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United States v. Sentimore

United States District Court, E.D. Louisiana

May 18, 2017

UNITED STATES OF AMERICA
v.
JAMES SENTIMORE

         SECTION "S"

          ORDER AND REASONS

          MARY ANN VIAL LEMMON UNITED STATES DISTRICT JUDGE.

         IT IS HEREBY ORDERED that James Sentimore's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (Doc. #40) is DENIED.

         IT IS FURTHER ORDERED that the Federal Public Defender's Motion to Withdraw as Counsel of Record (Doc. #49) is GRANTED.

         This matter is before the court on James Sentimore's motion to vacate, set aside or correct his sentence brought under 28 U.S.C. § 2255. Sentimore argues that under Johnson v. United States, 135 S.Ct. 2551 (2015), the career offender sentencing enhancement of U.S.S.G. § 4B1.1 no longer applies and he is entitled to have his sentence vacated.

         On May 25, 2005, Sentimore pleaded guilty to three counts of bank robbery in violation of 18 U.S.C. §§ 2113(a), 2113(d) and 2. The presentence investigation report showed that Sentimore had an extensive criminal history, which included convictions for attempted armed robbery, armed robbery, and bank robbery. The government did not charge Sentimore under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e).[1] However, the court applied U.S.S.G. § 4B1.1 and 4B1.2, which have language similar to the ACCA.

         U.S.S.G. § 4B1.1(a) provides:

A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or is a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

“Crime of violence” is defined in U.S.S.G. § 4B1.2(a) as:

The term “crime of violence” means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that - -
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

Comment Note 1 to U.S.S.G. § 4B1.2 provides that “crime of violence” incudes robbery.

         Sentimore had prior convictions for attempted armed robbery, armed robbery, and bank robbery. Thus, he had at least two prior convictions that qualified as a “crime of violence” under U.S.S.G. § ...


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