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United States v. Whitt

August 18, 2006

UNITED STATES OF AMERICA
v.
BILLY WAYNE WHITT



The opinion of the court was delivered by: J. Ronnie Greer United States District Judge

MEMORANDUM OPINION AND ORDER

This matter came before the Court for hearing on August 14, 2006 upon defendant's objections to the presentence report and for sentencing. This memorandum will address the defendant's objections to the presentence report. For the reasons set forth orally from the bench on August 14 and the reasons which follow, the defendant's objection will be sustained in part and overrruled in part.

Procedural Background

On September 28, 2004, the federal grand jury returned a six count indictment charging the defendant, Billy Wayne Whitt ("Whitt"), with various offenses related to the armed robbery of Howard's Pharmacy in Morristown, Tennessee on March 30, 2004 [Doc. 1]. On February 8, 2005, a 12 count superseding indictment was returned by the grand jury charging Whitt with six additional offenses related to the January 25, 2004 armed robbery of Rite-Aide pharmacy in Bean Station, Tennessee [Doc. 19]. On January 13, 2005, the United States filed an information to establish prior convictions and gave notice of the government's intention to seek enhanced punishment pursuant to 18 U.S.C. § 3559(c)(4)*fn1 because of prior convictions of the defendant [Doc. 11]. On August 31, 2005, the defendant was convicted by a jury of all 12 counts of the superseding indictment [Doc. 66].

A presentence investigation report was ordered by the Court and disclosed to the parties on January 5, 2006. The presentence report concluded that the mandatory term of imprisonment for each of counts 1, 2, 3, 7, 8 and 9 is life, pursuant to 18 U.S.C. § 3559(c)(1), and that the life term of imprisonment for each of counts 3 and 9 must be served consecutively to each other and to any other term of imprisonment imposed, pursuant to 18 U.S.C. § 924(D)(ii). The defendant objected to the presentence investigation report and contends that he does not have the requisite prior convictions such as to subject him to the mandatory life imprisonment provision of 18 U.S.C. § 3559(c)(1).

Analysis

18 U.S.C. § 3559(c)(1) provides, in pertinent part:

(1) Mandatory life imprisonment -- notwithstanding any other provision of law, a person who is convicted in a court of the United States of a serious violent felony shall be sentenced to life imprisonment if --

(A) the person has been convicted (and those convictions have become final) on separate prior occasions in a court of the United States or of a State of --

(i) two or more serious violent felonies; . . . 18 U.S.C. § 3559(c)(1)

A "serious violent felony" is defined as "a Federal or State offense, by whatever designation and wherever committed, consisting of . . . robbery . . ." and "any other offense punishable by a maximum term of imprisonment of ten years or more that has as an element the use, attempted use, or threatened use of physical force against the person of another or that, by its nature, involves a substantial risk that physical force against the person of another may be used in the course of committing the offense." 18 U.S.C. § 3559(c)(2)(F)(i)and(ii). The statute sets out certain "non-qualifying felonies" including "[R]obbery . . . if the defendant establishes by clear and convincing evidence that . . . (i) no firearm or other dangerous weapon was used in the offense and no threat of use of a firearm or other dangerous weapon was involved in the offense; and (ii) the offense did not result in death or serious bodily injury . . . to any person. 18 U.S.C. § 3559(c)(3)(A). (emphasis added)

Whitt's convictions in counts 1 through 3 and 7 through 9 ("the instant convictions") are clearly serious violent felonies.*fn2 The only question before this Court, therefore, is whether or not defendant has the requisite prior convictions such that the terms of 18 U.S.C. § 3559(c)(1) require mandatory terms of life imprisonment as to the instant convictions. The information filed by the United States in this case lists five prior, potentially qualifying convictions of the defendant in this case:

1. On February 3, 1999, defendant Whitt was convicted of aggravated robbery, committed on September 25, 1997, in the Criminal Court of Jefferson County, Tennessee, Case No. 6730.

2. On March 22, 1999, defendant Whitt was convicted of burglary, committed on November 16, 1996, in the Criminal Court of ...


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