United States v. Burghardt
| Decision Date | 21 June 2011 |
| Docket Number | No. 8:10CR359.,8:10CR359. |
| Citation | 796 F.Supp.2d 996 |
| Parties | UNITED STATES of America, Plaintiff, v. Robert BURGHARDT, Defendant. |
| Court | U.S. District Court — District of Nebraska |
OPINION TEXT STARTS HERE
Sandra L. Denton, U.S. Attorney's Office, Omaha, NE, for Plaintiff.
Kevin A. Ryan, Ryan Law Offices, Omaha, NE, for Defendant.
This matter is before the court for sentencing. This memorandum opinion supplements findings made on the record at a sentencing hearing on June 17, 2011.
The defendant was charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) and subject to sentencing under 18 U.S.C. § 924(a)(2). Filing No. 1, Indictment. On February 11, 2011, the government filed an Information of Prior Convictions, pursuant to 18 U.S.C. 924(e)(1) (the Armed Career Criminal Act or “ACCA”). Filing No. 25. The government contends Burghardt is eligible for an enhancement under the ACCA and is subject to a 15–year mandatory minimum sentence based on the following three convictions in Douglas County District Court: 1) attempted burglary on July 14, 1993; 2) delivery of a controlled substance on August 11, 1994; and 3) possession with intent to distribute a controlled substance on July 17, 2003. Id. The defendant entered a plea of guilty to Count I of the Indictment, reserving the right to challenge the Armed Career Criminal issue. Filing No. 32, Minutes; Filing No. 31, Petition. The court accepted his plea of guilty but deferred acceptance of the plea agreement pending the preparation of a Presentence Investigation Report (hereinafter, “PSR”) by the United States Office of Probation (hereinafter, “the Probation Office”) that calculated his sentence under the United States Sentencing Guidelines (“the Guidelines”). Filing No. 32, Minute Entry.
In the PSR, the defendant's offense conduct was based on the prosecutor's version of events. Filing No. 44, PSR (Sealed) at 5–6. Law enforcement officers executed a no-knock warrant at the defendant's address and found a loaded .40 caliber Glock handgun, 6 grams of methamphetamine, a scale, baggies, some marijuana, and $693.00 in cash. Id. The Probation Office noted that law enforcement had received information from a reliable source that the defendant was selling methamphetamine from his residence and carried a .40 caliber handgun. The Probation Office concluded “[a]s a result of the defendant being in possession of a firearm and drugs, it appears the defendant possessed the firearm in connection with another felony (drug trafficking).” Id. at 6.
Burghardt is 37 years old. Id. at 10. He has a GED that he obtained while in prison. Id. at 20. He is in the process of a divorce and has three children. Id. at 17. He has experienced serious depression and anxiety throughout his life. Id. at 18. He has been employed in construction and as a painter, a packager and a telemarketer. Id. at 20. At the time of sentencing he was employed full-time by Coreslab Structures Omaha in LaPlatte, Nebraska, earning $10.10 an hour. Id. He has a long history of drug and alcohol abuse. Id. at 10–11. He began drinking at age 13, using methamphetamine at age 21, and using cocaine at age 26. Id. At the time of the instant offense, he was using 2–3 grams of methamphetamine a day. Id. at 19. He has received drug treatment three times: he successfully completed a residential substance abuse treatment program at St. Gabriel's in Omaha, Nebraska, in 1992, and remained sober for two months; he received treatment while incarcerated at the Nebraska State Penitentiary in 2003–2005; and he was being treated at the Stephen Center in Omaha pending the resolution of these charges. Id. at 19.
The Probation Office determined that the defendant's base offense level was 20 under U.S.S.G. §§ 2K2.1(a)(4)(A). Id. at 7. It found the following upward adjustments were applicable: a two-level enhancement under U.S.S.G. § 2K2.1(b)(1)(A) for possession of 3 to 7 firearms; and a four-level enhancement under U.S.S.G. § 2K2.1(b)(6), for possessing a firearm in connection with another felony. Id. at 8. The application of these enhancements results in an adjusted offense level of 26. Id. After subtracting three levels for acceptance of responsibility under U.S.S.G. § 3E1.1, the defendant's total offense level under the Guidelines is 23. Id.
The Probation Office assessed 7 criminal history points for convictions for drug possession, drug distribution, possession of drug paraphernalia, and attempted burglary. Id. at 9–14. At offense level 23 and criminal history category IV, Burghardt's range of imprisonment under the Guidelines would be 70 to 87 months, absent application of the Career Offender enhancement. United States Sentencing Commission, Guidelines Manual, Sentencing Table (Nov. 2010).
