U.S. v. Carter, CRIM.A. 4:04CR48.
| Citation | 349 F.Supp.2d 982 |
| Decision Date | 10 December 2004 |
| Docket Number | No. CRIM.A. 4:04CR48.,CRIM.A. 4:04CR48. |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | UNITED STATES of America v. Dominique Lamont CARTER, Defendant. |
Eric M. Hurt, United States Attorney's Office, Newport News, VA, for Plaintiff.
Riley Henderson Ross, III, Office of the Federal Public Defender, Norfolk, VA, for Defendant.
Presently before the Court is the Government's objection to the offense level and criminal history calculation contained in Defendant Dominique Lamont Carter's Presentence Investigation Report. The issue presented for resolution, a question of first impression within this judicial circuit, is whether a conviction for "hit and run" in the Commonwealth of Virginia, Va.Code § 46.2-894, constitutes a crime of violence for purposes of enhancing a defendant to career offender status under United States Sentencing Guideline § 4B1.1. It does not. The Government's objection is therefore OVERRULED.
Defendant Dominique Lamont Carter pled guilty to Conspiracy to Possess with Intent to Distribute Five (5) Kilograms or More of Cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846 on May 26, 2004. The offense, a Class A Felony, carries with it a statutory penalty of ten (10) years to life imprisonment and at least five (5) years of supervised release. 21 U.S.C. § 841(b)(1)(A). To aid the Court in determining the appropriate term of imprisonment pursuant to the United States Sentencing Guidelines, the United States Probation Office prepared a Presentence Investigation Report ("PIR") summarizing Carter's personal background, the facts related to the instant offense, and his criminal history. The PIR was completed on September 1, 2004 and a disposition hearing was originally scheduled for October 18, 2004. Both parties leveled objections to the PIR in advance of the October 18, 2004 hearing, though only the merits of the Government's objection is addressed in this Memorandum Opinion and Order.
As Carter's objections implicated the United States Supreme Court's recent decision in Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and since a petition for a writ of certiorari was granted in United States v. Booker, 375 F.3d 508 (7th Cir.2004), cert. granted, ___ U.S. ___, 125 S.Ct. 11, 159 L.Ed.2d 838 (2004), a case that will most likely resolve controversies surrounding the United States Sentencing Guidelines, the Court rescheduled sentencing for December 7, 2004 in the hopes that Booker would be resolved by the end of November. By agreement of the parties, the hearing was again rescheduled for December 9, 2004. Given that the United States Supreme Court had not issued its opinion by December 9, 2004, the date of the rescheduled disposition hearing, the Court determined that it would follow the United States Court of Appeals for the Fourth Circuit's direction in United States v. Hammoud, 381 F.3d 316 (4th Cir.2004) to "continue sentencing defendants in accordance with the guidelines, as was the practice before Blakely." Therefore, the December 9, 2004 disposition hearing went forward as scheduled and the Court proceeded as if Blakely did not apply.
Carter's total adjusted offense level is a 31. Wksht. D, Item 3. The PIR attributes Carter with 17.4 kilograms of powder cocaine, resulting in a base offense level of 34. See PIR Wksht. A, Item 1; U.S.S.G. § 2D1.1(c)(3). Upon deduction of three (3) points for accepting responsibility for the instant offense, see PIR ¶ 32; PIR Wksht. D, Item 2; U.S.S.G. § 3E1.1, Carter's total adjusted offense level, as calculated in the PIR, is 31. The Court confirmed this offense level over Carter's objection pursuant to Blakely. That objection was resolved at the December 9, 2004 disposition hearing and is not addressed in this Memorandum Opinion and Order.1
As regards Carter's criminal history, the PIR reveals that he has several prior juvenile and adult criminal convictions. Only two adult criminal convictions are relevant to the issue presently before the Court. The first of the relevant convictions was a Virginia offense for Hit and Run in violation of Va.Code. § 46.2-894. The offense occurred on January 16, 1991, when Carter was 16 years old. According to the PIR, Carter, who was operating a Chevrolet van, ran a red light, struck a Toyota Corolla, and fled. The operator of the Corolla, a 22-year old woman, died at the scene due to injuries sustained in the accident. Carter was taken into custody on January 23, 1991 and was subsequently charged with Involuntary Manslaughter in the Newport News (Virginia) Juvenile and Domestic Relations Court. On April 25, 1991, the Commonwealth's Attorney nolle prossed the Involuntary Manslaughter charge and entered a new charge of Leaving the Scene of an Accident, a Felony. Without objection, that charge was certified to the Newport News (Virginia) Circuit Court, where it was amended to Hit and Run. Carter was eventually convicted and sentenced as a Youthful Offender. See PIR ¶ 40.
