MacLeod v. USA

2011 DNH 071

• Court: District Court, D. New Hampshire
• Decided: April 29, 2011
• Docket: 11-CV-139-SM
• Status: Published

Opinion

MacLeod v. USA 11-CV-139-SM 04/29/11 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Keith S. MacLeod, Petitioner

v. Case No. ll-cv-139-SM Opinion No. 2011 DNH 071 United States of America, Government

O R D E R

Petitioner pled guilty to aiding and abetting a convenience

store robbery (18 U.S.C. § 1951) and, on August 1, 2007, was

sentenced to 151 months of imprisonment and a 3 year term of

supervised release. At sentencing, petitioner was found to be a

career offender (U.S.S.G. § 4Bl.l(a)), based upon the violent

nature of the offense of conviction and his prior criminal

history. Petitioner now seeks relief under the provisions of 28

U.S.C. § 2255. He says that the Supreme Court's decision in

Johnson v. United States, ____ U.S. , 130 S.Ct. 1265 (March

2, 2010), renders one of his prior felony convictions for assault

and battery unusable as a predicate to establish his career

offender status under the Sentencing Guidelines. Accordingly, he

seeks re-sentencing, without a guidelines career offender

adj ustment. The Supreme Court held in Johnson that a battery conviction

under Florida law did not qualify as a "violent felony" under the

Armed Career Criminal Act, 18 U.S.C. § 924(e), because the

battery offense was not shown to have been based upon any conduct

beyond an intentional unwanted touching. By definition a

"violent felony," for federal sentencing purposes, must include

as an element (with respect to assaults) the use of "physical

force" against the persons of another — that is, "violent force

. . . capable of causing physical pain or injury to another

person." Xd. at 1271 (emphasis in original). Petitioner argues

that under Johnson his prior assault and battery conviction1

(under Massachusetts law) no longer qualifies as a "violent

felony" for purposes of determining his career offender status.

It is true that Massachusetts, like many states, punishes

both a "violent" and "non-violent" form of assault and battery

(from the federal guidelines' career offender perspective). See

Mass. Gen. L. ch. 265, § 13A. And, it has generally been

recognized for some time in this circuit that a conviction for

1 Petitioner seeks to challenge a Massachusetts assault and battery conviction in the Haverhill District Court, docket no. 97 3 8CR0794A-C. The Presentence Investigation Report ("PSR") described the offense conduct as follows: "According to court records, the defendant violated a protection order which was issued by the Haverhill (MA) District Court on December 30, 1996, when he grabbed and spit on Melissa A. Budgett while she was seated in a car . . . ." PSR 5 50. Petitioner did not challenge or object to that characterization.

2 the non-violent form of assault would not qualify as a predicate

offense in determining career offender status. See United States

v. Fernandez, 121 F.3d 777 (1st Cir. 1997); United States v.

Harris, 964 F.2d 1234 (1st Cir. 1992). But, whether Johnson

establishes a new right or rule that is retroactively applicable

to petitioner, and whether that rule entitles him to some relief

with respect to counting his prior assault conviction as a career

offender predicate (and also rendering his petition timely under

§ 2255), are issues that need not be resolved.

A defendant is properly classified as a career offender

under the sentencing guidelines if, inter alia, the current

offense of conviction is a crime of violence, and the defendant

has at least two prior felony convictions for crimes of violence.

U.S.S.G. §§ 4B1.1(a) and 4B1.2(a)(l). In this case, petitioner

was convicted of a crime of violence — aiding and abetting a

convenience store robbery (18 U.S.C. § 1951). And, besides the

assault and battery conviction petitioner now challenges, his

lengthy criminal record includes two prior felony burglary

convictions — one for breaking and entering a dwelling in the

night with the intent to commit a felony (PSR 5 51), and the

other a burglary of a dwelling (PSR 5 53). By definition,

burglary of a dwelling is, categorically, a "crime of violence."

U.S.S.G. § 4B1.2(a)(2). So, even ignoring the challenged assault

3 and battery conviction, petitioner's status as a career offender

remains unassailable — the two convictions for burglary of a

dwelling, alone, fully established petitioner's career offender

status.

Parenthetically, the court notes that petitioner did not

challenge or object to the PSR's findings of fact at sentencing,

which the court adopted. See United States v. Jimenez, 512 F.3d

1, 7 (1st Cir. 2007); United States v. Cordero, 42 F.3d 697, 701

(1st Cir. 1994) (upholding reliance on description in PSR for

proof of predicate conviction). Nor did he file a timely habeas

petition challenging use of his prior convictions for burglary of

a dwelling as predicate offenses. Consequently, petitioner's

status as a career offender is finally resolved, both on the

merits (because the convictions are unquestionably valid career

offender predicates) and procedurally (because the one-year

limitations period applicable to a § 2255 petition challenging

those convictions as predicate offenses has expired).

Conclusion

The petition and the files and records of the case

conclusively show that the petitioner is entitled to no relief.

The sentence imposed was authorized by law and is not open to

collateral attack, and there has been no denial or infringement

4 of petitioner's constitutional rights. Accordingly, the petition

is denied.

The court declines to issue a certificate of appealability.

Rule 11(a), Rules Governing Section 2255 Proceedings.

SO ORDERED.

Steven J/McAuliffe 'Chief Judge

April 2 9, 2 011

cc: Keith S. MacLeod, pro se Donald A. Feith, AUSA