United States v. Cruz
234 F. Supp. 3d 328
D. Mass.2017Background
- Jose Cruz pleaded guilty in 2005 to being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)) and was sentenced in 2006 under the Armed Career Criminal Act (ACCA) to a mandatory 180 months.
- ACCA sentence was based on three prior predicates: a 1996 Massachusetts conviction for assault and battery with a dangerous weapon (ABDW) and two drug-distribution convictions (undisputed predicates).
- Cruz argued under Johnson I and Johnson II that the Massachusetts ABDW conviction cannot serve as an ACCA predicate because the statute covers both intentional and reckless conduct.
- The First Circuit in United States v. Tavares held Massachusetts ABDW is divisible and that the intentional variant qualifies as a crime of violence; it left open whether the reckless variant qualifies.
- Shepard materials (1996 trial transcript with jury instructions) were available and showed Cruz was convicted under the intentional theory (no reckless instruction), which the government introduced.
- The district court found Cruz still has three qualifying predicates (intentional ABDW + two drug convictions) and therefore denied his § 2255 motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendant’s 1996 ABDW conviction remains an ACCA predicate after Johnson decisions | Johnson decisions narrow "crime of violence," so ABDW that includes reckless conduct may no longer qualify | ABDW statute is indivisible or, if divisible, Cruz was convicted of the reckless form which does not qualify | ABDW is divisible; Shepard documents show Cruz was convicted of the intentional form, which qualifies; motion denied |
| Who bears burden to produce Shepard documents to identify the variant of an offense | Government should prove ACCA predicates | Cruz argued government must show predicate; some ambiguity existed | First Circuit (Tavares) and this court place burden on government; government produced appropriate Shepard materials |
| Whether reckless ABDW (if proven) would qualify as ACCA predicate | N/A | Reckless ABDW might not qualify post-Johnson | Court and several others concluded reckless ABDW does not qualify; but this case turned on intentional conviction |
Key Cases Cited
- Johnson v. United States, 559 U.S. 133 (2010) (construed "violent felony" and physical force requirement)
- Johnson v. United States, 135 S. Ct. 2551 (2015) (invalidated the residual clause of ACCA)
- Descamps v. United States, 133 S. Ct. 2276 (2013) (distinguishes divisible vs. indivisible statutes for categorical approach)
- Shepard v. United States, 544 U.S. 13 (2005) (limits documents courts may consult to determine the crime of conviction under the categorical approach)
- United States v. Tavares, 843 F.3d 1 (1st Cir. 2016) (Massachusetts ABDW is divisible; intentional variant is a crime of violence; government must produce Shepard documents)