United States District Court, D. Oregon, Portland Division
ROBERT E JONES, UNITED DISTRICT COMT JUDGE.
2010, defendant Christian Durr (Durr) plead guilty (#26) to
Counts 1 and 7 of the Indictment (# 1). At sentencing, the
parties agreed that Durr's conviction on Count 7
subjected him to a mandatory minimum 15-year sentence under
the Armed Career Criminal Act (ACCA). The parties also agreed
that Durr qualified for an advisory guideline enhancement as
a career offender on Count 1. Ultimately, the parties jointly
recommended and the judge imposed concurrent terms of 180
months imprisonment. While defendant was serving his
sentence, the United States Supreme Court issued a ruling
invalidating the ACCA residual clause. Johnson v. United
States, 135 S.Ct. 2551 (2015). Dun* filed a motion to
vacate or correct his sentence pursuant to 28 U.S.C. §
2255. (# 35) The parties filed a stipulation in which they
agreed that Dun- no longer qualified as an Armed Career
Criminal. Thereafter, pursuant to the parties5 stipulation, I
vacated his previously imposed sentence and ordered Durr be
resentenced. (#44, 45).
resentencing, the government contends that even though Durr
was no longer an Armed Career Criminal, he still qualified as
a career offender under United States Sentencing Guidelines
(U.S.S.G.) § 4B1.1 for puiposes of sentencing on Count
1, Possession with Intent to Distribute Methamphetamine, and
his sentencing guideline range would be 151-180 months. Duit
counters that he no longer qualifies as a career offender
because the state offenses underlying his prior convictions
do not match the applicable federal standards for a
"crime of violence" or a "controlled substance
offense." Thus, his guideline range is controlled by the
Drug Quantity Table in U.S.S.G. § 2D1.1, which produces
a base offense level of 22 and a guideline range of 77-96
months. At the time of resentencing, Duit had been
incarcerated for more than 98 months.
government has the burden to prove that a prior conviction
qualifies as a career offender predicate. United States
v. Lee, 704 F.3d 785, 89 (9th Cir. 2012).
career offender guideline increases a defendant's offense
level if the current offense is a "crime of
violence" or a "controlled substance offense"
and the defendant has already been convicted of committing
two or more such offenses, U.S.S.G § 4B1.1
(2016). Section 4B1.1 of the Guidelines defines
(a) The term "crime of violence" means any offense
under federal or state law, punishable by imprisonment for a
term exceeding one year, that -
(1) Has an element the use, attempted use, or threatened use
of physical force against the person of another, or,
(2) Is murder, voluntary manslaughter, kidnapping, aggravated
assault, a forcible sex offense, robbery arson, extortion, or
the use or unlawful possession of a firearm described in 26
U.S.C. § 5845(a) or explosive material as defined in 18
U.S.C. § 841(c).
(b) The term "controlled substance offense" means
an offense under federal or state law punishable by
imprisonment for a term exceeding one year, that prohibits
the manufacture, import, export, distribution, or dispensing
of a controlled substance (or a counterfeit substance) or the
possession of a controlled substance (or a counterfeit
substance) with intent to manufacture, import, export
distribute, or dispense.
Application Note 1 in the Commentary to § 4B 1.1 states,
"'Crime of violence' and 'controlled
substance offense' include the offenses of.. .attempting
to commit such offenses."
determine whether a prior conviction qualifies as a career
offender predicate, courts apply the three-step
"categorical approach" as set forth in Taylor
v. United States, 495 U.S, 575 (1990), Descamps v.
United States,133 S.Ct. 2276 (2013) and Mathis v.
United States,136 S.Ct. 2243 (2016). First, the court
examines the elements of the state predicate crime to assess
whether the elements of the state crime are the same as or
narrower than the elements of the federal offense. See
United States v. Dixon,805 F.3d 1193, 95
(9th Cir. 2015). If the state crime is a
categorical match, then every conviction under that statute
qualifies as a violent felony predicate. If, however, a
statute criminalizes conduct that goes beyond the elements of
the federal offense, the court proceeds to the second step
and determines whether the statute is divisible or
indivisible. Dixon, 805 F.3d at 1198. If the statute
is indivisible, the inquiry ends because a conviction under
an indivisible, overbroad statute can never serve as a
predicate offense. If the overbroad statute is divisible, the
court proceeds to step three, the modified categorical
approach. At this step, the court examines documents from the
defendant's record of conviction to determine which
elements of the divisible statute he or ...