United States v. Sunday
Decision Date | 25 July 2018 |
Docket Number | 2:08cr393 |
Citation | 315 F.Supp.3d 855 |
Parties | UNITED STATES of America v. Timothy SUNDAY |
Court | U.S. District Court — Western District of Pennsylvania |
Troy Rivetti, Michael Leo Ivory, United States Attorney's Office, Pittsburgh, PA, for United States of America.
On November 13, 2008, a grand jury returned a two-count indictment against Timothy Sunday ("defendant") charging him with possession of a firearm and possession of ammunition by a felon, in violation of 18 U.S.C. § 922(g)(1). Each count further charged that defendant possessed the prohibited object after having been convicted of three prior offenses that triggered the enhanced penalties mandated by the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). On April 8, 2011, defendant pled guilty to the charge of being a felon in possession of a firearm. On August 11, 2011, he was sentenced to a term of incarceration of 180 months. On January 20, 2017, his sentence was vacated pursuant to a determination that one of the prior predicate offenses used to enhance his sentence was for Pennsylvania burglary and as a result his sentence had been rendered unconstitutional by the Supreme Court's decision in Johnson v. United States, ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). Presently before the court are the parties' submissions in conjunction with resentencing. The parties vehemently disagree about whether defendant remains subject to the enhanced penalties mandated by 18 U.S.C. § 924(e). For the reasons set forth below, we conclude that the government has met its burden of showing defendant continues to qualify as an armed career criminal offender and thus remains subject to those penalties.
The government seeks to subject defendant to the ACCA based on three prior Pennsylvania convictions—one for a controlled substance offense and two for felony robbery. Defendant advances objections predicated on the contention that Pennsylvania's robbery statute is indivisible, further inquiry into the factual conduct on which the convictions were based is prohibited by the Sixth Amendment and the fact-based inquiry needed to sentence defendant under the ACCA is precluded by Mathis v. United States, 579 U.S. ––––, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016).
The ACCA provides:
in the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or serious drug offense ... committed on different occasions from one another, such person shall be ... imprisoned not less than fifteen years.
18 U.S.C. § 924(e)(1). It defines a "serious drug offense" as:
an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act ( 21 U.S.C. 802 ) ), for which a maximum term of imprisonment of ten years or more is prescribed by law[.]
18 U.S.C. § 924(e)(2)(A)(ii) ; United States v. Abbott, 748 F.3d 154, 159 (3d Cir. 2014). It defines a "violent felony" as:
18 U.S.C. § 924(e)(2)(B) (emphasis added); Johnson v. United States, ––– U.S. ––––, 135 S.Ct. 2551, 2555, 192 L.Ed.2d 569 (2016).
Application of the ACCA "raises the penalty for possession of a firearm by a felon from a maximum of 10 years ... to a mandatory minimum sentence of 15 years and a maximum of life in prison." United States v. Kole, 164 F.3d 164, 168 (3d Cir. 1998) (quoting Custis v. United States, 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994) ). A defendant subject to the ACCA is classified as an armed career criminal pursuant to § 4B1.4 of the Sentencing Guidelines. See U.S.S.G. § 4B1.4.
"The ACCA is a sentence enhancement statute and does not create a separate offense." United States v. Mack, 229 F.3d 226, 231 (3d Cir. 2000), cert. denied, 532 U.S. 1045, 121 S.Ct. 2015, 149 L.Ed.2d 1016 (2001). It is triggered in part by the existence of three prior predicate convictions for a violent felony and/or a serious drug offense. 18 U.S.C. § 924(e). As to the existence of these qualifying prior convictions, neither Descamps v. United States, 570 U.S. 254, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) nor Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) altered the exception under Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), that "a judge, rather than a jury, may determine ‘the fact of a prior conviction.’ " United States v. Blair, 734 F.3d 218, 226 (3d Cir. 2013) ( ); United States v. Burnett, 773 F.3d 122, 135 (3d Cir. 2014) ( ).
Sentencing courts determining whether a prior conviction is a violent felony or serious drug offense under the ACCA must apply a categorical approach. Mathis, 136 S.Ct. at 2248 ; Abbott, 748 F.3d at 157 ; Sykes v. United States, 564 U.S. 1, 131 S.Ct. 2267, 2272, 180 L.Ed.2d 60 (2011) ( ). Descamps clarified "the analytical approach that sentencing courts must use to determine if a prior conviction is a predicate offense under ACCA." Blair, 734 F.3d at 222. Mathis further clarified this approach in cases involving statutes that have "multiple alternative elements." Mathis, 136 S.Ct. at 2249.
Under the categorical approach, a sentencing court must review the elements of the predicate offense in order to determine whether the offense falls within the statutory definitions. A "prior conviction qualifies as an ACCA predicate only if the statute's elements are the same as, or narrower than, those of the [statutorily defined predicate offense]." United States v. Brown, 765 F.3d 185, 189 (3d Cir. 2014). A categorical review is limited to the elements of the defendant's prior conviction "without inquiry into the specific conduct of [the] particular offender." James v. United States, 550 U.S. 192, 202, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) ; United States v. Johnson, 587 F.3d 203, 208 (3d Cir. 2009) ; accord Abbott, 748 F.3d at 156 () (quoting Descamps, 133 S.Ct. at 2283 ) (quoting Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) ). In other words, only the fact of conviction and the statutory definition of the prior offense are relevant in determining whether an offense is a predicate offense. James, 550 U.S. at 202, 127 S.Ct. 1586 ; accord Sykes, 131 S.Ct. at 2273 ; Mathis, 136 S.Ct. at 2248 () (citing Taylor, 495 U.S. at 599–602, 110 S.Ct. 2143 ).
By identifying separate categories of predicate offenses based on the underlying elements, Congress evidenced an intent to have prior predicate offenses identified by uniform definitions that are independent of the labels employed under the various States' criminal codes. Taylor, 495 U.S. at 592, 110 S.Ct. 2143 : Mathis, 136 S.Ct. at 2251-52. These uniform definitions are confined to the elements that a jury necessarily would have found in order to convict, regardless of whether the conviction arises from a verdict or the entry of a guilty plea. Descamps, 133 S.Ct. at 2288 ; Mathis, 136 S.Ct. at 2252. In other words, "the only facts the court can be sure the jury [ ] found [in rendering a prior guilty verdict] are those constituting elements of the offense—as distinct from amplifying but legally extraneous circumstances [and] ... when a defendant pleads guilty to a crime, he waives his right to a jury determination of only that offense's elements[.]" Descamps, 133 S.Ct. at 2288 ; accord Mathis, 136 S.Ct. at 2248 ( ). Implemented in this manner, the categorical approach comports with the ACCA's text and history, avoids the Sixth Amendment concerns that would arise from sentencing courts making findings of fact that properly belong to juries and "averts ‘the practical difficulties and potential unfairness of a factual approach.’ " Descamps, 133 S.Ct. at 2288 (quoting Taylor, 495 U.S. at 601, 110 S.Ct. 2143 ).
A variant of the categorical approach known as the "modified categorical approach" has been approved for use in "a narrow range of cases." Brown, 765 F.3d at 189 ; Descamps, 133 S.Ct. at 2281 ; Mathis, 136 S.Ct. at 2249. Use of this approach is appropriate where "a prior conviction is for violating a so-called ‘divisible statute.’ " Descamps, 133 S.Ct. at 2281. A divisible statute "sets out one or more elements of the offense in the alternative." Id.; Brown, 765 F.3d at 190. If at least one of the alternative versions of the offense reflects the elements of a predicate offense under the ACCA, then "the modified categorical approach permits sentencing courts to consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant's prior conviction." D...
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