United States District Court, D. Vermont
OPINION AND ORDER GRANTING DEFENDANT'S REQUEST
FOR EXPEDITED REVIEW OF THE MAGISTRATE JUDGE'S ORDER
STAYING THE CASE AND DENYING WITHOUT PREJUDICE
DEFENDANT'S REQUEST FOR A REDUCED SENTENCE (Doc.
CHRISTINA REISS, CHIEF JUDGE UNITED STATES DISTRICT COURT
matter came before the court on Defendant Donald J.
Santore's appeal of the Magistrate Judge's Order
staying the case (Doc. 63). Mr. Santore asks the court to
lift the stay imposed by the Magistrate Judge and grant him a
reduction in his sentence. He argues that his Sentencing
Guideline range was calculated with reference to a
"crime of violence" residual clause identical to
that struck down under Johnson v. United States, 135
S.Ct. 2551 (2015). Johnson held that the Armed
Career Criminal Act's (the "ACCA") residual
clause, 18 U.S.C. § 924(e)(2)(B)(ii), is
unconstitutionally void for vagueness because its application
"does not comport with the Constitution's guarantee
of due process." Johnson, 135 S.Ct. at 2560.
Mr. Santore's anticipated release date from incarceration
is December 27, 2016. He asserts that, in the absence of
expedited treatment of his motion, he will be deprived of
government opposes the motion, arguing that the court is not
required to lift the stay, that it is unclear whether Mr.
Santore is entitled to his requested relief, and that lifting
the stay will require an unwarranted expenditure of resources
by the parties and the federal judiciary.
Santore is represented by Assistant Federal Public Defender
Steven L. Barth. The government is represented by Assistant
United States Attorney Gregory L. Waples and Assistant United
States Attorney Eugenia A. Cowles.
Factual and Procedural Background.
March 20, 2013, the court sentenced Mr. Santore to a
below-Guidelines sentence of 68 months imprisonment following
his guilty plea to one count of possession of a stolen
firearm, in violation of 18 U.S.C. §§ 922(j) and
924(a)(2), and one count of possession of a firearm not
properly registered to him in the National Firearms
Registration and Transfer Record, in violation of 26 U.S.C.
§§ 5841, 5861(d), and 5871. The court adopted the
presentence report ("PSR") as its findings of fact.
It also adopted the Sentencing Guidelines recommendation set
forth therein over Mr. Santore's objections that his
prior felony convictions pursuant to 13 V.S.A. § 1201(a)
are not categorically "crimes of violence" under
the Guidelines and that the Guidelines' residual clause
set forth in U.S.S.G. § 4B 1.2(a)(2) is
determining Mr. Santore's advisory Guidelines range, the
court found that the offenses of possession of a stolen
firearm and possession of a firearm not properly registered
to him occurred on or about January 7, 2012 and that the
Sentencing Guidelines (November 1, 2012 edition) applied. The
court concluded that Mr. Santore committed the offenses of
conviction subsequent to sustaining two felony convictions
for "crimes of violence" based on the residual
clause in the Guidelines and the Second Circuit's
controlling interpretation of that clause. See PSR
at 11, ¶ 39 n.9 (citing United States v. Brown,
514 F.3d 256, 268-69 (2d Cir. 2008) (concluding that under
New York law, burglary in the third degree of a
"building" as opposed to a "dwelling" is
a "crime that inherently involves a risk of personal
injury" and was thus a "crime of violence within
the meaning of the [residual] clause of Guidelines § 4B
1.2(a)(2)") (internal quotation marks omitted)); see
also PSR at 14, ¶ 42.
the applicable Guidelines, a defendant's base offense
level is 20 if "the defendant committed any part of the
instant offense subsequent to sustaining one felony
conviction of either a crime of violence or a controlled
substance offense[.]" U.S.S.G. § 2K2.1(a)(4)(A).
The term "crime of violence" is defined in the 2012
Guidelines Manual as:
any offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that-
(1) has as an element the use, attempted use, or threatened
use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves
use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to
U.S.S.G. § 4B 1.2(a). "Section 4B 1.2(a)(1) is
referred to as the 'physical force clause.' The first
half of § 4B 1.2(a)(2) contains the 'exemplar
crimes, ' and the second half the 'residual
clause.'" United States v. Van Mead, 773
F.3d 429, 432 (2d Cir. 2014).
a general matter, reliance on a federal PSR's factual
description of a defendant's pre-arrest conduct to
determine whether a prior offense constitutes a 'crime of
violence' under U.S.S.G. § 4B 1.2(a)(1) is
prohibited." United States v. Reyes, 691 F.3d
453, 459 (2d Cir. 2012). The facts surrounding Mr.
Santore's Vermont burglary convictions as set forth in
the PSR are nonetheless examined because they are relevant to
his likelihood of success on the merits.
about August 21, 2006, Mr. Santore pled guilty to felony
burglary under Vermont law and was sentenced to a term of
imprisonment of sixteen months to ten years. Paragraph 39 of
the PSR states that the police affidavit related to this
conviction alleges that Mr. Santore burglarized a
construction site located in Richford, Vermont on November
15, 2005 by breaking a window to enter the residence and
taking construction tools with a total value of $2, 470 (the
"construction site burglary"). On March 28, 2006,
Mr. Santore provided a statement to police allegedly
indicating that he and another person broke into the
structure for the purpose of removing construction tools,
which they returned the following evening. The PSR indicates