MEMORANDUM OPINION AND ORDER*** *** *** ***
The Presentence Investigation Report ("PSR") prepared in this matter by the United States Probation Office designates Defendant Arian Brown as a Career Offender under the United States Sentencing Guidelines ("USSG"), § 4B1.1. Under that section,
[a] defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
USSG § 4B1.1(a) (2016).
Definitions for the terms used in this section of the guidelines are contained in USSG § 4B1.2. The term "crime of violence" is defined 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 murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm as described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c).
USSG § 4B1.2(a) (2016). Application Notes in the Commentary to this section provides additional definitions and guidance. More specifically, Application Note 1 states that "crime of violence" includes the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.
Defendant Brown does not contest that he was older than eighteen at the time of the commission of the instant offense or that the instant offense is a qualifying controlled substance offense. However, he contends that he should not be designated as a Career Offender under the guidelines because the conviction outlined in paragraph 45 of his PSR does not constitute one of two necessary predicate crimes of violence. The PSR provides as follows with respect to the conviction being challenged:
Date ofArrest Conviction/Court Date SentenceImposed/Disposition Guideline Pts 45. 05/16/13(Age 19) 1-2) Conspiracy toCommit Robbery-1stDegree 05/10/2004; 10 yearsprison, concurrent 4A1.1(a) 3 Fayette CountyCounty Circuit 07/18/2008 Paroled Court, Lexington,KY, Docket No.:04-CR-00300-002 01/25/2013: Returnedparole violator 09/16/14: Discharged
This case originated from Fayette County District Court, Case No. 04-00283. A criminal complaint filed by a Lexington Police Department (LPD) detective on May 16, 2003, indicated that police had responded to the residence of Jose Hernandez-Vasquel on said date after said victim had reportedly been robbed and shot in the face. Subsequent investigation revealed witnesses had allegedly stated that Brown and others had approached the victim's home with the intent to rob him. Hernandez-Vasquel was later pronounced dead as a result of a gunshot on May 29, 2003. Thereafter, the defendant was indicted for Murder in Fayette County Circuit Court, Case No. 04-CR-00356 and indicted on CountsOne and Two of Robbery-1st Degree and Burglary in Fayette County Court Case No. 04-CR-300. Ultimately, the Murder charge was dismissed on March 14, 2004, and he was found guilty of two counts of Robbery (as referenced above). The Burglary charge was dismissed. Specifically, in reference to Count One, the indictment stated that, on April 24, 2003, Adrian Brown, Arian Brown, Reginald Bush, and Giles Coles committed First Degree Robbery when, in the course of committing a theft, threatened the use of physical force upon Tammy Sanders and Chris Manley with intend to accomplish the theft and when they were armed with deadly weapons. Count Two stated that, on May 16, 2003, Adrian Brown, Arian Brown, Reginald Bush, and Giles Coles use of physical force upon Jose Hernandez-Vasquel with intent to accomplish a theft and when they were armed with deadly weapons. According to the Kentucky Department of Corrections, the defendant was committed on May 18, 2004, and paroled on July 18, 2008. He was returned as a parole violator on January 25, 2013, and was discharged on September 16, 2014, after reaching his minimum discharge date.
[PSR, p. 12, ¶ 45]1
Brown is incorrect in asserting that his conviction for conspiracy to commit first degree robbery under Kentucky law does not constitute a crime of violence under the applicable United States Sentencing Guidelines. Recently, in United States v. Ingram, 2017 WL 3699862 (U.S. Dist. Ct., EDKY, Aug. 25, 2017, amended Dec. 28, 2017), the undersigned explained why a conviction under Kentucky's first-degree robbery statute, Ky. Rev. Stat. ("KRS") § 515.020, is categorically a crime of violence. The Court borrows and quotes heavily from that opinion in addressing the issue raised by Defendant Brown.
The first-degree robbery statute, in effect since January 1, 1975, reads:
(1) A person is guilty of robbery in the first degree when, in the course of committing theft, he uses or threatens the immediate use of physical force upon another person with intent to accomplish the theft and when he:
(a) Causes physical injury to any person who is not a participant in the crime; or
(b) Is armed with a deadly weapon; or
(c) Uses or threatens the immediate use of a dangerous instrument upon any person who is not a participant in the crime.
