UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Matthew McDonald, Petitioner
v. Case No. 17-cv-329-SM Opinion No. 2018 DNH 154 United States of America, Respondent
O R D E R
Petitioner, Matthew McDonald, seeks relief under the
provisions of 28 U.S.C. § 2255. Petitioner argues that the
decision in Johnson v. United States, 135 S. Ct. 2551 (2015),
made retroactive in Welch v. United States, 136 S. Ct. 1257
(2016), invalidates the “residual clause” of the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e), and Section 924(c)
(prohibiting the use of a firearm during or in relation to any
“crime of violence” 18 U.S.C. § 924(c).
The Government concedes that McDonald would qualify for
relief on his ACCA claim under ordinary circumstances, but
suggests that the claim need not be resolved in this case, given
the “concurrent sentence doctrine” (McDonald is also serving an
unchallenged concurrent life sentence for carjacking). As for
McDonald’s § 924(c) claim, the Government seeks dismissal on grounds that it is untimely. For the reasons discussed below,
Petitioners motion is granted in part, and stayed in part.
Analysis
1. The Concurrent Sentence Rule
McDonald was convicted in 1997 of numerous crimes
including: robbery, conspiracy to commit robbery, carjacking,
felon in possession of a firearm, and use of a firearm during a
crime of violence. He was sentenced to life in prison. The
Government correctly points out that, even granting petitioner
the relief he seeks, neither his term, nor the conditions of his
imprisonment, will change: he will remain in prison, serving a
life sentence. Accordingly, the government takes the view that
the concurrent sentence doctrine counsels against resolving the
limited claims raised in McDonald’s petition.
The concurrent sentence rule provides that a sentencing
error is harmless if a defendant will not spend less time in
prison even if that error were corrected, because he is serving
a concurrent sentence of the same or greater length for another
conviction which was not challenged. While the rule remains
viable in this circuit, our Court of Appeals is “aware of the
disfavor that the Supreme Court cast upon the concurrent
sentence rule in Benton v. Maryland, 395 U.S. 784 (1969).”
2 Vanetzian v. Hall, 562 F.2d 88, 90 (1st Cir. 1977). The Supreme
Court has acknowledged that the concurrent sentence rule may
have “some continuing validity as a rule of judicial
convenience” but, that equal concurrent sentences do not present
a jurisdictional bar to review. Benton, 395 U.S. at 791, 793.
The Court noted that in a situation where a future successful
challenge to one sentence would require review of the sentence
presently challenged, it is “certainly preferable” to conduct
the review now, rather than later. Id. at 793. In this case,
while a future successful challenge to McDonald’s carjacking
sentence is unlikely, still, it seems preferable to resolve his
pending claims made now, rather than invoke the convenience of
the concurrent sentence rule.
2. Challenge to Sentence under 18 U.S.C. § 924(e) (ACCA)
McDonald first challenges his sentences on two counts of
being a Felon in Possession of a Firearm, imposed pursuant to
the ACCA, 18 U.S.C. 924(e)(2)(B). That statute prescribes a
minimum sentence of fifteen years and a maximum sentence of life
in prison for a defendant with three prior “violent felony”
convictions. At the time of McDonald’s sentencing, a prior
conviction qualified as a predicate “violent felony” if it was
for “burglary, arson or extortion, [or] involve[d] use of
3 explosives” (referred to as the “enumerated crimes clause”);
“has as an element the use, attempted use, or threatened use of
physical force against the person or property of another,”
(referred to as the “elements clause”); or if the crime
“otherwise involves conduct that presents a serious potential
risk of physical injury to another” (referred to as the
“residual clause”). 18 U.S.C. § 924 (e)(2)(B)(i)-(ii). In
Johnson v. United States, the Supreme Court struck down the
residual clause of § 924(e)(2)(B) as unconstitutionally vague.
