United States v. Frazier
| Docket Number | CRIMINAL ACTION 09-20152-01-KHV,CIVIL ACTION 22-2304-KHV |
| Decision Date | 06 September 2023 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. JASON E. FRAZIER, Defendant. |
| Court | U.S. District Court — District of Kansas |
A jury convicted defendant on charges of kidnapping, carrying a firearm in relation to a crime of violence, possessing with intent to distribute five grams or more of cocaine base and being a felon in possession of a firearm. On September 16 2020, after the Court vacated defendant's conviction for carrying a firearm in relation to a crime of violence and his original sentence of life in prison, the Court resentenced him to 262 months. This matter is before the Court on defendant's pro se Motion To Vacate, Set Aside, Or Correct A Sentence By A Person In Federal Custody (Doc #180) filed August 1, 2022. On December 23, 2022, the Court overruled defendant's motion as to his claims that (1) under Borden v. United States, 141 S.Ct. 1817 (2021), his prior conviction for aggravated assault does not qualify as a crime of violence under Section 4B1.1 of the Sentencing Guidelines and (2) counsel provided ineffective assistance because he did not file an appeal after defendant notified him about Borden. See Memorandum And Order (Doc. #186) at 9. The Court ordered further briefing on defendant's remaining claim that under United States v. Taylor, 142 S.Ct. 2015 (2022), his prior conviction for attempted aggravated battery is not a crime of violence under Section 4B1.1 of the Sentencing Guidelines. See id. at 8-10. For reasons stated below, the Court overrules defendant's motion as to his remaining claim based on Taylor and denies a certificate of appealability.
On November 18, 2009, a grand jury indicted defendant on charges of (1) kidnapping in violation of 18 U.S.C. § 1201, (2) carrying a firearm in relation to a crime of violence in violation of 18 U.S.C. § 924(c), (3) possessing with intent to distribute five grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1) and (4) being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Indictment (Doc. #8). On July 2, 2010, a jury found defendant guilty on all counts. Verdict (Doc. #74). On October 13, 2010, the Court sentenced defendant to a controlling term of life in prison. Judgment In A Criminal Case (Doc. #93) at 2. The Tenth Circuit affirmed and the United States Supreme Court denied defendant's petition for a writ of certiorari. See United States v. Frazier, 429 Fed.Appx. 730 (10th Cir. 2011), cert. denied, 565 U.S. 1171 (2012).
On March 2, 2020, in light of the Supreme Court decisions in Johnson v. United States, 576 U.S. 591 (2015), and United States v. Davis, 139 S.Ct. 2319 (2019), the Court vacated defendant's conviction for carrying a firearm in relation to a crime of violence. See Order (Doc. #154). On resentencing, the Court adopted the Second Amended Presentence Investigation Report (“Amended PSR”) (Doc. #165) filed September 9, 2020. The Amended PSR determined that for purposes of criminal history, defendant qualified as a career offender under Section 4B1.1(a) of the Sentencing Guidelines because he had prior convictions for aggravated assault and attempted aggravated battery. Amended PSR (Doc. #165), ¶¶ 43, 59, 60. Based on a total offense level 34 and a criminal history category VI, defendant's guideline range was 262 to 327 months. The Court sentenced defendant to 262 months.[1] Neither party appealed.
On August 1, 2022, defendant filed the instant motion to vacate his sentence under 28 U.S.C. § 2255. Defendant asserts that (1) under the Supreme Court decision in Borden, his prior conviction for aggravated assault does not qualify as a crime of violence under Section 4B1.1 of the Guidelines; (2) counsel provided ineffective assistance because they did not file an appeal after defendant notified them about Borden; and (3) under the Supreme Court decision in Taylor, his prior conviction for attempted aggravated battery is not a crime of violence under Section 4B1.1. On December 23, 2022, the Court overruled defendant's first two claims. See Memorandum And Order (Doc. #186) at 9. As to his claim under Taylor, the Court ordered supplemental briefing. See id. at 8-10.
