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States v. Parks

United States District Court, M.D. Pennsylvania

February 21, 2017

UNITED STATES OF AMERICA
v.
DAVID PARKS, Defendant

          MEMORANDUM

          MALACHY E. MANNION United States District Judge [1]

         Pending before the court are the defendant's objections to the presentence report. (Doc. 46). Defendant objects to the report which finds that he qualifies as a career offender under §4B1.2 of the Guidelines. Defendant also requests a downward variance pursuant to 18 U.S.C. §3553(a)(1). Based upon the court's review of the record in this case, the defendant's objections will be overruled and he will sentenced as a career offender. Defendant's request for a downward variance will be held in abeyance pending his sentencing hearing.

         I. BACKGROUND

         On July 22, 2015, David Parks, (the “defendant”), was charged in an indictment with two counts of armed bank robbery, in violation of 18 U.S.C. §2113(d). (Doc. 1). On May 5, 2016, the government filed a superseding six count information charging Parks with three counts of bank robbery, in violation of 18 U.S.C. §2113(a), (Counts 1-3), and three counts of armed bank robbery, in violation of 18 U.S.C. §2113(d), (Counts 4-6). (Doc. 33). On this same day, Parks pled guilty to all six charges in the information.

         On July 22, 2016, the Probation Office prepared the presentence report, (“PSR”) and later issued a revised PSR on August 29, 2016. (Doc. 39). The Probation Office found that Parks is a career offender under the United States Sentencing Guidelines, (“USSG”). Specifically, it found that one of Parks' instant offenses and two prior convictions, namely, his 1991 federal bank robbery conviction and his 2004 Connecticut first degree robbery conviction, were crimes of violence under USSG §4B1.2. Parks filed his objections to the report on October 3, 2016. (Doc. 46). The government filed its response on November 4, 2016. (Doc. 50).

         Specifically, the PSR found that Parks' sentencing guidelines reflect a total offense level of 31, criminal history category of VI and an advisory guideline range of 188-235 months imprisonment. (Doc. 39, PSR ¶ 110). Parks states that without the career offender enhancement, his offense level would be 30 and his criminal history a category V, resulting in an advisory guideline range of 151-188 months. If the court grants Parks a three level departure for acceptance of responsibility, his advisory guideline would be a total offense level of 27, a criminal history category V, and an advisory guideline range of 120-150 months.

         Thus, Parks indicates that his total exposure to prison time would be significantly reduced if he is not sentenced as a career offender, i.e., from a guideline range of 188-235 months to a guideline range of 120-150 months. No doubt, to qualify as a career offender, one of Parks' instant offenses must be a crime of violence and he must have two prior felony convictions for either a crime of violence or a controlled substance offense under USSG §4B1.1(a). Relying on Johnson v. United States, __ U.S. __, 135 S.Ct. 2551 (2015), Parks contends that none of his instant offenses qualify as a crime of violence and that his two prior convictions do not qualify as crimes of violence. As such, he maintains that he should not be sentenced as a career offender.

         II. DISCUSSION

         Parks' sentencing guideline range was calculated in the PSR based on the 2015 Guidelines Manual as well as the August 1, 2016 amendments, including §4B1.2(a) (Aug. 1, 2016). (PSR ¶ 18). Parks' advisory guideline range in the PSR was enhanced based on the finding that he was a career offender. Parks contends that insofar as the PSR finds that the above stated offenses qualify as crimes of violence under the 2016 amended list of enumerated offenses, it violates the Ex Post Facto Clause. Parks points out that “[r]obbery was not an enumerated offense within the text of the guideline prior to the 2016 amendments when [his] offenses were committed” and that “[a]t that time, robbery appeared only in the commentary [of the guidelines].” (Doc. 46 at 5). The government does not disagree with Parks' ex post facto argument but it contends that “it makes no practical difference whether the court applies the version of USSG §4B1.2 in effect from February through July 2015 when Parks committed the [instant] bank robberies [], or the new amended version of the guidelines effective August 1, 2016.” The government states that both versions specifically enumerate robbery as a crime of violence albeit that in the 2015 version robbery was enumerated in the commentary to the guideline and in the August 2016 version robbery is specifically listed in the text of the guideline.[2] (Doc. 50 at 3).

