United States District Court, D. South Dakota, Central Division
DAVID D. LARVIE, JR., Petitioner,
UNITED STATES OF AMERICA, Respondent.
OPINION AND ORDER
CHARLES B. KORNMAN, District Judge.
Petitioner, a Native American, was charged under the Assimilated Crimes Act, 18 U.S.C. § 1153, with burglary in violation of SDCL 22-32-8 in CR 02-30031. He failed to appear at his August 13, 2002, jury trial and was charged with failure to appear in CR 02-30081. He pleaded guilty pursuant to petitions to plead guilty to both offenses. Petitioner was sentenced to a total sentence of 24 months custody and three years supervised release.
Petitioner was released to supervision on April 28, 2006. His supervised release was revoked for failing to follow his probation officer's directive to reside and participate in a community corrections center. He was sentenced to serve an additional period of nine months custody. He was released to supervision on March 20, 2007, and placed in a community corrections center. He was discharged on July 24, 2007.
On August 7, 2007, petitioner was alleged to have broken into a residence, assaulted his girlfriend, kidnapped her, brandished a firearm, and threatened to shoot her. He pleaded guilty to use of a firearm during a crime of violence in violation of 18 U.S.C. § 924(c). Petitioner's guideline sentencing range was calculated pursuant to the Career Offender guideline, § 4B1.1, because he was found to have had "at least two prior felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1(a). His 2002 federal third degree burglary conviction and a 2003 state court second degree burglary conviction were predicate offenses found to have been crimes of violence based upon the career offender definition found at U.S.S.G. § 4B1.2(a). Defendant objected to the career offender enhancement, contending that his prior state court burglary conviction did not constitute a crime of violence and that his sentence should be the mandatory minimum sentence of seven years imprisonment as agreed to in the plea agreement. That objection was overruled.
The guideline range calculated pursuant to the Career Offender guideline was 262-327 months. A substantial variance was applied to reduce the sentence imposed to 120 months custody. Defendant was sentenced on December 1, 2008, to 120 months custody in CR 07-30084. He was also sentenced in CR 02-30031 on his second revocation of supervised release to 15 months custody, consecutive, and in CR 02-30081 on his second revocation of supervised release to 24 months custody, consecutive, all for a total sentence of 159 months custody. He did not appeal his conviction, revocations, or sentences.
Petitioner has filed a motion to vacate, set aside, or correct his December 1, 2008, sentence in CR 07-30084, contending his sentence was imposed in violation of the United States Supreme Court's June 20, 2013, decision in Descamps v. United States, ___ U.S. ___ , 133 S.Ct. 2276 (2013). I have conducted an initial review of the motion pursuant to Rule 4 of the Rules Governing § 2255 Proceedings.
I. Armed Career Criminal Act.
In 1984, Congress enacted the Comprehensive Crime Control Act, Pub. L. 98-473, 98 Stat. 1976. Chapter XVIII, §§ 1801 et seq., of that Act, entitled the Armed Career Criminal Act ("ACCA") of 1984, 98 Stat. 2185, amended the Omnibus Crime Control and Safe Streets Act of 1968, then codified at 18 U.S.C. § 1202(a), to provide a mandatory minimum penalty of 15 years imprisonment for any person convicted of, inter alia, being a felon in possession of a firearm "who has three previous convictions by any court... for robbery or burglary, or both."
Two years later, on May 19, 1986, as part of the Firearms Owners' Protection Act, Congress amended 18 U.S.C. § 924 to, inter alia, repeal 18 U.S.C. §§ 1201 et seq. and reenact an amended version of the ACCA at § 924(e). Pub. L. 99-308, § 104, 100 Stat. 458. Later that year, on October 27, 1986, as part of the Anti-Drug Abuse Act of 1986, Congress amended the ACCA to strike out "for robbery or burglary, or both, " and insert instead "for a violent felony or a serious drug offense, or both." Pub. L. 99-570, § 1401, 100 Stat. 3207-39. Thus, sentencing courts have since been called upon to determine whether defendants convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) should be sentenced to the § 924(c) mandatory minimum 15 years imprisonment for having had three prior convictions for a violent felony or a serious drug offense, or both.
The ACCA defines the term "violent felony" as
any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by ...