Filed: Jun. 13, 2017
Latest Update: Jun. 13, 2017
Summary: STIPULATION AND PROPOSED ORDER GARLAND E. BURRELL, Jr. , Senior District Judge . Gerard Gallant, by and through appointed counsel Sandra Gillies, and the United States, by and through Ross K. Naughton, Assistant United States Attorney stipulate as follows: 1. On November 22, 1996, Mr. Gallant was convicted of conspiracy to escape, 18 U.S.C. 371; escape, 18 U.S.C. 2, 751(a)(2), and possession of a firearm following a felony conviction. 18 U.S.C. 922(g). ECF No. 177. 2. The probation
Summary: STIPULATION AND PROPOSED ORDER GARLAND E. BURRELL, Jr. , Senior District Judge . Gerard Gallant, by and through appointed counsel Sandra Gillies, and the United States, by and through Ross K. Naughton, Assistant United States Attorney stipulate as follows: 1. On November 22, 1996, Mr. Gallant was convicted of conspiracy to escape, 18 U.S.C. 371; escape, 18 U.S.C. 2, 751(a)(2), and possession of a firearm following a felony conviction. 18 U.S.C. 922(g). ECF No. 177. 2. The probation ..
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STIPULATION AND PROPOSED ORDER
GARLAND E. BURRELL, Jr., Senior District Judge.
Gerard Gallant, by and through appointed counsel Sandra Gillies, and the United States, by and through Ross K. Naughton, Assistant United States Attorney stipulate as follows:
1. On November 22, 1996, Mr. Gallant was convicted of conspiracy to escape, 18 U.S.C. § 371; escape, 18 U.S.C. §§ 2, 751(a)(2), and possession of a firearm following a felony conviction. 18 U.S.C. § 922(g). ECF No. 177.
2. The probation officer's report noted Mr. Gallant's status as career offender and an armed career criminal, based on his convictions for "first-degree Armed Burglary," robbery, and forced oral copulation. PSR ¶ 38. The PSR classified Mr. Gallant as an armed career criminal under 18 U.S.C. § 924(e) because of his convictions of robbery and rape by force, "first degree armed burglary," robbery, and oral copulation. Id. ¶ 39
3. The probation officer calculated the base offense to be 35 and, as a result of the intersection between the base offense level and the criminal history score, determined the guideline range to be 292 to 365 months, given Mr. Gallant's status as a career offender and an armed career criminal. PSR ¶¶ 31, 59.
4. On February 14, 1997, the Honorable Garland E. Burrell adopted the presentence report and sentenced Gallant to a term of 365 months on count five, with terms of 60 months concurrent on counts one and two. ECF. No. 189.
5. On June 26, 2015, the Supreme Court issued its opinion in Johnson v. United States, ___ U.S. ___, 132 S.Ct. 2551, which struck down the ACCA's residual clause as unconstitutionally vague. Id. at 2557.
6. On June 6, 2016, Mr. Gallant filed an application to pursue a second or successive motion to vacate his sentence, 28 U.S.C. § 2255, raising a Johnson challenge to his sentence.
7. On January 25, 2017, the Court of Appeals authorized Mr. Gallant to proceed with his challenge.
8. On March 16, 2017, the United States agreed with Mr. Gallant that his California convictions for burglary and robbery can no longer serve as ACCA predicates. ECF No. 268.
9. Because Mr. Gallant is no longer an armed career criminal under 18 U.S.C. § 924(e), he is no longer subject to the mandatory minimum sentence of fifteen years.
10. Because Mr. Gallant's prior convictions for burglary and robbery are not crimes of violence, he is no longer a career offender under U.S.S.G. 4B1.1 and so his criminal history category is IV rather than VI.
11. With an adjusted base offense level of 35 and a criminal history category of IV, his Guidelines range is 235-293 months.
12. Mr. Gallant was taken into federal custody on May 16, 1993, PSR at 1, so if he is sentenced to 293 months, he has completed his term.
13. Mr. Gallant has assured counsel he does not wish to return to court for any further proceedings regarding his sentence.
14. Accordingly, the parties stipulate to the issuance of an order granting Mr. Gallant's motion to correct his sentence and to the imposition of a new sentence of 293 months.
ORDER
The court, having read and considered the stipulation of the parties, hereby ORDERS:
1. The motion to vacate or correct the sentence, deemed filed June 6, 2016, ECF No. 263, is GRANTED;
2. The 365 month sentence imposed February 14, 1997, is VACATED;
3. The court finds Mr. Gallant's criminal history score to be 9, with a corresponding criminal history category IV, and his total offense level to be 35, with a corresponding guideline range of 235-293 months;
4. The court commits Mr. Gallant to the Bureau of Prisons to be imprisoned for a term of 293 months;
5. All other terms and conditions of the sentence imposed on February 14, 1997, remain in effect.