135 S. Ct. at 2563. Therefore, if any of McDonald’s three prior
“violent crime” convictions can satisfy the residual clause, but
not the elements or the enumerated crimes clause, of § 924(e),
then his current sentence is necessarily invalid, and McDonald
is entitled to relief.
At sentencing, the court adopted the presentence report
(PSR) and determined that McDonald was an Armed Career Criminal,
based on predicate Massachusetts convictions for Armed Robbery;
Manslaughter; and Assault and Battery with a Dangerous Weapon.
McDonald argues, and both the Government and United States
Probation Office agree, that at least one of these convictions
does not qualify as a “violent felony” under the elements clause
of the ACCA. See Gov. Objection (document no. 7) at 1 n.1; U.S.
Probation Memo (document no. 4) at para. 1. Specifically, the
court of appeals for this circuit has authoritatively determined
4 that a Massachusetts Armed Robbery conviction does not qualify
as a predicate violent felony under the ACCA. See United States
v. Starks, 861 F.3d 306, 322 (1st Cir. 2017). McDonald, then,
does not have three qualifying violent felony convictions, and
the ACCA sentence enhancement was inapplicable to him. 1
Accordingly, the motion for sentence relief under Johnson is
necessarily granted. McDonald’s affected sentences will be
reduced to the low end of the correctly calculated applicable
Guideline Sentencing Range, and a revised judgement reflecting
that modification shall issue.
3. Challenge to Conviction Under 18 U.S.C. §924(c)
Petitioner also challenges his two convictions for use of a
firearm during a crime of violence (18 U.S.C. § 924 (c)). The
Court of Appeals for the First Circuit granted petitioner leave
to file this second § 2255 petition because his ACCA claim
satisfied the prerequisites set out in 28 U.S.C. §2255(h)(2).
McDonald v. United States, No. 16-1870 (1st Cir. July 14, 2017)
(ECF document no. 1-1). However, the court took “no position
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UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Matthew McDonald, Petitioner
v. Case No. 17-cv-329-SM Opinion No. 2018 DNH 154 United States of America, Respondent
O R D E R
Petitioner, Matthew McDonald, seeks relief under the
provisions of 28 U.S.C. § 2255. Petitioner argues that the
decision in Johnson v. United States, 135 S. Ct. 2551 (2015),
made retroactive in Welch v. United States, 136 S. Ct. 1257
(2016), invalidates the “residual clause” of the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e), and Section 924(c)
(prohibiting the use of a firearm during or in relation to any
“crime of violence” 18 U.S.C. § 924(c).
The Government concedes that McDonald would qualify for
relief on his ACCA claim under ordinary circumstances, but
suggests that the claim need not be resolved in this case, given
the “concurrent sentence doctrine” (McDonald is also serving an
unchallenged concurrent life sentence for carjacking). As for
McDonald’s § 924(c) claim, the Government seeks dismissal on grounds that it is untimely. For the reasons discussed below,
Petitioners motion is granted in part, and stayed in part.
Analysis
1. The Concurrent Sentence Rule
McDonald was convicted in 1997 of numerous crimes
including: robbery, conspiracy to commit robbery, carjacking,
felon in possession of a firearm, and use of a firearm during a
crime of violence. He was sentenced to life in prison. The
Government correctly points out that, even granting petitioner
the relief he seeks, neither his term, nor the conditions of his
imprisonment, will change: he will remain in prison, serving a
life sentence. Accordingly, the government takes the view that
the concurrent sentence doctrine counsels against resolving the
limited claims raised in McDonald’s petition.
The concurrent sentence rule provides that a sentencing
error is harmless if a defendant will not spend less time in
prison even if that error were corrected, because he is serving
a concurrent sentence of the same or greater length for another
conviction which was not challenged. While the rule remains
viable in this circuit, our Court of Appeals is “aware of the
disfavor that the Supreme Court cast upon the concurrent
sentence rule in Benton v. Maryland, 395 U.S. 784 (1969).”
