United States v. Smith, : 3:13-CR-5-TAV-CCS-3
| Decision Date | 21 November 2016 |
| Docket Number | No.: 3:13-CR-5-TAV-CCS-3,: 3:13-CR-5-TAV-CCS-3 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. ARTHUR CHARLES SMITH, Defendant. |
| Court | U.S. District Court — Eastern District of Tennessee |
This criminal matter is before the Court to expand on its oral rulings at the defendant's resentencing hearing on Tuesday, November 15, 2016. During that hearing, the Court overruled the defendant's objection to the Presentence Investigation Report [Doc. 100] and held that the defendant is a career offender as defined in U.S.S.G. § 4B1.1. The Court issues this opinion to provide further basis for that determination.
On April 23, 2013, the defendant appeared before the Honorable Amul R. Thapar, United States District Judge, and pleaded guilty, without a plea agreement, to robbing a pharmacy, in violation of 18 U.S.C. §§ 2118(a) and 2 (count one); using, carrying, and brandishing a firearm during and in relation to that robbery, in violation of 18 U.S.C. §§ 924(c)(1) and 2 (count two); and possessing a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1) (count three) [Doc. 79 pp. 27].
The Presentence Investigation Report ("PSR") classified the defendant as a career offender, concluding that he had two qualifying convictions under U.S.S.G. § 4B1.1(a) [Doc. 74 p. 1]. Under § 4B1.1(a), a defendant may qualify as a career offender if he has previously sustained two felony convictions "of either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1(a). One of the two qualifying convictions was for felony common law robbery under North Carolina law, which the PSR concluded was a crime of violence [Id.]. The defendant objected to this classification, arguing that his North Carolina robbery conviction is not a crime of violence [Id.]. Judge Thapar overruled this objection finding that the North Carolina common law robbery conviction qualifies as a crime of violence under the residual clause of the career offender guideline [Id. at 4-5]. As such, Judge Thapar determined that the defendant was properly classified as a career offender and sentenced him to 262 months' imprisonment [Doc. 74 p. 5; Doc. 75].
The defendant appealed his career-offender classification, and the Court of Appeals for the Sixth Circuit affirmed the defendant's sentence. United States v. Smith, 582 F. App'x 590, 598 (6th Cir. 2014). The Sixth Circuit concluded that North Carolina common law robbery qualifies as a crime of violence under § 4B1.2(a)'s residual clause and declined to address whether the offense otherwise qualifies as a crime of violence under § 4B1.2(a)'s enumerated-offense or use-of-force clauses. Id.
Nine months later, the Supreme Court held "that imposing an increased sentence under the residual clause of the Armed Career Criminal Act [("ACCA"), 18 U.S.C. § 924(e),] violates the Constitution's guarantee of due process." Johnson v. United States, 135 S. Ct. 2551, 2563 (2015). The Supreme Court subsequently granted certiorari in thiscase, vacated the Sixth Circuit's judgment, and remanded the case for further consideration in light of Johnson. Smith v. United States, 135 S. Ct. 2930 (2015).
On May 13, 2016, the Sixth Circuit determined that the "rationale of Johnson applies equally to the residual clause" of the career offender guideline. United States v. Pawlak, 822 F.3d 902, 911 (6th Cir. 2016). As such, the court held that the residual clause in the guidelines is also invalid as "unconstitutionally vague." Id.
As a result, in this matter, the Sixth Circuit determined that the defendant "must be resentenced because the district court based his § 4B1.1 enhancement upon § 4B1.2(a)(2)'s unconstitutional residual clause" [Doc. 89 p. 3]. The Sixth Circuit vacated the judgment and remanded this case "for further consideration in light of Mitchell and Pawlak" [Id. at 3-4].
The United States Probation Office prepared a revised PSR in this matter, again classifying the defendant as a career offender under § 4B1.1 [Doc. 98 ¶ 39]. The defendant objected to this classification [Doc. 100], and the government responded in opposition to the objection [Doc. 104].
