United States District Court, D. Maine
ORDER ON MOTION TO AMEND AND RECOMMENDED DECISION ON
28 U.S.C. § 2255 MOTION
C. NIVISON U.S. MAGISTRATE JUDGE.
action, Petitioner Lauren MacArthur moves, pursuant to 28
U.S.C. § 2255, to vacate, set aside or correct his
sentence. (Placeholder Motion, ECF No. 99; Motion, ECF No.
112; First Amended Motion, ECF No. 119; Second Amended
Motion, ECF No. 136-1.) Following a guilty plea, Petitioner
was convicted of possession of a firearm by a felon in
violation of 18 U.S.C. 922(g)(1) and 924(e), and possession
of stolen firearms in violation of 18 U.S.C. 922(j); the
Court sentenced Petitioner to 216 months imprisonment on
Count 1 and 120 months on Count 2 to be served concurrently.
(Judgment, ECF No. 78 at 1 - 2.) The First Circuit affirmed
the sentence. United States v. MacArthur, 805 F.3d
385 (1st Cir. 2015).
several amendments to his section 2255 motion, Petitioner
contends he should not have been sentenced under the Armed
Career Criminal Act (ACCA), 18 U.S.C. § 924(e), and thus
his 216-month sentence exceeds the statutory maximum of ten
years pursuant to 18 U.S.C. § 922(g). (Motion at 4 - 15;
Second Amended Motion at 12 - 22.) The Government argues the
motion should be denied under controlling First Circuit and
Supreme Court authority. (Response at 4 - 6, ECF No. 138.)
Petitioner's pending motion to amend. (Second Motion to
Amend, ECF No. 136). Following a review of the record and
after consideration of Petitioner's original and amended
motion as well as the Government's request for dismissal,
I recommend the Court grant the Government's request and
dismiss Petitioner's motion.
History and Legal Background
Charges and Plea
2012, Petitioner was indicted on one count of knowingly
possessing a firearm after having been convicted of crimes
punishable by imprisonment for a term of more than one year,
in violation of 18 U.S.C. 922(g)(1) and 924(e); Petitioner
was also indicted on one count of knowingly possessing a
stolen firearm that had previously traveled in interstate or
foreign commerce, in violation of 18 U.S.C. 922(j).
(Indictment, ECF No. 4.) Among the prior convictions listed
in the indictment were numerous Maine state court Class B
felony convictions for burglary. (Id.)
November 2012, Petitioner pled guilty to both counts. (ECF
No. 38.) At the change of plea hearing, before accepting
Petitioner's guilty plea, the Court confirmed that
Petitioner understood that the guilty plea on Count 1
“requires [the Court] to place you in jail for not less
than 15 years, and you could be in jail for the rest of your
life.” (Change of Plea Hearing Transcript at 7, ECF No.
87.) The Court also confirmed that Petitioner understood the
penalties that might be imposed, (id. at 5-6), and
confirmed that Petitioner understood that the indictment
“sets forth 15 separate felonies that it alleges that
you have been convicted of.” (Id. at 6.)
Legal Background Regarding Enhancements for Prior
18 U.S.C. § 922(g)(1), a person who has been convicted
of a felony who then possesses a firearm faces a fine and
imprisonment of “not more than 10 years.”
Id. § 924(a)(2). However, under the ACCA, 18
U.S.C. § 924(e), a felon in possession of firearm who
“has three previous convictions . . . for a violent
felony or a serious drug offense . . . shall be . . .
imprisoned not less than fifteen years . . . .” The
term “violent felony” is defined as a crime
punishable by imprisonment for more than one year that: (1)
“has as an element the use, attempted use, or
threatened use of physical force against the person of
another, ” id. § 924(e)(2)(B)(i); or (2)
“is burglary, arson, or extortion, [or] involves use of
explosives, ” id. § 924(e)(2)(B)(ii); or
(3) “otherwise involves conduct that presents a serious
potential risk of physical injury to another.”
Id. The first part of the definition is known as the
“force clause, ” the second part of the
definition is known as the “enumerated offenses clause,
” and the third part of the definition is known as the
“residual clause.” See United States v.
Frates, 896 F.3d 93, 96 (1st Cir. 2018).
