SENTENCING ENHANCEMENTS IN GUN AND DRUG CASES 03/22/2012 SENTENCING ENHANCEMENTS IN GUN AND DRUG CASES Joseph Janezic Chief, Gang Unit Plymouth County DA’s Office -June 15, 2017-

Beginning your analysis… There are a number of weapons-related offenses under the Massachusetts General Laws. If a new offense involves one of these, there is a possibility it could be enhanced: Ch. 269, 10(a) - Unlawful Possession of a Firearm/shotgun/rifle, not at home or work Ch. 269, 10(b) – Carrying a Dangerous Weapon Ch. 269, 10(c) – Unlawful Possession of a machine gun/sawed-off shotgun Ch. 269, 10(h) – Typically encompasses possession of a firearm/shotgun/rifle at home/work, or possession of ammunition

Sentencing Enhancements for Firearm-related Offenses There are two main statutes governing the enhancement of firearms-related offenses: Second/Subsequent Possession of a Firearm, ch. 269, § 10(d) “Armed Career Criminal”, ch. 269, 10G

Second/Subsequent Possession, ch. 269, § 10(d) “Whoever, after having been convicted of any of the offenses set forth in paragraph (a), (b) or (c) commits a like offense or any other of the said offenses, shall be punished . . .”

“. . .after having been convicted of any of the offenses set forth in paragraph (a), (b) or (c). . .” Ch. 269, 10(a) – Unlawful possession/carrying of a firearm/rifle/shotgun, not at home or work Ch. 269, 10(b) – Carrying a Dangerous Weapon Ch. 269, 10(c) – Possession of a machine gun or sawed- off shotgun

“. . .commits a like offense or any other of the said offenses . . .” What is a “like offense or any of the other said offenses”? Certainly a new violation of 269, 10(a), 10(b), and/or 10(c) Juvenile delinquency/Youthful Offender adjudications qualify as predicate offenses See Comm. v. Connor C., 432 Mass. 635 (2000) It is arguable that a new violation of 269, 10(h), with a predicate conviction under 269, 10(a), 10(b), or 10(c) could qualify, but the language of the statute could be more clear

So… A prior conviction for one of these: Ch. 269, 10(a) – Unlawful Possession of a Firearm Ch. 269, 10(b) – Carrying a Dangerous Weapon Ch. 269, 10(c) – Unlawful Possession of a Machine Gun or Sawed-Off Shotgun

Can be used to enhance any of these under ch. 269, 10(d): Ch. 269, 10(a) – Unlawful Possession of a Firearm Ch. 269, 10(b) – Carrying a Dangerous Weapon Ch. 269, 10(c) – Unlawful Possession of a Machine Gun or Sawed-Off Shotgun

Armed Career Criminal, ch. 269, 10G “Whoever, having been previously convicted of a violent crime or of a serious drug offense, both as defined herein, violates the provisions of paragraph (a), (c) or (h) of section 10 shall be punished . . .”

What charges are eligible for enhancement under ch. 269, 10G? Offenses under ch. 269, 10(a) Firearm/rifle/shotgun not at home/work Offenses under ch. 269, 10(c) Machine gun/sawed-off shotgun Offenses under ch. 269, 10(h) Possession of a firearm inside the home or at work, possession of ammunition

“having been previously convicted of a violent crime or of a serious drug offense” Violent crime: “For the purposes of this section, ‘violent crime’ shall have the meaning set forth in section 121 of chapter 140.” Serious Drug Offense: “For the purposes of this section, ‘serious drug offense’ shall mean an offense under the federal Controlled Substances Act, 21 U.S.C. 801, et seq., the federal Controlled Substances Import and Export Act, 21 U.S.C. 951, et seq. or the federal Maritime Drug Law Enforcement Act, 46 U.S.C. App. 1901, et seq. for which a maximum term of imprisonment for ten years or more is prescribed by law, or an offense under chapter 94C involving the manufacture, distribution or possession with intent to manufacture or distribute a controlled substance, as defined in section 1 of said chapter 94C, for which a maximum term of ten years or more is prescribed by law.”

