United States District Court, D. Rhode Island
J. McConnell, Jr. United States District Judge
Court sentenced Christian Rufino to fifteen years in prison
for his guilty plea for felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g). Because the Court found
that Mr. Rufino had three prior convictions for violent
felonies, his sentence carried a mandatory minimum of fifteen
years in prison. In Johnson v. United States (Johnson
II), 135 S.Ct. 2551 (2015), the Supreme Court struck
down the residual clause as unconstitutionally vague, and in
Welch v. United States, 136 S.Ct. 1257 (2016), the
Supreme Court made the Johnson //ruling retroactive
on collateral review. Following the Johnson
//ruling, Mr. Rufino moved to correct his sentence pursuant
to 28 U.S.C. § 2255, arguing that he no longer qualifies
as an armed career criminal. (ECF No. 77). The Government
opposes the motion by citing four convictions as predicate
offenses: (1) a 1990 federal conviction for bank robbery, (2)
a 1995 Massachusetts conviction for assault and battery with
a dangerous weapon ("ABDW"), (3) a 1998 conviction
for Massachusetts ABDW, and (4) a 1998 Massachusetts
conviction for armed assault with intent to commit
murder. (ECF No. 80).
two of the four predicate offenses relied upon by the
Government are Massachusetts ABDW, the Court begins with
Massachusetts ABDW. Recently, in United States v.
Tavares, the Court of Appeals for the First Circuit
determined that Massachusetts ABDW is divisible. 843 F.3d 1,
18 (1st Cir. 2016). The Tavares Court, however, left
unanswered whether the reckless form of Massachusetts ABDW
satisfies the force clause. Id., at 18-20.
Accordingly, this Court's ruling in United States v.
Sabetta, No. 00-CR-135-S-PAS, 2016 WL 6157454, at *9
(D.R.I. Oct. 24, 2016)-that a recklessness mens rea does not
satisfy the force clause- remains unmoved. United States
v. Sabetta, No. 0OCR-135-S-PAS, 2016 WL 7174618, at *4
(D.R.I. Dec. 8, 2016). For this reason, the reckless form of
Massachusetts ABDW-based on this Court's analysis-does
not satisfy the force clause.
now stands, there are insufficient Shepard documents to
identify the version of Massachusetts ABDW that formed the
basis for Mr. Rufino's convictions. The grand jury
indictment for the 1998 Massachusetts ABDW conviction states
that Mr. Rufino "did assault and beat one Chad Bonville
by means of a dangerous weapon, to wit: a double edge
knife." (ECF No. 80 at 30). This generic phrasing of the
statute unequivocally fails to identify the form of
Massachusetts ABDW for which Mr. Rufino was convicted.
See United States v. Holloway, 630 F.3d 252, 260
(1st Cir. 2011) ("The statute does not break the offense
down into its various types nor does it provide charging
language specific to those types. Consequently, a sentencing
court may not rely on the generic 'did assault and
beat' charging language to identify which particular
battery offense served as the offense of conviction.").
Similarly, the Shepard document produced by the
Government for the 1995 conviction simply recites the offense
name-"ASSAULT & BATTERY BY DANG. WEAPON C265
S15A." (ECF No. 80 at 13).
brings us to the final stop on the decision tree: Whether the
Government or Mr. Rufino has the burden of producing
Shepard documents that prove the form of
Massachusetts ABDW for which Mr. Rufino was convicted. As
stated by many other courts in this circuit, the Government
has the burden of proving that the defendant's conviction
qualifies as a violent felony. E.g., United States v,
Virden, Cr. No. 09-10325-LTS (D. Mass. Feb. 3, 2017)
C'[A]bsent Shepard documents establishing [the
defendant] was convicted of Intentional ABDW, [the defendant]
is not an armed career criminal subject to the fifteen-year
mandatory minimum sentence he currently is serving.");
United States v. Vasquez, No. CR 12-40010-TSH, 2016
WL 5417186, at *1 (D. Mass. Sept. 26, 2016) ("[T]he
government failed to satisfy its burden to establish the
prong under which the Petitioner was previously
convicted."). Indeed, the Tavares Court
remanded "to the district court to allow the
government the opportunity to put forth
Shepard documents that clarify whether [the
defendant's] ABDW conviction was for the intentional or
reckless version of the offense." Tavares, 843
F.3d at 20 (first emphasis added). Because the Government has
failed to prove that Mr. Rufino's convictions were for
the intentional form, the Court finds that Mr. Rufino's
conviction for Massachusetts ABDW do not qualify as violent
Court concludes that the Government did not sustain its
burden of proving that Mr. Rufino's 1995 and 1998
convictions were for the intentional form of Massachusetts
ABDW. Accordingly, Mr. Rufino does not have the requisite
number of offenses for the career-offender classification.
For this reason, the Court intends to grant Mr. Rufino's
2255 petition, vacate his sentence, and resentence him in
accordance with today's order.
 The Government no longer argues that
Mr. Rufino's Maine conviction for conspiracy to commit
robbery and Massachusetts guilty filing for assault with a
dangerous weapon qualify as predicate offenses. (ECF No.
 Shepard v. United States, 544
U.S. 13 (2005).
 The Court also rejects the
Government's assertion that Mr. Rufino procedurally
defaulted his claim, as Mr. Rufino has established both ...