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United States v. Bickham

United States District Court, D. Minnesota

December 8, 2017

United States of America, Plaintiff,
v.
Charles Bickham, Defendant.

          ANDREW S. DUNNE & NATHAN HOYE NELSON, OFFICE OF THE UNITED STATES ATTORNEY, FOR PLAINTIFF UNITED STATES OF AMERICA

          ROBERT D. RICHMAN, FOR DEFENDANT CHARLES BICKHAM

          ORDER

          SUSAN RICHARD NELSON, UNITED STATES DISTRICT JUDGE

         Defendant 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. No. 159].)

         Prior 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 24. (Id.)

         At the 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).

         I. DISCUSSION

         Section 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).[1]

         Bickham 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.)

         Courts 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 ...


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