“Serious drug offense” Although there are a few exceptions, a vast majority of Armed Career Criminal predicates based on “serious drug offenses” revolve around two classes of drugs, Class A and Class B: Possession with intent to distribute Cl. A or B Distribution of Class A or B Trafficking in Heroin, Morphine, Opium, Cocaine, Fentanyl, etc.

Juvenile adjudications for drug offenses are NOT predicates for ACC enhancement

“Violent Crime” as defined by ch. 140, 121 ''Violent crime'', shall mean any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or possession of a deadly weapon that would be punishable by imprisonment for such term if committed by an adult, that: (i) has as an element the use, attempted use or threatened use of physical force or a deadly weapon against the person of another; (ii) is burglary, extortion, arson or kidnapping; (iii) involves the use of explosives; or (iv) otherwise involves conduct that presents a serious risk of physical injury to another.

To sum it up, the Massachusetts Armed Career Criminal law had 3 components: (1) the "physical force" or "force" clause; (2) the enumerated crimes provisions; and (3) the residual clause.

The “residual clause” “otherwise involves conduct that presents a serious risk of physical injury to another” Johnson v. U.S., 135 S.Ct. 2551 (2015), voided the residual clause in the federal ACCA as being unconstitutionally vague under the due process clause of the 14th Amendment The SJC followed suit in Commonwealth v. Beal, 474 Mass. 341 (2016), voiding the residual clause in the Massachusetts statute. In so doing, it overturned the holding in Commonwealth v. Colon, 81 Mass. App. Ct. 8 (2011), decided under the residual clause, and held that AB on a Police Officer did not automatically fall under the “force” clause and required further evidence.

And then there were two… (1) the "physical force" or "force" clause; and (2) the enumerated crimes provisions (burglary, extortion, arson or kidnapping).

So what qualifies as a ”violent crime” for the purposes of 269, 10G? Convictions as a juvenile for: Assault by means of / Assault & Battery by means of a DEADLY weapon (meaning knife or gun only) (see Comm. v. Rezendes, 88 Mass. App. Ct. 369 (2015); Comm. v. Anderson, 461 Mass. 616 (2012)) Convictions as an adult for: All assaultive crimes threatening/attempting the use of force, with or without a DW All ABDWs All other violent crimes punishable for a period of 1 year or more and that involve conduct that is either harmful or reckless

A breakdown of 3 types of A&B: All “harmful” batteries ("[a]ny touching 'with such violence that bodily harm is likely to result’”) All “reckless” batteries ("willful, wanton and reckless act which results in personal injury to another.”) But NOT “offensive” ones like tickling or spitting See Commonwealth v. Eberhart, 461 Mass. 809 (2012) for a thorough discussion of the impact of Johnson v. U.S., 130 S. Ct. 1265 (2010) on the Massachusetts Armed Career Criminal statute as it pertains to Assault & Battery predicates

Juvenile adjudications for drug offenses are NOT predicates for ACC As a general proposition, juvenile adjudications do not qualify as “convictions” under the law The notable exceptions to this rule, due to statutory construction and legislative intent, are predicates for Weapons offenses under ch. 269, 10(a), 10(b), and 10(c) for enhancement under the Second/subsequent possession of a weapon statute (ch. 269, 10(d)) (Comm. v. Connor C., 432 Mass. 635 (2000) Certain violent offenses committed with a DEADLY weapon for enhancement under the Armed Career Criminal statute (ch. 269, 10G) (Comm. v. Furr, 58 Mass. App. Ct. 155 (2003); Comm. v. Foreman, 63 Mass. App. Ct. 801 (2005); Comm. v. Anderson, 461 Mass. 616 (2012); and Comm. v. Rezendes, 88 Mass. App. Ct. 369 (2015)