United States v. Graves, CRIMINAL NO. 1:15-CR-158-001
| Decision Date | 12 October 2016 |
| Docket Number | CRIMINAL NO. 1:15-CR-158-001 |
| Parties | UNITED STATES OF AMERICA v. SHAUN L. GRAVES, Defendant |
| Court | U.S. District Court — Middle District of Pennsylvania |
Before this Court is Defendant Shaun Graves' objections (Doc. 53) to his Presentence Report ("PSR") (Doc. 49). Defendant argues that his two convictions for common law robbery in North Carolina were not crimes of violence for which he could be subject to a Base Offense Level of 24 under the United States Sentencing Guidelines ("U.S.S.G." or "Guidelines"). (Doc. 53 at 3). For the reasons that follow, Defendant's objections to the PSR will be overruled.
On July 29, 2015, Defendant was indicted on charges of possession of a firearm with an obliterated serial number, 18 U.S.C. §§ 922(k) and 924(a)(1)(B) (Count One), and unlawful possession of a firearm, 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e) (Count Two). (Doc. 1). Following our denial of his motion to suppress (Doc. 34), Defendant entered into a plea agreement (Doc. 37), whereby Count One was dismissed and he pled guilty to Count Two subject to an appeal of his suppression motion.
On August 22, 2016, a PSR was filed, which determined that, under U.S.S.G. § 2K2.1(a)(2), Defendant's Base Offense Level was 24 because he committed Count Two subsequent to sustaining at least two prior felony convictions for crimes of violence. (Doc. 49 at 5-6). Specifically, the PSR referenced Defendant's two previous convictions in 2000 for North Carolina common law robbery. (Id. at 6-8). Following the determination of this Base Offense Level, the PSR applied a four-level enhancement for Defendant's firearm having an obliterated serial number, U.S.S.G. § 2K2.1(b)(4)(B), as well as a three-level reduction for Defendant's acceptance of responsibility, U.S.S.G. § 3E1.1(a). (Id. at 6). The resulting Total Offense Level was 25, and Defendant's criminal history was determined to be a category V. (Id. at 6, 10).
Based on these calculations, the imprisonment range under the Guidelines is 100-125 months; however, because the statutory maximum under 18 U.S.C. § 924(a)(2) is ten years, the resulting range is 100-120 months. (Id. at 14). Defendant now objects to the PSR, arguing that his prior two convictions for North Carolina common law robbery do not qualify as crimes of violence under the Guidelines. (Doc. 53 at 3). Defendant contends that his Base Level Offense should be lowered from 24 to 14, resulting in a Total Offense Level of 15 and a guideline range of 37-46 months. (Doc. 50).
We begin by noting that the burden of proof is on the government "to prove by a preponderance of the evidence the facts in support of a sentence enhancement[.]" United States v. Evans, 155 F.3d 245, 253 (3d Cir. 1998).
Under U.S.S.G. § 2K2.1(a)(2), a Base Level Offense of 24 applies, as it did here, "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[.]" A "crime of violence" for purposes of U.S.S.G. § 2K2.1 is defined by cross-reference to the Career Offender Guideline, U.S.S.G. § 4B1.2.
Under the current text of U.S.S.G. § 4B1.2(a), which the United States Sentencing Commission ("Commission") recently amended, a "'crime of violence' means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that" either (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 . . . or explosive material." This amended Guideline went into effect on August 1, 2016, after Defendant committed the instant offense under Count Two but before his sentencing.1
Prior to the amendment, the former text of U.S.S.G. § 4B1.2 contained three clauses and defined a "crime of violence" as an offense that (1) "has as an element the use, attempted use, or threatened use of physical force against the person of another" ("elements" clause also known as the "force" clause); (2) "is burglary of a dwelling, arson, or extortion, [or] involves use of explosives" ("enumerated offenses" clause); or (3) "involves conduct that presents a serious potential risk of physical injury to another" ("residual" clause). U.S.S.G. § 4B1.2 (2015).
Before turning to which version (the current or former text) of § 4B1.2 applies to Defendant's sentencing, we first discuss the background to the recent amendment to highlight the changes to the Guideline's text.
