United States Court of Appeals
For the First Circuit
No. 22-1243
UNITED STATES,
Appellee,
v.
DEREK CAPOZZI,
Defendant, Appellant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Barron, Chief Judge,
and Howard, Circuit Judge.*
Dana Goldblatt, with whom The Law Office of Dana Goldblatt
was on brief, for appellant.
Robert E. Richardson, Assistant United States Attorney, with
whom Rachael S. Rollins, United States Attorney, was on brief, for
appellee.
* Judge Selya heard oral argument in this case and
participated in the initial semble thereafter. His death on
February 22, 2025 ended his involvement in this case. The
remaining two panelists issued this opinion pursuant to 28 U.S.C.
§ 46(d).
July 2, 2025
HOWARD, Circuit Judge. Derek Capozzi brings two
challenges to the district court's disposition of his motion to
vacate his sentence under 28 U.S.C. § 2255. First, he argues that
Johnson v. United States,
576 U.S. 591 (2015) ("Johnson II"),
invalidates his enhanced sentence imposed under the Armed Career
Criminal Act ("ACCA"). Second, he argues that although the court
correctly vacated one of his convictions, it abused its discretion
when it corrected that error by vacating the sentence for that
conviction rather than conducting a new sentencing proceeding to
resentence him for all his related convictions. Because Capozzi
is time-barred from making the Johnson II claim and fails to meet
his burden for the abuse-of-discretion claim, we affirm.
I.
A.
We begin with a brief overview of the two bodies of law
that intersect to form the core of Capozzi's appeal: the ACCA and
the Antiterrorism and Effective Death Penalty Act ("AEDPA").
The ACCA imposes a mandatory fifteen-year minimum
sentence on defendants convicted of violating 18 U.S.C. § 922(g)
who have previously been convicted of three "violent felon[ies]."
18 U.S.C. § 924(e). As originally enacted, the statute defines a
"violent felony" as any crime that is punishable by greater than
one year of imprisonment and that: (1) "has as an element the use,
attempted use, or threatened use of physical force against the
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person of another" (the force clause); (2) is "burglary, arson, or
extortion [or] involves the use of explosives" (the enumerated
clause); or (3) "otherwise involves conduct that presents a
serious risk of physical injury to another" (the residual clause).
Id. § 924(e)(2)(B). In Johnson II, however, the Supreme Court
struck down the residual clause as unconstitutional, holding that
the clause's language was too vague to comport with due process
principles.
576 U.S. at 597. The Court accordingly severed the
clause from the statute, prohibiting future sentences from being
enhanced under the residual clause.
Id. at 606.
The other law at issue, AEDPA, was enacted "to reduce
delays in the execution of state and federal criminal sentences."
Woodford v. Garceau, 538 U.S. 202, 206 (2003). As relevant here,
AEDPA imposes strict timeliness requirements on federal inmates'
motions to "vacate, set aside, or correct" a sentence based on its
asserted violation of federal law.1
28 U.S.C. § 2255(a).
Generally, AEDPA imposes a one-year statute of limitations on such
motions, which begins to run when "the judgment of conviction
becomes final."
Id. § 2255(f)(1). But, if the § 2255 motion is
based on a right that "has been newly recognized by the Supreme
Court and made retroactively applicable to cases on collateral
1 Such motions are roughly analogous to a state inmate's
habeas-corpus petition. See Hill v. United States, 368 U.S. 424,
427 (1962).
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review," the one-year countdown resets on the "date on which the
right asserted was initially recognized by the Supreme Court."
Id. § 2255(f)(3). In other words, when the Supreme Court
articulates a substantive constitutional right for the first time
and determines that it applies to cases already decided, a federal
inmate has one year from the date of the Supreme Court's decision
to bring a claim asserting that right in federal court. If the
Supreme Court's decision does not newly announce a substantive
constitutional right or is not retroactively applicable, however,
the clock is not reset, and AEDPA bars lower courts from hearing
a § 2255 motion grounded in that decision more than one year after
the inmate's final judgment of conviction. See, e.g., Págan-San
Miguel v. United States,
736 F.3d 44, 45 (1st Cir. 2013) (per
curiam) (denying application for leave to file a § 2255 motion
where petitioner relied on Supreme Court decisions that "did not
announce a new rule of constitutional law"); Butterworth v. United
States,
775 F.3d 459, 465-68, 470 (1st Cir. 2015) (affirming denial
of relief where petitioner relied on Supreme Court decision that
"was not retroactively applicable on collateral review").
