United States District Court, District of Maryland, Northern Division
William D. Quarles, Jr. United States District Judge
On January 22, 2009, Keith Antoine Jones pled guilty to possession with intent to distribute cocaine base and heroin, and being a felon in possession of a firearm. ECF Nos. 21, 22. He was sentenced to 18 8 months imprisonment. ECF No. 34. On December 5, 2014, the Court granted Jones's motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. ECF No. 91. On March 12, 2015, the Court held a re-sentencing hearing. ECF No. 92. For the following reasons, the Court found that Jones is a career offender, and his criminal history category did not overstate his prior criminal conduct.
The Presentence Report ("PSR") prepared before Jones's initial sentencing found that four state convictions qualify as predicates for Armed Career Criminal Act ("ACCA")or career offender designation. PSR at 8, 13 (sealed). They included Jones's (1) 1999 resisting arrest conviction; (2) 2000 possession with intent to distribute marijuana conviction; (3) 2001 cocaine distribution conviction; and (4) 2004 cocaine distribution conviction. Id.
According to the PSR, which the Court adopted, the 1999, 2001, and 2004 convictions were predicates for ACCA and for the career offender enhancement. The 2000 conviction was a predicate for the career offender enhancement, not the ACCA, because it carried a maximum sentence of five years, and an ACCA drug offense predicate must have a maximum sentence of 10 years or more. PSR at 8, 13 (sealed); ECF No. 81-1 at 5; 18 U.S.C. § 924(e) (2) (A) .
On December 5, 2 014, the Court found that Jones's 2001 and 2004 convictions were obtained in violation of Jones's Sixth Amendment Right to Counsel, ECF No. 90 at 27; thus, Jones had insufficient ACCA qualifying convictions, and the 2001 and 2004 convictions may not be considered in determining whether Jones is a career offender. However, according to the PSR, Jones's 1999 conviction for resisting arrest, and 2000 conviction for possession with intent to distribute, provide the sufficient career offender predicates. See ECF No. 81-1 at 8; PSR at 5.
A. Career Offender Status
Jones argues that the 1999 resisting arrest conviction is not a predicate offense for career offender status. ECF No. 96 at 6-12. Jones also argues that his criminal history category overstates his criminal history. Id. at 13-14. The Government argues that resisting arrest is a predicate offense, and that Jones's criminal history is not overstated. ECF No. 97 at 3-9.
Under the federal sentencing guidelines,
[a] defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
U.S.S.G. § 4B1.1(a)(emphasis added).
A "crime of violence" means any state or federal offense punishable by more than one year imprisonment, that: Ml) has as an element the use, attempted use, or threatened use of physical force against the person of another, " (the "force clause"), or "(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, " (the "enumerated crimes clause"), or (3) "otherwise involves conduct that presents a serious potential risk of physical injury to another" (the "residual clause"). U.S.S.G. § 4B1.2(a). Jones asserts ...