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United States v. Carpenter

United States District Court, D. Montana, Helena Division

December 6, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
GREGORY C. CARPENTER, Defendant.

          ORDER

          CHARLES C. LOVELL SENIOR UNITED STATES DISTRICT JUDGE.

         Before 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.

         Background:

         On June 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).

         Defendant 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.

         Defendant's 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 served concurrently).

         In his 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[1] to an offense level of 32[2] pursuant to the Career Offenders provisions of the Sentencing Guidelines. (PSR ¶¶ 33-34.)

         Notwithstanding 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's 2255 Motion

         When 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).[3]

         The 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 ...

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