Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Crawford

United States District Court, D. Nebraska

March 1, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
BARRY CRAWFORD, Defendant. UNITED STATES OF AMERICA, Plaintiff,
v.
BARRY CRAWFORD, Defendant.

          MEMORANDUM AND ORDER

          JOSEPH F. BATAILLON SENIOR UNITED STATES DISTRICT JUDGE

         This matter is before the court on Barry Crawford's Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody under 28 U.S.C. § 2255, Filing No. 46 in case 8:11cr353 and Filing No. 29 in case 8:11cr383.

         I. BACKGROUND

         Crawford seeks relief under Johnson v. United States, 135 S.Ct. 2551, 2557 (2015) and Descamps v. United States, 133 S.Ct. 2276, 2282 (2013).[1] Crawford was sentenced as a career offender under United States Sentencing Guidelines (“U.S.S.G.”) § 4B1.2(a)(2). He contends that his previous conviction for burglary no longer qualifies as a crime of violence and his sentence is therefore a violation of due process.

         In opposition, the government argues that Crawford is ineligible for § 2255 relief because: (1) under Beckles v. United States, 137 S.Ct. 886, 891-92 (2017), the Supreme Court's holding in Johnson does not apply to USSG § 4B1.2's Career Offender Guideline; (2) Johnson does not retroactively apply to the Guidelines; and (3) the motion is not timely under § 2255(f)(3), because Beckles confirms that the Supreme Court still has not recognized a “new” due process right not to have one's Guidelines range calculated under an allegedly vague provision.

         The court held a hearing on the motion on Nov. 11, 2016. At the time of the hearing, the Supreme Court's decision in Beckles v. United States, 137 S.Ct. 886, 891- 92 (2017), which was to address the issue of whether the Supreme court's holding in Johnson extended to the corresponding Guidelines career-criminal enhancement was pending. This court accordingly held the § 2255 motion in abeyance pending resolution of that case.

         II. UNDERLYING CONVICTION AND SENTENCE

         The record shows that Crawford was indicted in a two-count Indictment in case No. 8:11CR353 on October 18, 2011. He was charged in Count I with knowingly and intentionally possess with intent to distribute cocaine base, i.e., crack cocaine, a Schedule II controlled substance, in violation of 21 U.S.C. 841(a)(1) and (b)(1), and in Count II with being a felon in possession of a firearm on September 2, 2011. On November 4, 2011, he entered pleas of not guilty to the Indictment and was detained. Shortly thereafter, Crawford was indicted on another charge of being a felon in possession of a firearm, this time for an offense that occurred on November 2, 2011 in case No. 8:11cr383. On February 28, 2012, the defendant entered pleas of guilty to the charges in both cases.

         The United States Probation Office (“Probation Office”) determined that Crawford's base offense level was 24 under the Guidelines career-offender provision, U.S.S.G. § 2K2.1(a)(2). That provision applies if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions for either a crime of violence or a controlled substance offense. U.S.S.G. § 2K2.1(a)(2). As predicate offenses, the Probation Office relied on a 2003 federal drug trafficking conviction and a 2003 Nebraska state court conviction for burglary.

         The Probation Office found Crawford's sentence was subject to enhancements of two levels under § 2K2.1(b)(4)(A) for a stolen firearm and four levels under § 2K2.1(b)(6)(B) for use or possession of a firearm in connection with a felony offense, resulting in an adjusted offense level of 30. The defendant was entitled to a two-level reduction for acceptance of responsibility resulting in a total offense level of 28. However, because of his two prior convictions, Crawford's base offense level became 32 under 4B1.1(b)(3). After a two level adjustment for acceptance of responsibility, his base offense level was 30.

         Probation determined that Crawford's criminal history category was VI, based on the assessment of 11 criminal history points as follows: three points for a state court conviction for burglary in 2003; three points for a state court conviction for possession of a controlled substance in 2002; three points for a federal conviction of possession with intent to deliver crack cocaine in 2003; and two points for committing the instant drug trafficking offense while on supervised release for the federal conviction. His criminal history category under the Guidelines career offender provision was also VI. Based on a criminal history category of VI at offense level 30, Crawford's Guidelines sentencing range was 168-210 months. The maximum statutory sentence for the felon-in- possession charges was 120 months, so 120 months became Crawford's Guidelines sentence for those charges under U.S.S.G. § 5G1.1(a).

         No count of conviction had a mandatory minimum sentence. A career offender's offense level is determined in part by referencing the statutory maximum penalty of the crime of conviction. U.S.S.G. § 4B1.1(b). The drug distribution conviction had a maximum sentence of 20 years under 21 U.S.C. § 841(b)(1)(C) and the felon in possession convictions each had a maximum penalty of 10 years.

         The government adopted the findings in the PSR. Crawford moved for a departure or a sentence outside the Guidelines, arguing that a sentence of 85 months (roughly seven years) would be appropriate. The court imposed a sentence outside the Guidelines and sentenced the defendant to 144 months (roughly 12 years) imprisonment on the drug distribution count, and 120 months on each of the felon-in-possession counts, to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.