United States District Court, D. Maine
ORDER ON GOVERNMENT'S OBJECTION TO PRESENTENCE
LEVY U.S. DISTRICT JUDGE.
Kourtney Williams was convicted by a jury of conspiracy to
commit Hobbs Act Robbery, possession of a firearm by a felon,
and using a firearm during and in relation to a drug
trafficking crime or crime of violence. The Third Revised
Presentence Investigation Report (“PSR”) filed by
the Probation Office concluded that Williams does not qualify
as a “career offender” under § 4B1.1 of the
United States Sentencing Guidelines Manual. The Government
objects, arguing that Williams has two prior convictions for
crimes of violence, and therefore qualifies as a career
offender under § 4B1.1. For the reasons that follow, I
find that Williams qualifies as a career offender under the
Sentencing Guideline Edition
parties disagree as to which edition of the Sentencing
Guidelines Manual applies in this case. The Guidelines
themselves provide that the Court should use the Guidelines
Manual in effect on the date that the defendant is sentenced,
unless doing so would violate the ex post facto
clause of the Constitution. U.S. Sentencing Guidelines Manual
§ 1B1.11(a), (b)(1) (U.S. Sentencing Comm'n 2016).
Williams does not explain why use of the 2016 edition of the
Guidelines-which will be the edition in effect on his
sentencing date-would violate the ex post facto
United States Sentencing Commission revised the definition of
“crime of violence” in the 2016 edition of the
Guidelines, removing the so-called “residual
clause” and expanding the list of enumerated offenses
that qualify as crimes of violence. See United States v.
Childers, 2017 WL 2559858, *6 (D. Me. June 13, 2017). As
another judge in this District recently recognized, however,
the Supreme Court's decision in Beckles v. United
States, 137 S.Ct. 886, 890 (2017), obviated any ex
post facto concerns arising out of the changed
definition of “crime of violence” by holding that
the residual clause in the Sentencing Guidelines is not
subject to vagueness challenges under the Due Process Clause.
See Childers, 2017 WL 2559858, at *6 (Woodcock, J.).
Before Beckles was decided, the First Circuit held
in United States v. Fields, 822 F.3d 20, 33 (1st
Cir. 2016), that Application Note 1 to U.S.S.G. § 4B1.2
could not be applied because the section's residual
clause was unconstitutional based on the Supreme Court's
conclusion in Johnson v. United States, 135 S.Ct.
2251 (2015), that the analogous residual clause of the Armed
Career Criminal Act was unconstitutionally vague. Because
Beckles effectively overrules Fields,
Application Note 1 can again be applied by Courts using the
Guidelines. See Childers, 2017 WL 2559858, at *6.
Because Application Note 1 enumerates many of the same
offenses- including robbery-that are now enumerated in the
text of the provision, the analysis of a “crime of
violence” is the same under the 2016 edition of the
Guidelines as under previous editions, and there is no ex
post facto concern. See Id. I will therefore
apply the 2016 edition of the Guidelines in this case.
Career Offender Guideline
2016 version of the Sentencing Guidelines provides:
A defendant is a career offender if (1) the defendant was at
least eighteen years old at the time the defendant committed
the instant offense of conviction; (2) the instant offense of
conviction is a felony that is either a crime of violence or
a controlled substance offense; and (3) the defendant has at
least two prior felony convictions of either a crime of
violence or a controlled substance offense.
U.S. Sentencing Guidelines Manual § 4B1.1(a) (U.S.
Sentencing Comm'n 2016).
4B1.2 of the Guidelines defines “crime of
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 ...