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United States v. Gerding

United States District Court, E.D. Tennessee, Knoxville

January 24, 2018

UNITED STATES OF AMERICA
v.
KEVIN GERDING

          MEMORANDUM AND ORDER

          LEON JORDAN, UNITED STATES DISTRICT JUDGE.

         In 2015, the defendant pled guilty to two counts of possessing a firearm and ammunition as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Based on three prior Tennessee convictions for “violent felonies” (two for burglary and one for aggravated burglary), the defendant was deemed an armed career criminal pursuant to the Armed Career Criminal Act (“ACCA”). See 18 U.S.C. § 924(e). This court imposed the mandatory 180-month sentence required by that statute, and the defendant timely appealed.

         During the pendency of the appeal, the Sixth Circuit decided United States v. Stitt, 860 F.3d 854 (6th Cir. 2017), ruling that a conviction under Tennessee's aggravated burglary statute no longer qualifies as a violent felony under the ACCA. In light of Stitt, the parties submitted a joint motion to remand which the Sixth Circuit granted. The parties agreed that, post-Stitt, the defendant does not have three ACCA predicate violent felony convictions and as such is now subject to no more than § 922(g)(1)'s 120-month maximum sentence.

         This court will conduct a resentencing hearing on January 31, 2018. The United States Probation Office has prepared a Revised Presentence Investigation Report (“PSR”). [Doc. 39]. In relevant part, the PSR uses the current 2016 version of the United States Sentencing Commission Guidelines Manual (“U.S.S.G.”), setting a base offense level of 24 pursuant to guideline 2K2.1(a)(2). That guideline applies if a defendant is convicted of possessing a firearm or ammunition “subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 2K2.1(a)(2). The instant PSR finds three such predicate convictions - two for promotion of methamphetamine manufacture and one for sale of a Schedule III controlled substance.

         Each party objects to the PSR. [Docs. 43, 47]. As directed by the court, the parties have submitted supplemental briefing on those objections. For the reasons that follow, the defendant's objection will be sustained and the United States' objection will be sustained in part and overruled in part.

         I.

         Defense Objection

         The defendant objects that his prior Tennessee convictions for promotion of methamphetamine manufacture do not meet the guideline definition of a “controlled substance offense.” See U.S.S.G. § 4B1.2. Thus, the defendant argues that his base offense level should be 20 rather than 24, because he only has one prior felony conviction of either a crime of violence or a controlled substance offense. See U.S.S.G. § 2K2.1(a)(4)(A).

         Having reviewed the available state court records pertaining to the defendant's methamphetamine promotion convictions, the United States concedes that those crimes cannot be deemed prior “controlled substance offenses.” [Doc. 51, p.1 n.2]. The court has reviewed the records provided by the probation office, and the court finds itself in agreement with the parties. The defendant's objection will accordingly be sustained.

         II.

         United States' Objection

         The United States objects that, even if the methamphetamine promotion convictions are not counted, the defendant still has two prior “felony convictions of either a crime of violence or a controlled substance offense” to support a base offense level of 24. It is the United States' position that the present PSR should employ the 2015 version of the guidelines, rather than the 2016 edition, because the 2015 version was in effect on the defendant's original sentencing date. The United States further contends that the court may only employ the 2015 version, without consideration of the subsequently-enacted guideline Amendment 798.

         A. Which Guidelines Manual Applies?

         Under the 2015 guidelines, the defendant's aggravated burglary conviction would count as a crime of violence pursuant to guideline 4B1.2(a)(2)'s residual clause. See, e.g., Hartness v. United States, Nos. 3:11-CR-102-PLR-CCS-1, 3:14-CV-282-PLR, 2017 WL 1483441 (E.D. Tenn. Apr. 25, 2017); see also U.S.S.G. § 2K2.1 cmt. n.1 (“‘Crime of violence' [under guideline 2K2.1] has the meaning given that term in § 4B1.2(a) and Application Note 1 of the Commentary to § 4B1.2.”). Guideline 4B1.2 defines the term “crime of violence.” That guideline's residual clause (encompassing crimes “otherwise involv[ing] conduct that presents a serious potential risk of physical injury to another”) was deleted from the 2016 edition by Amendment 798.

         At initial sentencing hearings, district courts “shall” consider a number of factors including “the sentencing range . . . as set forth in the guidelines issued by the Sentencing Commission . . ., subject to any amendments made to such guidelines . . . that, except as provided in [18 U.S.C.] section 3742(g), are in effect on the date the defendant is sentenced[.]” 18 U.S.C. § 3553(a)(4)(A) (emphasis added). Similarly, at resentencings following remand, “the court shall apply the guidelines . . . that were in effect on the date of the previous sentencing of the ...


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