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United States v. Durr

United States District Court, D. Oregon, Portland Division

September 17, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
Christian Dun-Defendant.

          SENTENCING OPINION

          JUDGE ROBERT E JONES, UNITED DISTRICT COMT JUDGE.

         BACKGROUND

         In 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).

         At 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.

         STANDARD OF REVIEW

         The 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).

         The 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).[1] Section 4B1.1 of the Guidelines defines the terms:

(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."

         To 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 ...


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