2 Vanetzian v. Hall, 562 F.2d 88, 90 (1st Cir. 1977). The Supreme
Court has acknowledged that the concurrent sentence rule may
have “some continuing validity as a rule of judicial
convenience” but, that equal concurrent sentences do not present
a jurisdictional bar to review. Benton, 395 U.S. at 791, 793.
The Court noted that in a situation where a future successful
challenge to one sentence would require review of the sentence
presently challenged, it is “certainly preferable” to conduct
the review now, rather than later. Id. at 793. In this case,
while a future successful challenge to McDonald’s carjacking
sentence is unlikely, still, it seems preferable to resolve his
pending claims made now, rather than invoke the convenience of
the concurrent sentence rule.
2. Challenge to Sentence under 18 U.S.C. § 924(e) (ACCA)
McDonald first challenges his sentences on two counts of
being a Felon in Possession of a Firearm, imposed pursuant to
the ACCA, 18 U.S.C. 924(e)(2)(B). That statute prescribes a
minimum sentence of fifteen years and a maximum sentence of life
in prison for a defendant with three prior “violent felony”
convictions. At the time of McDonald’s sentencing, a prior
conviction qualified as a predicate “violent felony” if it was
for “burglary, arson or extortion, [or] involve[d] use of
3 explosives” (referred to as the “enumerated crimes clause”);
“has as an element the use, attempted use, or threatened use of
physical force against the person or property of another,”
(referred to as the “elements clause”); or if the crime
“otherwise involves conduct that presents a serious potential
risk of physical injury to another” (referred to as the
“residual clause”). 18 U.S.C. § 924 (e)(2)(B)(i)-(ii). In
Johnson v. United States, the Supreme Court struck down the
residual clause of § 924(e)(2)(B) as unconstitutionally vague.
135 S. Ct. at 2563. Therefore, if any of McDonald’s three prior
“violent crime” convictions can satisfy the residual clause, but
not the elements or the enumerated crimes clause, of § 924(e),
then his current sentence is necessarily invalid, and McDonald
is entitled to relief.
At sentencing, the court adopted the presentence report
(PSR) and determined that McDonald was an Armed Career Criminal,
based on predicate Massachusetts convictions for Armed Robbery;
Manslaughter; and Assault and Battery with a Dangerous Weapon.
McDonald argues, and both the Government and United States
Probation Office agree, that at least one of these convictions
does not qualify as a “violent felony” under the elements clause
of the ACCA. See Gov. Objection (document no. 7) at 1 n.1; U.S.
Probation Memo (document no. 4) at para. 1. Specifically, the
court of appeals for this circuit has authoritatively determined
4 that a Massachusetts Armed Robbery conviction does not qualify
as a predicate violent felony under the ACCA. See United States
v. Starks, 861 F.3d 306, 322 (1st Cir. 2017). McDonald, then,
does not have three qualifying violent felony convictions, and
the ACCA sentence enhancement was inapplicable to him. 1
Accordingly, the motion for sentence relief under Johnson is
necessarily granted. McDonald’s affected sentences will be
reduced to the low end of the correctly calculated applicable
Guideline Sentencing Range, and a revised judgement reflecting
that modification shall issue.
3. Challenge to Conviction Under 18 U.S.C. §924(c)
Petitioner also challenges his two convictions for use of a
firearm during a crime of violence (18 U.S.C. § 924 (c)). The
Court of Appeals for the First Circuit granted petitioner leave
to file this second § 2255 petition because his ACCA claim
satisfied the prerequisites set out in 28 U.S.C. §2255(h)(2).
McDonald v. United States, No. 16-1870 (1st Cir. July 14, 2017)
(ECF document no. 1-1). However, the court took “no position
whatsoever” with respect to whether petitioner could properly
1 Because determining that McDonald’s Armed Robbery conviction is not an ACCA predicate is sufficient to conclude that he is entitled to relief, it is unnecessary to examine his other convictions with respect to the ACCA.
5 raise Johnson claims challenging his § 924(c) sentence. Id.
