United States District Court, E.D. New York
MEMORANDUM & ORDER
L. IRIZARRY Chief Judge.
September 14, 2011, pro se petitioner Ivan Boston
(“Petitioner”) was found guilty, after a jury
trial, of possession of a firearm by a felon, in violation of
18 U.S.C. §§ 922(g)(1) and 924(a)(2). On May 10,
2012, this Court sentenced Petitioner to the maximum term
permitted by statute: 120 months of incarceration, followed
by three years of supervised release. See Judgment &
Commitment Order, No. 11-cr-107 (DLI), Dkt. Entry No. 78. On
August 23, 2013, the Second Circuit Court of Appeals affirmed
the judgment of this Court. See generally, United States
v. Boston, 531 F. App'x 98 (2d Cir. 2013).
Petitioner's petition to the United States Supreme Court
for a writ of certiorari was denied. See Boston v. United
States, 134 S.Ct. 977 (2014).
20, 2014, Petitioner timely filed a motion to “vacate,
set aside or correct sentence, ” pursuant to 28 U.S.C.
§ 2255 (“Section 2255”). See
generally, Pet'r's Mot. to Vacate, Set Aside or
Correct Sentence, Dkt. Entry No. 1 (“Pet'r's
Mot.”). Petitioner contends that: (1) he received
constitutionally ineffective assistance of appellate counsel;
and (2) his sentence was procedurally and substantively
unreasonable. The Government opposed Petitioner's Motion
on August 25, 2014 (“Government Opposition”), and
Petitioner replied on October 7, 2014
(“Petitioner's Reply”). See
Gov't Opp'n, Dkt. Entry No. 7; Pet'r's Reply,
Dkt. Entry No. 11. Petitioner supplemented his motion on
August 3, 2015, January 26, 2016, and May 31, 2016, to add a
claim that his sentence violates the United States Supreme
Court's rulings in Johnson v. United States, 135
S.Ct. 2551 (2015) and Welch v. United States, 136
S.Ct. 1257 (2016). See Pet'r's Suppl. Mots. I, II,
& III, Dkts. 14, 17, 18. The Government opposed this
claim on June 29, 2016. See Gov't Opp'n to Suppl.
Mots., Dkt. Entry No. 19. For the reasons stated below,
Petitioner's motion is denied in its entirety.
with the facts and procedural history of this case is
presumed,  and only those relevant to the disposition
of the motion are repeated herein. Prior to sentencing, the
Probation Department (“Probation”) prepared and
disclosed a Presentence Report (“PSR”), No.
11-cr-107 (DLI), Dkt Entry No. 56, which was amended by
several addenda. See No. 11-cr-107 (DLI), Dkt. Entry Nos. 60,
61, 69, 70, 73, 74. Probation determined that
Petitioner's base offense level under the United States
Sentencing Guidelines (“U.S.S.G.” or “the
Guidelines”) was 20, because Petitioner had a prior
conviction for a felony crime of violence, to wit, burglary
in the third degree. See U.S.S.G. §
2K2.1(a)(4)(A); U.S.S.G. § 4B1.1-1.2; Gov't
Opp'n at 8. Probation then added two levels for
obstruction of justice, based on Boston's false
declaration submitted in connection with his pretrial
suppression motion. Gov't Opp'n at 8-9. Because he
was convicted after a jury trial, Petitioner was not entitled
to a three-level reduction for timely acceptance of
responsibility. See Sentencing Tr.
(“Tr.”) at 19:17-18, Dkt. Entry No. 9.
Accordingly, Probation determined Petitioner to have a total
offense level (“TOL”) of 22, with a Criminal
History Category (“CHC”) of IV. Id. at
9. Petitioner's Sentencing Guideline Range
(“SGR”) was 63 to 78 months of imprisonment.
sentencing hearing held on April 11, 2012, this Court adopted
the PSR's determination of the advisory SGR. See
Tr. at 19:20-22. However, the Court found that this
calculation significantly underrepresented the seriousness of
Petitioner's criminal history, which included violations
committed while incarcerated, among them assault, rioting,
and weapons possession, as well as multiple state parole
violations. Id. at 33:2-37:14. The Court explained
that, if the SGR were adjusted to take into account
Petitioner's full criminal history, his CHC would be VI,
yielding a SGR of 84 to 105 months of imprisonment.
Id. at 37:14-38:3.
the Court turned to the sentencing factors enumerated at 18
U.S.C. § 3553(a), and concluded that a Guidelines
sentence would be inappropriate for Petitioner. Tr. at
38:4-42:12. The Court imposed a sentence of 120 months of
imprisonment, the statutory maximum, followed by three years
of supervised release. Id. at 42:17-18. Special
conditions were also imposed. Id. at 42:19-45:4. At
the request of the parties, the Court adjourned the hearing
then, so that Petitioner could submit a supplemental
sentencing memorandum addressing the Court's decision to
impose a non-Guidelines sentence. Gov't Opp'n at 10.
On May 10, 2012, Petitioner received his sentence of 120
months of imprisonment, followed by three years of supervised
release, and special conditions. Id.
timely appealed, arguing, inter alia, that his
sentence was procedurally and substantively unreasonable, in
part because he claimed that burglary in the third degree
should not be considered a predicate “crime of
violence.” See Gov't Opp'n at 11. The
Second Circuit affirmed Petitioner's conviction and
sentence on August 23, 2013. See Boston, 531 F.
App'x at 101. In doing so, the Second Circuit
specifically noted that its decision was made
“substantially for the reasons given by the District
Court in its thorough and well-reasoned oral rulings at the
defendant's sentencing hearings of April 11, 2012 and May
10, 2012.” Id.
now argues that: (1) his appellate counsel was
constitutionally ineffective; (2) his sentence was
procedurally and substantively unreasonable; and (3) his
sentence violates the Supreme Court's decisions in
Johnson v. United States and Welch v. United
States. See generally, Pet'r's Mot.;
Pet'r's Suppl. Mots I, II, & III. Specifically,
Petitioner contends that appellate counsel was ineffective
because: (1) she did not seek en banc review of
Petitioner's conviction and sentence, and allegedly was
untimely in other post-appellate filings; and (2) she neither
advised Petitioner properly of the application to his case of
the United States Supreme Court's decision in
Descamps v. United States, 133 S.Ct. 2276 (2013),
nor acknowledged or submitted to the Second Circuit a
28(j) letter prepared by Petitioner concerning
Section 2255, “a sentencing court may vacate, set aside
or correct a conviction or sentence imposed in violation of
the Constitution or laws of the United States.” 28
U.S.C. § 2255. Relief generally is “available only
for a constitutional error, defect of jurisdiction, or an
error of law constituting a fundamental defect which
inherently results in a complete miscarriage of
justice.” Scala v. United States, No.
09-cv-4687 (SJ), 2010 WL 3780320, at *1 (E.D.N.Y. Sept. 21,
2010) (citations and internal quotation marks omitted).
Ineffective Assistance of Counsel
succeed on a claim of ineffective assistance of counsel, a
petitioner must (1) show that “his attorney's
performance ‘fell below an objective standard of
reasonableness, ' in light of ‘prevailing
professional norms, '” and (2)
“‘affirmatively prove prejudice' arising from
counsel's allegedly deficient representation.”
United States v. Caracappa, 614 F.3d 30, 46 (2d Cir.
2010) (quoting Strickland v. Washington, 466 U.S.
668, 688, 693 (1984)). “Although Strickland
addressed the constitutional standard for ineffective
assistance of counsel in the trial counsel context, our