Johnson II is an example of the former kind of case: it
announced a "substantive rule of law" that applies retroactively
on collateral review and reopened federal courts to § 2255 motions
from inmates sentenced under the ACCA's residual clause for one
year following its announcement. Shea v. United States, 976 F.3d
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63, 65-66 (1st Cir. 2020) (citing Welch v. United States, 578 U.S.
120, 130 (2016)).
Mathis v. United States, 579 U.S. 500 (2016), on the
other hand, is an example of the latter kind of case. In Mathis,
the Supreme Court clarified how lower courts should determine
whether a prior conviction under an "alternatively phrased
statute" counts as a "violent felony" under the ACCA's enumerated
clause. See
579 U.S. at 517. In what it described as "a
straightforward case," the Court drew on "longstanding principles"
from its prior decisions to clarify that lower courts "should do
what [the Court] [has] previously approved," namely, compare only
the elements of the statute at issue to the generic definition of
the relevant offense in the enumerated clause. See
id. at 509,
519. While the Supreme Court outlined the contours of the
enumerated clause in Mathis, providing guidance to courts applying
the ACCA thereafter, it "did not announce a new, retroactively
applicable rule" in that case for purposes of AEDPA's timeliness
bar. Dimott v. United States,
881 F.3d 232, 237 (1st Cir. 2018)
(citing Mathis,
579 U.S. at 519).
Thus, Johnson II opened a one-year window for § 2255
motions, while Mathis did not. AEDPA consequently prohibits
federal courts from hearing retroactive Johnson II claims when the
claimant relies on a nonretroactive case like Mathis as a
steppingstone to argue that the sentencing court must have used
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the stricken residual clause in applying the ACCA enhancement.
Id. at 237-38. Otherwise, litigants could circumvent AEDPA's
timeliness bar by shoehorning into a Johnson II claim any
sentencing court's error in applying the force or enumerated
clauses by construing the sentence to necessarily fall under the
"catch-all" criteria of the residual clause. Id. ("To hold
otherwise would create an end run around AEDPA's statute of
limitations. It would allow petitioners to clear the timeliness
bar by bootstrapping their Mathis claims onto Johnson II
claims . . . . This cannot be right.").
B.
With all this in mind, we turn to the case at hand. In
1999, a jury convicted Capozzi on three counts: possession of a
firearm as a felon under 18 U.S.C. § 922(g)(1); attempted extortion
under
18 U.S.C. § 1951(a); and use of a firearm in furtherance of
a crime of violence under
18 U.S.C. § 924(c). At sentencing, the
district court determined that the ACCA subjected Capozzi to a
fifteen-year minimum sentence because eight of his previous
convictions in Massachusetts state courts qualified as ACCA
predicate offenses: five "breaking and entering in the daytime"
("B&E") convictions under Mass. Gen. Laws ch. 266, § 18; one
"entering without breaking" conviction under
Mass. Gen. Laws ch.
266, § 17; one "assault and battery with a dangerous weapon"
conviction under
Mass. Gen. Laws ch. 265, § 15; and one "assault
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and battery of a police officer" conviction under Mass. Gen. Laws
