United States v. Parks

• Decision Date: 21 February 2017
• Docket Number: 3:15–CR–0152
• Citation: 237 F.Supp.3d 229
• Parties: UNITED STATES of America v. David PARKS, Defendant
• Court: U.S. District Court — Middle District of Pennsylvania

237 F.Supp.3d 229

UNITED STATES of America

v.David PARKS, Defendant

3:15–CR–0152

United States District Court, M.D. Pennsylvania.

Signed February 21, 2017

John C. Gurganus, Jr., Assistant U.S. Attorney—U.S. Attorney's Office, Scranton, PA, for United States of America.

MEMORANDUM

MALACHY E. MANNION, United States District Judge

Pending before the court are the defendant's objections to the presentence report. (Doc. 46 ). Defendant objects to the report which finds that he qualifies as a career offender under § 4B1.2 of the Guidelines. Defendant also requests a downward variance pursuant to 18 U.S.C. § 3553(a)(1). Based upon the court's review of the record in this case, the defendant's objections will be overruled and he will sentenced as a career offender. Defendant's request for a downward variance will be held in abeyance pending his sentencing hearing.

I. BACKGROUND

On July 22, 2015, David Parks, (the "defendant"), was charged in an indictment with two counts of armed bank robbery, in violation of 18 U.S.C. § 2113(d). (Doc. 1 ). On May 5, 2016, the government filed a superseding six count information charging Parks with three counts of bank robbery, in violation of 18 U.S.C. § 2113(a), (Counts 1–3), and three counts of armed bank robbery, in violation of 18 U.S.C. § 2113(d), (Counts 4–6). (Doc. 33 ). On this same day, Parks pled guilty to all six charges in the information.

On July 22, 2016, the Probation Office prepared the presentence report, ("PSR") and later issued a revised PSR on August 29, 2016. (Doc. 39 ). The Probation Office found that Parks is a career offender under the United States Sentencing Guidelines, ("USSG"). Specifically, it found that one of Parks' instant offenses and two prior convictions, namely, his 1991 federal bank robbery conviction and his 2004 Connecticut first degree robbery conviction, were crimes of violence under USSG § 4B1.2. Parks filed his objections to the report on October 3, 2016. (Doc. 46 ). The government filed its response on November 4, 2016. (Doc. 50 ).

Specifically, the PSR found that Parks' sentencing guidelines reflect a total offense level of 31, criminal history category of VI and an advisory guideline range of 188–235 months imprisonment. (Doc. 39 , PSR ¶ 110). Parks states that without the career offender enhancement, his offense level would be 30 and his criminal history a category V, resulting in an advisory guideline range of 151–188 months. If the court grants Parks a three level departure for acceptance of responsibility, his advisory guideline would be a total offense level of 27, a criminal history category V, and an advisory guideline range of 120–150 months.

Thus, Parks indicates that his total exposure to prison time would be significantly reduced if he is not sentenced as a career offender, i.e., from a guideline range of 188–235 months to a guideline range of 120–150 months.

No doubt, to qualify as a career offender, one of Parks' instant offenses must be a crime of violence and he must have two prior felony convictions for either a crime of violence or a controlled substance offense under USSG § 4B1.1(a) . Relying on Johnson v. United States, ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), Parks contends that none of his instant offenses qualify as a crime of violence and that his two prior convictions do not qualify as crimes of violence. As such, he maintains that he should not be sentenced as a career offender.

II. DISCUSSION

Parks' sentencing guideline range was calculated in the PSR based on the 2015 Guidelines Manual as well as the August 1, 2016 amendments, including § 4B1.2(a) (Aug. 1, 2016). (PSR ¶ 18). Parks' advisory guideline range in the PSR was enhanced based on the finding that he was a career offender. Parks contends that insofar as the PSR finds that the above stated offenses qualify as crimes of violence under the 2016 amended list of enumerated offenses, it violates the Ex Post Facto Clause. Parks points out that "[r]obbery was not an enumerated offense within the text of the guideline prior to the 2016 amendments when [his] offenses were committed" and that "[a]t that time, robbery appeared only in the commentary [of the guidelines]." (Doc. 46 at 5). The government does not disagree with Parks' ex post facto argument but it contends that "it makes no practical difference whether the court applies the version of USSG § 4B1.2 in effect from February through July 2015 when Parks committed the [instant] bank robberies [ ], or the new amended version of the guidelines effective August 1, 2016." The government states that both versions specifically enumerate robbery as a crime of violence albeit that in the 2015 version robbery was enumerated in the commentary to the guideline and in the August 2016 version robbery is specifically listed in the text of the guideline.² (Doc. 50 at 3).

