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United States v. Sabetta

United States District Court, D. Rhode Island

October 24, 2016

UNITED STATES OF AMERICA
v.
ANTHONY SABETTA, IKE WEEMS, BRIAN PAIGE, ALBERTO RODRIGUEZ, KENDALL ROSE, HENRY LEE, and AARON E. YOUNG, Defendants.

          WILLIAM E. SMITH, Chief United States District Judge

          MEMORANDUM AND ORDER

          JOHN J. MCCONNELL, JR., United States District Judge. [1]

         Before the Court are the Defendants' motions under 28 U.S.C. § 2255 to vacate, set aside, or correct their sentences. All the Defendants were sentenced after being convicted of violating 18 U.S.C. § 922(g), which makes it unlawful for felons “to possess in or affecting commerce, any firearm or ammunition.” All the Defendants received mandatory sentences of at least 15 years pursuant to the Armed Career Criminal Act (ACCA), which requires a sentence of at least that length for possessing a firearm or ammunition when a person has three prior convictions by any court for violent felonies or serious drug offenses or a combination of both. 18 U.S.C. § 924(e). For persons without three qualifying predicate convictions, the statute permits a maximum sentence of 10 years. 18 U.S.C. § 924(a)(2). The Defendants argue that they no longer have three qualifying predicate convictions because of the United States Supreme Court's recent decision in Johnson v. United States (Johnson II), 135 S.Ct. 2551 (2015), which invalidated the ACCA's residual clause for being unconstitutionally vague.[2] Specifically, the Defendants argue that their convictions for the Rhode Island offense of Felony Assault/Assault with a Dangerous Weapon (“ADW”) no longer qualify as ACCA predicate offenses.[3]

         The Court holds that because Rhode Island's ADW can be satisfied with a mens rea of recklessness, and the ACCA requires a mens rea of more than recklessness to constitute a violent felony under 18 U.S.C. § 924, six of the Defendants (Weems, Sabetta, Paige, Rodriguez, Rose, and Lee) no longer have the necessary three predicate convictions to qualify as an Armed Career Criminal. The sole exception is Defendant Young, whose motion raises additional issues that need further analysis.[4] Accordingly, the Court will schedule the Defendants, individually, for hearings on their motions to vacate and re-sentencings forthwith.

         BACKGROUND

         In Johnson II, the Supreme Court narrowed the scope of crimes that qualify as “violent felonies” by invalidating the residual clause of that term's definition in the ACCA. 135 S.Ct. at 2563. The residual clause had defined a violent felony to include any felony that “involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). Without that clause, the definition of a violent felony comprises the “force clause” and the “enumerated offenses clause.” The statute states:

[T]he term “violent felony” means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that-
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, [or] involves use of explosives
. . . .

18 U.S.C. § 924(e)(2)(B)(i)-(ii). In Welch v. United States, 136 S.Ct. 1257, 1268 (2016), the Supreme Court held that Johnson II announced a substantive rule that applied retroactively on collateral review.

         All the Defendants contend that after Johnson II invalidated the residual clause, they have fewer than three ACCA-predicate convictions. In other words, they argue that at least one of their predicate convictions only qualified as a violent felony under the residual clause and does not qualify under either the force clause or the enumerated offenses clause. The Government responds that all the Defendants still have three predicate qualifying convictions because their contested convictions all have “as an element the use, attempted use, or threatened use of physical force against the person of another.”[5] 18 U.S.C. § 924(e)(2)(B)(i). The Court is tasked with deciding whether the convictions contested by the Defendants qualify as violent felonies under the statute's force clause.

         ANALYSIS

         The Court's analysis proceeds in three steps. First, the Court determines whether to apply the categorical or the modified categorical approach in evaluating Rhode Island's felony assault statute. As discussed below, the modified categorical approach is appropriate because the underlying state statute is divisible. The Court therefore must review Shepard-approved documents of the individual Defendants' underlying convictions to determine which specific offenses within the divisible statute served as the bases for the convictions. For six of the Defendants, the offense was assault with a dangerous weapon; for Defendant Lee, it was felony assault by use of devices similar in appearance to a firearm, which is functionally the same as ADW.

         Second, the Court asks whether ADW has as an element, the use, attempted use, or threatened use of violent force against the person of another. The defendants argue that it does not because it can be committed with a mere recklessness mens rea. To address this argument, the Court must answer two additional questions, one of state law and the second of federal law. The first question is whether proving a recklessness mens rea is sufficient for an ADW conviction in Rhode Island. It is. The second question is whether a crime can qualify as a violent felony under the ACCA's force clause if it only requires proving a recklessness mens rea. It cannot. Concluding that a Rhode Island conviction for ADW does not require proving the use, attempted use, or threatened use of violent force against the person of another, the Court concludes that it is not categorically a violent felony as the ACCA defines that term.