ch. 265, § 13D. The record of the original sentencing is unclear
as to which ACCA clause(s) the court viewed the convictions to
correspond. Still, accounting for the ACCA enhancement, the court
sentenced Capozzi to a total of 360 months in prison: 300 months
for the felon-in-possession count; 240 months for the
attempted-extortion count to be served concurrently with the
felon-in-possession sentence; and 60 months for the
firearm-in-furtherance count to be served consecutively to the
first 300 months. Capozzi directly appealed the convictions to
this court but was unsuccessful. See United States v. Capozzi,
347 F.3d 327, 337 (1st Cir. 2003). The Supreme Court declined to
review. Capozzi v. United States,
540 U.S. 1168 (2004).
In 2005, Capozzi filed his first § 2255 motion, in which
he claimed that his B&E convictions should not have counted as
ACCA predicates. Citing Taylor v. United States, 495 U.S. 575
(1990), he noted that for a prior conviction to qualify as
"burglary" for the purposes of the ACCA's enumerated clause, see
28 U.S.C. § 2255(e)(2)(B)(ii), the prior conviction must involve
unlawful entry into a "building or structure." Capozzi contrasted
the Massachusetts statute giving rise to his B&E convictions, which
criminalizes breaking and entering not only a building but also a
"ship or motor vehicle or vessel." See
Mass. Gen. Laws ch. 266,
§ 18. He argued that, because § 18 encompasses conduct that does
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not fit within the generic definition of "burglary" outlined in
Taylor -- "an unlawful or unprivileged entry into, or remaining
in, a building or other structure, with intent to commit a crime,"
495 U.S. at 598 -- the government could not have properly treated
his B&E convictions as "burglaries" under the ACCA's enumerated
clause absent a showing that he specifically pled guilty to
breaking and entering a building, as opposed to a "ship or motor
vehicle or vessel,"
Mass. Gen. Laws ch. 266, § 18 (1999).
The district court held that the government did make
that showing, however. The court reviewed the presentence report
("PSR") used during sentencing and concluded that it "explicitly
indicated that at least four of [Capozzi's] prior convictions
involved buildings rather than ships, vessels, or vehicles."
Capozzi v. United States, No. 05-10171, 2007 WL 162247, at *6 (D.
Mass. Jan. 12, 2007) ("Capozzi I"). Thus, the reviewing district
court concluded, "the claim [was] barred." Id.
In 2015, within the one-year period after the Supreme
Court issued its decision in Johnson II, Capozzi sought permission
from this court to file a second or successive motion to vacate.
His application was approved, and he filed a second § 2255 motion
based on Johnson II. While the motion was still pending before
the district court, he amended it and requested that the court
also vacate his firearm-in-furtherance conviction in accordance
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with the Supreme Court's decision in United States v. Davis, 588
U.S. 445 (2019).2
The district court granted the motion as to the
firearm-in-furtherance conviction but denied it as to Capozzi's
other requests for relief, including his Johnson II claim. Capozzi
v. United States, 531 F. Supp. 3d 399, 407 (D. Mass. 2021)
("Capozzi II"). In so doing, the court reduced Capozzi's sentence
by sixty months to reflect the consecutive sentence of that
duration imposed for the vacated firearm-in-furtherance
conviction. Id.
In denying Capozzi's Johnson II challenge to the ACCA
enhancement, the district court reasoned that although Capozzi
styled his challenge as one arising from Johnson II, it actually
amounted to a Mathis claim because there was "no basis in the
record for concluding that the Court sentenced [Capozzi] solely
under the residual clause" as a Johnson II claim would require,
concluding instead that "the Court likely sentenced under both
[the enumerated and residual] clauses." Id. at 406-07. And
because Mathis did not reset the § 2255 statute of limitations,
see Dimott,
881 F.3d at 237, Capozzi was prohibited from asserting
2 Capozzi also added a request to vacate his
felon-in-possession conviction based on Rehaif v. United States,
588 U.S. 225 (2019), which the district court dismissed for lack
of jurisdiction. Capozzi v. United States,
531 F. Supp. 3d 399,
405 (D. Mass. 2021). He does not pursue this issue on appeal.
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that case as a basis for relief in his second § 2255 motion, more
than a decade after his conviction was finalized. Capozzi II, 531
F. Supp. 3d at 406-07. The district court thus concluded that it
lacked jurisdiction to hear the claim. Id. at 406.