         The August 1, 2016 amended §4B1.2(a) will not be utilized in this case, out of an abundance of caution, in light of his ex post facto claim. There is no question that the amended guideline was effective on August 1, 2016 which was after Parks committed the instant offenses but prior to his sentencing. As the court recently noted in U.S. v. Lewis, 2017 WL 368088, *2 n. 1 (E.D.Pa. Jan. 25, 2017), “[t]he Court need not resolve [the] dispute [of whether the 2016 version of the guidelines should be used, or whether the Ex Post Facto Clause requires the use of the guidelines in effect at the time the offenses were committed in 2015] because it finds that aggravated assault is a crime of violence under the elements clause, §4B1.2(a)(1), which is identical in both versions of the guidelines.” As discussed below, this court finds that Parks' federal bank robbery convictions and his Connecticut first degree robbery conviction are crimes of violence under the elements clause of §4B1.2(a)(1) which is the same in the 2015 and 2016 versions of the guidelines.

         In the alternative, the court agrees that in Parks' case it will not make any difference as to which version of the guidelines is used since the term crime of violence in the 2015 version of §4B1.2(a) included robbery as an enumerated offense in the commentary and the commentary can be used to determine robbery is a crime of violence. As the court succinctly explained in U.S. v. Graves, 2016 WL 5934206, *3 (M.D.Pa. Oct. 12, 2016):

Here, we agree with the Government and find that an application of either version of the Guideline (former or [Aug. 1, 2016]) does not result in a higher Guideline range for Defendant. [U]nder either version of the Guideline, we would analyze Defendant's prior convictions for North Carolina common law robbery as an enumerated offense. Although the amended text makes this analysis clearer by listing robbery in the Guideline's text, the inclusion of robbery as an offense in the commentary of the former Guideline results in the same analysis under Third Circuit precedent. Therefore, it makes little difference which version of the Guideline we should apply in this case. Nonetheless, to avoid any Ex Post Facto Clause issues, we analyze Defendant's prior convictions under the former text of U.S.S.G. §4B1.2.

         Thus, as in Graves, the court will analyze Parks' instant robbery offense as well as his 1991 federal robbery conviction and his 2004 Connecticut first degree robbery conviction under the 2015 version of §4B1.2. As discussed below, the court finds that robbery is a crime of violence under the elements clause of the 2015 version of §4B1.2 and that this version of the guidelines included robbery in the commentary and was not an application of the residual clause standard.

         Parks contends that “[f]ollowing the elimination of the residual clause [in the ACCA] by Johnson v. United States, 135 S.Ct. 2551 (2015), robbery which was listed only in the commentary to the guideline and must have been interpretive of the residual clause is not a crime of violence.” Parks states that in response to Johnson, the Sentencing Commission decided to amend §4B1.2 in 2016 and move the crime of robbery along with other offenses from the commentary and list them in the guideline's text demonstrating that “the position of robbery in the commentary was in fact dependant upon the residual clause.” (Doc. 46 at 5). Parks points out that the career criminal residual clause as contained in the former version of §4B1.2(a)(2) is identical to the residual clause of the Armed Career Criminal Act (“ACCA”) contained in 18 U.S.C. §924(e)(2)(B)(ii) which the Supreme Court in Johnson found was unconstitutionally vague. The Johnson Court also found that a sentence increased under the residual clause of the ACCA violated due process.

