Opinion
Case No. 93-40034-01-RDR.
May 21, 2001
O R D E R
This order is issued to record the court's rulings during a hearing at which defendant's sentence was modified and corrected.
History
Defendant has pleaded guilty to armed robbery of the Sante Fe Credit Union in violation of 18 U.S.C. § 2113(d) (Count two), and felon in possession of a firearm in violation of 18 U.S.C. § 924(e) (Count four). In return for the plea of guilty, an armed bank robbery charge (Count one) and another felon in possession of a firearm charge (Count three) were dismissed at the time of sentencing. A sentencing information filed on the date of the plea (December 23, 1993) stated that pursuant to 18 U.S.C. § 924(e), defendant was subject to enhanced penalties for having committed three prior violent felonies: bank robbery (conviction 11/8/84); robbery (conviction 5/15/83); and aggravated battery (conviction 8/20/80). It should be remembered, though, that defendant was subject to sentencing under the career criminal provisions of the United States Sentencing Guidelines regardless of the sentencing information.
After his plea of guilty, defendant asked for new counsel; this was granted. Defendant also asked to withdraw his plea; this was denied. Defendant was sentenced to two concurrent 300-month terms.
The Tenth Circuit affirmed the conviction and the denial of the motion to withdraw defendant's plea on September 26, 1994. Defendant filed a § 2255 motion in 1995. The court denied the motion which argued ineffective assistance of counsel. The Tenth Circuit affirmed in August 1995.
In 1997, defendant filed a "Request for Hearing and Final Resolution on Pre-Trial Writ of Habeas Corpus." This pleading attempted to raise an issue regarding defendant's arrest in Arizona and eventual transportation to Kansas on the charges in this case. The court found that any issue was waived by defendant's guilty plea.
In 1998, defendant filed a motion to set aside an order of restitution. This motion was denied for lack of jurisdiction. Later in 1998, defendant sought permission from the Tenth Circuit to file a second or successive motion to vacate under § 2255. This was denied. Defendant was attempting to raise an issue regarding the jurisdiction of this court to hear the prosecution of the credit union robbery.
On December 18, 2000, defendant acting pro se filed a motion to correct sentence due to a misapplication of the Sentencing Guidelines. In this motion, defendant invoked the provisions of 18 U.S.C. § 3582. A sentence may be modified upon a motion of a defendant under § 3582(b) only pursuant to the "provisions of subsection (c)" which permits modification based on a "sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o)." This section does not apply here. Defendant has not cited to a sentencing range which has been lowered subsequent to his date of sentencing.
Nevertheless, the court has determined and announced previously that defendant did establish in his motion that a mistake was made in the application of the Sentencing Guidelines to his case. A hearing was set on May 18, 2001 to determine what defendant's sentence should be within the corrected guideline range.
When this court first sentenced defendant, we erroneously used his felon in possession of a firearm charge as a "crime of violence" in determining what defendant's total offense level would be as a career criminal. Under the somewhat complicated provisions of the Guidelines, if defendant qualifies as a career criminal, then his offense level is determined under U.S.S.G. § 4B1.1 with reference to the statutory maximum of the offense of conviction which is a crime of violence. Defendant does qualify for treatment as a career criminal because: he was older than 18 at the time of the offenses; armed robbery is a crime of violence under career criminal guideline provisions; and defendant had at least two prior felony convictions for crimes of violence or controlled substance offenses. See § 4B1.1. However, when determining the offense statutory maximum the court applied the statutory maximum for felon in possession of a firearm, which is life, instead of the statutory maximum for armed robbery of a credit union, which is 25 years. This was incorrect because possession of a firearm as a felon is not a crime of violence under the career criminal provisions. See § 4B1.2, Application Note 1. Accordingly, defendant's offense level should have been 34 instead of 37. Subtracting three points for acceptance of responsibility, defendant's total offense level should have been 31 instead of 34, and his guideline range should have been 188-235 months instead of 262-327 months.
Additional arguments and motions
Defendant, acting pro se, has filed additional objections (Doc. No. 98), a motion to withdraw his plea of guilty (Doc. No. 99), and a motion to dismiss Count 4 (Doc. No. 100). Defendant also addressed the court orally during his resentencing hearing.
Most of the arguments defendant has made address an irrelevant point. Defendant asserts that he did not commit two of the offenses listed in the government's sentencing information. Defendant claims he did not commit aggravated battery in 1980 and that he did not have a robbery conviction in 1983.
However, the sentencing information has had no impact upon defendant's sentence. Defendant's sentence is controlled by a guidelines calculation which has not relied at all upon the sentencing information. Defendant made a comment at the resentencing hearing to the effect that the government was getting a second bite of the apple. This is not correct. To reiterate, defendant's sentence has been controlled by the criminal history information and offense level calculations in the presentence report. The criminal history information filed by the government on December 23, 1993 has had no impact on defendant's sentence.
Defendant appears to argue as well that the court cannot vacate defendant's bank robbery conviction and then use it in the calculations under § 4B1.1. The court has not vacated the bank robbery conviction. There is no reason to vacate the conviction. The court is simply applying the provisions of § 4B1.1 to the facts of this case.
In sum, there are no good grounds to permit defendant to withdraw his plea or to dismiss a count of the indictment. Nor should the guideline range in this case be adjusted below 188 to 235 months.
Result
At the conclusion of the hearing, upon full consideration, the court resentenced defendant to a term of 188 months on Count 2 and 188 months on Count 4 to be served concurrently. The remaining provisions of the defendant's original sentence were carried over to the corrected sentence.
IT IS SO ORDERED.