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United States v. Cordova

United States District Court, E.D. North Carolina, Southern Division

September 9, 2014

UNITED STATES OF AMERICA,
v.
JERMAINE CORDOVA, Defendant.

ORDER

JAMS C. DEVER, III, Chief District Judge.

On March 26, 2014, Jermaine Cordova ("Cordova" or "defendant") pleaded guilty, without a plea agreement, to a one-count indictment charging possession of a firearm and ammunition by a felon, in violation of 18 U.S.C. § 922(g)(1). The statutory maximum punishment for this offense is 10 years' imprisonment. See 18 U.S.C. § 924(a)(2). If, however, the defendant is deemed an armed career criminal under the Armed Career Criminal Act ("ACCA"), id. § 924(e), the statutory minimum punishment becomes 15 years' imprisonment, and the statutory maximum punishment becomes life imprisonment.

On July 15, 2014, the court began Cordova's sentencing hearing. See [D.E. 59]. The court considered the evidence presented and the arguments of counsel regarding two of Cordova's objections to the Presentence Investigation Report ("PSR") [D.E. 54], and overruled both. See Sentencing Tr. [D.E. 64] 8-124; PSR add. ¶¶ 2-3. The court then continued Cordova's sentencing hearing and ordered both parties to submit briefs regarding whether Cordova's criminal record makes him an armed career criminal subject to an enhanced sentence under 18 U.S.C. § 924(e). See Sentencing Tr. 135-38. On July 21, 2014, each party submitted a memorandum of law. See [D.E. 65, 66].

On September 4, 2014, the court completed Cordova's sentencing hearing. After considering the parties' briefs and the arguments of counsel, the court determined that Cordova's criminal record does make him an armed career criminal. The court then considered the arguments of counsel, Cordova's statement, and all relevant factors under 18 U.S.C. § 3553(a), and sentenced Cordova to 420 months' imprisonment. The court enters this order to explain Cordova's sentence.

I.

On January 2, 2013, Cordova contacted a female stripper and asked her to strip for Kareem Demond Thomas ("Thomas") for $500. See PSR ¶ 3.[1] The stripper agreed and contacted Thomas, who met the stripper at her apartment in Wilmington, North Carolina. When Thomas arrived at the apartment, Cordova and Christopher Dashawn Williams ("Williams") ran toward Thomas, each brandishing a firearm. When Thomas attempted to flee, Cordova or Williams shot Thomas in the leg. Thomas fell to the ground, and he was shot four more times. Cordova and Williams then went through Thomas's pockets and stole various items from him. Thomas suffered serious injuries and required emergency medical treatment. See id.

Officer Lee Odham ("Officer Odham") interviewed Thomas. See Sentencing Tr. 64-66. Thomas identified Williams as one of the individuals who robbed him and shot him. See id. 66-68. Thus, the Wilmington Police Department obtained an arrest warrant for Williams. See id.

On January 29, 2013, Officer Odham received a call from a confidential informant. Id. at 68. The confidential informant told him that Williams was in the area of Barclay Hills and Market Street in Wilmington, was walking towards Princess Place Drive, and was wearing a gray sweatshirt and carrying a red back pack. See id. Officer Wham then had the police dispatcher alert any officers in that area to arrest Williams pursuant to the pending arrest warrant. See id. at 68-69.

Two officers from the Wilmington Police Department, Detective Kenneth Becker ("Detective Becker") and Detective Ian Lovell ("Detective Lovell"), were in the area and responded. Id. at 69. As Detectives Becker and Lovell approached in their car, they observed Williams get into a car. See id. at 15. The detectives then conducted a traffic stop on the car in order to arrest Williams. Id. at 18. Cordova was driving, and Williams was in the passenger seat. Id. at 18, 20. Upon seeing the officers activate their blue lights, Williams jumped from Cordova's car and ran. Id. at 17-18. Detective Lovell exited his car and ran after Williams. Id. at 18-19.

