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United States v. Moore

United States District Court, D. Columbia.

March 4, 2016

UNITED STATES OF AMERICA
v.
PAUL MOORE, JR., Defendant

          For Paul Moore, Jr., Defendant: Nathan I. Silver, II, LEAD ATTORNEY, LAW OFFICES OF NATHAN I. SILVER, Bethesda, MD USA.

Page 178

         MEMORANDUM OPINION

         JOHN D. BATES, United States District Judge.

         On July 16, 2015, defendant Paul Moore, Jr., pleaded guilty to unlawful possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). A first draft of the Presentence Investigation Report concluded that Moore qualified as a " career offender" under § 4B1.1 of the United States Sentencing Guidelines. Moore disagreed with that assessment and requested the opportunity to brief the issue before sentencing. The Court granted his request and has now received and reviewed the parties' filings. See Def.'s Sentencing Mem. Addressing " Career Offender" Issue [ECF No. 60] (" Def.'s Mem." ); Gov't's Mem. in Aid of Sentencing [ECF No. 62] (" Gov't's Resp." ); Def.'s Sentencing Mem. in Reply [ECF No. 64] (" Def.'s Reply" ). This opinion explains why the Court concludes that Moore is indeed a career offender under the Guidelines.

         * * *

         Section 4B1.1 provides for an increased offense level if a defendant is found to be a " career offender." To be a career offender, a defendant must (among other things) have " at least two prior felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1(a). Moore does not dispute that one of his prior convictions qualifies as a controlled substance offense. But he says that another prior conviction--for armed robbery under Maryland law--does not qualify as a crime of violence, and hence he does not qualify as a career offender under the Guidelines.

         Section 4B1.2 of the Guidelines contains the critical definition:

The term " crime of violence" means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that--
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

U.S.S.G. § 4B1.2(a). In deciding whether Moore's crime of conviction fits within this definition, the Court must employ what is known as the " categorical approach." " Under the categorical approach, a court assesses

Page 179

whether a crime qualifies as a [crime of violence] in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion." Johnson v. United States, 135 S.Ct. 2551, 2557, 192 L.Ed.2d 569 (2015) (internal quotation marks omitted).

         But before turning to how Maryland law defines the offense Moore committed, the Court must address the impact of the Supreme Court's recent Johnson decision. That case addressed the Armed Career Criminal Act (ACCA), which contains a definition of the term " violent felony" that is nearly identical to the Guidelines' definition of " crime of violence." See 18 U.S.C. § 924(e)(2)(B). Johnson held that the final, so-called " residual clause" of the definition--" or otherwise involves conduct that presents a serious potential risk of physical injury to another" --is void for vagueness under the Due Process Clause. 135 S.Ct. at 2557-63. The United States has conceded here (and in every case, it seems) that Johnson's void-for-vagueness holding applies with equal force to the residual clause in the Guidelines' definition of " crime of violence." Gov't's Resp. at 4 n.2. The question thus becomes whether Moore's offense qualifies as a crime of violence even after the residual clause has ...


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