The standard of review of Section 2255 petitions is quite stringent. The Court presumes that the proceedings which led to defendant's convictions were correct. See Klein v. United States, 880 F.2d 250, 253 (10th Cir. 1989). To prevail, defendant must establish either (1) the district court lacked jurisdiction to enter the convictions and sentence, (2) the district court imposed a sentence outside of the statutory limits, (3) a constitutional error occurred and “had substantial and injurious effect or influence in determining the jury's verdict” or defendant's sentence, Brecht v. Abrahamson, 507 U.S. 619, 638 (1993), or (4) a non-constitutional error of law or an error of fact occurred that constituted a fundamental defect which inherently resulted in a complete miscarriage of justice, i.e. that rendered the entire proceeding irregular and invalid. United States v. Fields, 949 F.3d 1240, 1246 (10th Cir. 2019) (citing United States v. Addonizio, 442 U.S. 178, 185-86 (1979)).
All of defendant's claims challenge the Court's determination at resentencing that defendant qualified as a career offender under Section 4B1.1(a) of the Guidelines because he had prior convictions for aggravated assault and attempted aggravated battery. Amended PSR (Doc. #165) ¶¶ 43, 59, 60. Under the Guidelines, a defendant is a “career offender” if (1) he was at least 18 years old at the time he 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) he has at least two prior felony convictions of either a “crime of violence” or a controlled substance offense. U.S.S.G. § 4B1.1(a). The Guidelines define 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 murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c).” U.S.S.G. § 4B1.2(a).
As noted, the Court previously rejected defendant's claim that his two convictions for aggravated assault do not qualify as crimes of violence under the Guidelines. In his remaining claim, defendant asserts that under Taylor, his prior conviction for attempted aggravated battery is not a crime of violence and that the Court therefore should resentence him. As the Court explained in its prior order, apart from the reasoning in Taylor, defendant's prior conviction for attempted aggravated battery under K.S.A. § 21-3414 is not a crime of violence under U.S.S.G. § 4B1.2(a). See Memorandum And Order (Doc. #186) at 7-8; see also United States v. Adams, 40 F.4th 1162, 1170-71 (10th Cir. 2022) (); U.S.S.G. § 2K2.1, n.1 (“crime of violence” as used in this subsection has same meaning as given that term in § 4B1.2(a)). In addition, as the government concedes, because the state court imposed sentence at the same time on defendant's two prior offenses for aggravated assault and the offenses were included in the same charging instrument, he has only one qualifying conviction for a “crime of violence.” U.S.S.G. § 4B1.1(a) ().
If sentenced today, because defendant has only a single prior conviction for a “crime of violence,” the Guidelines would not classify him as a career offender. U.S.S.G. § 4B1.1(a). Absent career offender status, his offense level would remain at 34, but his criminal history category would be reduced from VI to V. As a result, his guideline range would now be 235 to 293 months.
As noted above, at resentencing in 2020, the Court sentenced defendant to 262 months, which was the low end of the guideline range of 262 to 327 months. The government argues that even if the Court misapplied the career offender guideline, he is not entitled to a sentencing reduction because his current sentence of 262 months falls within the revised guideline range of 235 to 293 months. Government's Response To Order To Show Cause And Response In Opposition To Defendant's Motion To Vacate Sentence (Doc. #183) filed October 18, 2022 at 10-11. Defendant argues that the sentence of 262 months is procedurally unreasonable because the Court started its analysis from an incorrectly calculated guideline range. Supplemental Motion In Support Of Jason Frazier's Pro Se Motion To Vacate, Set Aside, Or Correct A Sentence By A Person In Federal Custody (Doc. #200) filed July 31, 2023 at 9-10. Neither party directly addresses whether defendant's claim alleges an error which warrants relief under Section 2255.[2]Defendant alleges a non-constitutional sentencing error which involves the calculation of the guideline range, and he does not assert that his sentence exceeded statutory limits. See United States v. Trinkle, 509 Fed.Appx. 700, 702 (10th Cir. 2013) (...
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