Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bowles v. United States

United States District Court, D. South Carolina

February 28, 2017

Gregory Young Bowles, Movant,
v.
United States of America, Respondent.

          ORDER AND OPINION

          Margaret B. Seymour Senior United States District Judge.

         On September 4, 2007, Movant Gregory Young Bowles pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). A presentence investigation report was prepared that identified four prior predicate offenses for purposes of the Armed Career Criminal Act, 18 U.S.C. § 924(e): (1) a conviction on October 9, 1984, for robbery, second degree in the Queens County, New York, Supreme Court, ¶ 28; (2) a conviction on November 8, 1984, for robbery, third degree in the Queens County, New York, Supreme Court, ¶ 29; (3) a conviction on March 16, 1988, for criminal sale of a controlled substance, third degree in the Queens County, New York, Supreme Court, ¶ 30; and (4) a conviction on March 21, 1997, for continuing criminal enterprise in the United States District Court for the Northern District of New York, ¶ 31. As a result of the predicate offenses, Movant's criminal history category became VI. Movant's base offense level was 24. Movant received a 4-level enhancement for possessing a firearm in connection with a drug trafficking offense, for an adjusted offense level of 28; however, because Movant was categorized as an armed career criminal, his offense level became 34. Movant received a 3-level reduction for acceptance of responsibility, for a total offense level of 31. Movant's guidelines range was 188 to 234 months imprisonment. His statutory range was fifteen years to life imprisonment. On February 26, 2009, Movant was sentenced to incarceration for a period of 188 months. Judgment was entered on February 27, 2009.

         This matter is before the court on Movant's motion to correct sentence pursuant to 28 U.S.C. § 2255, which motion was filed on March 15, 2016. Movant contends that, in light of the Supreme Court's decision in Johnson (Samuel) v. United States, 135 S.Ct. 2551 (2015), he does not have the requisite number of qualifying predicate offenses to be found an armed career criminal. On April 14, 2016, Respondent United States of America filed a motion to dismiss. Movant filed a response in opposition on April 25, 2016.

         DISCUSSION

         The Armed Career Criminal Act of 1984 (ACCA) mandates an enhanced sentence for an offender convicted of being a felon in possession of a firearm if the offender has three or move convictions for a serious drug offense or violent felony. Under 18 U.S.C. § 924(e)(2)(B), the term “violent felony” means any crime punishable by imprisonment for a term exceeding one year . . . that-

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

         A violent felony is a crime characterized by extreme physical force, such as murder, forcible rape, and assault and battery with a dangerous weapon. Johnson (Curtis) v. United States, 559 U.S. 133, 140-41 (2010) (quoting 19 Oxford English Dictionary 1188 (2d 3d. 1989)).

         In Johnson (Samuel), the Court determined that the language known as the residual clause-i.e., “or otherwise involves conduct that presents a serious potential risk of physical injury to another”-is unconstitutionally vague. Thus, Johnson (Samuel) reduced the number of violent felonies that can be considered as predicate offenses under the ACCA. In Welch v. United States, 136 S.Ct. 1257 (2016), the Court determined that Johnson (Samuel) announced a new substantive rule that applies retroactively to cases on collateral review.

         Movant contends that his prior convictions for robbery, second degree and robbery, third degree do not qualify as violent felonies because neither offense meets the definitional requirements of “force” as set out in § 924(e)(2)(B)(i) or the enumerated offenses set forth in § 924(e)(2)(B)(ii). “Robbery” is not an enumerated offense in § 924(e). The question becomes, then, whether Movant's prior convictions for robbery satisfy the force clause. To answer this question, the court is required to use the “categorical approach, ” which approach focuses on the elements of the statute forming the basis of the defendant's conviction to determine whether the minimum conduct necessary for a conviction amounts to a violent felony. Descamps v. United States, 133 S.Ct. 2276, 2281 (2013).

         N.Y. Penal Law§ 160.00 provides:

Robbery is forcible stealing. A person forcibly steals property and commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of:
1. Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or
2. Compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.