         Third, the Court finds that procedural default does not bar the claims of six of the Defendants (Weems, Sabetta, Paige, Rodriguez, Rose, and Lee) and reserves judgment as to Defendant Young.

         Determining whether ADW in Rhode Island is a violent felony for purposes of ACCA is not a straight-forward task. Over 100 years of Rhode Island case law on ADW has meant that the state court has discussed the mens rea component in a variety of ways. The central questions we must decide here are not easy, and the answers are at times not clear. So, we are guided by the principal that “[t]he rule of lenity requires interpreters to resolve ambiguity in criminal laws in favor of defendants.” Whitman v. United States, 135 S.Ct. 352, 353 (2014) (Scalia, J., statement respecting the denial of certiorari); see also United States v. Santos, 553 U.S. 507, 514 (2008) (“The rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them.”); United States v. Gray, 780 F.3d 458, 468 (1st Cir. 2015).

         As explained below, the Court finds that ADW can be committed recklessly under Rhode Island state law. While we recognize that this is a close call for the reasons discussed below, we come to this conclusion because: first, assault has been defined by the Rhode Island Supreme Court as requiring an intent of malice or wantonness, State v. Jeremiah, 546 A.2d 183, 186 (R.I. 1988), abrogated on other grounds by State v. Jackson, 752 A.2d 5 (R.I. 2000); second, wantonness has been recognized to include reckless conduct, see State v. Gilligan, 50 A. 844, 847 (R.I. 1901); and third, the First Circuit has instructed us that an offense that may be completed recklessly is not a violent felony as that term is defined by the ACCA, see United States v. Fish, 758 F.3d 1, 16 (1st Cir. 2014).

         I. Modified Categorical Approach

         To determine whether an offense qualifies as a violent felony, the Court may “look only to the fact of conviction and the statutory definition of the prior offense, ” which is termed the “categorical approach.” Taylor v. United States, 495 U.S. 575, 602 (1990). To satisfy the force clause under the categorical approach, the use, attempted use, or threatened use of violent force must be an element of the prior offense. See Descamps v. United States, 133 S.Ct. 2276, 2293 (2013). If a conviction for the offense is possible without proof of attempted, threatened, or actual use of violent force, then the conviction does not qualify as a violent felony, even if the defendant in fact used, attempted to use, or threatened to use violent force in the commission of the crime. See Id. The facts of the defendant's crime do not matter, only the elements of the offense do.

         Applying the categorical approach is simple when a statute sets out a single set of elements that defines a single crime but becomes complicated when the statute lists several alternative elements defining multiple crimes. Mathis v. United States, 136 S.Ct. 2243, 2249 (2016). In the latter case, the Court cannot tell which elements comprised the defendant's conviction just by looking at the statutory text. Descamps, 133 S.Ct. at 2279. To address that problem, the Court approved the “modified categorical approach, ” which permits looking at a limited class of documents-often called Shepard-approved documents-for the sole purpose of determining the defendant's relevant offense under a divisible statute. Shepard v. United States, 544 U.S. 13, 20 (2005). There is one hoop that courts must jump through before applying the modified categorical approach, which is determining whether the statute is divisible.

         A. Divisibility

         The threshold determination about a statute's divisibility requires the Court to decide if the statute lists alternative elements (i.e., it is divisible) or instead enumerates various factual means of committing a single element (i.e., it is indivisible). Mathis, 136 S.Ct. at 2256 (“The first task for a sentencing court faced with an alternatively phrased statute is thus to determine whether its listed items are elements or means.”). If the statute lists various means of committing a single element, then the court must stick to the categorical approach. However, if the statute lists alternative elements, then courts may apply the modified categorical approach to determine the actual offense underlying the defendant's conviction.

         In Mathis, the Supreme Court easily deciphered the means versus elements conundrum because the state's highest court had previously resolved the question. Id. The issue is also simple when statutory alternatives carry different punishments-those must be elements. Id. In some situations, “a statute may itself identify which things must be charged (and so are elements) and which need not be (and so are means).” Id. When the statute does not address the question, courts should look to state law for answers, as did the Mathis Court. Id.

         B. Rhode Island's Statute

         The Defendants, except for Lee, were each convicted of R.I. Gen. Laws § 11-5-2, titled “Felony Assault.” Subsection (a) of the statute states: “Every person who shall make an assault or battery, or both, with a dangerous weapon, or with acid or other dangerous substance, or by fire, or an assault or battery which results in serious bodily injury, shall be punished by imprisonment for not more than twenty (20) ...


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