United States District Court, E.D. North Carolina, Eastern Division
JAMES C. FOX, Senior District Judge.
This matter is before the court on Gardner's pro se letter motion [DE-86], which the court construes as motion to strike the revised presentence report [DE-75]. Gardner objects to his classification as an armed career criminal, 18 U.S.C. § 924(e), and alleges various violations of Federal Rule of Criminal Procedure 32 related to preparation of his revised presentence report. For the reasons that follow, the motion is DENIED. However, Gardner's counsel may file additional memoranda with the court challenging Gardner's armed career criminal designation.
RELEVANT FACTUAL AND PROCEDURAL HISTORY
After a jury trial, Gardner was convicted of being a felon in possession of a firearm, 18 U.S.C. § 922(g). The initial draft of the presentence report found that Gardner qualified as an armed career criminal under § 924(e). Section 924(e), part of the Armed Career Criminal Act of 1984, provides that a Defendant convicted of being a felon in possession of a firearm and who has "three previous convictions... for a violent felony or a serious drug offense, or both, committed on occasions different from one another, ... shall be... imprisoned not less than 15 years." Id. The armed career criminal designation substantially increases Gardner's potential punishment for the firearm conviction. Gardner vigorously objects to the armed career criminal designation.
In accordance with Rule 32 of the Federal Rules of Criminal Procedure, the probation officer disclosed the initial draft of the presentence report to the parties and provided fourteen days within which to submit objections. Fed. R. Crim. P. 32(f). Gardner submitted numerous objections (both pro se and through counsel), mostly challenging his designation as an armed career criminal. After receiving the objections, probation drafted written responses to the objections in accordance with Rule 32(g) and distributed the initial final presentence report to the court and the parties. In response to the armed career criminal objection, probation initially responded that Gardner met the § 924(e) criteria based on the following predicate convictions: (1) two counts of breaking and entering on May 26, 1998 (paragraph 12 of the presentence report); (2) common law robbery and assault with a deadly weapon inflicting serious injury on May 30, 1998 (paragraphs 13 and 16 of the presentence report); (3) common law robbery on June 1, 1998 (paragraph 14 of the presentence report); and (4) breaking and entering on May 12, 1998 (paragraph 15 of the presentence report). Initial Presentence Report [DE-68] at 16.
Gardner's sentencing was set for February 20, 2014. At the sentencing hearing, the Assistant United States Attorney requested a continuance because he discovered that the breaking and entering convictions may not qualify as violent felonies under United States v. Simmons , 649 F.3d 237 (4th Cir. 2011). The AUSA requested additional time to investigate Gardner's objections to his armed career criminal enhancement. The court's recollection is that Gardner objected to the continuance, preferring instead that the court sustain his objection and sentence him without the armed career criminal designation. The court allowed the Government's motion to continue and set the new sentencing hearing for March 10, 2014.
Subsequent to the February 20, 2014 hearing and in light of Simmons , the presentence report was revised. The only difference between the revised and initial versions was probation's response to Gardner's armed career criminal objection. In the new response, probation deleted the breaking and entering predicates but noted that Gardner still qualified as an armed career criminal. To support this finding, probation identified a "new" predicate conviction. The revised report identified the following predicate convictions: (1) common law robbery on November 27, 1996 (the "new" conviction used to designate Gardner an armed career criminal, found in paragraph 10 of the presentence report); (2) common law robbery and assault with a deadly weapon inflicting serious injury on May 30, 1998 (paragraphs 13 and 16 of the presentence report); (3) common law robbery on June 1, 1998 (paragraph 14 of the presentence report). See Revised Presentence Report [DE-75] at 16. Significantly, the criminal history section of Gardner's initial presentence report was left unchanged in the revised report. Thus, the "new" common law robbery conviction used to designate Gardner an armed career criminal has always been a part of Gardner's presentence report, both the initial and revised versions. See Initial Presentence Report [DE-68] at 4.
Gardner launches a number of challenges to the process by which the revised report was issued. Gardner's essential argument is that the Government should not have been granted a continuance and given "another bite at the apple" to find convictions supporting the armed career criminal designation once Gardner demonstrated that the breaking and entering convictions did not qualify as predicate felonies. Gardner attempts to find support for this argument in Federal Rule of Criminal Procedure 32(f), which covers objections to the presentence report:
Objecting to the Report.
(1) Time to Object. Within 14 days after receiving the presentence report, the parties must state in writing any objections, including objections to material information, sentencing guideline ranges, and policy statements contained in or omitted from the report.
(2) Serving Objections. An objecting party must provide a copy of its objections to the opposing party and to the probation officer.
(3) Action on Objections. After receiving objections, the probation officer may meet with the parties to discuss the objections. The probation officer may then investigate further ...