United States v. Lattanzio
232 F. Supp. 3d 220
D. Mass.2017Background
- Vincent Lattanzio was sentenced in 1995 to 353 months after the court applied the Armed Career Criminal Act (ACCA) enhancement based on four prior convictions.
- ACCA requires three prior convictions for violent felonies or serious drug offenses; after Johnson decisions only the ACCA "force" clause (violent force) can support enhancement.
- The four predicates relied on at sentencing were: a 1973 conviction (record ambiguous as ADW vs ABDW), 1977 convictions (armed robbery and another including kidnapping/ABDW), and a 1982 sawed-off shotgun possession conviction.
- Lattanzio filed a § 2255 motion arguing none of the prior convictions qualify as ACCA predicates under Johnson I/II and related precedent, seeking resentencing.
- The government argued procedural default and that at least three convictions remain valid predicates; the court rejected procedural default and examined each predicate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 2255 Johnson claim is procedurally defaulted | Lattanzio: Johnson claim is timely/novel and meets cause and prejudice | Gov: Defendant procedurally defaulted and cannot show cause and prejudice | Court: Rejected government; Johnson-based § 2255 claim satisfies Reed novelty for cause and prejudice |
| Whether 1973 conviction was ADW (violent) or ABDW (possibly non-violent) | Lattanzio: Records show ABDW; ADW identification is unreliable | Gov: Pre‑Sentence Report and photocopied complaint indicate ADW; will attempt to authenticate | Court: Evidence ambiguous; in interest of justice assumed conviction was ABDW (not ADW) because records are unreliable |
| Whether ABDW (Mass.) qualifies as an ACCA "violent felony" absent Shepard documents | Lattanzio: Mass. ABDW can be the reckless version and may not require "violent force" under Johnson I | Gov: ABDW convictions can be predicates | Court: Without Shepard-approved documents showing conviction was the intentional/violent version (ABDW-1), ABDW cannot be treated as an ACCA predicate under Johnson I; Voisine does not change this conclusion |
| Whether the other predicates (armed robbery, kidnapping, sawed-off shotgun) sustain ACCA enhancement | Lattanzio: Armed robbery and kidnapping can be committed with de minimis or non-violent force; sawed-off shotgun conceded non-qualifying by gov | Gov: At least three convictions remain qualifying predicates | Court: Sawed-off shotgun conceded as non-qualifying; armed robbery and kidnapping may be non-violent in their least culpable forms and, absent Shepard documents, cannot be relied on to supply the requisite three predicates; result entitles defendant to resentencing |
Key Cases Cited
- Johnson v. United States, 559 U.S. 133 (2010) (construed ACCA "force" clause to require force capable of causing physical pain or injury)
- Johnson v. United States, 135 S. Ct. 2551 (2015) (held ACCA "residual" clause unconstitutionally vague)
- Welch v. United States, 136 S. Ct. 1257 (2016) (Johnson decisions are retroactively applicable on collateral review)
- Shepard v. United States, 544 U.S. 13 (2005) (Shepard documents required to determine the factual basis of prior plea convictions for sentencing enhancements)
- Voisine v. United States, 136 S. Ct. 2272 (2016) (holding reckless misdemeanor domestic assault can constitute "use of physical force" for firearm disqualification statute)
- United States v. Whindleton, 797 F.3d 105 (1st Cir. 2015) (discussed ADW as an ACCA predicate)
- United States v. Tavares, 843 F.3d 1 (1st Cir. 2016) (held ABDW divisible and that intentional-knowledge version is a crime of violence; left open reckless version)
- United States v. Fish, 758 F.3d 1 (1st Cir. 2014) (held ABDW may be accomplished by mere touching and thus may not satisfy Johnson I force requirement)