As an initial matter, the Court addresses the resentencing procedure. Pursuant to 18 U.S.C. § 3742(g), when a case is remanded for sentencing, a district court shall resentence a defendant in accordance with § 3553 and with such instructions as may have been given by the court of appeals, except that the court must apply the version of the guidelines "that were in effect on the date of the previous sentencing of the defendantprior to the appeal, together with any amendments thereto by any act of Congress that was in effect on such date." 18 U.S.C. § 3742(g)(1). Pursuant to the mandate rule, "a district court is bound to the scope of the remand issued by the court of appeals," which may be limited or general pursuant to 28 U.S.C. § 2106.1 United States v. Campbell, 168 F.3d 263, 265 (6th Cir. 1999); accord United States v. Moore, 131 F.3d 595, 597 (6th Cir. 1997). On a general remand, the district court may resentence a defendant de novo. Moore, 131 F.3d at 597. On a limited remand, however, a district court's authority is constrained "to the issue or issues remanded." Id. at 598.
To constitute a limited remand, the appellate court "must convey clearly [its] intent to limit the scope of the district court's review." Campbell, 168 F.3d at 267. A limited remand must "explicitly outline the issues to be addressed by the district court and create a narrow framework within which the district court must operate." Id. at 265. The limiting language defining the scope of an appellate court's mandate may be found "anywhere in an opinion or order, including a designated paragraph or section, or certain key identifiable language[,]" and "should be, in effect, unmistakable." Id. at 267-68; see also United States v. O'Dell, 320 F.3d 674, 678 (6th Cir. 2003) (); United States v. Santonelli, 128 F.3d 1233, 1237 (6th Cir. 1997) (); Moore, 131 F.3d at 598-600 (). Absent limitation, a "remand order is presumptively a general one." Moore, 131 F.3d at 598.
Neither party addressed this issue in their briefings, but the government argued at the resentencing hearing that this case is before the Court on a general remand because the Sixth Circuit remanded the case for "resentencing." In circumstances where the Sixth Circuit remands a case for "resentencing," that instruction does not necessarily prescribe de novo review. See, e.g., United States v. Miles, F. App'x 148, 150 (6th Cir. 2007) ( that remands "for re-sentencings in light of Booker" are limited remands); O'Dell, 320 F.3d at 678 (); Santonelli, 128 F.3d at 1237 ().
Here, Sixth Circuit's opinion provides: [Doc. 89 pp. 3-4]. Furthermore, the Sixth Circuit opinion addressed only the career offender issue [See generally Doc. 89].
In addition, the Court notes that in situations where an appeals court has addressed the same case several times, as is here, "issuing limited remands on sentencing cases, leaving open for resolution only the issue found to be in error on the initial sentencing," is an avenue that avoids "wast[ing] judicial resources." Santonelli, 128 F.3d at 1238. As the Sixth Circuit has already seen this case on two occasions, a limited remand here would prevent "giving the parties additional bites of the litigation apple." Id. at 1239.
As the Sixth Circuit included limiting language in its opinion, and because a limited remand here prevents the unnecessary determination of issues already decided, the Court finds that the Sixth Circuit intended a limited remand.2 As such, the Court's authority is constrained to the determination of whether the defendant is a career offender.II. Categorization as a Career Offender
To qualify as a career offender under U.S.S.G. § 4B1.1, the defendant (1) must have been at least eighteen years old at the time he committed the instant offense of conviction, (2) the instant offense must be a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant must have at least two prior felony convictions of either a crime of violence or a controlled substance offense. Here, the only issue is whether the defendant satisfies the third element. While the parties do not dispute that the defendant has at least one predicate offense, the defendant argues that his 2009 North Carolina robbery conviction does not qualify as a crime of violence.
The sentencing guidelines define "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" (the "use-of-force clause"); (2) "is burglary of...
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