Kucinski v. United States

          MEMORANDUM AND ORDER

          Paul Barbadoro United States District Judge

         Derek Kucinksi was convicted of several offenses in 2013, including a charge of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Pursuant to the Armed Career Criminal Act (“ACCA”), a defendant convicted of a § 922(g) charge is subject to an enhanced sentence if he has at least three prior convictions for either a “violent felony” or a “serious drug offense.” See 18 U.S.C. § 924(e). The term “violent felony” encompasses both felonies that have “as an element the use, attempted use, or threatened use of physical force against the person of another” (the “elements clause”), and felonies “that present[] a serious potential risk of physical injury to another” (the “residual clause”). Kucinski was sentenced as an armed career criminal, because his prior federal bank robbery convictions were treated as violent felonies under the ACCA.

         In Johnson v. United States, 135 S.Ct. 2551 (2015), the United States Supreme Court held that the ACCA’s residual clause is unconstitutionally vague. The Court later made its holding in Johnson retroactive in Welch v. United States, 136 S.Ct. 1257 (2016). In response, Kucinski has filed a 28 U.S.C. § 2255 motion to vacate his sentence in light of Johnson. The government opposes his motion, arguing that Johnson does not affect Kucinski’s sentence because he qualifies as an armed career criminal under the ACCA’s elements clause.^[1]

         I. BACKGROUND

         Derek Kucinksi pleaded guilty in January 2007 to nine counts of bank robbery in violation of 18 U.S.C. § 2113(a). See Doc. No. 1 at 3; see also Judgment at 1, United States v. Kucinski, No. 06-cr-212-PB-1 (D.N.H. May 25, 2007), ECF No. 19. He received a sixty-three month sentence on all counts, to run concurrently, plus three years of supervised release. See Doc. No. 1 at 3. Kucinski was released from custody in August 2011, and began his term of supervision. Id.

         In January 2012, however, Kucinski was arrested for robbing a TD Bank branch in Newington, New Hampshire. Id. A grand jury then returned a three-count indictment, charging Kucinski with (1) bank robbery, in violation of 18 U.S.C. § 2113(a) (Count I), (2) using a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A) (Count II), and (3) possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Count III). Id. at 3-4. Relevant here, Count III alleged that Kucinski “knowingly, intentionally and unlawfully possessed a firearm, to wit, a Smith & Wesson, .32 caliber revolver, model number 431PD, serial number CJD8560, in or affecting commerce, after having previously been convicted” of the bank robberies described above. Id. at 4. Thereafter, the Government notified Kucinski that he would be subject to increased punishment as an “armed career criminal, ” if convicted of Count III, due to his 2007 bank robbery convictions. Id.

         Kucinski pleaded guilty to the three charges against him, and was sentenced in December 2013. Id. at 5. The court accepted the parties binding stipulation that “the defendant will be sentenced to a minimum mandatory term of imprisonment of twenty-two (22) years.” Id. Pursuant to that stipulation, Kucinski received a 180-month sentence on the § 922(g) charge, Count III -- the mandatory minimum sentence given Kucinski’s status as an “armed career criminal, ” but a longer term of imprisonment than he lawfully could have received had he not been deemed an armed career criminal. He also received a 180 month sentence on Count I, to run concurrently to his sentence on Count III, and an 84-month sentence on Count II, to be served consecutively to the sentence on Counts I and III.^[2]

         II. ANALYSIS

         A. Legal Framework

         18 U.S.C. § 922(g) prohibits a “felon” from possessing a firearm. Welch, 136 S.Ct. at 1261. “That unadorned offense carries a maximum penalty of 10 years in prison.” Descamps v. United States, 133 S.Ct. 2276, 2282 (2013). Pursuant to the Armed Career Criminal Act (“ACCA”), however, a person who possesses a firearm after three or more convictions for a “serious drug offense, ” or a “violent felony, ” is subject to an enhanced sentence, including a fifteen year mandatory minimum. 18 U.S.C. § 924(e)(1); Welch, 136 S.Ct. at 1261.

         The ACCA defines “violent felony” as:

[A]ny crime punishable by imprisonment for a term exceeding one year . . . 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, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

18 U.S.C. § 924(e)(2)(B). Subsection (i) of § 924(e)(2)(B) is known as the “elements clause.” Welch, 136 S.Ct. at 1261. The end of subsection (ii) -- “or otherwise involves conduct that presents a serious potential risk of physical injury to another” -- is the “residual clause.” Id.

         In Johnson, the Supreme Court held that the ACCA’s residual clause is unconstitutionally vague and therefore invalid. Id.; Johnson, 135 S.Ct. at 2563. In April 2016, the Court in Welch held that Johnson announced a new substantive rule that applies retroactively to cases on collateral review. Welch, 136 S.Ct. at 1265.

         In light of Johnson and Welch, Kucinski’s enhanced sentence on his 18 U.S.C. § 922(g) conviction can only stand if his federal bank robbery convictions qualify as “violent felon[ies]” under the ACCA’s elements clause. To determine whether federal bank robbery constitutes a violent felony under the elements clause, I apply the so-called “categorical approach.” The categorical approach generally requires courts to consider only “the statutory definitions - i.e., the elements - of a defendant’s [offense] and not to the particular facts underlying [the offense]” in deciding whether that offense qualifies as a violent felony. Descamps, 133 S.Ct. at 2283 (emphasis in original). Thus, I may look “only to the statutory definition of the [offense] and the fact of conviction to determine whether the conduct criminalized by the statute, including the most innocent conduct, qualifies as a” violent felony. United States v. Fish, 758 F.3d 1, 5 (1st Cir. 2014) (citing Karimi v. Holder, 715 F.3d 561, 567 (4th Cir. 2013)). If the “most innocent conduct” proscribed by a statute does not constitute a violent felony, then the statute categorically fails to qualify as a violent felony. See id.

         B. ...