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United States v. Forrester

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

July 1, 2019

UNITED STATES OF AMERICA
v.
RICHARD THOMAS FORRESTER

          MEMORANDUM AND ORDER

          Leon Jordan United States District Judge.

         The defendant pled guilty to possessing five grams or more of methamphetamine with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B). He will be sentenced on July 11, 2019.

         The United States Probation Office has prepared and disclosed its Presentence Investigation Report (“PSR”) finding the defendant to be a career offender pursuant to United States Sentencing Commission Guidelines Manual (“U.S.S.G.”) § 4B1.1. [Doc. 45]. The defendant has filed two objections to the PSR and the United States has responded in opposition. [Docs. 48-50, 56]. For the reasons that follow, the defendant's first objection will be overruled and his second objection will be sustained.

         I.

         Objection One

         Were the defendant not deemed a career offender, the PSR would assign him 11 criminal history points, placing him in criminal history category V. The defendant objects to the assignment of one criminal history point for an Oklahoma child endangerment conviction listed at paragraph 32 of the PSR. Specifically, the defendant objects that “there was never a conviction where an actual sentence was imposed in this matter.” [Doc. 50, p.1].

         According to documentation provided by the probation office, the defendant entered a plea of nolo contendere to the child endangerment charge and was found guilty. He received a “deferred judgment and sentence” for the child endangerment count to include a five-year term of probation. The PSR in this case assigns one criminal history point pursuant to U.S.S.G. § 4A1.1(c) for that “prior sentence.”

         “The term ‘prior sentence' means any sentence previously imposed upon adjudication of guilt, whether by guilty plea, trial, or plea of nolo contendere, for conduct not part of the instant offense.” U.S.S.G. § 4A1.2(a)(1) (2018). “A diversionary disposition resulting from a finding or admission of guilt, or a plea of nolo contendere, in a judicial proceeding is counted as a sentence under § 4A1.1(c) even if a conviction is not formally entered . . . .” Id. § 4A1.2(f). As such, the defendant is correctly assigned one point for his Oklahoma child endangerment conviction, and his first objection will be overruled.

         Additionally, even if the defendant's first objection were granted, he would still have 10 criminal history points and would still fall within criminal history category V. The issue is therefore moot.

         II.

         Objection Two

         A. Background

         With application of the career offender guideline, the defendant's total offense level is 31, his criminal history category is VI, and his advisory guideline range is 188 to 235 months. Without application of the career offender guideline, the defendant's total offense level would be 23, his criminal history category would be V, and his advisory guideline range would be 84 to 105 months.

         Under the guidelines,

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.S.G. § 4B1.1(a). At issue in this case is whether the defendant “has at least two prior felony convictions of either a crime of violence or a controlled substance offense.” The PSR bases its career offender designation on three prior convictions, one for Tennessee robbery [Doc. 45, ¶ 38] and two other Tennessee convictions for what the PSR describes as possession of methamphetamine with intent to sell [id., ¶ 36] and possession of methamphetamine for resale [id., ΒΆ 39]. The defendant does not formally object to the robbery predicate but argues that neither methamphetamine conviction can be used as a basis for career offender status ...


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