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Boulanger v. United States

United States District Court, D. New Hampshire

December 21, 2017

Gerard Boulanger
v.
United States of America

          MEMORANDUM AND ORDER

          Paul Barbadoro United States District Judge

         Gerard Boulanger was convicted of several crimes stemming from a pharmacy robbery, including one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). Boulanger's sentence on the felon in possession charge was subject to a sentencing enhancement authorized by the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), that applies when a felon in possession has three or more prior convictions for a “violent felony or a serious drug offense.” As a result, Boulanger was subject to a 15-year mandatory minimum sentence and a maximum sentence of life on the felon in possession charge rather than the ten-year maximum sentence that ordinarily applies to such charges.

         Boulanger has filed a motion pursuant to 28 U.S.C. § 2255 challenging his sentence on the felon in possession count. His argument is that he no longer qualifies as an armed career criminal after the Supreme Court's decision in Johnson v. United States (“Johnson II”), 135 S.Ct. 2551, 2563 (2015).

         I. BACKGROUND

         On October 8, 2004, a jury convicted Boulanger of: robbery involving controlled substances, in violation of 18 U.S.C. § 2118(a)-(c)(1) (Count One); use of a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c) (Count Two); possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Count Three); and possession of a controlled substance with intent to distribute, in violation of 18 U.S.C. 841(a)(1) (Count Five).

         Boulanger's presentence investigation report (“PSR”) detailed his lengthy criminal history and outlined appropriate sentencing options. As the PSR explained, multiple prior felony convictions had a significant impact on his eventual sentence by triggering certain statutory enhancements and Sentencing Guidelines adjustments. The relevant convictions included:

• One 1979 burglary conviction in Strafford County, NH. See PSR ¶40.
• Two 1981 robbery convictions in Rockingham County, NH. See PSR ¶¶41, 45.
• One 1981 robbery conviction in Strafford County, NH. See PSR ¶42.
• One 1981 armed robbery conviction in Hillsborough County, NH. See PSR ¶44.
• One 1981 armed robbery conviction in York County, ME. See PSR ¶46.
• Three 1984 armed robbery convictions in Rockingham County, NH. See PSR ¶¶ 47, 48, 50.
• One 1988 escape conviction in Merrimack County, NH. See PSR ¶52.

         The PSR concluded that Boulanger's sentence on the felon in possession charge was subject to the ACCA's sentencing enhancement based on at least three prior violent felony convictions.[1] PSR, Addendum II (Mar. 25, 2005). The PSR also noted that Boulanger faced an 84-month consecutive sentence for the use of a firearm during a crime of violence. Finally, the PSR determined that Boulanger should be treated as a career offender based on his escape conviction and one of his 1984 robbery convictions. ...


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