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Crump v. United States

United States District Court, S.D. West Virginia, Huntington Division

March 6, 2019

NORVELL WEBSTER CRUMP, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          PROPOSED FINDINGS AND RECOMMENDATIONS

          Cheryl A. Eifert, United States Magistrate Judge

         On October 10, 2018, the Honorable Robert C. Chambers, United States District Judge, remanded Movant's pending Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255, (ECF No. 274), to the undersigned United States Magistrate Judge for additional findings of fact and recommendations for disposition. (ECF No. 293). Specifically, the undersigned was asked to consider the underlying merits of Movant's argument that his criminal history was insufficient to qualify him as an armed career criminal under 18 U.S.C. § 924(e). (Id.). Having now thoroughly examined Movant's argument regarding his criminal history, the undersigned FINDS that Movant's two prior felony convictions for malicious wounding under West Virginia law and his prior felony conviction for possession of cocaine with intent to distribute under federal law constitute the three predicate convictions necessary to qualify Movant as an armed career criminal under 18 U.S.C. § 924(e). Therefore, the undersigned respectfully RECOMMENDS that Movant's § 2255 motion be DENIED, and this matter be DISMISSED from the docket of the Court.

         I. Relevant History

         In August 1995, after a jury trial in this Court, Movant was convicted of conspiracy to possess with intent to deliver cocaine base (Count One); possession of a firearm by a convicted felon (Count Two); and using and carrying a firearm in relation to a drug trafficking crime (Count Three). (ECF No. 102).[1] James Wilmoth, Senior U.S. Probation Officer, prepared a presentence investigation report (“PSR”), which provided, in relevant part, an offense level computation for each count, a review of the Chapter Four enhancements, a multiple-count adjustment, a summary of Movant's prior convictions, and sentencing options available to the Court. (ECF No. 146 at 7-12, 15-16).

         As to Count One, Officer Wilmoth calculated Movant's adjusted offense level under the United States Sentencing Guidelines (“USSG”) to be 43. (Id. at 8). That figure was computed based largely on a guideline provision that increased the offense level in cases where the drug-trafficking conspiracy involved a murder. Officer Wilmoth explained in the PSR that on July 20, 1994, Movant devised a plan to rob Vance Jones, a rival drug dealer, of cocaine base and money. In the course of trying to execute his plan, Movant shot and killed Jones. Under a cross reference provision at USSG § 2D1.1(d), Jones's murder triggered application of the base offense level for First Degree Murder found at USSG § 2A1.1.

         Officer Wilmoth also examined whether any Chapter Four enhancements applied to the Count One conviction. (ECF No. Id. at 10). In accordance with USSG § 4B1.1, Movant qualified as a career offender, because (1) he was at least 18 years old at the time of the instant offense; (2) the instant offense was a felony; and (3) he had at least two prior felony convictions of either a crime of violence or a controlled substance offense “as detailed below” in the PSR. (ECF No. 146 at 10). Detailed in the section on Movant's criminal history were four felony convictions: two malicious wounding convictions under West Virginia law; one jail escape conviction under West Virginia law; and one conviction of possession with intent to distribute cocaine base under federal law. (Id. at 10-12). Officer Wilmoth noted in the PSR that Movant's adjusted offense level using the career offender guidelines was 37; however, because the offense level associated with First Degree Murder was higher, that offense level was applied, making Movant's adjusted offense level 43 as to Count One. (Id. at 10).

         Turning to Count Two-the felon in possession charge-Officer Wilmoth looked to USSG § 2K2.1, which also contained a cross reference to be used if a death occurred when the felon used or possessed a firearm in connection with the commission or attempted commission of another offense. (Id. at 8). Since Movant murdered Jones in the attempted commission of a robbery, the base offense level for First Degree Murder applied. Accordingly, Movant's base offense level was 43. (Id.) After making adjustments, his adjusted offense level for Count Two was also computed to be 43. (ECF No. 146 at 9).

