United States v. Pettiford
Procedural entryThis page is a short order in United States v. Pettiford. Read the opinion of the Court — 101 F.3d 199 →
Opinion
USCA1 Opinion
UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
____________________
No. 96-1045
UNITED STATES OF AMERICA,
Appellant,
v.
BRIAN A. PETTIFORD,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge] ___________________
____________________
Before
Selya, Circuit Judge, _____________
Aldrich and Bownes, Senior Circuit Judges. _____________________
____________________
James C. Rehnquist, Assistant United States Attorney, with whom ___________________
Donald K. Stern, United States Attorney, was on brief for appellant. _______________
George F. Gormley with whom John D. Colucci and Gormley & Colucci _________________ _______________ _________________
were on brief for appellee.
____________________
November 25, 1996
____________________
ALDRICH, Senior Circuit Judge. In March 1991 ______________________
appellee Brian A. Pettiford (hereinafter defendant) was
convicted of being a felon-in-possession of a firearm in
violation of 18 U.S.C. 922(g)(1). Because he had nine
prior state convictions for violent felonies, he received a
minimum mandatory sentence of fifteen years pursuant to the
Armed Career Criminal Act ("ACCA"), 18 U.S.C. 924(e)(1).
In 1994, all but one of the prior convictions were vacated by
the Massachusetts state courts, and in 1995 the district
court granted federal habeas corpus relief under 28 U.S.C.
2255 in the form of a sentence reduction, on the ground
that the ACCA was now inapplicable to the computation. On
the government's appeal, we affirm.
I. Background __________
Approximately two years after his federal
sentencing, defendant requested audiotapes of his earlier
guilty pleas and sentencings in Boston Municipal Court and
Dorchester District Court. He was unsuccessful in obtaining
useful tapes, post, and subsequently attempted to reconstruct ____
the proceedings through the use of affidavits. Ultimately,
the courts vacated eight of the nine convictions. The Boston
Municipal Court judge, finding no record that the trial judge
had engaged in any colloquy with the defendant at the time of
his guilty plea, vacated the convictions on the ground that
the Commonwealth had failed to carry its burden of producing
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a "contemporaneous record affirmatively [showing] that the
defendant waived his rights voluntarily and knowingly," as
required under the federal Constitution and Massachusetts
law. The Dorchester District Court apparently did the same.
On the habeas petition, our district court, taking what
would, initially, seem to us the equitable view, granted the
relief and resentenced defendant to the term served, four and
one half years.
The government appeals, and with indignation: the
state action had been a "windfall;" the government had been
"sandbagged." In view of the fact that the mandatory
enhancement was based entirely upon the state's action in
convicting,1 and not simply a case where enhancement is
permitted for charges with no findings, see, e.g., U.S.S.G. ___ ____
4A1.3(e), to complain of state windfalls and government
sandbagging is strong language. The government criticizes
____________________
1. 18 U.S.C. 924(e)(1) reads:
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 or a serious
drug offense, or both, committed on
occasions different from one another,
such person shall be fined not more than
$25,000 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).
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the state's procedure as if the vacated convictions were
federal property, and the defendant as if he were attempting
a trespass. We are induced to start with the opposite
approach. First, however, we must consider a Supreme Court
case, United States v. Custis, 511 U.S. 485, 114 S. Ct. 1732 _____________ ______
(1994), decided after the imposition of defendant's original
sentence and its affirmance on appeal, United States v. _____________
Pettiford, 962 F.2d 74 (1st Cir. 1992). _________
II. United States v.
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