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United States v. AMA

United States District Court, D. Utah

March 1, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
PAUL AMA, Defendant.

          MEMORANDUM DECISION AND ORDER OVERRULING DEFENDANT'S OBJECTIONS TO POST-JOHNSON RESENTENCING REPORT

          Ted Stewart United States District Judge.

         This 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.

         I. BACKGROUND

         On 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.

         On 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.[1] 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 ACCA.[2]

         On 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.[3]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.[4] The Court of Appeals, however, did not consider whether Defendant's other convictions were violent felonies under the ACCA.[5]

         The 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.

         II. DISCUSSION

         Defendant argues that his prior convictions for assault by a prisoner and attempted robbery should not be considered crimes of violence.

         A. ASSAULT BY A PRISONER

         The 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.”[6] The Court notes Defendant's objections, but concludes that Defendant's conviction is properly classified as a crime of violence under the Guidelines.[7]

         B. ATTEMPTED ROBBERY

         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.[8]

         In 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.[9] The court reached this conclusion based on the language of the Hobbs Act.

         The 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 ...

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