Capozzi appeals on two grounds. He argues (1) that the
district court had jurisdiction to hear his Johnson II-styled claim
and (2) that the court erred in opting to simply vacate the
sixty-month consecutive sentence instead of holding a resentencing
hearing. We address each argument in turn.
II.
A.
We review de novo the district court's denial of a habeas
petition on procedural grounds. Dimott, 881 F.3d at 236.
AEDPA provides us with jurisdiction to reach the merits
of Capozzi's ACCA claim if the right that it asserts derives from
Johnson II, but it bars jurisdiction if the right derives from
some other non-retroactive case such as Mathis.3 To present a
Johnson II claim, Capozzi must show that his "original ACCA
sentence [was] based solely on the residual clause." Id. In the
absence of express statements from the district court judge
3 The government contends that Capozzi waived any appeal to
the district court's determination that he brought a Mathis claim
because he did not expressly address that point in his opening
brief. Because we ultimately lack jurisdiction over Capozzi's
claim, we need not decide the waiver question.
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presiding over the sentencing, we afford "due weight" to any
findings made by that same judge while presiding over subsequent
postconviction motions when that judge is "describing [her] own
decisions at sentencing."4 Id. at 237.
Here, when the district court originally sentenced
Capozzi under the ACCA, it made no express reference to the ACCA's
definitional clauses. But the same district court judge did make
statements on the matter in both the 2005 and later postconviction
proceedings. When reviewing Capozzi's 2005 motion, the court
concluded that Capozzi had failed to show that his prior
convictions could not qualify as "violent felonies" under the
ACCA's enumerated clause. The court explained that the PSR used
during the original sentencing "explicitly indicated that at least
four of Petitioner's prior convictions involved buildings."
Capozzi I, 2007 WL 162247, at *6. The court did not once mention
whether the burglaries were "otherwise dangerous" or use any
language from the residual clause. And when reviewing Capozzi's
2022 motion, the same district court judge held that there was "no
basis in the record for concluding that the Court sentenced
Petitioner solely under the residual clause," explicitly stating
A § 2255 motion is usually heard by the district court judge
4
that presided over the sentencing proceedings. See 28 U.S.C.
§ 2255(a) ("A prisoner may . . . move the court which imposed the
sentence to vacate, set aside, or correct the sentence.").
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what was implicit in the 2005 opinion.5 Capozzi II, 531 F. Supp. 3d
at 407.
Affording these findings "due weight," as we must, see
Dimott, 881 F.3d at 237, leads us to the conclusion that Capozzi's
ACCA enhancement was not "based solely" on the residual clause,
id. at 236.6 As a result, Capozzi cannot make out a Johnson II
challenge. Rather, because "the linchpin of [his] argument" is
that his Massachusetts B&E convictions are for "nongeneric
offense[s]" such that they "cannot qualify as [] ACCA
predicate[s]," we agree with the district court that Capozzi's
Contrary to Capozzi's objection, we do not read the district
5
court's subsequent citation to United States v. Wilkinson, 926
F.2d 22 (1st Cir. 1991), as suggesting that all Massachusetts B&E
convictions categorically qualify as ACCA predicates. See Capozzi
II, 531 F. Supp. 3d at 407. The court cited Wilkinson only after
prefacing that "there is no basis in the record for concluding
that the Court sentenced Petitioner solely under the residual
clause," indicating that the court conducted the requisite
case-specific inquiry. See id. Its subsequent citation to
Wilkinson is more naturally read as supportive authority for its
conclusion that, given the record's clarity that Capozzi entered
a building in the commission of the relevant B&E offenses, the
sentencing court could permissibly rely on the enumerated clause
at his original sentencing. Indeed, had the district court
attributed the broad proposition to Wilkinson that Capozzi
intimates, it would have obviated the need for the rest of its
analysis, as it would have been manifestly clear that Capozzi's
convictions qualified as ACCA predicates under the enumerated
clause.
We need not determine whether the court relied on the
6
residual clause elsewhere because the four B&E convictions alone
satisfy the ACCA's three-felony minimum. See 18 U.S.C.
§ 924(e)(1).
