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United States v. Brown

United States District Court, E.D. Kentucky, Central Division, Lexington

January 11, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
ARIAN LAMONT BROWN, Defendant.

          MEMORANDUM OPINION AND ORDER

          DANNY C. REEVES, UNITED STATES DISTRICT JUDGE

         The Presentence Investigation Report (“PSR”) prepared in this matter by the United States Probation Office designates Defendant Arian Brown as a Career Offender under the United States Sentencing Guidelines (“USSG”), § 4B1.1. Under that section,

[a] defendant is a career offender 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.

USSG § 4B1.1(a) (2016).

         Definitions for the terms used in this section of the guidelines are contained in USSG § 4B1.2. The term “crime of violence” is defined 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 as described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c).

USSG § 4B1.2(a) (2016). Application Notes in the Commentary to this section provides additional definitions and guidance. More specifically, Application Note 1 states that “crime of violence” includes the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.

         Defendant Brown does not contest that he was older than eighteen at the time of the commission of the instant offense or that the instant offense is a qualifying controlled substance offense. However, he contends that he should not be designated as a Career Offender under the guidelines because the conviction outlined in paragraph 45 of his PSR does not constitute one of two necessary predicate crimes of violence. The PSR provides as follows with respect to the conviction being challenged:

Date of Arrest

Conviction/Court

Date Sentence Imposed/Disposition

Guideline

Pts

45. 05/16/13 (Age 19)

1-2) Conspiracy to Commit Robbery-1st Degree

05/10/2004; 10 years prison, concurrent

4A1.1(a)

3

Fayette County County Circuit

07/18/2008 Paroled

Court, Lexington,

01/25/2013: Returned

KY, Docket No.: 04-CR-00300-002

parole violator 09/16/14: Discharged

This case originated from Fayette County District Court, Case No. 04-00283. A criminal complaint filed by a Lexington Police Department (LPD) detective on May 16, 2003, indicated that police had responded to the residence of Jose Hernandez-Vasquel on said date after said victim had reportedly been robbed and shot in the face. Subsequent investigation revealed witnesses had allegedly stated that Brown and others had approached the victim's home with the intent to rob him. Hernandez-Vasquel was later pronounced dead as a result of a gunshot on May 29, 2003. Thereafter, the defendant was indicted for Murder in Fayette County Circuit Court, Case No. 04-CR-00356 and indicted on Counts One and Two of Robbery-1st Degree and Burglary in Fayette County Court Case No. 04-CR-300. Ultimately, the Murder charge was dismissed on March 14, 2004, and he was found guilty of two counts of Robbery (as referenced above). The Burglary charge was dismissed. Specifically, in reference to Count One, the indictment stated that, on April 24, 2003, Adrian Brown, Arian Brown, Reginald Bush, and Giles Coles committed First Degree Robbery when, in the course of committing a theft, threatened the use of physical force upon Tammy Sanders and Chris Manley with intend to accomplish the theft and when they were armed with deadly weapons. Count Two stated that, on May 16, 2003, Adrian Brown, Arian Brown, Reginald Bush, and Giles Coles use of physical force upon Jose Hernandez-Vasquel with intent to accomplish a theft and when they were armed with deadly weapons. According to the Kentucky Department of Corrections, the defendant was committed on May 18, 2004, and paroled on July 18, 2008. He was returned as a parole violator on January 25, 2013, and was discharged on September 16, 2014, after reaching his minimum discharge date.

[PSR, p. 12, ¶ 45][1]

         Brown is incorrect in asserting that his conviction for conspiracy to commit first degree robbery under Kentucky law does not constitute a crime of violence under the applicable United States Sentencing Guidelines. Recently, in United States v. Ingram, 2017 WL 3699862 (U.S. Dist. Ct., EDKY, Aug. 25, 2017, amended Dec. 28, 2017), the undersigned explained why a conviction under Kentucky's first-degree robbery statute, Ky. Rev. Stat. (“KRS”) § 515.020, is categorically a crime of violence. The Court borrows and quotes heavily from that opinion in addressing the issue raised by Defendant Brown.

         The first-degree robbery statute, in effect since January 1, 1975, reads:

(1) A person is guilty of robbery in the first degree when, in the course of committing theft, he uses or threatens the immediate use of physical force upon another person with ...

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