Although the amendment left "unchanged" the elements clause of the Guideline, it altered the language of the enumerated offenses clause.2 Prior to the amendment, the enumerated offenses clause contained only the offenses of "burglary of a dwelling, arson, or extortion, [or offenses] involv[ing] the use of explosives." U.S.S.G. § 4B1.2(a)(2) (2015). It did not list the ten offenses now contained within the text. Rather, many of the offenses now listed—such as murder, manslaughter, robbery, etc.—were previously listed in the commentary, creating confusion among the circuit courts as to the proper weight to be given to commentary offenses.3 In adopting the amendment that moved these additional offenses from the commentary to the text, the Commission noted that, "[f]or easier application, all enumerated offenses are now included in the [text of the] guideline."4 The amendment not only added certain offenses, e.g., robbery, to the clause, but it also eliminated other previously listed offenses, e.g., burglary of a dwelling.5 The revised list reflects a "focus on the most dangerous repeat offenders."6
The 2016 amendment to U.S.S.G. § 4B1.2(a) also eliminated the Guideline's former residual clause. Prior to the amendment, § 4B1.2 contained a residual clause, which included as a "crime of violence" offenses involving "conduct that presents a serious potential risk of physical injury to another." U.S.S.G. § 4B1.2(a)(2) (2015). However, before the amendment went into effect, the Third Circuit held that "the 'residual clause' in§ 4B1.2 of the Guidelines is unconstitutionally vague" in light of Johnson v. United States, 135 S. Ct. 2551 (2015). United States v. Calabretta, 831 F.3d 128, 133-34 (3d Cir. 2016)
In Johnson, the Supreme Court found an identical residual clause in the Armed Career Criminal Act ("ACCA") to be unconstitutionally vague. 135 S. Ct. at 2563. Relying on Johnson, the Third Circuit in Calabretta struck down the residual clause of § 4B1.2(a)(2), but noted in its decision that the constitutionality of the clause is currently the subject of a circuit split on which the Supreme Court recently granted a petition for writ of certiorari. Calabretta, 831 F.3d at 134 n.6 (citing United States v. Beckles, 616 F. App'x 415 (11th Cir. 2015), cert. granted, 136 S. Ct. 2510 (2016)). In amending the text to remove the now-unconstitutionally-vague residual clause, the Commission determined "that the residual clause at § 4B1.2 implicates many of the same concerns cited by the Supreme Court in Johnson" and that removing the clause "will alleviate some of the ongoing litigation and uncertainty resulting from the Johnson decision."7
As is apparent from the differing language of the current (amended) and former texts of § 4B1.2, an issue arises in this case as to which version of the Guideline applies to Defendant's sentencing. Due to the recent amendment, which occurred after Defendant's offense but before his sentencing, we recognized the potential for a different sentencing range to apply and requested supplemental briefing on the issue of whether or not to apply the amended Guideline. (Doc. 56).
In its briefing, the Government's indicates that we should likely apply the former version of the Guideline, stating that where a guideline in place at the time of a defendant's sentencing is different from the guideline in effect at the time of the offense,courts should apply the more beneficial guideline to defendant to avoid Ex Post Facto Clause concerns. (Doc. 57 at 1). Nonetheless, the Government argues that "it makes no practical difference" which version applies to Defendant's sentencing. (Id.)
Although we generally apply the Sentencing Guidelines that are "in effect on the date the defendant is sentenced," 18 U.S.C. § 3553(a)(4)(A)(ii), the Commission instructs courts to "use the Guidelines Manual in effect on the date that the [defendant's] offense of conviction was committed" if they "determine[] that use of the Guidelines Manual in effect on the date that the defendant is sentenced would violate the [E]x [P]ost [F]acto [C]lause of the United States Constitution," U.S.S.G. §§ 1B1.11(a), (b)(1). In Peugh v. United States, the Supreme Court held that the Ex Post Facto Clause prohibits applying an amended Sentencing Guideline provision in effect when the defendant was sentenced if the amended version provides a higher sentencing range than the version in effect when the crime was committed. 133 S. Ct. 2072, 2078-79 (2013).
Here, we agree with the Government and find that an application of either version of the Guideline (former or current) does not result in a higher Guideline range for Defendant. As discussed more thoroughly below, under either version of the Guideline, we would analyze Defendant's prior convictions for North Carolina common law robbery as an enumerated offense. Although the amended text makes this analysis clearer by listing robbery in the Guideline's text, the inclusion of robbery as an offense in the commentary of the former Guideline results in the same analysis under Third Circuit precedent. Therefore, it makes little difference which version of the Guideline we should apply in this case. Nonetheless,...
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