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United States v. Altsman

February 22, 2006

UNITED STATES OF AMERICA
v.
JACK C. ALTSMAN, MOVANT.



The opinion of the court was delivered by: McVerry, J.

MEMORANDUM OPINION AND ORDER OF COURT

Presently before the Court for disposition is the MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 (Document No. 43), with brief in support (Document No. 51), and the government's brief in opposition (Document No. 54).

On February 13, 2006, the court heard oral argument on the motion. Both parties were represented by counsel who presented and argued the issues skillfully and effectively. For the reasons that follow, the Motion will be denied.

Background

On July 23, 2002, Movant Jack C. Altsman ("Altsman") was indicted by a Grand Jury and charged with one count of unlawful possession of a firearm in violation of Title 18, United States Code, § 922(g)(1). The Indictment also alleged that Altsman was subject to the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(1).*fn1

On November 20, 2002, Altsman entered a plea of guilty to the Indictment pursuant to a plea agreement.

On December 22, 2002, the Probation Office issued its Presentence Investigation Report ("PSI") in which it concluded that all three of Altsman's prior convictions, as identified in the indictment, qualified as violent felonies under § 924(e)(2)(B)(i) and (ii) and, therefore, Altsman must be sentenced under ACCA.*fn2

Counsel for Altsman objected to the PSI on the grounds, inter alia, that two of Altsman's prior convictions were not "crimes of violence" and, thus, did not qualify as predicates for ACCA.*fn3

On February 14, 2003, the Court conducted an evidentiary hearing/argument on the issues of whether Altsman had sustained 3 prior convictions for a "violent felony" as defined by 18 U.S.C. § 924(e)(1) and whether Altsman was an Armed Career Criminal as set forth in Section 4B1.4 of U.S. Sentencing Guidelines. Specifically, Altsman argued that neither his 1981 conviction for burglary in St. Louis County, Minnesota, nor his 1986 conviction for criminal attempt (kidnaping) constituted a "violent felony" for purposes of 18 U.S.C. § 924(e)(1) and USSG § 4B1.4.

On April 14, 2003, the Court issued its Tentative Findings and Rulings in which it rejected both of Altsman's arguments. First, the Court noted that although the term "burglary" is not explicitly defined in ACCA, the United States Supreme Court has defined the term for purposes of a § 924(e) enhancement to include "any crime, regardless of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime." Taylor v. United States, 495 U.S. 575, 599 (1990); see also United States v. Bennett, 100 F.3d 1105 (3d Cir. 1996) (holding that for purposes of § 924(e), a burglary must have "the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime").

The record evidence demonstrated that in 1981 Defendant pled guilty to burglary in violation of Minnesota statute 609.58, which describes the act of "burglary" as entering "a building without the consent of the person in lawful possession . . . ." Minn. Stat. § 609.58 subd.2. Title 18, United States Code, section § 924(e)(2)(B) specifically includes the crime of "burglary" among the enumerated offenses listed as a "violent felony." Accordingly, the Court found that the Probation Office correctly considered Defendant's 1981 conviction for burglary as a "violent felony."

Significant to the instant proceeding, the Court also rejected Altsman's argument that Criminal Attempt (kidnaping) is not a crime that has as an element the use, attempted use, or threatened use of physical force, nor does it otherwise involve conduct that presents a serious risk of physical injury to another. Noting that the exact same argument was rejected by the Court of Appeals for the Sixth Circuit in United States v. Kaplansky, 42 F.3d 320 (6th Cir. 1994), this Court found that the reasoning of Kaplansky was consistent with the focus of the categorical approach, where the court is to look to the nature of the offense rather than individualized facts to determine whether the offense qualifies as a "violent felony," and that kidnaping is the "type" of offense where the risk of physical injury to the victim is invariably present. Therefore, the Court concluded that a crime committed under 18 Pa. C.S.A. § 2901, whether by force, threat of force, or deception, categorically qualifies as a "violent felony" under § 924(e)(2)(B)(ii).

On April 25, 2003, the Court sentenced Altsman to a term of imprisonment of 180 months, to be followed by three years of supervised release. On May 1, 2003, Altsman filed a Notice of Appeal, which was docketed by the Court of Appeals for the Third Circuit on May 12, 2003.

On appeal, Altsman argued one single issue, to wit: that his 1986 conviction for attempted kidnaping was not a "violent felony" under ACCA. On March 9, 2004, the appellate court issued its opinion in which it affirmed the judgment of sentence and stated that Altsman's argument "ignores the significance of the word 'potential' in clause (ii)'s definition of violent felony, i.e., a crime that 'involves conduct that presents a serious potential risk of physical injury to another.' " United States v. Altsman, 89 Fed. Appx. 357 (3d Cir. 2004). In conclusion, our appellate court agreed with the decision of the appellate court in Kaplansky that "attempted kidnaping categorically 'involves conduct that presents a serious potential risk of ...


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