Meanwhile, Detective Becker got out of his car and approached Cordova, who was sitting in the car's driver's seat. Id. at 19-20. Cordova appeared extremely nervous. Id. at 20-21. Detective Becker asked Cordova about the car's passenger. Id . Cordova responded that the passenger was a friend and that he was giving him a ride. Id. at 21-22. Detective Becker commented that it was odd that Cordova's friend jumped out of the car and ran and then asked Cordova if he had drugs or guns on him. Id. at 2. Cordova handed a bag containing approximately 12.85 grams of marijuana to Detective Becker. Id. at 22-23. Detective Becker placed the marijuana on top of the car. Id. at 23. Cordova remained extremely nervous. Id. at 23. Detective Becker then asked Cordova to step out of the car. Id. at 24. Cordova appeared to reach for a phone. Id . Detective Becker told Cordova not to worry about the phone. Id . The car door was open, and Detective Becker decided to handcuff Cordova. See id. at 24-25. Detective Becker put one handcuff on Cordova's left wrist. Id. at 25. Cordova then resisted, pulled Becker into the car, pulled out a loaded semi-automatic pistol from his waistband, pointed it at Detective Becker, and fired. Id. at 25-26. Cordova missed. Id . Detective Becker escaped, drew his service weapon, ran towards the back of Cordova's car, and returned fire through the back windshield of Cordova's car, but missed Cordova. Id. at 26-27. Cordova then ran from the car in the same direction that Williams had fled. Id. at 27-28. While fleeing, Cordova encountered Detective Lovell and approached him with his weapon raised. Id. at 53. Detective Lovell shot Cordova in the left leg. Id. at 54. Despite his injury, Cordova ran and barricaded himself in a nearby storage shed. Id. at 73. After hours of negotiations, Cordova surrendered to law enforcement. Id. at 74. In the shed, law enforcement collected Cordova's semi-automatic pistol and a magazine loaded with ammunition. Id. at 79.

Before Cordova's initial sentencing hearing, the United States Probation Office ("probation") prepared the PSR. See [D.E. 54]. After detailing Cordova's extensive criminal history and calculating a criminal history score of 15, probation determined that Cordova was an armed career criminal based on three prior convictions: (1) a Massachusetts felony conviction for assault and battery with a dangerous weapon, see PSR ¶ 13; (2) a Massachusetts felony conviction for unlawful possession of a firearm during the commission or attempted commission of a felony, See id. ¶ 14; and (3) either a North Carolina felony conviction for second-degree burglary, see id. 21, or a North Carolina felony conviction for second-degree kidnapping. See id. ¶ 22.

Next, probation determined Cordova's base offense level to be 33 under U.S.S.G. § 2A2.1(a)(1), the attempted first-degree murder guideline. See id. ¶ 51. Probation then increased Cordova's base offense level by 6 levels under U.S.S.G. § 3A1.2(c)(1), which applies where the defendant "kn[e]w or ha[d] reasonable cause to believe that a person was a law enforcement officer, [and] assaulted such officer during the course of the offense or immediate flight therefrom" "in a manner creating a substantial risk of serious bodily injury." See id. ¶ 53. Finally, probation reduced Cordova's adjusted offense level of 39 by three levels for acceptance of responsibility. See id. ¶¶ 58-59. A total offense level of 36, coupled with a criminal history category of VI, yielded an advisory guideline range of 324 to 405 months' imprisonment. See U.S.S.G. ch. 5, pt. A (sentencing table).[2]

Cordova made four objections to the PSR. See PSR add. First, Cordova contended that, under Massachusetts law, he was never convicted of the felony offense listed in paragraph 13, assault and battery with a dangerous weapon. Accordingly, he argued that the offense listed in paragraph 13 was not a predicate violent-felony conviction under the ACCA. Second, Cordova contended that he did not commit the offenses listed in paragraphs 21 and 22 "on occasions different from one another, " see 18 U.S.C. § 924(e)(1), and that probation therefore improperly counted the two convictions as separate ACCA predicates. Third, Cordova contended that probation improperly applied the attempted first-degree murder cross reference because there was no evidence that Cordova shot at Detective Becker. Finally, Cordova contended that probation improperly applied the official-victim enhancement under U.S.S.G. § 3A1.2(c)(1). Cordova argued that, even if he did shoot at Detective Becker, applying this enhancement constituted impermissible double counting.

