United States District Court, D. New Hampshire
MEMORANDUM AND ORDER
Barbadoro United States District Judge
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.
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.
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.
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.
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.
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.
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.
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.
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.