(quoting United States v. MacDonald, 641 F.3d 596, 615 (4th Cir.
2011) (taking position that the district court should “more
closely scrutinize each claim and dismiss those that are barred
under [§2255(h)]”) (internal quotations omitted).
A second or successive petition may be certified for
district court consideration if it is based upon “a new rule of
constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable.”
28 U.S.C. § 2255(h)(2). Petitioner does not directly
demonstrate that his § 924(c) challenge meets the requirements
of § 2255(h)(2). He argues, instead, that Johnson’s holding
invalidating the residual clause of the ACCA, made retroactive
in Welch, necessarily requires that the similarly worded
residual clause found in § 924(c)(3) be struck down.
As previously discussed in earlier cases in this district
(in the context of § 2255(f), the statute of limitations),
Johnson does not clearly announce a new rule of constitutional
law invaliding § 924(c)’s similar residual provision, because “a
substantial number of capable jurists have reasonably determined
after careful analysis that Johnson does not require
invalidation of § 924(c)’s residual clause.” Rawnsley v. United
States, Case No. 16-cv-190-SM, 2016 WL 6407843 at *1 (D.N.H.
6 Oct. 28, 2016) (quoting Kucinski v. United States, Case No. 16-
cv-201-PB, 2016 WL 4926157 at *9 (D.N.H. Sept. 15, 2016)).
The law, however, continues to evolve. The Supreme Court
recently applied Johnson to strike down the residual clause used
to define a “crime of violence” under the provisions of 18
U.S.C. § 16(b). Sessions v. Dimaya, 138 S. Ct. 1204, 1223
(2018). And, the dissent in Dimaya noted that § 16(b)’s
definition of a crime of violence is identical to the definition
found in § 924(c)(3). 138 S. Ct. at 1241 (Roberts, C.J.,
dissenting). While Chief Justice Roberts “express[ed] no view
on whether 924(c) can be distinguished from [§ 16(b)],” id, at
least two circuit courts of appeals have concluded that the
language used in the two statutes is indistinguishable, and so
have held the residual clause aspect of § 924(c)
unconstitutionally vague. See United States v. Salas, 889 F.3d
681, 686 (10th Cir. 2018) (holding § 924(c) unconstitutionally
vague based on Dimaya); see also United States v. Cardena, 842
F.3d 959, 996 (7th Cir. 2016) (a pre-Dimaya case holding
§ 924(c) unconstitutionally vague based on circuit precedent
applying Johnson).
It is likely that our court of appeals will soon clarify
whether Johnson is retroactively applicable to § 924(c) in light
of Dimaya. This court’s decision in Rawnsley, (holding that
7 Johnson does not invalidate § 924(c)), is pending appeal in the
First Circuit, and that proceeding was stayed pending the
Supreme Court’s decision in Dimaya. Because the issues raised
in Rawnsley are substantially similar to those presented here,
it seems appropriate to await a controlling decision in
Rawnsley. There can be no prejudice to petitioner or the
government occasioned by a reasonable delay since petitioner
will not be entitled to release even if he should eventually
prevail. Accordingly, McDonald’s challenge to his conviction
under 18 U.S.C. § 924(c) is stayed pending the Court of Appeals’
decision in Rawnsley v. United States, No. 16-2321.
Conclusion
For the forgoing reasons, McDonald is presently entitled to
relief from his sentences imposed based in part on the residual
clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e).
The extent of Johnson’s application to § 924(c) will likely be
resolved authoritatively by the Court of Appeals in the Rawnsley
case. Accordingly, McDonald’s petition to vacate and correct
his sentence imposed under the ACCA is GRANTED, and his motion
to vacate his conviction under § 924(c) is STAYED pending
resolution of Rawnsley v. United States, No. 16-2321 (1st Cir.
2016).
8 SO ORDERED.
____________________________ Steven J. McAuliffe United States District Judge
July 31, 2018 cc: Donald A. Kennedy, Esq. Seth R. Aframe, AUSA