The August 1, 2016 amended § 4B1.2(a) will not be utilized in this case, out of an abundance of caution, in light of his ex post facto claim. There is no question that the amended guideline was effective on August 1, 2016 which was after Parks committed the instant offenses but prior to his sentencing. As the court recently noted in U.S. v. Lewis, 2017 WL 368088, *2 n. 1 (E.D. Pa. Jan. 25, 2017), "[t]he Court need not resolve [the] dispute [of whether the 2016 version of the guidelines should be used, or whether the Ex Post Facto Clause requires the use of the guidelines in effect at the time the offenses were committed in 2015] because it finds that aggravated assault is a crime of violence under the elements clause, § 4B1.2(a)(1), which is identical in both versions of the guidelines." As discussed below, this court finds that Parks' federal bank robbery convictions and his Connecticut first degree robbery conviction are crimes of violence under the elements clause of § 4B1.2(a)(1) which is the same in the 2015 and 2016 versions of the guidelines.

In the alternative, the court agrees that in Parks' case it will not make any difference as to which version of the guidelines is used since the term crime of violence in the 2015 version of § 4B1.2(a) included robbery as an enumerated offense in the commentary and the commentary can be used to determine robbery is a crime of violence. As the court succinctly explained in U.S. v. Graves, 2016 WL 5934205, *3 (M.D. Pa. Oct. 12, 2016) :

Here, we agree with the Government and find that an application of either version of the Guideline (former or [Aug. 1, 2016] ) does not result in a higher Guideline range for Defendant. [U]nder 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, to avoid any Ex Post Facto Clause issues, we analyze Defendant's prior convictions under the former text of U.S.S.G. § 4B1.2.

Thus, as in Graves , the court will analyze Parks' instant robbery offense as well as his 1991 federal robbery conviction and his 2004 Connecticut first degree robbery conviction under the 2015 version of § 4B1.2. As discussed below, the court finds that robbery is a crime of violence under the elements clause of the 2015 version of § 4B1.2 and that this version of the guidelines included robbery in the commentary and was not an application of the residual clause standard.

Parks contends that "[f]ollowing the elimination of the residual clause [in the ACCA] by Johnson v. United States, ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), robbery which was listed only in the commentary to the guideline and must have been interpretive of the residual clause is not a crime of violence." Parks states that in response to Johnson , the Sentencing Commission decided to amend § 4B1.2 in 2016 and move the crime of robbery along with other offenses from the commentary and list them in the guideline's text demonstrating that "the position of robbery in the commentary was in fact dependant upon the residual clause." (Doc. 46 at 5). Parks points out that the career criminal residual clause as contained in the former version of § 4B1.2(a)(2) is identical to the residual clause of the Armed Career Criminal Act ("ACCA") contained in 18 U.S.C. § 924(e)(2)(B)(ii) which the Supreme Court in Johnson found was unconstitutionally vague. The Johnson Court also found that a sentence increased under the residual clause of the ACCA violated due process.

Recently, the court in United States v. Goode, 2016 WL 48211, *1 (E.D. Pa. Jan. 5, 2016) , discussed the Johnson case and stated:

In Johnson , the Supreme Court held that a portion of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(2)(B)(ii), was unconstitutionally vague. 135 S.Ct. at 2563 . The ACCA allows for enhanced sentencing for criminal defendants who have at least three previous convictions for a "violent felony" or "serious drug offense." The defendant in Johnson had a qualifying previous conviction for the possession of a sawed-off shotgun that had a barrel shorter than allowed by law. Id. at 2556. The government claimed that this conviction was a violent felony because it fell under the residual clause of the ACCA's definition of violent felony. Id. The residual clause defined violent felony as one that "otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii). The Supreme Court held "that imposing an increased sentence under the residual clause of the ACCA violates the Constitution's guarantee of due process. Johnson, 135 S.Ct. at 2563 . The residual clause violates due process because the clause is unconstitutionally vague as it "denies fair notice to defendants

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