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United States v. Angiolillo

United States Court of Appeals, First Circuit

July 20, 2017

UNITED STATES OF AMERICA, Appellee,
v.
TRACY ANGIOLILLO, Defendant, Appellant.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND Hon. Mary M. Lisi, U.S. District Judge

          Julia Pamela Heit on brief for appellant.

          Stephen G. Dambruch, Acting United States Attorney, and Donald C. Lockhart, Assistant United States Attorney, on brief for appellee.

          Before Lynch, Selya and Thompson, Circuit Judges.

          SELYA, Circuit Judge.

         Lurking in the penumbra of this case is an unsettled question about the scope of a waiver-of-appeal provision. Although we identify that question, we assume, without deciding, that the waiver is inapplicable in this instance. With that assumption in place, we reach the merits of the appeal and affirm the judgment below.

         I. BACKGROUND

         We draw the relevant facts from the unchallenged portions of the presentence investigation reports and the record of the resentencing hearing. See United States v. Vargas, 560 F.3d 45, 47 (1st Cir. 2009); United States v. Dietz, 950 F.2d 50, 51 (1st Cir. 1991).

         On February 22, 2007, defendant-appellant Tracy Angiolillo met a man (who turned out to be an undercover agent) in a hotel parking lot in Pawtucket, Rhode Island. During the encounter, the appellant gave the undercover agent $100, 1.15 grams of cocaine base (crack cocaine), and .46 grams of heroin in exchange for two semi-automatic firearms. After the swap was completed, the authorities arrested the appellant and read him his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 444-45 (1966). He admitted trading cash and controlled substances for the guns.

         In due course, the government filed an information charging the appellant with being a felon in possession of two firearms (count 1), see 18 U.S.C. § 922(g)(1), distribution of cocaine base (count 2), see 21 U.S.C. § 841(a)(1), and distribution of heroin (count 3), see id. At around the same time, the government filed a supplemental information alleging that the appellant fell within the ambit of the Armed Career Criminal Act (ACCA), see 18 U.S.C. § 924(e), because he had three prior convictions for violent felonies or serious drug offenses. The ACCA, where applicable, requires a mandatory minimum sentence of 15 years for violations of section 922(g).

         The appellant pleaded guilty to all three counts pursuant to a written plea agreement (the Agreement). The Agreement included a provision waiving his right to appeal as long as the court sentenced him within the applicable guideline sentencing range (GSR).

         The probation office prepared a presentence investigation report (PSI Report), which confirmed that the ACCA applied to the appellant's case. Taking that as a given and making a number of other adjustments (including a career offender enhancement, see USSG §4B1.1), the PSI Report calculated the appellant's GSR to be 188-235 months. The district court accepted this calculation and sentenced the appellant to three concurrent bottom-of-the-range 188-month terms of immurement. No appeal was taken.

         While the appellant was serving his prison sentence, he twice moved for a reduction of his sentence (once in 2013 and again in 2014).[1] Both motions were denied. The appellant then took another tack: on August 4, 2015, he moved to vacate his sentence under 28 U.S.C. § 2255. This effort was premised on Johnson II, in which the Supreme Court held that the definition of a violent felony in the residual clause of the ACCA was so vague as to work an unconstitutional denial of due process. See Johnson v. United States (Johnson II), 135 S.Ct. 2552, 2557 (2015).[2] While the appellant's section 2255 motion was pending, the Supreme Court made pellucid that its decision in Johnson II was substantive and, thus, retroactive. See Welch v. United States, 136 S.Ct. 1257, 1265 (2016). At that juncture, the government conceded that the appellant could no longer be viewed as subject to the ACCA, and the district court, without objection, vacated the appellant's sentence and ordered resentencing.

         In anticipation of resentencing, the probation office prepared a new version of the PSI Report. This version concluded that the appellant's GSR, calculated without reference to the ACCA but still including the career offender enhancement, was 151-188 months. The district court thereupon convened a ...


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