         Recently, the court in United States v. Goode, 2016 WL 48211, *1 (E.D.Pa. Jan. 5, 2016), discussed the Johnson case and stated:

In Johnson, the Supreme Court held that a portion of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. §924(e)(2)(B)(ii), was unconstitutionally vague. 135 S.Ct. at 2563. The ACCA allows for enhanced sentencing for criminal defendants who have at least three previous convictions for a “violent felony” or “serious drug offense.” The defendant in Johnson had a qualifying previous conviction for the possession of a sawed-off shotgun that had a barrel shorter than allowed by law. Id. at 2556. The government claimed that this conviction was a violent felony because it fell under the residual clause of the ACCA's definition of violent felony. Id. The residual clause defined violent felony as one that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. §924(e)(2)(B)(ii). The Supreme Court held “that imposing an increased sentence under the residual clause of the ACCA violates the Constitution's guarantee of due process. Johnson, 135 S.Ct. at 2563. The residual clause violates due process because the clause is unconstitutionally vague as it “denies fair notice to defendants and invites arbitrary enforcement by judges.” Id. at 2557. However, the Court limited its holding by stating: “Today's decision does not call into question application of the Act [ACCA] to the four enumerated offenses, or the remainder of the Act's definition of a violent felony.” Id. at 2563.

         At issue here is whether the effect of Johnson on the guideline's residual clause of §4B1.2(a) precludes Parks from being sentenced as a career offender.

         The term “crime of violence” in the 2015 version of §4B1.2(a) was an offense that:

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another [“elements” clause or “force” clause], or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives [“enumerated offenses” clause], or otherwise involves conduct that presents a serious potential risk of physical injury to another [“residual” clause].

U.S. v. Dublin, 629 Fed.Appx. 448, 451 (3d Cir. 2015). “In Johnson, the Supreme Court struck down the so-called residual clause of this definition [of the ACCA]-‘or otherwise involves conduct that presents a serious potential risk of physical injury to another'-as void for vagueness.” Id. (citing Johnson, 135 S.Ct. at 2563). In particular, Johnson held that the residual clause of the ACCA definition of crime of violence, which was the same as the residual clause of §4B1.2(a), was unconstitutionally vague. As the government points out, (Doc. 50 at 4), Johnson did not disturb the other parts of the ACCA, including “the ACCA's other two means of determining whether a potential predicate crime is a crime of violence: namely, the ‘elements' clause at 924(e)(2)(B)(I) dealing with the use or threatened use of force, and the ‘enumerated offense' clause at 924(e)(2)(B)(ii).” See also Dublin, 629 Fed.Appx. at 451. Following Johnson, “[t]he 2016 amendment to U.S.S.G. §4B1.2(a) [] eliminated the Guideline's former residual clause.” Graves, 2016 WL 5934206, *2.

         Thus, an issue raised in this case is whether the Supreme Court's decision in Johnson invalidating the “residual clause” of the ACCA's definition of a crime of violence should also apply with respect to the U.S.S.G.'s definition of a crime of violence under the career offender guideline, §4B1.2.[3] The definition of crimes of violence in the U.S.S.G. includes a residual clause identical to that in ACCA. Both the defendant and the government acknowledge that on June 27, 2016, the Supreme Court granted certiorari in Beckles v. U.S., No. 15-8544, __ U.S. __, 136 S.Ct. 2510, 2016 WL 1029080 (Jun. 27, 2016), to decide, in part, whether the Johnson decision applies to the residual clause of §4B1.2(a)(2) of the U.S.S.G. and if so, whether it should apply retroactively to cases on collateral review.[4]

         No doubt that after Johnson, the Third Circuit in U.S. v. Calabretta, 831 F.3d 128, 136 (3d Cir. 2016), held that the residual clause of the career offender guideline in §4B1.2 was unconstitutionally vague. See Steiner, 2017 WL 437657, *13 n. 83. As in Graves, the court does not agree with the government, (Doc. 50 at 5), that “Calabretta is clearly distinguishable from the instant case.” The Graves Court explained, “[t]he Third Circuit's holding in Calabretta was not limited to an as-applied challenge to the convictions of ‘Death by Auto' or ‘Eluding in the Second Degree' at issue in that case, but rather unequivocally stated that ‘the ‘residual clause' in §4B1.2 of the Guidelines is unconstitutionally vague.'” 2016 WL 5934205, *3 (citing Calabretta 831 F.3d at 133-34); Steiner, supra.

