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United States v. Lamb

United States District Court, E.D. Michigan, Southern Division

February 24, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
RAYQWAN LAMB, Defendant.

         OPINION AND ORDER: (1) SUSTAINING DEFENDANT'S OBJECTION TO THE PSIR; AND (2) HOLDING THAT DEFENDANT'S PRIOR CONVICTION OF UNARMED ROBBERY UNDER MICHIGAN LAW (M.C.L. § 750.530) IS NOT A “CRIME OF VIOLENCE” FOR PURPOSES OF U.S.S.G. §§ 2K2.1(A)(4)(A) AND 4B1.2(A)(1)

          VICTORIA A. ROBERTS UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION AND BACKGROUND

         The Objection filed by Defendant Rayqwan Lamb (“Lamb”) to his Pre-Sentence Investigation Report (“PSIR”) challenges the base offense level computation. The United States Probation Department concluded that Lamb had a prior conviction for a crime of violence. Because the Court finds that Lamb's earlier conviction for unarmed robbery under Michigan state law does not qualify as a “crime of violence” within the meaning of U.S.S.G. §§ 2K2.1(a)(4)(A) and 4B1.2(a), the Court SUSTAINS Lamb's objection. This results in a recalculation of his guideline range at 15-21 months, rather than 30-37 months.

         A federal grand jury indicted Lamb as a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). On August 30, 2016, Lamb pled guilty to the offense, without benefit of a Rule 11 Agreement. The Probation Department issued a PSIR which calculated a base offense level of 20 after concluding Lamb had an earlier conviction under Michigan law for unarmed robbery that qualified as a “crime of violence.” See U.S.S.G. § 2K2.1(a)(4)(A) (providing for a base offense level of 20 if “the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of ... a crime of violence”). Lamb objected.

         Lamb and the Government filed sentencing memoranda addressing the “crime of violence” issue. On February 23, 2017, the Court held a sentencing hearing.

         II. ANALYSIS

         As a preliminary matter, the applicable version of the Guidelines is the November 2015 version. See Huff v. United States, 734 F.3d 600, 608 (6th Cir. 2013) (although the Court generally applies the version of the Guidelines in effect at the time of sentencing, “[i]f the defendant's sentencing range is greater under the Guidelines in effect on the date of sentencing, the district court must apply the Guidelines in effect at the time of the offense to avoid an ex post facto violation”). Lamb committed this offense on January 31, 2016.

         Under this earlier version of the Guidelines, § 2K2.1 incorporates the definition of “crime of violence” used in § 4B1.2(a). See U.S.S.G. § 2K2.1 cmt. n.1. Section 4B1.2(a) defines “crime of violence” as any felony that:

(1) has as 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 physical injury to another.

U.S.S.G. § 4B1.2(a). This definition can be separated into three distinct clauses: (1) § 4B1.2(a)(1) is the “elements clause”; (2) the first half of § 4B1.2(a)(2) is the “enumerated offense clause”; and (3) the language “or otherwise involves conduct that presents a serious potential risk of physical injury to another” is the “residual clause.”[1]

         The Government only argues that Lamb's unarmed robbery conviction qualifies as a crime of violence under the elements clause. To meet this qualification, Lamb's prior unarmed robbery conviction must have as one element, “the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G. § 4B1.2(a)(1).

         A “crime of violence” under the Guidelines must involve the use of physical force - “violent force - that is, force capable of causing physical pain or injury to another person.” See Johnson v. United States, 559 U.S. 133, 140 (2010) (emphasis in original) (“Johnson 2010”) (describing the meaning of “physical force” for the purpose of determining a “violent felony” under the ACCA); see also United States v. Bell, 840 F.3d 963, 966 n.3 (8th Cir. 2016) (“Although Johnson described the meaning of ‘physical force' for purposes of determining a ‘violent felony' under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(i), the phrase has the identical meaning for purposes of determining a ‘crime of violence' under the Guidelines.”). Johnson 2010 made clear that the “merest touch” does not amount to “physical force” under the Guidelines' definition of a ...


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