UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA UNITED STATES OF AMERICA v. Crim. Action No. 10-112-4 (JDB) DAMIEN SMALL, Defendant. MEMORANDUM OPINION Damien Small’s motion pursuant to 28 U.S.C. § 2255 challenges his designation as a career offender under the residual clause of § 4B1.2 in the 2010 U.S. Sentencing Guidelines Manual (“U.S.S.G.”). Mot. under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (“Defs.’ Mot.”) [ECF No. 93]; Suppl. Mot. to Vacate J. under 28 U.S.C. § 2255 (“Suppl. Mot.”) [ECF No. 105]. Small’s career offender enhancement was based in part on a prior conviction for D.C. attempted robbery, which Small asserts is not a qualifying offense for designation as a career offender because it is not a “crime of violence” under that provision. For the reasons that follow, Small’s motion must be dismissed as untimely under 28 U.S.C. § 2255(f). BACKGROUND Small served as a getaway car driver in a 2010 bank robbery. Suppl. Mot. at 5. Small was sentenced to 108 months’ incarceration for bank robbery and aiding and abetting in violation of 18 U.S.C. §§ 2113(a) and 2. J. in a Crim. Case [ECF No. 65] at 1–2. Small was sentenced as a career offender under the 2010 U.S. Sentencing Guidelines. Suppl. Mot. at 2. The career offender provision of the U.S. Sentencing Guidelines directs a sentencing court to increase the base offense level of a defendant convicted of a felony crime of violence or controlled substance offense if the court finds that the defendant has two or more prior felony convictions for crimes of violence, controlled substance offenses, or a combination of both. U.S.S.G. § 4B1.1(a) (U.S. Sentencing Comm’n 2010). At the time of Small’s sentencing, a prior offense qualified as a crime of violence if it: (1) has as an element the use, attempted use, or threatened use of physical force against the person of another [the “force clause”], or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives [the “enumerated offense clause”], or otherwise involves conduct that presents a serious potential risk of physical injury to another [the “residual clause”]. Id. § 4B1.2(a). 1 Small’s challenge here focuses on the application of the provision’s residual clause. Small’s career offender enhancement was based on two prior convictions: a 1999 Maryland robbery and a 1999 District of Columbia attempted robbery. Suppl. Mot. at 6. Designation as a career offender under the career offender provision’s residual clause raised Small’s offense level from 21 to 29 2 and his criminal history category from IV to VI. As a result, Small’s advisory guidelines range increased from 46–57 months to 151–188 months. Suppl. Mot. at 2. With respect to the two offenses that qualified Small as a career offender, the Court noted at sentencing that these offenses were essentially “determinative with respect to sentencing” because they made him “a career offender under the sentencing guidelines, which has a huge impact in this case.” Tr. of Sentencing [ECF No. 94] at 26:8–18. ...
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals