U.S. v. Tignor
| Citation | 414 F.Supp.2d 1070 |
| Decision Date | 30 January 2006 |
| Docket Number | No. 3:05 CR 71 WHA.,3:05 CR 71 WHA. |
| Parties | UNITED STATES of America v. Bernardo Lee TIGNOR Defendant |
| Court | U.S. District Court — Middle District of Alabama |
Bernardo Tignor ("Defendant"), who previously pled guilty to two counts in a federal criminal indictment, has submitted two objections to the United States Probation Officer's computation of the advisory sentencing range under the United States Sentencing Guidelines ("U.S.S.G"). The dispute centers on how the initial base offense level should be calculated. The Government argues that, because Defendant's criminal record includes prior convictions for two so called "crimes of violence," it is proper to use a higher base offense level to compute the sentence. Convictions under Alabama law for Aggravated Stalking and Felony DUI are cited by the Government as crimes of violence. Defendant counters that it is improper to treat either Aggravated Stalking or Felony DUI as a crime of violence, thus the base offense level used in calculating his recommended sentence range ought to be significantly lower.
For reasons to be discussed, Defendant's objections are OVERRULED.
On March 16, 2005, Defendant was charged in a two count federal indictment with: (1) Possession of a firearm by a convicted felon, a violation of 18 U.S.C. 922(g) and (2) Possession of a firearm with an obliterated serial number, a violation of 18 U.S.C. 922(k). On August 22, 2005, Defendant pled guilty to both counts in a written plea agreement pursuant to Fed. R.Crim.P. 11(c)(1)(C). In October, 2005, the Probation Office for the Middle District of Alabama completed a Pre Sentence Report ("PSR") computing the recommended guidelines sentencing range at 63-78 months, based on an adjusted offense level of 22, a 3-point reduction for acceptance of responsibility, and a criminal history category of VI. This range included an enhancement in the Base Offense Level to 20 under U.S.S.G. § 2K2.1(a)(4), treating Defendant's prior conviction for Aggravated Stalking as a crime of violence, as defined in U.S.S.G. § 4B1.2(a), and a two-point enhancement for obliterated serial number. Defendant filed a Sentencing Memorandum (Doc # 27) objecting to the classification of Aggravated Stalking as a crime of violence, arguing that the Base Offense Level should be 14 under U.S.S.G. § 2K2.1(a)(6), resulting in a sentencing range of 33-41 months. On November 18, 2005, the Probation Office issued a revised PSI, reiterating that Aggravated Stalking is a crime of violence as defined in the sentencing guidelines and also treating Defendant's prior conviction for Felony DUI as a crime of violence. Using two crimes of violence to calculate Defendant's sentence resulted in a Base Offense Level of 24 under § 2K2.1(a)(2), with a suggested sentencing range of 92-115 months. On December 2, 2005, this court held a sentencing hearing and both sides presented arguments. After the hearing both sides were given the opportunity to file additional briefs. The Government submitted a Sentencing Memorandum (Doc # 33) and Defendant submitted a supplement to his previous Sentencing Memorandum (Doc # 34). All arguments and submissions have been considered in this Memorandum Opinion.
The issue of whether Aggravated Stalking and/or Felony DUI are considered crimes of violence under the U.S.S.G. has a direct impact on the baseline used in calculating the advisory guidelines' sentencing range. When calculating sentencing for violations of 18 U.S.C. 922(g) and (k) it is appropriate to refer to U.S.S.G. § 2K2.1, which establishes a base offense level for certain types of firearm violations. In the instant case, three sections of 2K2.1 are potentially relevant.
Section 2K2.1(a)(2) states that, "if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense," it is proper to use a base offense level of 24. If both Aggravated Stalking and Felony DUI are determined to be crimes of violence, the § 2K2.1(a)(2) base offense level would be appropriate when calculating Defendant's sentencing range under the advisory guidelines.
The relevant portion of § 2K2.1(a)(4) says that if "the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense" a base offense level of 20 is appropriate. Thus, if only one of the two crimes in question is found to be a crime of violence, § 2K2.1(a)(4) should be used to calculate Defendant's advisory guidelines sentencing range.
