U.S. v. Hollingsworth, 04-6172.
Decision Date | 11 July 2005 |
Docket Number | No. 04-6172.,04-6172. |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Joshua HOLLINGSWORTH, Defendant-Appellant. |
Court | U.S. Court of Appeals — Sixth Circuit |
ON BRIEF: M. Dianne Smothers, Stephen B. Shankman, Office of the Federal Public Defender for the Western District of Tennessee, Memphis, Tennessee, for Appellant. James W. Powell, Assistant
United States Attorney, Jackson, Tennessee, for Appellee.
Before: CLAY, GILMAN, and COOK, Circuit Judges.
In January of 2004, Joshua Hollingsworth was indicted for being a felon in possession of a firearm. He later pled guilty and was sentenced to 77 months of incarceration. The sentence was at the low end of the Sentencing Guidelines range for Hollingsworth's offense level and criminal history.
Hollingsworth raises two issues on appeal. He first alleges that his Sixth Amendment rights were violated when the district court, rather than a jury, determined that at least one of his prior convictions was for "a crime of violence." Second, he argues that his sentence is unconstitutional in light of the Supreme Court's holding in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), that the Sentencing Guidelines are no longer mandatory. For the reasons set forth below, we AFFIRM the determination of the district court that at least one of Hollingsworth's prior convictions was for a crime of violence, but VACATE the judgment and REMAND for resentencing in accordance with Booker.
The facts of this case are not in dispute. In October of 2003, the Savannah Police Department received a complaint about a man brandishing a gun. When they arrived at the scene, the police officers found Hollingsworth sitting in a grey pickup truck. Hollingsworth, who reeked of alcohol, became combative. The police subdued him with mace and placed him under arrest. A search of the truck yielded a Ruger, Model P89, .9 mm pistol. Hollingsworth's criminal record revealed that he had been convicted of several felonies in the past, including aggravated assault and aggravated burglary.
In January of 2004, a grand jury indicted Hollingsworth for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). He entered a guilty plea in June of 2004 and, three months later, a sentencing hearing was conducted.
At the hearing, Hollingsworth objected to the base offense level set by the Presentence Report. Although he conceded that he was a convicted felon, he argued that the determination that at least one of his convictions was for a "crime of violence" within the meaning of USSG § 2K2.1(a)(2) was improperly made by the sentencing court without his consent. This determination resulted in an increase in his base offense level. The district court rejected Hollingsworth's argument, stating:
The defendant's objections to the base level is [sic] denied because Apprendi [v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)] said any fact other than the fact of a prior conviction must be proven if it adversary [sic] affects the defendant's sentence. It's my ruling that the fact of the prior conviction includes the nature of that conviction and impliedly the date of the conviction.
Hollingsworth was then sentenced to 77 months of imprisonment and two years of supervised release, to be served consecutively to a parole-revocation sentence in Hardin County, Tennessee and concurrently with a separate two-year term of imprisonment in that county.
We "review[] a district court's interpretation of the Sentencing Guidelines de novo." United States v. Jackson, 401 F.3d 747, 748 (6th Cir.2005); see also United States v. Copeland, 321 F.3d 582, 601 (6th Cir.2003) ()
In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Supreme Court held that "[o]ther than the fact of a prior convicton, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." As this circuit has repeatedly held, however, certain aspects of the character of prior convictions are so basic as to be implicit in the fact of a prior conviction. See United States v. Burgin, 388 F.3d 177, 186 (6th Cir.2004) ( ). The Burgin court reasoned that
[t]he `different occasions' language involves the issue of recidivism, `a traditional, if not the most traditional, basis for a sentencing court's increasing an offender's sentence.' Apprendi, 530 U.S. at 488, 120 S.Ct. 2348. Like the fact of a prior conviction, it is not a fact that pertains to the commission of the offense for which the defendant is presently charged. Thus, the `different occasions' requirement of § 924(e) cannot be significantly distinguished from `the fact of a prior conviction.'
Id. (citation omitted).
Similar reasoning applies to the district court's determination that a specified offense is a "crime of violence." USSG § 2K2.1(a)(2). A pattern of violent crime is certainly "a traditional... basis for a sentencing court's increasing an offender's sentence." Burgin, 388 F.3d at 186. Likewise, the violent nature of a previous offense "is not a fact that pertains to the commission of the offense for which the defendant is presently charged," but rather a fact that pertains to a previous offense. Id.
Hollingsworth cites several cases, including the recent Supreme Court decision of Shepard v. United States, ___ U.S. ___, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), in support of his contention that the district court was not permitted to find "the ultimate fact" that his prior conviction was for a crime of violence. The issue in the cited cases, however, was not whether district courts could make findings about prior convictions, but simply what sources they could rely on to make such findings. See Shepard, 125 S.Ct. at 1257 ( ); Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) ( ); United States v. Arnold, 58 F.3d 1117, 1124 (6th Cir.1995) ( )(quotation marks omitted). None of these cases supports the proposition that district courts are prohibited from finding that a prior conviction was for a crime of violence.
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