United States District Court, D. Montana, Helena Division
CHARLES C. LOVELL SENIOR UNITED STATES DISTRICT JUDGE.
the Court is Defendant- Movant Gregory C. Carpenter's
third “Motion To Vacate, Set Aside, or Correct a
Sentence Under 28 U.S.C. § 2255.” (ECF No. 129.)
The Ninth Circuit Court of Appeals granted leave to file this
successive petition on December 28, 2016. (ECF No. 128.) The
government's motion to stay proceedings was granted,
pending the U.S. Supreme Court's decision in Beckles
v. United States, 137 S.Ct. 886 (March 6, 2017).
Briefing on the issue has been completed, and the Court is
prepared to rule.
22, 1995, Defendant was charged with a five-count Indictment.
The charges stemmed from an incident which occurred in
Montana State Prison on January 17, 1995, wherein Defendant,
an inmate at the prison, was discovered to have placed an
explosive or incendiary device in a false ceiling above the
prison warden's office. Defendant was charged with
conspiracy to make a firearm (Count I), knowing possession of
an explosive or incendiary device (Count II), knowingly
making an explosive or incendiary device (Count III),
felon-in-possession of a firearm (Count IV), and an attempt
to damage or destroy an institution that receives federal
financial assistance (Count V).
was convicted on all five counts on the second day of jury
trial. Defendant was sentenced on February 7, 1997. His
Offense Level was 32, his Criminal History was VI, and his
Guideline Range was 210-262 months. Defendant was sentenced
to concurrent 120-month sentences on Counts 1-4 and a
concurrent 240-month sentence on Count 5. The Court's
written Judgment and Commitment was filed and entered on
February 10, 1997, and finalized after February 24, 1997,
which was the last day Defendant could have filed a direct
appeal. No direct appeal was filed.
Presentence Report (PSR) shows that his criminal history
score was 20 (PSR ¶47), establishing a criminal history
category of VI. No mandatory minimum applied to any of the
counts of conviction, but the statutory maximum sentence that
applied to Counts I-IV was 120 months, and the statutory
maximum sentence that applied to Count V was 240 months. As
recommended by the U.S. Probation Office, the Court imposed
the statutory maximum sentence on all counts, (120 months as
to Counts I-VI and 240 months as to Count V, all counts to be
extensive criminal history spanning more than a decade,
Defendant's Presentence Report shows that, in addition to
other crimes, Defendant was convicted of sexual intercourse
without consent (PSR ¶39) and two counts of burglary
when he “entered or remained unlawfully in an occupied
structure, a residence” and “entered or
remained unlawfully in an occupied structure, the OK
Corral Bar.” (PSR ¶41, emphasis added).
Although his statutory penalties were not increased by the
fact of these prior convictions, his sentencing guideline
range was increased from an offense level of 31 to an offense
level of 32 pursuant to the Career Offenders
provisions of the Sentencing Guidelines. (PSR ¶¶
this one-level increase, even had Defendant not received the
Career Offender designation, he would still have been in the
Category VI of Criminal History, and the Court could still
have departed upward to the maximum sentence of 240 months.
Indeed, the U.S. Probation Office advocated for an upward
departure in the Presentence Report based upon the
seriousness of Defendant's criminal history, finding that
“an upward departure may be warranted” (PSR
¶ 89) because “the criminal history category
significantly under-represents the likelihood that the
defendant will commit further crimes” (PSR ¶ 90).
Defendant's criminal history showed numerous instances of
very dangerous conduct, including an especially violent
sexual assault and a fight with law enforcement officers in
which he attempted to take an officer's gun, and extended
back to juvenile misconduct. Thus, Defendant's
dangerousness was a notable and long-standing issue, as
evidenced by his juvenile and adult criminal history.
Ultimately, the PSR concludes that “[a]lthough there
are factors that may warrant an upward departure, the maximum
penalty allowed by statute is 20 years.” (PSR ¶
91.) While Defendant's Guideline Range would have been
188-235 months incarceration without the Career Offender
designation, it is highly likely that Defendant would have
received an upward departure to the maximum sentence of 240
months anyway, as recommended by the U.S. Probation Office.
Defendant was sentenced in 1997, a career offender under the
Sentencing Guidelines was defined to be a person convicted of
a “crime of violence” who had “at least two
prior felony convictions of either a crime of violence or a
controlled substance offense.” U.S.S.G. § 4B1.1
(Nov. 1, 1995).
definition of a “crime of violence, ” provided by
§ 4B1.2(a), was:
any offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that-
(1) has 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
the use of explosives, or otherwise involves conduct that
presents a serious potential risk of ...