Lastly, § 2K2.1(a)(6) says that, if the defendant was merely "a prohibited person" at the time of the instant offense, then a Base Offense Level of 14 should be used. If it is determined that neither of Defendant's prior crimes is considered a crime of violence, the base offense level would be calculated using § 2K2.1(a)(6).
Application Note 5 to § 2K2.1 adopts the meaning of "crime of violence" set out in § 4B1.2(a)
A. Crime of Violence Under 4B1.2(a)
The U.S.S.G. § 4B1.2(a) defines a "crime of violence" as: "any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that (1) has as 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).1 For crimes that are not listed, § 4B1.2 provides two approaches for determining if the offense is a crime of violence. "The first approach is to determine whether the use, attempted use or threatened use of physical force against another is an element of [the crime.]" United States v. Searcy, 418 F.3d 1193, 1196 (11th Cir. 2005). "Alternatively, under the second approach, we must determine whether [the crime] involves conduct that, by its nature, presents a serious potential risk of physical injury to another." Id. If either prong of § 4B1.2 is satisfied, then the unlisted crime is considered a crime of violence.
"When a court considers the application of a sentencing enhancement it should generally follow a `categorical approach' and `consider only the fact of conviction and the statutory definition of the prior offense." United States v. Burge, 407 F.3d 1183, 1187 (11th Cir.2005) (citation omitted), cert. denied, 126 F.3d 551 (2005). "The district court `may look behind the judgment of conviction when it is impossible to determine from the face of the judgment or statute whether the prior crime satisfies the enhancement statute.'" Id. (citation omitted). "In such cases, the district court's review `is limited to the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant .. or to some comparable judicial record of this information." Id. (citing Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 1263, 161 L.Ed.2d 205 (2005)).
In 2002, Defendant was convicted of violating Alabama's Aggravated Stalking statute which provides that, "A person who violates the provisions of Ala. Stat. § 13A-6-90(a) and whose conduct in, doing so also violates any court order or injunction is guilty of the crime of aggravated stalking." Ala.Code § 13A-6-91 (1999). Section 13A-6-90(a) states, "A person who intentionally and repeatedly follows or harasses another person and who makes a credible threat, either expressed or implied, with the intent to place that person in a reasonable fear of death or serious bodily harm, is guilty of the crime of stalking." Ala.Code § 13A-6-90 (1999).
Alabama courts have provided clear guidance as to what is required to convict a person of Aggravated Stalking. "In order to prove a prima facie case of stalking, the State must show three elements." First, the State must prove that the accused `intentionally and repeatedly follow[ed] or harass[ed] another person.' Second, the accused must have made a `credible threat.' Finally, the accused must have intended to place the victim in reasonable fear of death or serious bodily injury. Hayes v. State, 717 So.2d 30, 33 (Ala.Crim.App.1997) (emphasis omitted). Although the statute mentions death or serious bodily injury, Alabama courts do not require the State to "prove that the victim was actually in fear of death or serious bodily injury." Id.; Jones v. State, 2005 WL 1252756, *6 . Regarding the victim's mental state, the State is only required to show "that a victim suffered substantial emotional distress ... " Hayes, 717 So.2d at 33. This lesser showing to prove stalking is consistent with Alabama's "position that stalking statutes must be interpreted as broadly as possible so as to afford the victim maximum protection." Id. (quoting State v. Randall 669 So.2d 223, 227 (Ala. Crim.App.1995)).
Defendant argues that, under the categorical approach, it would be impossible to say that Aggravated Stalking is a crime of violence. He reasons that, because the State only needs to show that the victim experienced emotional distress, it is impossible to say that every threat must be a threat of physical force. For instance, a defendant may have threatened suicide or simply made repetitive phone calls. See United States v. Insaulgarat, 378 F.3d 456, 470 (5th Cir.2004). Defendant relies heavily on two cases from other circuits where circuit courts determined that stalking convictions should not be treated as crimes of violence.2
In United States v. Jones, ...
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