The opinion of the court was delivered by: Hon. John E. Jones III
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
Pending before the Court is the Defendant Ray Dean Colburn's ("Defendant" or "Colburn") Objection to his classification as a career offender within the Presentence Investigation Report ("PSR"). This objection has been fully briefed by the Defendant and the Government and is therefore ripe for our review. For the reasons that follow, we shall overrule the Defendant's objection to his classification as a career offender.
On July 16, 2007, Defendant pled guilty to Count One of the Superseding Indictment, charging him with a violation of 21 U.S.C. § 846, Conspiracy to Distribute and Possess with Intent to Distribute at Least 5 Kilograms of Cocaine Hydrochloride. The United States Probation Office prepared a PSR, and a presentence conference was held on September 29, 2009 to discuss the Defendant's objections to the PSR and set a briefing schedule. It was agreed at the presentence conference that the parties would first brief the Defendant's objection to his classification as a career offender, inasmuch as the materiality of the Defendant's other objections to the PSR shall be determined by our disposition of the career offender objection.
Defendant's main objection is to the career offender classification contained in paragraph 27 of the PSR. Paragraph 27 states, in relevant part,:
Pursuant to U.S.S.G. § 4B1.1, the defendant is considered a career offender because he was at least eighteen years old at the time of the instant offense, the instant offense is a felony controlled substance offense, and the defendant has at least two prior felony convictions for either a crime of violence or a controlled substance offense (see Adult Criminal Convictions section) . . .
Defendant argues that the predicate convictions to the career offender status contained in paragraphs 33 and 38 of the PSR should be treated as being a single offense, and thus, the career offender classification has been inappropriately applied in the PSR.
Pursuant to the Sentencing Guidelines, a defendant is properly classified as a career offender if he: (1) was at least eighteen years old when the instant offense occurred; (2) the instant offense of conviction is a violent felony or a controlled substance offense; and (3) he "has at least two prior felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1(a). The first and second requirements of the classification are satisfied and are not at issue here. Defendant was 46 years old at the time of the instant offense and the instant offense of conviction is a controlled substance offense.*fn1
At issue here is the third element of the career offender requirement. To resolve Defendant's objection, we must determine whether Colburn "has at least two prior felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1(a)(2)
According to Paragraph 33 of the PSR, on February 2, 1991, Colburn was arrested for Possession with Intent to Deliver Marijuana, and pled guilty to that offense on October 9, 1991.*fn2 He received a five year probation term, which was revoked on April 6, 1995, resulting in a five year term of imprisonment imposed on May 15, 1996. Paragraph 38 states that Colburn was arrested on May 12, 1995 and, thereafter, he pled guilty to Possession with intent to Distribute Marijuana and Driving Under Suspension. Colburn received a 30-year imprisonment term on this second drug felony. As the Government correctly notes, the only connection between the offenses enumerated in Paragraphs 33 and 38 of the PSR is that after Colburn was sentenced on the second case to 30 years imprisonment, he received a concurrent five-year term for the revocation of probation on the first case.
Pursuant to U.S.S.G. § 4A1.2(a)(2), "[p]rior sentences always are counted separately if the sentences were imposed for offenses that were separated by an intervening arrest (i.e., the defendant is arrested for the first offense prior to committing the second offense). It is evident here that the second arrest (Paragraph 38) occurred four years after the arrest on the first drug felony (Paragraph 33). Accordingly, Colburn's argument that the career offender predicate offenses contained in Paragraphs 33 and 38 should be treated as a single offense is unavailing.
Defendant also argues that because his initial drug felony conviction (Paragraph 33) occurred more than ten years before the commencement of the instant offense, the conviction contained in Paragraph 33 may not be used as predicate offense for career ...