United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER OVERRULING
DEFENDANT'S OBJECTIONS TO POST-JOHNSON RESENTENCING
Stewart United States District Judge.
matter is before the Court for consideration of
Defendant's objections to the Post-Johnson
Resentencing Report. For the reasons discussed below, the
Court will overrule the objections.
January 19, 2011, Defendant was charged with possession of
methamphetamine with intent to distribute, possession of
marijuana with intent to distribute, and felon in possession
of a firearm. On March 18, 2011, the government filed an
Information and Notice of Enhanced Punishment pursuant to 18
U.S.C. § 924(e)(1) and 21 U.S.C. § 841(b). The
government asserted that Defendant was subject to enhanced
penalties under the Armed Career Criminal Act
(“ACCA”) based on his previous convictions for
assault on a federal officer or employee, assault by a
prisoner, and attempted robbery. On December 8, 2011,
Defendant pleaded guilty to felon in possession of a firearm.
On March 6, 2012, Defendant was sentenced, pursuant to
Federal Rule of Criminal Procedure 11(c)(1)(C), to a term of
180 months in the custody of the Bureau of Prisons.
October 13, 2015, Defendant filed a pro se motion under 28
U.S.C. § 2255, arguing that his sentence was unlawful in
light of Johnson v. United States. The Court denied
Defendant's motion, finding that it was untimely and
barred by the collateral appeal waiver in his plea agreement.
Defendant, through counsel, sought to alter or amend the
judgment. The Court granted the motion in part, but
ultimately concluded that Defendant had three prior
convictions for violent felonies under the
Appeal, the Tenth Circuit Court of Appeals concluded that
Defendant's prior conviction for assault on a federal
officer did not qualify as a violent felony under the
ACCA.Accordingly, the court of appeals remanded
the case to this Court with instructions to vacate
Defendant's sentence and resentence him consistent with
that opinion and the statutory maximum sentence of ten
years. The Court of Appeals, however, did not
consider whether Defendant's other convictions were
violent felonies under the ACCA.
Court vacated Defendant's sentencing and a resentencing
report was ordered. The Post-Johnson Resentencing
Report placed Defendant's base offense level at ¶ 24
based on Defendant committing the instant offense subsequent
to sustaining at least two felony convictions of a crime of
violence based on his convictions for assault by a prisoner
and attempted robbery. After receiving a 2-level enhancement
for the firearm being stolen and a 3-level reduction for
acceptance of responsibility, Defendant has a total offense
level of 23. With a criminal history category of VI, the
Post-Johnson Resentencing Report determined that
Defendant's guideline range is 92 to 115 months.
argues that his prior convictions for assault by a prisoner
and attempted robbery should not be considered crimes of
ASSAULT BY A PRISONER
Court previously determined that Defendant's 1992 assault
by a prisoner was a violent felony under the ACCA. Defendant
does not provide any reason for the Court to revisit this
determination, but instead “renews his objection only
to preserve the issue for further
appeal.” The Court notes Defendant's
objections, but concludes that Defendant's conviction is
properly classified as a crime of violence under the
Court also previously determined that Defendant's 2000
conviction for attempted robbery was a violent felony under
the ACCA. Defendant argues that this conclusion cannot stand
in light of a recent decision from the Tenth Circuit,
United States v. O'Connor.
O'Connor, the Tenth Circuit held that Hobbs Act
robbery does not constitute a crime of violence because it
could be accomplished by threats to property. The court reached
this conclusion based on the language of the Hobbs Act.
Hobbs Act states:
Whoever in any way or degree obstructs, delays, or affects
commerce or the movement of any article or commodity in
commerce, by robbery or extortion or attempts or conspires so
to do, or commits or threatens physical violence to any
person or property in furtherance of a plan or purpose to do
anything in violation of this section shall be ...