The other prior conviction relevant to the issue presently before the Court is Carter's July 11, 1997 federal conviction for Conspiracy to Possess with the Intent to Distribute Five (5) Kilograms or More of a Detectable Amount of Cocaine on July 11, 1997 in the Eastern District of Virginia. Carter was imprisoned for this conviction until December 31, 2001, when he began serving a term of supervised release. See PIR ¶ 42.
The PIR assigns three (3) criminal history points for each of these convictions. PIR Wksht. C, Item 3 (Table). Since the offense for which Carter is now being sentenced was committed while he was on supervised release for the July 11, 1997 federal drug conviction, he was assigned three (3) additional criminal history points, bringing his total criminal history points to nine (9). PIR Wksht. C, Items 5, 6, and 8. This results in a criminal history category of IV. PIR Wksht. C, Item 9. Coupled with an offense level of 31, the PIR concludes that the range of imprisonment to which Carter should be sentenced is 151 to 188 months. U.S.S.G. § 5A (Table).
The Government objects to the criminal history and offense level calculation in the PIR. The Government contends that Carter is a career offender pursuant to § 4B1.1 of the Guidelines, which states in relevant part that "[a] defendant is a career offender if ... the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense." Id. There is no dispute that Carter's July 11, 1997 federal drug conviction constitutes a prior controlled substance offense. The Government contends that Carter's April 25, 1991 hit and run conviction in Virginia constitutes a crime of violence, which would render him a career offender for sentencing purposes. The PIR determined that hit and run is not a crime of violence. See PIR § 46.
If Carter's hit and run offense is a crime of violence and he is therefore deemed a career offender, the resulting criminal history category would be a VI, U.S.S.G. § 4B1.1(b), and the base offense level would be a 37, since the present drug conviction carries a statutory maximum penalty of life in prison. Id. § 4B1.1(b)(A); see also 21 U.S.C. § 841(b)(1)(A). After subtracting three (3) offense levels for acceptance of responsibility, U.S.S.G. § 3E1.1, the total adjusted offense level would be 34. This would result in a sentencing range of imprisonment, based on a 34/VI, of 262 to 327 months under the Guidelines. Id. § 5A (Table). Thus, resolution of this objection is of critical import to the determination of Carter's sentence.
Due to the significance of this objection, the Court ordered the parties to submit memoranda in addition to their original PIR objections on the question whether the offense of hit and run in Virginia constitutes a crime of violence. The Court instructed the parties to devote particular attention to a case then pending before the United States Supreme Court, Leocal v. Ashcroft, 540 U.S. 1176, 124 S.Ct. 1405, 158 L.Ed.2d 76 (2004), which involved a similar question of law. Leocal has since been decided, ___ U.S. ___, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), and the parties have submitted their respective memoranda. The Court dispensed with oral argument on the instant objection because the facts and legal contentions are adequately presented in the parties' memoranda and argument would not aid in the decisional process. The Court informed the parties that the Government's objection was overruled at the December 9, 2004 disposition hearing, subject to the statement of reasons in this Memorandum Opinion and Order.
The question presented by the Government's objection to the PIR is whether a conviction for hit and run in the Commonwealth of Virginia, Va.Code § 46.2-894, constitutes a crime of violence under the United States Sentencing Guidelines. The United States Sentencing Guidelines defines a crime of violence as follows:
The term "crime of violence" means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that —
(1) has 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 another.
U.S.S.G. § 4B1.2(a). Part one of the Guidelines definition is commonly referred to as the "use" clause, whereas part two is referred to as the "otherwise" clause, a catchall affording the possibility that an offense that does not contain the use of force as an element may be deemed a crime of violence.
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