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United States v. Richardson

United States District Court, D. Colorado

November 8, 2016

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
DERRICK DESEAN RICHARDSON, Defendant-Movant. Criminal No. 13-cr-353-WJM

          ORDER DENYING DEFENDANT'S MOTION TO VACATE UNDER 28 U.S.C. § 2255

          William J. Martinez, Judge

         Before the Court is Defendant Derrick Richardson's Motion to Vacate Under 28 U.S.C. § 2255. (ECF No. 44.) For the reasons explained below, the Court finds that Richardson's sentence should not have been calculated under the assumption that his prior conviction for attempted robbery was a crime of violence. However, the Court finds this error to be harmless because Richardson also has a prior conviction for use of a stun gun, which qualifies as a crime of violence. Thus, Richardson's motion is denied.

         I. BACKGROUND

         A. Richardson's Sentence

         In August 2013, the Government indicted Richardson on one count of being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). (ECF No. 2.) In December of the same year, Richardson pleaded guilty to that count. (ECF No. 20.) The Probation Office then prepared a Presentence Investigation Report ("PSIR").

         The criminal history portion of Richardson's PSIR noted a prior Colorado state-court conviction for attempted robbery, and for use of a stun gun (specifically, a taser that Richardson discharged in the course of the attempted robbery). (ECF No. 22 ¶ 36.) The attempted robbery conviction-but not the stun gun conviction-became part of the basis for the PSIR's conclusion that Richardson's base offense level was 22. (Id. ¶ 17.) Specifically, the PSIR invoked United States Sentencing Guidelines ("U.S.S.G." or "Guidelines") § 2K2.1(a)(3), which specifies a base offense level of 22 where two conditions are met: first, "the offense [for which the defendant is now being sentenced] involved a (i) semiautomatic firearm that is capable of accepting a large capacity magazine; or (ii) firearm that is described in 26 U.S.C. § 5845(a)"; and second, "the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense."[1] The PSIR found that the handgun Richardson possessed as a felon was a semiautomatic firearm capable of accepting a large capacity magazine, thus satisfying the first condition. (ECF No. 22 ¶ 17.) The PSIR found Richardson's attempted robbery conviction was a crime of violence, thus satisfying the second condition. (Id.)[2]

         Richardson never objected to the PSIR's classification of attempted robbery as a crime of violence. The Government, for its part, never argued that Richardson's stun gun conviction should also be counted as a crime of violence for sentencing purposes, in addition to the attempted robbery conviction.

         Richardson did object, however, to the PSIR's analysis of the first condition in § 2K2.1(a)(3), claiming a lack of evidence that the gun he possessed was capable of accepting a large capacity magazine. (ECF No. 28 at 1-2.) Richardson also objected that the large capacity magazine enhancement has no rational or empirical basis and therefore § 2K2.1(a)(3) should be entirely disregarded. (ECF No. 34.) Thus, he argued, his base offense level should have been 20, as directed by § 2K2.1(a)(4), which requires only a prior conviction for a crime a violence (i.e., his attempted robbery conviction). (Id. at 2.)

         At the sentencing hearing, the Court agreed with Richardson's argument that § 2K2.1(a)(3) should be disregarded for lack of empirical grounding. (See ECF No. 43 at 9.) The Court therefore accepted a base offense level of 20, per § 2K2.1(a)(4). After various other adjustments, the Court found an offense level of 19 and a criminal history within Category V, yielding a Guidelines range of 57-71 months. See United States Sentencing Commission, Guidelines Manual 395 (2013). The Court granted a 7-month downward variance based on certain criminal history considerations, and ultimately sentenced Richardson to 50 months' incarceration. (ECF No. 43 at 2.) Richardson did not appeal.

         B. Johnson and Welch

         On June 26, 2015, the Supreme Court decided Johnson v. United States, 135 S.Ct. 2551 (2015).[3] Johnson examined the Armed Career Criminal Act ("ACCA"), which mandates a 15-year minimum sentence for anyone convicted of felon-in-possession who "has three previous convictions ... for a violent felony." 18 U.S.C. § 924(e)(1). Specifically at issue in Johnson was the ACCA's definition of "violent felony":

any crime punishable by imprisonment for a term exceeding one year... if committed by an adult, that-
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another []

Id. § 924(e)(2)(B) (emphasis added).

         The italicized phrase in clause (ii) is commonly known as the "residual clause, " while clause (i) is sometimes known as the "elements clause." All parties in Johnson agreed that whether the defendant, Samuel Johnson, qualified for the mandatory 15-year minimum sentence turned on whether his prior state-law conviction for unlawful possession of a short-barreled shotgun fell within the residual clause. Johnson, 135 S.

         Ct. at 2556. The Supreme Court held, however, that the residual clause was unconstitutional: "We are convinced that the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges. Increasing a defendant's sentence under the clause denies due process of law." Id. at 2557.

         On April 18, 2016, the Supreme Court decided Welch v. United States, 136 S.Ct. 1257 (2016). Welch held that Johnson announced a "substantive" change in the criminal law and therefore applies retroactively to prisoners who had received the ACCA mandatory minimum sentences on account of an offense that was deemed a "violent felony" due to the residual clause. Id. at 1265. Thus, via 28 U.S.C. § 2255, those prisoners could collaterally challenge their sentences as unconstitutional.

         C. Richardson's Petition

         Richardson was not sentenced under the ACCA. However, his base offense level was calculated with reference to Guidelines language that is nearly identical to the ACCA's definition of "violent felony." Specifically, Guidelines § 2K2.1(a)(4)(A) establishes a base offense level of 20 for offenders who have previously committed a "crime of violence, " which is defined by cross-reference to § 4B1.2(a). See U.S.S.G. § 2K2.1, Application Note 1. Section 4B1.2(a), in turn, provided the following definition of "crime of violence":[4]

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 ...

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