reply Mem. in Aid of Sentencing (ECF No. 88) (Def.'s Opp'n); Gov't's Sentencing Resp. (ECF No. 89) (Gov't's Opp'n). On September 26, 2018, Mr. Bowers filed a personal narrative and a narrative from Deputy Sheriff Jeremy A. York. My Personal Narrative, Def.'s Ex. 1 (ECF No. 90) (Def.'s Statement); Id. Narrative for Dep. Jeremy A. York, Def.'s Ex. 2 (York Narrative).


         The parties briefed the following legal issues:

         (1) whether Mr. Bowers is subject to the provisions of the Armed Career Criminal Act (ACCA);

         (2) whether Mr. Bowers used his firearm in connection with another felony and is subject to a four-level sentencing enhancement under United States Sentencing Commission Guideline (U.S.S.G.) § 2K2.1(b)(6)(B);

         (3) whether Mr. Bowers is subject to a two-level sentencing enhancement under U.S.S.G. § 3C1.1; and

         (4) whether Mr. Bowers is entitled to a three-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1.


         A. Background

         Known as the Armed Career Criminal Act (ACCA), title 18 of United States Code section 924(e) provides enhanced penalties for illegal firearm possession:

In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony . . . committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g).

§ 924(e)(1).[1] ACCA defines “violent felony” as:

[A]ny crime punishable by imprisonment for a term exceeding one year . . . that--
(ii) is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another . . . .

§ 924(e)(2)(B)(ii).[2] This clause is known as the enumerated clause, because it lists specific crimes that qualify as ACCA predicates. See Dimott v. United States, 881 F.3d 232, 234 (1st Cir. 2018) (discussing the enumerated clause). In addition to the ACCA, the United States Sentencing Commission Guidelines have a provision that dovetails with the ACCA and enhances the calculation of the sentencing guideline range for a person subject to the ACCA. U.S.S.G. § 4B1.4 (Armed Career Criminal).

         Mr. Bowers' Presentence Investigation Report details his criminal record. Presentence Investigation Report (PSR). Relevant to his ACCA status, the PSR lists the following burglary convictions:

(1) 5/12/2010 (Date of Arrest): Count 1: Burglary (Class B), Kennebec County Superior Court, Augusta, Maine, Docket No. 2010-CR-00335; 07/08/10: Ct. 1: 5 years DOC (Department of Corrections), all but 6 months suspended, 3 years probation.
(2) 6/29/2006 (Date of Arrest): Count 2: Burglary (Class B), Count 4: Burglary (Class C), Kennebec County Superior Court, Augusta, Maine, Docket No. 2006-CR-00660; Counts 2: 4 years DOC, all but 60 days suspended, 3 years probation, $17, 150 restitution; Count 4: 60 days concurrent to Count 2;
(3) 6/15/2006 (Date of Arrest): Count 1: Burglary (Class C), Kennebec County Superior Court, Augusta, Maine, Docket No. 2006-CR-00747; Count 1: 60 days jail to be served concurrently with CR-06-660 and each other.

PSR ¶¶ 30-31, 36. The Government and Mr. Bowers disagree as to whether these four burglary convictions qualify him for ACCA status.

         B. The Positions of the Parties

         1. Jonathan Bowers' Position

         Although Mr. Bowers concedes that he has four prior burglary convictions from the state of Maine, he maintains that his burglary convictions do not count as ACCA predicates because Maine's definition of “structure” is broader than the generic definition of structure allows. Def.'s Mem. at 7-8. Thus, he contends, the Court may examine so-called Shepard[3] documents. Id. at 8-9. Mr. Bowers argues that an examination of the Rule 11 colloquy for his June 15, 2006 burglary demonstrates that he entered into a storage trailer, not a dwelling, which he contends does not fit within the generic definition of burglary. Id.

         2. The Government's Position

         From the Government's perspective, the issue begins and ends with Mr. Bowers' convictions for burglary under state of Maine law. Gov't's Mem. at 5-7. The Government points out that in United States v. Duquette, 778 F.3d 314, 318 (1st Cir. 2015), the First Circuit concluded that Maine's burglary statute “is indivisible and that [it] falls within the generic definition of burglary as defined by Taylor [v. United States, 495 U.S. 575 (1990)].” Id. at 7. In the Government's view, Duquette “remains controlling precedent in this circuit.” Id. Furthermore, the Government contends that under Supreme Court authority, Descamps v. United States, 570 U.S. 254, 261 (2013) and Mathis v. United States, __ U.S. __, 136 S.Ct. 2243, 2248 (2016), “the proffered Shepard documents cannot be considered, and the defendant's attempt at collateral attack in his forum must fail.” Id. The Government maintains that Mathis did not overrule Duquette and therefore Mr. Bowers' “Maine burglary convictions qualify as ACCA predicates.” Id.

         3. Jonathan Bowers' Opposition

         In his response, Mr. Bowers argues that in Duquette, the First Circuit did not “look at or consider the definitions of “structure” and “dwelling place.” Def.'s Opp'n at 4-5. Mr. Bowers says that in Mathis, the Supreme Court provided “a new and different task for determining whether the ‘means' in the Maine burglary statute- and not the ‘elements'-require this court to find that the Maine burglary statute qualifies for purposes of the ACCA.” Id. at 5. Mr. Bowers observes that in Mathis, the United States Supreme Court “held that an Iowa burglary statute that contained a similar definition of ‘structure' to the Maine statute did not quality for ACCA purposes because it provided for alternative means for commission of burglary, which were broader in definition than the generic definition of burglary.” Id. (citing Mathis, 136 S.Ct. at 2257). He also contends that Mathis authorized the Court's consideration of the Shepard documents that he provided. Id. at 6 (citing Mathis, 137 S.Ct. at 2257, n.7). Mr. Bowers concedes that “Duquette may still be good law for the proposition that when the elements of the crime are viewed on the face of the statute alone, then Maine's burglary statute is a generic statute.” Id. However, he argues that “Mathis . . . requires an additional analysis of alternative means of communication, which were not considered by the Duquette court.” Id. When the Mathis analysis is performed, he writes, “it is clear that the alternative locational means of committing burglary in Maine make the statute broader than the generic version and Maine's burglary statute can no longer qualify for ACCA purposes.” Id.

         4. The Government's Opposition

         The Government responds that “Duquette is still controlling precedent in the First Circuit and must, therefore, be applied in this case.” Gov't's Opp'n at 1. In support, the Government cites Dimott, 881 F.3d at 234 n.1. Id. The Government notes that in his dissent, Judge Torruella observed that the district court is still bound by the circuit rule in Duquette despite Mathis. Id. (citing Dimott, 881 F.3d at 246) (Torrurella J., dissenting)). Moreover, the Government argues that “Mathis decides nothing new” and is a mere “reassertion of the rules set forth in Taylor.” Id. at 2. ...

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