United States Sentencing Guidelines are used to “guide
the exercise of a court's discretion in choosing an
appropriate sentence within the statutory range.”
Beckles v. United States, 137 S.Ct. 886, 892 (2017).
The guidelines contain many provisions that enhance a
defendant's recommended sentence when they have one or
more prior convictions that qualify as a “crime of
violence” or a “controlled substance
offense.” See U.S.S.G. § 4B1.2. For
example, the guideline for firearms offenses, U.S.S.G. §
2K2.1, accounts for prior convictions in setting a
defendant's base offense level, and the Career Offender
guideline, U.S.S.G. § 4B1.1, might enhance a
defendant's criminal history category if there are two
such qualifying prior convictions. The guideline terms
“crime of violence” and “controlled
substance offense” have been defined in a similar but
not identical manner to the ACCA terms. See Frates,
896 F.3d at 96 (explaining that the definition of
“crime of violence” mirrored the ACCA until
Amend. 798, which eliminated the guideline residual clause
and changed the guideline enumerated offenses in 2016).
Furthermore, there is an Armed Career Criminal guideline,
U.S.S.G. § 4B1.4, which could enhance both a
defendant's base offense level and criminal history
category if the defendant is a statutory Armed Career
Criminal under 18 U.S.C. § 924(e).
Supreme Court has held that a sentencing court should use a
categorical or modified categorical approach when considering
sentencing enhancements based on prior offenses.”
United States v. Mohamed, 920 F.3d 94, 101 (1st Cir.
2019) (citing Mathis v. United States, 136 S.Ct.
2243, 2249 (2016); Taylor v. United States, 495 U.S.
575, 588 (1990). “In short, [courts] look to the
statutory definition of the offense in question, as opposed
to the particular facts underlying the conviction.”
United States v. Davila-Felix, 667 F.3d 47, 56 (1st
Cir. 2011) (internal quotations omitted). A state statute of
conviction can only serve as a predicate offense “if
the statute's elements are the same as, or narrower
than” the federal elements. See Descamps v. United
States, 570 U.S. 254, 257 (2013).
state statute “sets out a single (or
‘indivisible') set of elements” the
straightforward categorical approach applies, but when a
state statute has “a more complicated (sometimes called
‘divisible') structure . . . list[ing] elements in
the alternative, and thereby defin[ing] multiple
crimes” courts use the modified categorical approach.
Mathis v. United States, 136 S.Ct. 2243, 2248 - 49
(2016). Under the modified categorical approach, “a
sentencing court looks to a limited class of documents (for
example, the indictment, jury instructions, or plea agreement
and colloquy) to determine what crime, with what elements, a
defendant was convicted of.” Id. at 2249
(citing Shepard v. United States, 544 U.S. 13, 26
(2005)). The modified categorical approach, however,
“gives a sentencing court no special warrant to explore
the facts of an offense, rather than to determine the
crime's elements and compare them with the generic
definition.” Id. at 2251.
March 2014, the Court sentenced Petitioner to 216 months of
imprisonment on Count 1 and 120 months of imprisonment on
Count 2, to be served concurrently; the Court also sentenced
Petitioner to five years of supervised release on Count 1 and
three years of supervised release on Count 2, to be served
concurrently. (Judgment, ECF No. 78.) During the sentencing
proceedings, Petitioner did not dispute that his burglary
convictions qualified as prior convictions under the ACCA,
after having the opportunity to review the presentence
investigation report in which the Probation Office frequently
cited the statutory range of imprisonment pursuant to 18
U.S.C. § 924(e), discussed the burglary convictions
individually, and concluded that “[t]he defendant is an
armed career criminal.” (Presentence Investigation
Report ¶¶ 1, 19, 32, 33, 38, 47, 68.) Petitioner
agreed that the Probation Office's report was accurate.
(Sentencing Transcript at 7 - 8, ECF No. 86.)
calculating Petitioner's offense level and criminal
history score for purposes of his guideline sentence, the
Probation Office found that “the defendant has at least
three prior convictions for a violent felony or serious drug
offense” and therefore concluded that “the
defendant is subject to the provisions of the armed career
criminal enhancements at USSG § 4B1.4.” (PSR
¶ 19.) However, because the calculation of
Petitioner's offense level and criminal history score
based on the other guidelines provisions was ...