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"petition[] depend[s] on Mathis, and [is] thus untimely." See id.
at 237-38.
Capozzi acknowledges the district court's finding on
this score, but he maintains that the court's reliance on the
enumerated clause at the time of his original sentencing was
legally impossible, and thus mistaken, under Taylor v. United
States, 495 U.S. 575 (1990). Irrespective of its merits, this
argument cannot provide Capozzi with a basis for relief. Taylor
was decided well before Capozzi's conviction and sentencing; AEDPA
thus requires him to have brought any § 2255 motion on that ground
within one year of the final judgment against him.
28 U.S.C.
§ 2255(f). Indeed, Capozzi did make such a challenge in his first
§ 2255 motion in 2005. But the Supreme Court's subsequent decision
in Johnson II does not provide him with an opportunity to
relitigate the claims he raised then, as none invoked the residual
clause. See Capozzi I,
2007 WL 162247, at *1-5. And now, any
claim asserting error in the application of the enumerated clause
based on Taylor is too late for us to hear.
To summarize, Capozzi cannot clear the threshold of
establishing a Johnson II claim because he cannot show that his
sentence was "solely based" on the residual clause. See Dimott,
881 F.3d at 237. As a result, he pivots to arguing that if the
court did rely on the enumerated clause, it erred under Taylor.
But we lack jurisdiction to hear such a claim, regardless of
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whether it relies on Mathis or Taylor, as the statute of
limitations on such a claim has lapsed. For challenges to
sentences brought based on Johnson II, AEDPA's statute of
limitations resets only as to those sentences imposed in fact under
the ACCA's residual clause, not for those that purportedly should
have been imposed under the residual clause because their
imposition under another clause was flawed. Because this case is
one of the latter, and more than a year has passed since the
judgment of conviction against him became final, AEDPA bars federal
courts from hearing Capozzi's ACCA claim.
B.
This leaves only the resentencing issue. "We review the
district court's determination of the appropriate remedy for a
§ 2255 violation for abuse of discretion." United States v.
Torres-Otero, 232 F.3d 24, 29-30 (1st Cir. 2000). This is an
extremely deferential standard. See United States v. Walker,
665
F.3d 212 (1st Cir. 2001) ("An abuse of discretion occurs 'when a
relevant factor deserving of significant weight is overlooked, or
when an improper factor is accorded significant weight, or when
the court considers the appropriate mix of factors, but commits a
palpable error of judgment in calibrating the decisional scales.'"
(quoting United States v. Nguyen, 542 F.3d 275, 281 (1st Cir.
2008))).
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After granting a § 2255 motion, a district court may
award one of four remedies: vacate the sentence, order a de novo
resentencing, grant a new trial, or correct the sentence. 28
U.S.C. § 2255(b). Capozzi admits that the district court had the
discretion to adjust his sentence, but he maintains that because
the sentence for his firearm-in-furtherance conviction was
"intertwined" with the other two sentences, the court should have
awarded him a plenary resentencing. In support, he relies on
language from our decision in United States v. Rodriguez, in which
we held that "where the Guidelines contemplate an interdependent
relationship between the sentence for the vacated conviction and
the sentence for the remaining convictions -- a sentencing
package -- a district court may, on a petition under
28 U.S.C.
§ 2255, resentence on the remaining convictions."
112 F.3d 26,
30-31 (1st Cir. 1997) (emphasis added) (footnotes omitted).
To explain how the district court abused its discretion
in the manner recognized in Rodriguez, however, Capozzi points
only to the government's concession that "under current
jurisprudence, the Defendant would not be an [armed career
criminal]." He cites no cases that reverse a district court for
failing to conduct a de novo resentencing after vacating an
intertwined conviction, nor any in which a court ordered a
resentencing because jurisprudential standards have evolved.
Further, Capozzi presented the Rodriguez case and his equitable
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argument to the court below, and the record indicates that the
court considered both in its decision. Thus, we cannot find that
the court abused its considerable discretion on these facts by
opting to correct Capozzi's sentence without doing so.
III.
For the foregoing reasons, we affirm.
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