         Looking at the Chapter Four enhancements, Officer Wilmoth found that Movant qualified as an armed career criminal under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), because he had been convicted of a violation of 18 U.S.C. § 922(g) and had at least three prior convictions for violent felony or serious drug offenses, or both, committed on occasions different from one another. (Id. at 10). Nevertheless, Officer Wilmoth determined that Movant's adjusted offense level would remain at 43, as that level was higher than his guideline level using the armed career criminal enhancement. (ECF No. 146 at 10).

         Finally, Officer Wilmoth reviewed USSG § 3D1.2, which set out the procedure for determining the offense level of multiple counts, and concluded that Counts One and Two were to be grouped together under § 3D1.2. Movant's conviction on Count Three-the use of a firearm during and in relation to a drug-trafficking crime-was not included in the group, because that offense carried a specific statutory sentence that was required to run consecutively to any other sentence. Officer Wilmoth explained that, as far as the grouped counts, the offense level would be determined by the highest level offense. (Id. at 9). As Count One and Count Two had the same offense level of 43, the final offense level under USSG § 3D1.2 was 43. (Id. at 9).

         In the sentencing options section of the PSR, Officer Wilmoth addressed both the statutory provisions and the sentence ranges under the USSG. (Id. at 15-16). As to Count One, Movant faced a statutory minimum term of imprisonment of ten years and a maximum term of life due to his prior felony drug-trafficking conviction. Under the USSG, Movant's sentence range was life imprisonment based upon an offense level of 43 and a criminal history category of VI. For his conviction under Count Two, Movant had a statutory minimum sentence of fifteen-years imprisonment. His sentence range pursuant to the USSG was, again, a life sentence. (Id.). Movant's conviction under Count Three carried, by statute, a mandatory five-year sentence of imprisonment to run consecutively to the other two terms of imprisonment.

         On February 16, 1996, Movant appeared for sentencing. (ECF No. 148). The major point of contention at the sentencing hearing was whether the PSR accurately calculated Movant's sentence for Counts One and Two using the cross references in the USSG, which increased Movant's base offense level to 43 to account for the murder of Vance Jones. Movant's counsel argued that the evidence submitted at trial did not establish that Movant committed murder and, therefore, application of the cross references was inappropriate. Notwithstanding these objections, the Sentencing Court found beyond a reasonable doubt that Movant intentionally shot and killed Vance Jones in the course of the conspiracy, which was a felony murder. (ECF No. 148 at 18-19, 80-81). Having made that finding, the Court further concluded that the guidelines calculations in the PSR were correct. Ultimately, the Court sentenced Movant to two life sentences on Counts One and Two, to run concurrently, and to five years on Count Three, to run consecutively to the sentences on Counts One and Two. The Court explained the reasons for the final sentence as follows:

This sentence, of course, exceeds a 24-month sentence and the Court must give its reasons for its imposition. First, the guidelines permit the sentence, and the statutes. The evidence clearly showed in this case to the Court, and the Court finds, and it showed by far more than a preponderance of the evidence to the Court, by [sic] a reasonable doubt, that the defendant shot and killed the victim, Vance Jones, with a shotgun while attempting to rob the victim of a quantity of cocaine base, clearly an act of felony murder. At the very least it can be said that a death of a human being resulted from the defendant's activity. It was an intentional shooting. And life imprisonment is deemed an appropriate sentence by the Court in light of the defendant's one felony heretofore, as well as the fact that incapacitation is a big factor by the Court in imposing this sentence.

(Id. at 80-81). The United States Court of Appeals for the Fourth Circuit (“Fourth Circuit”) affirmed Movant's conviction and sentence on July 23, 1997. (ECF No. 163).

         In June 1999, Movant filed his first Motion to Vacate, Set Aside, or Correct Sentence under § 2255, (ECF No. 165), which was denied in January 2002. (ECF No. 179). Movant subsequently filed a Motion under 18 U.S.C. § 3582 for sentence reduction and a Motion to Clarify Sentence, both of which were unsuccessful. (ECF Nos. 173, 198, 215, 249). Movant additionally ...


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