United States v. Carr

314 F. Supp. 3d 272
CourtCourt of Appeals for the D.C. Circuit
DecidedJuly 19, 2018
DocketCriminal No. 02-106 (JDB)
StatusPublished
Cited by9 cases

This text of 314 F. Supp. 3d 272 (United States v. Carr) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Carr, 314 F. Supp. 3d 272 (D.C. Cir. 2018).

Opinion

JOHN D. BATES, United States District Judge

In 2003, defendant Brian Carr was sentenced to 262 months' imprisonment following his conviction on five counts of bank robbery in violation of 18 U.S.C. § 2113(a). Carr's sentence was based in part on his status as a career offender under the then-mandatory U.S. Sentencing Guidelines (the "Guidelines"), which provide for an enhanced sentence if, among other things, the defendant has at least two prior felony convictions for a "crime of violence." U.S. Sentencing Guidelines Manual § 4B1.1 (U.S. Sentencing Comm'n 2001) [hereinafter "U.S.S.G."].

*274Carr now moves to vacate, set aside, or correct his sentence, see 28 U.S.C. § 2255, arguing that the portion of the Guidelines that defines the term "crime of violence" to include offenses that "involve[ ] conduct that presents a serious potential risk of physical injury to another," U.S.S.G. § 4B1.2(a)(2), is unconstitutionally vague under Johnson v. United States, --- U.S. ----, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). But the term "crime of violence" also encompasses offenses that "ha[ve] as an element the use, attempted use, or threatened use of physical force against the person of another," U.S.S.G. § 4B1.2(a)(1), and Carr's prior federal bank robbery convictions satisfy this alternative definition. Carr was therefore properly sentenced as a career offender, and his motion will be denied.

BACKGROUND

A. CARR'S CONVICTION, SENTENCE, APPEAL, AND FIRST § 2255 MOTION

Carr was arrested in 2002 after police watched him rob a bank in downtown Washington, D.C. See Feb. 21, 2006 Mem. Op. [ECF No. 56] at 1. He was later connected to a string of bank robberies in the area, and a jury convicted him on five counts of bank robbery in violation of 18 U.S.C. § 2113(a). Id. at 2. At sentencing, the Court applied the career-offender provisions of the then-mandatory Guidelines, which provide a sentencing enhancement for an adult defendant who is convicted of "a crime of violence" and who "has at least two prior felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1.1

Relying on Carr's two prior federal bank robbery convictions, the Court determined that Carr was a career offender and calculated his Guidelines sentencing range to be 210 to 262 months. See Tr. of Sentencing [ECF No. 60] at 6:8-16, 7:4-6.2 Then, citing Carr's extensive criminal history, the Court imposed the maximum sentence within that range. Id. at 20:19-23, 21:12-20.3 The Court also sentenced Carr to three years' supervised release and ordered *275him to pay $15,823 in restitution. Id. at 22:21-23:10, 24:4-8.

Carr timely appealed his conviction and sentence, and the D.C. Circuit affirmed. See United States v. Carr, 373 F.3d 1350, 1355 (D.C. Cir. 2004). Carr then filed his first motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. See Pet. Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence [ECF No. 54]. The Court denied Carr's motion in 2006, see Feb. 21, 2006 Mem. Op. at 14, and nothing was filed in his case for the next ten years.

B. CARR'S SECOND § 2255 MOTION

On June 26, 2015, after Carr had served more than half of his 262-month sentence, the Supreme Court held that the residual clause of the Armed Career Criminal Act (the "ACCA")-a statutory provision materially identical to the residual clause of the career-offender Guidelines-was unconstitutionally vague. See Johnson, 135 S.Ct. at 2563 ; see also 18 U.S.C. § 924(e)(2)(B)(ii) (defining the term "violent felony," for purposes of the ACCA's fifteen-year mandatory minimum sentence, as "any crime punishable by imprisonment for a term exceeding one year that," in relevant part, "involves conduct that presents a serious potential risk of physical injury to another"). Less than a year later, the Supreme Court held that Johnson applies retroactively on postconviction review. See Welch v. United States, --- U.S. ----, 136 S.Ct. 1257, 1268, 194 L.Ed.2d 387 (2016).

In June 2016, following the Supreme Court's decision in Welch, Chief Judge Beryl A. Howell issued a standing order appointing counsel for indigent defendants in this district whose sentences might be eligible for reduction under Johnson. See Standing Order at 1, http://www.dcd.uscourts.gov/sites/dcd/files/1853_001.pdf.

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Bluebook (online)
314 F. Supp. 3d 272, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-carr-cadc-2018.