United States District Court, D. Maine
ORDER ON SENTENCING ISSUES
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
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.
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.).
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 LEGAL ISSUES
parties briefed the following legal issues:
whether Mr. Bowers is subject to the provisions of the Armed
Career Criminal Act (ACCA);
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);
whether Mr. Bowers is subject to a two-level sentencing
enhancement under U.S.S.G. § 3C1.1; and
whether Mr. Bowers is entitled to a three-level reduction for
acceptance of responsibility under U.S.S.G. § 3E1.1.
THE ARMED CAREER CRIMINAL ACT
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). ACCA defines “violent felony”
[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). 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).
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.
The Positions of the Parties
Jonathan Bowers' Position
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 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.
The Government's Position
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.”
Jonathan Bowers' Opposition
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.
The Government's Opposition
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. ...