On July 15, 2014, the court began Cordova's sentencing hearing. See [D.E. 59]. At the hearing, the court heard evidence on Cordova's third and fourth objections. The government presented the testimony of three witnesses, Detective Becker, Detective Lovell, and Officer Odham.[3] Cordova also testified and stated (among other things) that he told Detective Becker that he had a gun before fleeing from the car, and that he never fired his gun on January 29, 2013. See Sentencing Tr. 96. After considering the evidence presented and the arguments of counsel, the court credited the testimony of Detective Becker, Detective Lovell, and Officer Odham, and found that Cordova not only shot at Detective Becker, but also acted with the requisite premeditation and deliberation under U.S.S.G. § 2A2.1(a)(1) and that the enhancement under section 3A1.2(c)(1) was appropriate. See Sentencing Tr. 119-22; United States v. Frasier, 483 F.Appx. 791, 793 (4th Cir. 2012) (per curiam) (unpublished); United States v. Upshaw, 474 F.Appx. 233, 233 (4th Cir. 2012) (per curiam) (unpublished); United States v. Johnson, 457 F.Appx. 330, 332 (4th Cir. 2011) (per curiam) (unpublished); United States v. Mial, 454 F.Appx. 161, 162-63 (4th Cir. 2011) (per curiam) (unpublished); United States v. Smith, 344 F.Appx. 856, 859 (4th Cir. 2009) (per curiam) (unpublished); United States v. Taylor, 337 F.Appx. 342, 343 (4th Cir. 2009) (per curiam) (unpublished). Moreover, Cordova perjured himself during the sentencing hearing when he testified that he told Detective Becker about his weapon before pulling it from his waistband and when he testified that he had not fired his weapon on January 29, 2013. Cordova lied in an effort to mislead the court and to evade responsibility for his actions. Accordingly, the court overruled Cordova's third and fourth objections, applied a two-level enhancement for obstruction of justice under U.S.S.G. § 3C1.1, and ruled that a reduction for acceptance of responsibility under U.S.S.G. § 3E1.1 was not appropriate. See Sentencing Tr. 123.

Next, the court ordered both parties to submit briefs regarding whether Cordova was an armed career criminal subject to an enhanced sentence under 18 U.S.C. § 924(e). See id. 135-38. Specifically, the court directed both parties to address whether the offenses listed in paragraphs 13 and 14 could serve as predicate convictions, and whether the convictions listed in paragraphs 21 and 22 could be counted separately. The court continued Cordova's sentencing pending its receipt and review of the parties' briefs, which both parties submitted on July 21, 2014. See [D.E. 65, 66]. On September 4, 2014, the court completed Cordova's sentencing hearing.

II.

The Supreme Court has described the process for imposing a sentence under the advisory sentencing guidelines as follows:

[A] district court should begin all sentencing proceedings by correctly calculating the applicable [United States Sentencing] Guidelines range. As a matter of administration and to secure nationwide consistency, the Guidelines should be the starting point and the initial benchmark. The Guidelines are not the only consideration, however. Accordingly, after giving both parties an opportunity to argue for whatever sentence they deem appropriate, the district judge should then consider all of the [18 U.S.C.] § 3553(a) factors to determine whether they support the sentence requested by a party. In so doing, he may not presume that the Guidelines range is reasonable. He must make an individualized assessment based on the facts presented. If he decides ...

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