The Probation Office found that the defendant has three felony convictions which meet the definition of a violent felony or serious drug offense under 18 U.S.C. § 924(e)(2)(B). Filing No. 44, PSR at 8. It found Id. If the defendant is determined to be an Armed Career Criminal under 18 U.S.C. § 924(e)(2)(B), his offense level is 34 under U.S.S.G. § 4B1.4(b)(3)(A). Id. After deduction of three levels for acceptance of responsibility, the defendant's total offense level would be 31. Id. Further, if the defendant is an Armed Career Offender, his criminal history category becomes a VI under U.S.S.G. § 4B1.4(c)(2), resulting in a Guidelines range of imprisonment of 188 to 235 months.
The government adopted the findings in the PSR. Filing No. 37. The defendant objected to the application of the ACCA. Filing No. 35 & Filing No. 36. He argues that his 1993 conviction for attempted burglary does not constitute a violent felony under the ACCA.
It is a federal crime for a convicted felon to be in unlawful possession of a firearm. 18 U.S.C. § 922(g)(1). The ordinary maximum sentence for that crime is 10 years of imprisonment. 18 U.S.C. § 924(a)(2). If, however, when the unlawful possession occurred, the felon had three previous convictions for a violent felony or serious drug offense, the punishment is increased to a minimum term of 15 years. 18 U.S.C. § 924(e). The term “violent felony” under the statute means “any crime punishable by imprisonment for a term exceeding one year” that “(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(i) & (ii) (emphasis added). This last clause, known as the “residual clause,” is not intended as a catch-all provision, but, instead, “the provision's listed examples—burglary, arson, extortion, or crimes involving the use of explosives—illustrate the kinds of crimes that fall within the statute's scope.” Begay v. United States, 553 U.S. 137, 142, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008).
Whether a prior conviction counts as a predicate offense under 18 U.S.C. § 924(e) is a legal determination. United States v. Keith, 638 F.3d 851, 852 (8th Cir.2011). The Supreme Court has explained that in determining whether an offense is a violent felony, courts must employ a categorical approach under which the court looks “ ‘only to the fact of conviction and the statutory definition of the prior offense, and do[es] not generally consider the particular facts disclosed by the record of conviction.’ ” Sykes v. U.S., ––– U.S. ––––, 131 S.Ct. 2267, 2272, 180 L.Ed.2d 60 (2011) (quoting James v. United States, 550 U.S. 192, 202, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007)). The court is to “ ‘consider whether the elements of the offense are of the type that would justify its inclusion within the residual provision, without inquiring into the specific conduct of this particular offender.’ ” Id. (quoting James, 550 U.S. at 202, 127 S.Ct. 1586). Regardless of whether the circumstances in the defendant's prior conviction were violent, the question for the court is whether the predicate offense, as a categorical matter, is a violent felony. Id.
The Supreme Court has interpreted the residual provision to encompass some attempt offenses. See James, 550 U.S. at 202–03, 127 S.Ct. 1586. The question is whether the state criminal statute—under which the defendant sustained his earlier conviction—“falls within the residual clause because, as a categorical matter, it presents a serious potential risk of physical injury to another.” Sykes, 131 S.Ct. at 2272. Attempted burglary under Florida law is a violent felony for purposes of the residual clause because it poses the same kind of risk of physical injury as the enumerated offense of completed burglary. James, 550 U.S. at 202–03, 127 S.Ct. 1586 () (emphasis added). “The main risk of burglary arises not from the simple physical act of wrongfully entering onto another's property, but rather from the possibility of a face-to-face confrontation between the burglar and a third party.” James, 550 U.S. at 203, 127 S.Ct. 1586. In James, however, the Supreme Court “emphasized that the attempted burglary statute under consideration did not extend to ‘preparatory conduct’ such as ‘acquiring burglars' tools or casing a structure while planning a burglary,’ which conduct ‘does not pose the same risk of violent confrontation and physical harm posed by an attempt to enter a structure illegally.’ ” United States v. Ross, 613 F.3d...
To continue reading
Request your trial
-
United States v. Richards
...is a felony conviction for a "crime of violence" under the Guidelines' definition of burglary. Id. at 809; but see United States v. Burghardt, 796 F. Supp. 2d 996, 1003 ("holding, as a categorical matter, that conduct covered by the [Nebraska attempted burglary] statute, in the ordinary cas......
-
Thebeau v. United States
...the enhancements to movant's sentence. Movant also challenges the sentence enhancement "in light of intervening change in law, United States v. Burghardt, U.S. Dist. Lexis 67457 (June 21, 2011).1 Movant also seeks review of his status as an armed career offender, challenging the Court's det......