(2) Robbery in the first degree is a Class B felony.
Ky. Rev. Stat. ("KRS") § 515.020. "Physical force," in turn, is defined as "force used upon or directed toward the body of another person." KRS § 515.010. Second-degree robbery contains the same elements as § 515.020(1), but does not require any of the aggravating factors. See KRS § 515.030; 1974 Kentucky Crime Commission/LRC Commentary ("For conviction of [robbery in the first degree], the prosecution must prove all of the elements of robbery in the second degree, and, in addition, one of three possible aggravating factors.").
On its face, first-degree robbery appears to meet the Armed Career Criminal Act's definition of "violent felony" in that it "has as an element the use, attempted use, or threatened use of physical force against the person of another." 18 U.S.C. § 924(e)(2)(B)(i). In fact, the Sixth Circuit has twice affirmed ACCA enhancements based on Kentucky first-degree robbery convictions. See United States v. Elliott, 757 F.3d 492 (6th Cir. 2014); United States v. Page, 662 F. App'x 337 (6th Cir. 2016). As noted in Ingram, supra, that conclusion is "about as interesting as a prediction that the sun will rise in the east tomorrow." United States v. Duncan, 833 F.3d 751, 752 (7th Cir. 2016) (finding Indiana robbery to be a violent felony). So much so, the defendants in Elliott and Page did not appear to challenge Kentucky first-degree robbery's status as constituting a violent felony.
Relying, in part, on: (1) the Supreme Court's opinion in Johnson v. United States, 559 U.S. 133 (2010), and the Sixth Circuit's decision in United States v. Yates, No. 16-3997, 2017 WL 3402084, at *4 (6th Cir. Aug. 9, 2017), and (2) the fact that he was convicted of conspiracy to commit robbery, Brown contends that the subject conviction in 2004 does not count as a crime of violence. He is wrong with respect to both issues.
First, as the undersigned explained in Ingram, supra, at p. 6-13:
In Yates, the Sixth Circuit considered the present question—violent felony status—for Ohio robbery. 2017 WL 3402084. The Court held that, because "[a] 'realistic probability' exists . . . that Ohio is applying Ohio Rev. Code Ann. § 2911.02(A)(3) [Robbery] in such a way that criminalizes a level of force lower than the type of violent force required by Johnson [I] . . . Yates's conviction under that statute does not constitute a crime of violence under the guidelines' force clause." Id. at *7. Kentucky first-degree robbery is meaningfully different than the Ohio statute at issue in Yates. "The force criminalized by Ohio Rev. Code Ann. § 2911.02(A)(3) is defined as 'any violence, compulsion, or constraint physically exerted by any means upon or against a person.'" Id. at *4. For purposes of Kentucky robbery, "'[p]hysical force' means force used upon or directed toward the body of another person." KRS § 515.010. It does not include confinement. See id. (Kentucky Crime Commission/LRC Commentary, 1974); Yates, 2017 WL 3402084 at *4 (citing United States v. Eason, 829 F.3d 633, 641 (8th Cir. 2016), for the proposition that a statute encompassing "[b]odily impact, restraint, or confinement" falls short, on its face, of Johnson I force). Moreover, Kentucky first-degree robbery requires one of three aggravating factors. In addition to using or threatening immediate use of physical force, to be guilty of first-degree robbery in Kentucky, one must also "(a) [c]ause[] physical injury to any person who is not a participant in the crime; or (b) [be] armed with a deadly weapon; or (c) [use] or threaten[] the immediate use of a dangerous instrument upon any person who is not a participant in the crime." Elliot, 757 F.3d at 795 (quoting KRS § 515.020).
The defendant cites Hatton, 2016 WL 2604806, Jones, 66 S.W. 633, and Stockton, 101 S.W. 298, for the proposition that the force required by the Kentucky robbery statute generally ("force used upon or directed toward the body of another person") does not require Johnson I force. However, Jones and Stockton well-predated the modern statutory scheme, and no aggravating factors were there included in the requirements for robbery. And the Hatton case cited by the defendant did not involve mere purse wresting. The victim was knocked to the ground and dragged several feet by a car door, sustaining
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