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United States v. Wesley

United States District Court, D. Nevada

March 20, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
STEVEN ROBERT WESLEY, JR., Defendant.

          ORDER

          LARRY R. HICKS UNITED STATES DISTRICT JUDGE.

         Before the court is defendant Steven Robert Wesley Jr.'s sentencing memorandum and supplemental memorandum, which object to the presentence investigation report's (“PSR”) recommended application of the career-offender enhancement. ECF Nos. 29, 33. The United States has not responded. The court finds that Wesley's instant offense of federal bank robbery and prior convictions for California robbery are crimes of violence and that he therefore qualifies as a career offender under the United States Sentencing Guidelines (“U.S.S.G.” or “the Guidelines”).

         I. Background

         Wesley is charged by indictment with one count of bank robbery and one count of attempted bank robbery under 18 U.S.C. § 2113(a) based on events that occurred on April 18, 2016. ECF No. 3. Pursuant to a plea agreement between himself and the United States (ECF No. 23), Wesley pled guilty to bank robbery on July 25, 2016 (ECF No. 22).

         Subsequently, the PSR revealed that Wesley has sustained two prior[1] convictions for four total counts of state-law robbery under California Penal Code § 211. The PSR classified Wesley's instant offense, as well as his two prior robbery convictions, as crimes of violence under U.S.S.G. § 4B1.2 and therefore found that the career-offender enhancement under § 4B1.1 applies.

         II. Analysis

         The career-offender sentencing enhancement applies 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. Sentencing Guidelines Manual § 4B1.1(a) (U.S. Sentencing Comm'n 2016) (emphasis added). The Guidelines further define a “crime of violence” as

any 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, 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).

Id. § 4B1.2(a) (emphasis added). The first clause in this definition is often referred to as the “force” or “physical force” clause, while the latter clause is often referred to as the “enumerated-offense” clause.

         Wesley argues that his instant offense of federal bank robbery and prior convictions for California robbery are not crimes of violence. The court will address each crime in turn.

         A. The 2016 Sentencing Guidelines apply to this sentencing

         As an initial matter, the court finds that the 2016 edition of the Guidelines, which became effective November 1, 2016, applies to this sentencing. The Guidelines themselves direct district courts to “use the Guidelines Manual in effect on the date that the defendant is sentenced[, ]” unless the court determines that doing so “would ...


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