Opinion
2:12-cr-241-01 WBS
10-10-2023
UNITED STATES OF AMERICA, Plaintiff, v. RAYMELL LAMAR EASON, Defendant.
ORDER
WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE
Defendant Raymell Lamar Eason has filed a motion for relief under 28 U.S.C. § 2255. (Docket No. 142.) Defendant pled guilty to violations of 18 U.S.C. § 1951(a), conspiracy to interfere with commerce by robbery, and 18 U.S.C. §§ 1951(a) and 2, interference with commerce by attempted robbery and aiding and abetting. (Docket No. 34.) Defendant was sentenced to 210 months. (Docket NO. 63.)
I. Crime of Violence
Defendant's first argument is that he is entitled to resentencing based on the Supreme Court's decision in United States v. Taylor, 142 S.Ct. 2015 (2022). In Taylor, the court found that attempted Hobbes Act robbery under 18 U.S.C. § 1951(a) is not a “crime of violence” under 18 U.S.C. § 924(c), which authorizes enhanced sentences for crimes involving the use of a firearm in connection with a crime of violence. Defendant appears to contend that this court sentenced him based on a finding that his crime was a crime of violence, contrary to Taylor.
Specifically, the Supreme Court held in Taylor that attempted Hobbes Act robbery is not a crime of violence because “no element of attempted Hobbes Act robbery requires proof that the defendant use, attempted to use, or threatened to use force.” 142 S.Ct. at 2021.
As an initial matter, there is no doubt that the conduct of defendant in this case was violent. The defendant tazed an armored car guard in a “cold calculated robbery” attempt. (Sentencing Tr. at 10 (Docket No. 149.) However, this court did not find that the offenses at issue were “crimes of violence” under 18 U.S.C. § 924(c), which would have allowed a sentencing enhancement. Defendant was not charged under 18 U.S.C. § 924(c), and the court did not consider that statute at sentencing.
The court acknowledges that the presentence report, which the court adopted, found that defendant was a career offender, and the career offender guideline, U.S.S.G. § 4B1.1(a)(2), requires that “the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense.” See U.S.S.G. § 4B1.1(a)(2). It is questionable whether defendant's convictions for conspiracy to interfere with commerce by robbery and interference with commerce by attempted robbery and aiding and abetting are “crimes of violence” under the career offender guideline, in light of Taylor.
However, the presentence report's determination that defendant was a career offender had no effect on his Guidelines range or the ultimate sentence. The PSR found that defendant had a criminal history category of VI based on his extensive criminal history, and noted that this category remained VI after finding he was a career offender. (Docket No. 54 at 9-12.) Defendant's career offender status also had no effect on the PSR's prior calculation that defendant's adjusted offense level was 33 and total offense level was 30 after a 3-level reduction for acceptance of responsibility. (Docket No. 54 at 9.)
The court ultimately adopted the PSR's determination that the criminal history category was VI and the total offense level was 30. (Sentencing Tr. 9.) The court also adopted the parties' stipulated guidelines range of 224 to 240 months for the offenses in this case in combination with defendant's supervised release violation in Case 2:02-cr-241 WBS, and sentenced defendant to 210 months in Case No. 2:12-cr-241 and 14 months in Case No. 2:02-cr-449 WBS. (Id. at 12-15; see also Docket No. 60.) Ultimately, because defendant's career offender status had no effect on his sentencing range under the Guidelines nor on his eventual sentence, the Supreme Court's pronouncements regarding attempted Hobbes Act robbery in Taylor do not require resentencing in this case.
Because the court determines that the PSR's finding that defendant was a career offender had no effect on his Guidelines range or sentence, it need not decide whether attempted Hobbes Act robbery is a crime of violence under the career offender guideline. However, even assuming that defendant was not a career offender under § 4B1.1 in light of Taylor, the court would not change the sentence imposed in this case.
II. Physical Restraint Enhancement
Defendant's second argument is that he should not have received a two-point enhancement to his offense level for physical restraint of a victim under U.S.S.G. § 2B3.1(b)(4)(B). He contends that the Sentencing Guidelines define physical restraint as “being tied, bound, or locked u. [sic],” because “[t]he use of a Tasser [sic] is dissimilar than [sic] having been tied or bound.” (Docket No. 142 at 5.)
Defendant's counsel raised a similar objection to the draft presentence report (see Docket No. 54-2), but withdrew this objection at sentencing (see Docket No. 149 at 8).
However, as explained by United States v. Foppe, 993 F.2d 1444 (9th Cir. 1993), the application note 1 of § 2B3.1 states that “‘[p]hysically restrained' means the forcible restraint of the victim such as by being tied, bound, or locked up,” and “[t]he use of the phrase ‘such as' makes it clear that ‘being tied, bound, or locked up' are merely illustrative examples of physical restraint.” Id. at 1452 (citing United States v. Doubet, 969 F.2d 341, 346 (7th Cir. 1992). The Foppe panel further held that “[t]he Guidelines do not distinguish between long and short-term restraint,” and restraint is defined as “(1) the act of holding back from some activity or (2) by means of force, an act that checks free activity or otherwise controls.” Id. The panel also stated that “‘[f]orcible' means effected by the use of force.” Id. at 1452-53. In other words, the physical restraint enhancement encompasses conduct much broader than the comment's examples of being tied, bound, or locked up.
Here, under the Foppe decision, using a Taser on an armored car guard in an attempt to subdue him as part of an attempted robbery, as defendant did, is clearly forcible restraint under the Guidelines. Accordingly, the court did not err in applying this enhancement.
For the foregoing reasons, defendant Eason's motion for relief under 28 U.S.C. § 2255 (Docket No. 142) is DENIED.
Because the court finds that defendant's arguments fail on the merits, it does not address the government's contentions that his claims are time-barred or waived.
IT IS SO ORDERED.