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United States v. Garrison

United States District Court, W.D. Kentucky, Louisville Division

June 26, 2019

UNITED STATES OF AMERICA Plaintiff
v.
JAMAR GARRISON Defendant

          MEMORANDUM OPINION & ORDER

          Rebecca Grady Jennings, District Judge.

         This matter is before the Court on the Defendant Jamar Garrison's (“Garrison”) Motion to Strike the Information and Notice of Prior Felony Drug Conviction filed under 21 U.S.C. § 851 (“Motion to Strike”)[DE 105] and objections to the Presentence Investigation Report (“PSR”). [DE 110, Revised PSR]. The Court held oral argument on May 16, 2019.[1] For the reasons below, the Court will deny the Motion to Strike as moot and overrule Garrison's objections to the PSR.

         BACKGROUND

         The United States filed an Information and Notice of Prior Felony Drug Conviction under 21 U.S.C. § 851 stating its intent to seek an enhanced penalty under 21 U.S.C. § 841(b)(1)(“Notice”). [DE 44]. Later, a jury convicted Garrison of possession of a firearm by a prohibited person in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e) (Count 1), possession of heroin with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) (Count 2), and possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) (Count 3). [DE 57, Jury Verdict; DE 1, Indictment]. Garrison moves to strike the Notice, arguing he should not be subject to an enhanced statutory maximum sentence under 21 U.S.C. § 841(b)(1). [DE 105, Mot. Strike]. The United States filed a Response. [DE 116, Resp.]. Garrison did not file a Reply.

         Garrison also objects to the PSR. [DE 110, Rev. PSR]. Garrison objects to the calculation of his base offense level under U.S.S.G. § 2K2.1, application of the career offender enhancement under U.S.S.G. § 4B1.1(a), and application of the armed career criminal enhancement under 18 U.S.C. § 924(e) of the Armed Career Criminal Act (“ACCA”).

         DISCUSSION

         A. Objection to Base Level Offense under U.S.S.G. § 2K2.1

         First, Garrison objects to the calculation of his base offense level of 24 in paragraph 17 of the PSR. The United States Sentencing Commission Guidelines (“the Guidelines”) group Count 1 and Count 2 under U.S.S.G. § 3D1.2(c)-(d). Count 1 produces the higher total offense level under U.S.S.G. § 2K2.1 and thus is used to calculate the guideline range. Garrison does not object to the grouping of the counts or to the use of Court 1 to calculate the guideline range. That said, Garrison objects to the use of U.S.S.G. § 2K2.1(2) as opposed to U.S.S.G. § 2K2.1(4).

         U.S.S.G. § 2K2.1(a)(2) provides that Garrison's base offense level for unlawful possession of firearms is 24 “if [he] committed any part of the instance offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense . . .” (emphasis added). Thus, for Garrison's base offense level to be 24, he must have committed two prior felony convictions that qualify as either a “crime of violence” and/or a “controlled substance offense” (i.e., two felony convictions of a crime of violence, two felony convictions of a controlled substance offense, or one felony conviction of a crime of violence and one felony conviction of a controlled substance offense). On the other hand, U.S.S.G. § 2K2.1(a)(4) provides for a base offense level of 20 when the defendant “committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense” or the firearm involved meets certain listed criteria. (emphasis added).

         Garrison has four prior convictions at issue. He has three potential “controlled substance” offenses:

1. Complicity to Trafficking in Controlled Substance First Degree Cocaine (Class C felony punishable by 5-10 years imprisonment) in Jefferson Circuit Court Case Number 06-CR-907 [DE 110, Rev. PSR ¶ 44];
2. Enhanced Trafficking in Controlled Substance While in Possession of a Firearm (Class C felony punishable by 5-10 years imprisonment) in Jefferson Circuit Case Number 07-CR-4192 [DE 110, Rev. PSR ¶ 45];
3. Trafficking in Controlled Substance First Degree Schedule II Hydrocodone (Class C felony) in Jefferson Circuit Case Number 16-CR-2358 [DE 110, Rev. PSR ¶ 48].
Garrison also has a potential conviction for a “crime of violence”:
4. Facilitation to Assault 1st Degree (Class D felony punishable by 1-5 years imprisonment) in Jefferson Circuit Case Number 07-CR-4192 [DE 110, Rev. PSR ¶ 45].

         Garrison concedes that the fourth conviction listed above, Facilitation to Assault 1st Degree, qualifies as predicate “crime of violence, ”[2] but argues that none of the above drug convictions qualify as a predicate “controlled substance offense” because the Kentucky statute under which he was convicted is broader than the Guidelines' definition of “controlled substance offense.” Thus, Garrison argues he only has one predicate offense and his based offense level should be 20.

         B. Standard for Determining whether Trafficking in Controlled Substance First-Degree, KRS § 218A.1412, is a “Controlled Substance Offense” under the § 4B1.2(b) of the Guidelines.

         Garrison's objection turns on whether at least one of his three prior convictions under KRS § 218A.1412, Trafficking in Controlled Substance First-Degree, qualifies as a “controlled substance offense” under U.S.S.G. § 4B1.2(b). The Court begins by applying the categorical approach to determine whether at least some part of Kentucky's Trafficking in Controlled Substance First-Degree statute is too broad to qualify as a “controlled substance offense” under the Guidelines. Descamps v. United States, 570 U.S. 254, 261 (quoting Taylor v. United States, 495 U.S. 575, 600 (1990)).

         a. Comparison between the definition of a controlled substance offense under § 4B1.2(b) and the elements of KRS § 218A.1412, ...


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