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United States v. Patchell

United States District Court, D. Oregon, Eugene Division

March 19, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
LUCIAN MOON PATCHELL, Defendant.

          OPINION AND ORDER

          Ann Aiken United States District Judge

         Defendant, Lucian Patchell Moon, disputes that he should be sentenced as a career offender pursuant to United States Sentencing Guidelines ("U.S, S.G") § 2K2.1. At issue is whether defendant's prior conviction for Oregon Robbery II, pursuant to Oregon Revised Statue ("O.R.S.") § 164, 405 qualifies as a predicate offense under the career offender provision. For the reasons set for herein, I conclude that Oregon Robbery II is a qualifying crime of violence under the career offender provision of the Sentencing Guidelines.

         BACKGROUND

         On March 18, 2015, a federal grand jury returned a two-count Indictment (doc. 1) against defendant for violations of 18 U.S, C. § 2113(a), based on bank robberies which occurred on February 6, 2015 and February 26, 2015.[1] On August 16, 2017, defendant pleaded guilty to Counts 1 and 2 of the Indictment (doc. 36) pursuant to a Rule 11(c)(1)(B) plea agreement. Defendant filed objections to the Presentence Investigation Report ("PSR") disputing the recommendation of the U.S. Probation Office and U.S. Attorney Office that he be sentenced under the career offender guideline. I heard oral argument on January 10, 2018. Defendant was sentenced on February 21, 2018, At sentencing, I held that Oregon Robbery II qualified as a predicate offense under the elements clause of the Career Offender Guideline U.S.S.G. § 2K2.1. I found that the Total Offense Level was 29 and that defendant had a Criminal History Category of VI. This produced an Advisory Guideline Range of 151 to 188 months imprisonment. Pursuant to the sentencing factors found in 18 U.S.C. § 3553, 1 sentenced defendant to a term of 120 months imprisonment on Count 1 to run concurrently with a 120 month term of imprisonment for Count 2, with a three year term of supervised release to follow. This written opinion further explains my reasoning as to the guideline arguments presented by the parties.

         LEGAL STANDARD

         Federal firearms defendants are subject to enhanced Sentencing Guidelines ranges when they commit a firearm offense after sustaining one or more felony convictions of a crime of violence. United States v. Park, 649 F.3d 1175, 1177 (9th Cir. 2011) (quoting U.S.S.G. § 2K2.l(a)). To determine whether a prior offense is a "crime of violence, " the Application Notes to § 2K2.1 refer to the meaning given that term in U.S.S.G. § 4B 1.2(a) and Application Note 1 of the Commentary to § 4B1.2. Section 4B 1.2(a), which is otherwise known as the "career offender provision, " provides that:

         The term of 'crime of violence' means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that-

(1) has as 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).

U.S.S.G. § 4B1.2

         A person commits the crime of robbery in the second degree if the person violates O.R, S. § 164, 395 (robbery in the third degree) and the person:

(a) Represents by word or conduct that the person is armed with what purports to be a dangerous or deadly weapon; or
(b) Is aided by another person actually present.

O.R.S. § 164.405.

         A person commits the crime of robbery in the third degree if in the course of committing or attempting to commit theft or unauthorized use of a vehicle as defined in O.R.S. 164.135 the person uses or threatens the immediate use of physical force upon another person with the intent of:

(a) Preventing or overcoming resistance to the taking of the property or to retention thereof immediately after the taking; or
(b) Compelling the owner of such property or another person to deliver the property or to engage in other conduct which might aid in the commission of the theft or unauthorized use of a vehicle.

O.R.S. ยง ...


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