         Robbery was an enumerated offense constituting a “crime of violence” under U.S.S.G. §4B1.2 in effect in 2015 within the commentary to the career offender guideline. See Graves, 2016 WL 5934205, *6 (“robbery was listed in Application Note 1 of the commentary to the Guideline”) (citing U.S.S.G. §4B1.2 cmt. 1 (2015)). The court agrees with the government, (Doc. 50 at 6), that “[n]o person of reasonable intelligence could possibly misinterpret the commentary to U.S.S.G. §4B1.2 and not know that prior robbery convictions would subject him to an advisory guideline range enhancement.” Based on Stinson v. U.S., 508 U.S. 36 (1993), the court will rely upon the commentary to the career offender guideline to determine whether Parks' robbery offenses are included in the definition of “crime of violence.” Specifically, in Stinson, 508 U.S. at 38, the Supreme Court held that “commentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.” The government notes, (Doc. 50 at 7 n. 2), that the Sentencing Commission stated in the commentary to the 2016 amendment to §4B1.2(a)(2) (2016) at page 5 that “[a]s has always been the case, such [enumerated] offenses qualify as crimes of violence regardless of whether the offense expressly has as an element the use, attempted use, or threatened use of physical force against the person of another.” “The commentary [to U.S.S.G. §4B1.2(a)(2) (2015)] did not indicate that the enumerated offenses qualified as crimes of violence only under the residual clause” and “that the Commission intended the enumerated offenses to qualify as crimes of violence under the Guidelines without determining whether each offense satisfied a discrete portion of §4B1.2(a)'s definition.” (Doc. 50 at 8-9). As the court stated in Graves, 2016 WL 5934205, *6, “the commentary unambiguously states that it is interpreting the phrase ‘crime of violence' under §4B1.2(a).” See also U.S. v. Marrero, 743 F.3d 389, 397 (3d Cir. 2014). The Graves Court recognized the circuit split on the issue but stated that it would “follow the Third Circuit's approach in Marrero, which ‘reaffirm[ed] that offenses listed in Application Note 1 are ‘enumerated' for purposes of the crime-of-violence analysis.'” Id. at *7 (citing Marrero, 743 F.3d at 399). As such, the court concurs with the Graves Court which held an offense can “constitute a ‘crime of violence' under the enumerated offenses clause, even though the enumerated offense is listed in the commentary and not the text of the Guideline.” Id. at *7 (citing Marrero, 743 F.3d at 399); see also U.S. v. Knight, 2016 WL 223701, *2 (D.N.J. Jan. 19, 2016) (“Application Note 1 of U.S.S.G. § 4B1.2 provides in relevant part that ‘crime of violence' also encompasses certain enumerated offenses, including ‘murder, manslaughter, kidnaping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling.'” U.S.S.G. §4B1.2, cmt. n. 1 (i.e., the “enumerated offenses”).

         The court does not agree with Parks who contends that the commentary was interpretive of the residual clause and that “robbery in the commentary was in fact dependent upon the residual clause.” (Doc. 46 at 5). In short, the court agrees that “the enumerated list of offenses in the commentary did not merely construe the former residual clause, but provided an independent explanation of the term ‘crimes of violence.'” (Doc. 50 at 11).

         Thus, the court will rely upon the commentary to U.S.S.G. §4B1.2 in effect in 2015, but not upon the residual clause of §4B1.2, for its determination that all of Parks' robbery convictions qualify as enumerated offenses. See Graves, 2016 WL 5934205, *3, *5 (court held that defendant's two prior convictions for North Carolina common law robbery did not constitute crimes of violence under the residual clause “because the clause is unconstitutional under Calabretta” but it held that defendant's prior convictions constituted “crimes of violence under the enumerated ...


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