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United States v. Rice

United States District Court, N.D. Alabama, Southern Division

April 5, 2017

UNITED STATES OF AMERICA,
v.
LUSION YOSHUA RICE, Defendant.

          MEMORANDUM OPINION

          R. DAVID PROCTOR UNITED STATES DISTRICT JUDGE.

         This 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 months.

         In 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).

         Defendant's 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.

         I. The ACCA

         Under 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).

         II. The United States Sentencing Guidelines

         Under 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 U.S.C. 841(c).

         U.S.S.G. § 4B 1.2(a)

         III. Analysis

         In his 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.

         Defendant 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.

         A. Alabama Robbery Offenses

         Defendant 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 ...


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