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United States v. Ball

United States Court of Appeals, First Circuit

August 30, 2017

UNITED STATES OF AMERICA, Appellee,
v.
LONNIE BALL, Defendant, Appellant.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. D. Brock Hornby, U.S. District Judge]

          David R. Beneman, Federal Public Defender, for appellant.

          Margaret D. McGaughey, Assistant United States Attorney, with whom Richard W. Murphy, Acting United States Attorney, and Renée M. Bunker, Assistant United States Attorney, Appellate Chief, were on brief, for appellee.

          Before Lynch, Baldock, [*] and Kayatta, Circuit Judges.

          KAYATTA, CIRCUIT JUDGE.

         Defendant Lonnie Ball challenges the district court's enhancement of his sentence under the career offender guideline based on the court's determination that Ball's prior conviction for Pennsylvania second-degree robbery qualifies as a "crime of violence" as defined in § 4B1.2(a) of the U.S. Sentencing Guidelines Manual (U.S.S.G.) (U.S. Sentencing Comm'n 2015).[1] The parties, operating under the assumption that the so-called "residual clause" of the crime of violence definition was void, trained their arguments on the "force clause" of that definition. When intervening developments in the law put the residual clause back in play, we called for supplemental briefing on whether the robbery offense at issue qualifies as a crime of violence under that clause. Unpersuaded by the position Ball takes in his supplemental submission, we find that it does.

         I.

         On November 16, 2015, Ball pled guilty to a single-count indictment that charged him with unlawfully possessing a firearm in violation of 18 U.S.C. § 922(g)(1). The U.S. Probation Office's presentence report assigned Ball a base offense level of twenty-four, citing one prior conviction that qualified as a "controlled substance offense" and a 2009 conviction for Pennsylvania second-degree robbery under 18 Pa. Cons. Stat. § 3701(a)(1)(iv) that qualified as a "crime of violence." See U.S.S.G. § 2K2.1(a)(2) (applying a base offense level of twenty-four "if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense"). Ball did not dispute that he had been convicted of a controlled substance offense. He challenged, instead, the report's classification of his Pennsylvania robbery conviction as a crime of violence. Pennsylvania defines that offense as "inflict[ing] bodily injury upon another or threaten[ing] another with or intentionally put[ting] him in fear of immediate bodily injury" in the course of committing a theft. 18 Pa. Cons. Stat. § 3701(a)(1)(iv). If Ball is correct that that offense does not fit the guideline's definition of a crime of violence, then the proper base offense level for sentencing purposes would be reduced by four levels. See U.S.S.G. § 2K2.1(a)(4).

         The district court ordered the parties to brief whether that robbery offense qualifies as a crime of violence, a term defined in the 2015 Guidelines Manual as

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 burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

Id. § 4B1.2(a). The district court also heard argument on that question during the sentencing hearing on May 5, 2016. It ultimately decided that the presentence report's designation of the robbery offense as a crime of violence was correct. The district court therefore adopted the report's total offense level of twenty-five, which reflected a base offense level of twenty-four, id. § 2K2.1(a)(2), plus four levels for an obliterated serial number on the firearm Ball possessed, id. § 2K2.1(b)(4)(B), less three levels for acceptance of responsibility, id. § 3E1.1(a)-(b). Had the district court agreed with Ball that the robbery offense did not qualify as a crime of violence, Ball's total offense level would have been twenty-one. See id. § 2K2.1(a)(4).

         The total offense level of twenty-five, together with the recommended criminal history category of VI, yielded a guidelines sentencing range of 110 to 137 months, rather than the range of 77 to 96 months that would have applied using the lower total offense level of twenty-one. Id. ch. 5, pt. A (Sentencing Table). The district court lowered the top of the range from 137 to 120 months on account of the statute's ten-year maximum sentence. See 18 U.S.C. ยงยง 922(g)(1), 924(a)(2). Additionally, because it found that a criminal history category of VI "overrepresent[ed]" Ball's criminal history, the district court granted a departure from category VI to category V, resulting in an adjusted range of 100 to 120 months. ...


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