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United States v. Ervin

United States District Court, D. Montana, Billings Division

August 8, 2019

UNITED STATES OF AMERICA Plaintiff,
v.
GARY DUANE ERVIN, Defendant.

          OPINION AND ORDER

          SUSAN P. WAITERS, UNITED STATES DISTRICT JUDGE.

         Before the Court is Defendant Gary Duane Ervin's objection to the Presentence Investigation Report's calculation of his base offense level. For the following reasons, the Court overrules Ervin's objection.

         I. Background

         On April 5, 2019, Ervin pled guilty to one count of being a prohibited person in possession of a firearm, in violation of 18 U.S.C. 922(g)(1). (Docs. 20, 23, 24). The Court set sentencing for August 8, 2019, and a Presentence Investigation Report was ordered to be prepared. (Doc. 25).

         While compiling the Defendant's criminal history, the Presentence Investigation Report author discovered Ervin had previously been convicted of two assaults in Michigan in 2001. The first conviction was for Assault with Intent to Rob While Armed in violation of Mich. Comp. Laws Ann. § 750.89. The second conviction was for Assault with Intent to do Great Bodily Harm in violation of Mich. Comp. Laws Ann. § 750.84(1)(a). While calculating Ervin's offense level, the Presentence Investigation Report author determined Ervin's base offense level was 20 under USSG § 2K2.1(a)(4)(A), which provides, in relevant part, a defendant's base level is 20 if the defendant committed the offense subsequent to sustaining a felony conviction of either a crime of violence or a controlled substance offense. The Presentence Investigation Report author concluded Ervin's two assaults were crimes of violence under U.S.S.G. §§ 2K2.1 app. n. 1 and 4B 1.2(a).

         Ervin objected to the Presentence Investigation Report's conclusion that his two prior assaults were crimes of violence under U.S.S.G. §§ 2K2.1 and 4B1.2(a).

         II. Analysis

         To determine whether a prior conviction is a crime of violence under U.S.S.G. § 4B 1.2(a), the Court applies what's known as the categorical approach. United States v. Door, 917 F.3d 1146, 1150 (9th Cir. 2019) (citing Taylor v. United States, 495 U.S. 575 (1990)). Under the categorical approach, the Court compares the elements of the statute of conviction with U.S.S.G. § 4B1.2(a)'s definition of "crime of violence" to determine whether the statute of conviction criminalizes a broader range of conduct than the federal definition captures. Door, 917 F.3d at 1150 (citing United States v. Edling, 895 F.3d 1153, 1155 (9th Cir. 2018)).

         The Sentencing Guidelines define "crime of violence" as follows:

[A]ny 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 [known as the force clause], or
(2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c) [known as the enumerated offenses clause].

U.S.S.G. § 4B1.2(a). When determining whether a prior conviction constitutes a crime of violence, the precise inquiry differs depending on whether the offense is alleged to qualify as a crime of violence pursuant to the force clause or the enumerated offenses clause. Door, 917 F.3d at 1150. An offense constitutes a "crime of violence" if it qualifies under either of the clauses. Door, 917 F.3d at 1150. Throughout the analysis, the Court presumes the prior conviction rested upon nothing more than the least of the acts criminalized by the statute of conviction. Door, 917 F.3d at 1150 (citing Moncrieffe v. Holder, 569 U.S. 184, 191-192 (2013)).

         To determine whether a prior conviction qualifies pursuant to the force clause, the question is whether the crime of conviction "has as an element the use or threatened use of physical force against the person of another, with 'physical force' understood to mean in this context 'violent force-that is, force capable of causing physical pain or injury to another person.'" Door, 917 F.3d at 1151 (citing Edling, 895 F.3d at 1156). If the crime of conviction necessarily entails the use or threatened use of violent physical force, ...


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