DeFrancesco v. United States

2005 DNH 054

• Court: District Court, D. New Hampshire
• Decided: April 5, 2005
• Docket: 04-CV-324-SM
• Status: Published

Opinion

DeFrancesco v . United States 04-CV-324-SM 04/05/05 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Richard DeFrancesco, Petitioner

v. Civil N o . 04-cv-324-SM Opinion N o . 2005 DNH 054 United States of America, Respondent

O R D E R

Petitioner seeks to collaterally attack his federal sentence

under the provisions of 28 U.S.C. § 2255. On March 2 , 2003, he

pled guilty to one count of conspiracy to possess with the intent

to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and

846. He was sentenced on September 2 6 , 2003. No direct appeal

was filed.

The petitioner raises two basic issues. Petitioner says his

criminal history category was miscalculated under the Sentencing

Guidelines in that prior state convictions for assault and

battery, malicious destruction of property, assault and battery,

and assault with a dangerous weapon (knife) were counted twice.

All four convictions occurred on October 1 , 1997, but were

related to two separate incidents. The first incident took place on February 1 6 , 1997, and the second on February 1 8 , 1997 (each

incident gave rise to separate criminal charges). The

Presentence Investigation Report fully recognized that the

offenses arising from the second incident were related to the

first for guideline sentencing purposes, but still scored one

point for the second set of offenses under U.S.S.G. 4A1.1(f),

because those offenses constituted crimes of violence.

Therefore, the same set of convictions was not “counted twice” as

petitioner alleges. Petitioner was properly found to be a career

offender, given his qualifying predicate convictions. The

sentencing range was properly calculated and the sentence imposed was lawful.1

Lastly, petitioner seeks relief under the rules announced in

the Supreme Court’s recent decisions in Blakely v . Washington,

___ U.S. ___, 124 S.Ct. 2531 (2004) and United States v . Booker,

___ U.S. ___, 125 S.Ct. 738 (2005).

1 Petitioner also seems to challenge the drug quantities attributed to him, but did not appeal that issue and offers no basis upon which to find either cause or prejudice for his procedural default. And, his reasons for disputing the attriubted quantities now (hearsay; co-defendant coercion) are without merit.

2 Both Blakely and Booker were decided after petitioner’s

conviction and sentence became final. Accordingly, absent

retroactive application of the rule announced in those cases,

particularly Booker, the petition is without merit. Although the

Court of Appeals for the First Circuit has not yet addressed the

issue, the prevailing view among other courts of appeals and

district courts is that neither Booker nor Blakely is

retroactively applicable to cases on collateral review. See,

e.g., Varela v . United States, 400 F.3d 8 6 4 , N o . 04-11725, 2005

WL 367095 (11th Cir. Feb. 1 7 , 2005); McReynolds v . United States,

397 F.3d 479, 2005 WL 237642 at 1 (7th Cir. Feb. 2 , 2005); United

States v . Wenzel, ___ F.Supp.2d ___, 2005 WL 579064 (W.D. P a .

March 2 , 2005) (collecting cases).

This is because the new rule rendering the Sentencing

Guidelines advisory is procedural rather than substantive in

nature. It does not qualify as a “watershed rule” implicating

“the fundamental fairness and accuracy of the criminal

proceedings,” so does not retroactively apply to already final

convictions. Saffle v . Parks, 494 U.S. 4 8 4 , 495 (1990); see also

McReynolds v . United States, supra; Schriro v . Summerlin, 124

3 S.Ct. 2519, 2523-26 (2004); Sepulveda v . United States, 330 F.3d

5 5 , 63 (1st Cir. 2003).

The petition is denied.

SO ORDERED.

Steven J. McAuliffe Chief Judge

April 5 , 2005

cc: Richard DeFrancesco Peter E . Papps, Esq.