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United States v. Small

United States District Court, D. Minnesota

February 2, 2018

United States of America, Respondent-Plaintiff,
v.
Suresh Harlan Small, Petitioner-Defendant.

          MEMORANDUM OPINION AND ORDER

          DONOVAN W. FRANK UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Petitioner-Defendant Suresh Harlan Small's (“Petitioner-Defendant”) motion pursuant to 28 U.S.C. § 2255 (Doc. No. 65) entitled “Motion for Correction” asserting, “. . . for correction of [h]is illegal sentence as the Petitioner's prior for Third degree Attempted Burglary under U.S.S.G. SECTION 4B1.2 does not qualify per JOHNSON v. UNITED STATES.” The Government opposes Petitioner-Defendant's motion and requests that his motion be denied. (Doc. No. 70.)

         For the reasons that the Court discusses below, the Court denies Petitioner-Defendant's motion.

         BACKGROUND

         On November 19, 2008, Petitioner-Defendant entered a plea of guilty without a plea agreement to five counts of armed bank robbery, pursuant to 18 U.S.C. § 2113(a) and (d), as charged in the five-count Superseding Indictment. Significantly, in the Presentence Investigation Report (“PSR”) prepared by the United States Probation and Pretrial Services Office, they found that Petitioner-Defendant was a career offender under the United States Sentencing Guidelines (“U.S.S.G.”) due to Petitioner-Defendant's prior convictions of First-Degree Aggravated Robbery, involving a bank robbery on November 11, 1998, and Attempted First-Degree Aggravated Robbery, involving a bank robbery on March 9, 1999. These two convictions invoked the Career Offender provision set forth in U.S.S.G. § 4B1.1. Admittedly, the PSR noted that Petitioner-Defendant also had a prior conviction for Third-Degree Attempted Burglary from August 31, 2005. It should be noted that Petitioner-Defendant's two convictions for aggravated robbery and attempt aggravated robbery qualified him as a career offender pursuant to the guidelines without reference to the Third-Degree Attempted Burglary conviction that Petitioner-Defendant attacks in his § 2255 motion. The Court acknowledges the Government's concern that Petitioner-Defendant may have confused the Armed Career Criminal Act (“ACCA”) with the Sentencing Guidelines. The ACCA, 18 U.S.C. § 924(e), does require conviction of three prior felonies that are either crimes of violence or controlled substance crimes. However, the Sentencing Guidelines' Career Offender provision, pursuant to U.S.S.G. § 4B1.1, only requires two such prior convictions.

         The PSR determined Petitioner-Defendant's offense severity level pursuant to the Career Offender guidelines, U.S.S.G. § 4B1.1, and also, without reference to the Career Offender guidelines. Petitioner-Defendant's career offender adjusted offense severity level was 31; his noncareer offender adjusted offense severity level was ironically higher, a level 34. Petitioner-Defendant had 12 criminal history points, which gave him a career offender criminal history category of VI and a noncareer offender criminal history category of V.

         Combining the noncareer offender severity level of 34, and the career offender criminal history category of VI, the PSR determined that the advisory guidelines sentence for Petitioner-Defendant was 262-327 months. Ironically, given Petitioner-Defendant's assertions and his actions before the Court, had he been sentenced strictly as a career offender (adjusted offense level 31; criminal history category VI), his advisory guideline range would have been 188-235 months, while if sentenced solely on his conduct related to his conviction and criminal history, without regard to the career offender guideline, Petitioner-Defendant's advisory guideline range, based on an adjusted offense severity level of 34 and criminal history category of V, would have been 235-293 months.

         On July 14, 2009, this Court departed downward, as noted by the Government, from the advisory guideline range and sentenced Petitioner-Defendant to 240 months' imprisonment on each count of conviction and then ordered all five sentences to be served concurrently. On July 24, 2009, Petitioner-Defendant filed his Notice of Appeal. On appeal, Petitioner-Defendant asserted that he should have been sentenced either solely as a career offender or solely on his conduct related to his conviction, but that it was improper for the Court to combine the higher career offender criminal history with the higher noncareer offender offense severity level. On April 2, 2010, the United States Court of Appeals for the Eighth Circuit held that this Court had “properly followed § 4B1.1(b) by setting [Petitioner-Defendant's] criminal history at category VI and adopting the greater of the two offense levels.” United States v. Small, 599 F.3d 814, 816 (8th Cir. 2010).

         On July 1, 2016, Petitioner-Defendant filed his § 2255 motion that is now before the Court. The Court granted a stay to the Government, pending the outcome in Beckles v. United States. (Doc. No. 69.) The United States Supreme Court issued its decision in Beckles on March 6, 2017. Beckles, 137 S.Ct. 886 (2017).

         DISCUSSION

         I. Johnson Claim

         The Court is concerned that Petitioner-Defendant, in challenging his sentence pursuant to the U.S. Supreme Court's holding in Johnson v. United States, 135 S.Ct. 2551 (2015), which invalidated the residual clause of the ACCA, 18 U.S.C. § 924(e)(2)(B), as unconstitutionally vague, confused the advisory guidelines with the residual clause of the ACCA. Johnson did not address the constitutional validity of the guidelines' career offender provision.

         Respectfully stated, Petitioner-Defendant overlooks the fact that he suffered no prejudice by the Court's decision and sentence in his case. Specifically, this Court sentenced Petitioner-Defendant to 240 months' imprisonment, a downward departure from the advisory guidelines range of 262-327 months and, within the advisory guidelines sentencing range, even had Petitioner-Defendant been sentenced solely on the basis of his conduct related to his conviction and his criminal history. The irony to Petitioner-Defendant's position is that a pure career offender calculation resulted in the shortest sentence.

         Secondly, this Court views the Petitioner-Defendant's motion, as does the Government, as a collateral attack regarding the interpretation of the sentencing guidelines by this Court. Such an attack is not cognizable. Sun Bear v. United States, 644 F.3d 700, 704 (8th Cir. 2011) (“[T]his court and our sister circuits have consistently held ‘that ordinary questions of guideline interpretation falling short of the ‘miscarriage of justice' standard ...


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