United States District Court, D. Minnesota
S. DUNNE & NATHAN HOYE NELSON, OFFICE OF THE UNITED
STATES ATTORNEY, FOR PLAINTIFF UNITED STATES OF AMERICA
D. RICHMAN, FOR DEFENDANT CHARLES BICKHAM
RICHARD NELSON, UNITED STATES DISTRICT JUDGE
Charles Bickham was charged in a multi-count indictment on
several gun-related charges. (See generally
Superseding Indictment [Doc. No. 41].) In August 2017, he
entered into a plea agreement with the Government, pleading
guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1), in exchange for the
Government's agreement to move for the dismissal of the
other charges. (See Plea Agmt. ¶ 1 [Doc. No.
160]; Minutes for Aug. 3, 2017 Change of Plea Hr'g [Doc.
to his December 7, 2017 sentencing hearing, Bickham filed
objections to the presentence investigation report
(“PSR”). The PSR calculated a U.S. Sentencing
Guidelines range of 188-235 months, with a maximum penalty of
120 months, based on an offense level of 31 and a criminal
history category of VI. (See PSR ¶ 134 [Doc.
No. 197].) Among his objections, Bickham contends that the
PSR incorrectly calculated his offense level under U.S.S.G.
§ 2K2.1(a)(2). (Def.'s Obj. at 1-2 [Doc. No. 212].)
This provision of the Guidelines calls for a base offense
level of 24 for defendants with two prior felony convictions
of either a crime of violence or a controlled substance
offense. U.S.S.G. § 2K2.1(a)(2). The PSR identified a
2007 Minnesota state court felony conviction for aiding and
abetting simple robbery and a 2009 federal cocaine-related
felony conviction as the qualifying prior convictions. (PSR
¶ 42.) While Bickham does not contest the inclusion of
the drug conviction as a controlled substance offense under
§ 2K2.1(a)(2), he asserts that the 2007 conviction for
simple robbery does not count as a “crime of
violence.” (Def.'s Obj. at 3-6.) Accordingly, he
argues that his base offense level should be 20, instead of
sentencing hearing, the Court ruled on Bickham's
objections from the bench. This Order memorializes the
Court's ruling with respect to his argument concerning
the application of § 2K2.1(a)(2).
4B1.2 of the Guidelines defines a “crime of
violence” as any offense, punishable by at least one
year of imprisonment, 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,
[or] extortion . . . .
U.S.S.G. § 4B1.2 (emphasis added).
asserts that the crime of simple robbery under Minnesota law
is not a crime of violence because, pursuant to §
4B1.2(2), (“the enumerated offense clause”), it
is categorically broader than generic robbery, (see
Def.'s Obj. at 3-9), and under § 4B1.2(1)
(“the force clause”), it does not require violent
physical force. (See Def.'s Obj. at 1-2.)
utilize a categorical approach when considering whether a
prior conviction qualifies as an enumerated offense under the
Guidelines. See United States v. Malagon-Soto, 764
F.3d 925, 927 (8th Cir. 2014) (quoting United States v.
Medina-Valencia, 538 F.3d 831, 833 (8th Cir. 2008)).
Under this approach, courts compare the elements of the crime
of conviction, with the elements of the “generic”
crime. United States v. Harper, 869 F.3d 624, 625
(8th Cir. 2017) (citing Descamps v. United States,
570 U.S. 254, 133 S.Ct. 2276, 2281 (2013) (applying this
analysis to similar challenge under the ACCA)). If the
statute's elements ...