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United States v. Hicks

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

July 22, 2019

UNITED STATES OF AMERICA
v.
HENRY ALLEN HICKS

          ORDER

          LEON JORDAN UNITED STATES DISTRICT JUDGE

         The defendant pled guilty to the lesser included offense of conspiring to distribute five grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846. His statute of conviction subjects him to a five-year mandatory minimum sentence. Sentencing is scheduled for July 30, 2019.

         The United States Probation Office has prepared and disclosed its Presentence Investigation Report (“PSR”). [Doc. 44]. The defendant objects that he is entitled to application of the statutory safety valve, 18 U.S.C. § 3553(f), as amended by the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194. [Doc. 51]. The United States has responded in opposition to the objection, and the defendant has submitted a reply. [Docs. 53, 64].

         Section 3553(f) allows district courts to impose a sentence “without regard to any statutory minimum sentence, if the court finds” that a defendant has satisfied § 3553(f)'s five requirements. At issue in this case is the first of those elements, which is that the defendant does not have,

(A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines [“U.S.S.G.”];
(B) a prior 3-point offense, as determined under the sentencing guidelines; and
(C) a prior 2-point violent offense, as determined under the sentencing guidelines.

18 U.S.C. § 3553(f)(1) (2018).

         In this case, the specific dispute is whether the defendant has “a prior 2-point violent offense.” The defendant says he does not. The probation office and the prosecution say that he does, citing a 2016 Tennessee conviction for domestic assault. [PSR ¶ 33].

         For purposes of the statutory safety valve, “the term ‘violent offense' means a crime of violence, as defined in [18 U.S.C. § 16], that is punishable by imprisonment.” First Step Act, § 402(a); 18 U.S.S.G.§ 3553(g). Thus, a “violent offense” is “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 16(a).

         On June 6, 2016, the defendant pled guilty to, and was sentenced to a term of imprisonment for, committing domestic assault in violation of § 39-13-111 of the Tennessee Code. [Doc. 51, Ex. A, p.3]. That statute provides that “[a] person commits domestic assault who commits an assault as defined in § 39-13-101 against a domestic abuse victim.” Tenn. Code Ann. § 39-13-111(b). In turn, § 39-13-101 of the Tennessee Code provides, A person commits assault who:

(1) Intentionally, knowingly or recklessly causes bodily injury to another;
(2) Intentionally or knowingly causes another to reasonably fear imminent bodily injury; or
(3) Intentionally or knowingly causes physical contact with another and a reasonable person would regard the contact as ...

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