United States District Court, N.D. Alabama, Southern Division
DAVID PROCTOR UNITED STATES DISTRICT JUDGE.
matter before the court on the sentencing of Defendant Lusion
Yoshua Rice. On July 14, 2016, Defendant entered a plea of
guilty to a single charge that he violated Title 18 U.S.C.
§ 922(g)(1). (Docket Entry at 7/14/16, also
Doc. # 16). There is no plea agreement between Defendant and
the United States. (Docket Entry at 7/14/2016, PSR at ¶
68). The U.S. Probation Office published the presentence
investigation report (PSR) in the case, and calculated
Defendant's guideline range of imprisonment at 180 to 188
coming to this calculation, the U.S. Probation Office applied
the Armed Career Criminal Act ("ACCA") based on
Defendant's following previous convictions: a 2003
conviction for Michigan carjacking (PSR ¶ 24; a 2009
conviction for Alabama second degree robbery (PSR ¶ 28);
and a 2011 conviction for Alabama third degree robbery (which
involved two separate counts) (PSR ¶ 29, 30). Defendant
filed objections to the PSR. Among his objections, he argues
that the ACCA should not apply to him because neither his
Michigan carjacking conviction nor any of his Alabama robbery
convictions constitute violent felonies under the ACCA.
(See Doc. # 18).
case was docketed for sentencing on October 26, 2016. Prior
to the sentencing hearing, the undersigned held a conference
with the parties to discuss their respective positions, and
ordered additional briefing on the ACCA issues presented in
this case. The matter is now fully briefed. (See
Docs. #23, 24, 25, 26, 29). On March 9, 2017, the court heard
oral argument regarding the sentencing issues in this case.
the ACCA, a defendant convicted of violating 18 U.S.C. §
922(g) is subject to a mandatory minimum sentence of 15 years
if he has three prior convictions for a "violent
felony" or "serious drug offense." 18 U.S.C.
§ 924(e)(1); United States v. Fritts, 841 F.3d
937, 938 (11th Cir. 2016). The term "violent
felony" means any crime punishable by imprisonment of a
term exceeding one year that:
(i) has an element the use, attempted use, or threatened use
of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.
18 U.S.C. § 924(e)(2)(B).
United States Sentencing Guidelines
the Guidelines, a defendant is a career offender if (1) the
defendant was at least eighteen years old at the time the
defendant 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) the defendant has at least two prior felony convictions
of either a crime of violence or a controlled substance
offense. U.S.S.G. § 4Bl.l(a). Under the Guidelines, a
"crime of violence" is an offense 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
§ 4B 1.2(a)
Objection to Presentence Investigation Report, Defendant
contends that the PSR miscalculates his guideline range for
sentencing purposes. He argues that neither his robbery nor
carjacking convictions are qualifying "violent
felonies." In addition to arguing that the court should
not apply the mandatory minimum penalty of the ACCA,
Defendant also argues that the court should not apply the
enhanced penalties of U.S.S.G. § 4B1.1.
also disputes the U.S. Probation Office's calculation of
his criminal history score at 11, resulting in a criminal
history category of V. (Doc. # 19, PSR ¶ 67).
Specifically, he disputes the allegation that he was on
probation in Jefferson County on May 21, 2015, the date of
his most recent offense. (See PSR ¶ 34). The
Government agrees with Defendant that his Jefferson County
probationary period should have expired no later than October
2014, and does not oppose Defendant's objection based on
that ground. (Doc. # 29). Accordingly, Defendant's
objection with respect to paragraph 34 of the PSR is due to
be granted, as the two-point enhancement applied in that
paragraph was improperly applied.
Alabama Robbery Offenses
argues that his Alabama robbery convictions do not qualify as
"violent felonies" or "crimes of
violence." The court employs the categorical approach in
evaluating Defendant's arguments. See Descamps ...