United States v. Harry Leshen
453 F. App'x 408
4th Cir.2011Background
- Leshen pled guilty to one count of being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1).
- The PSR, adopted by the district court, increased the base offense level under U.S.S.G. § 2K2.1 because of two or more crimes of violence under § 4B1.1 (Career-Offender).
- Prior convictions include a 1988 Virginia grand larceny (felony), 1996 Pennsylvania aggravated indecent assault/indecent assault/corruption of a minor, and 2008 Kentucky third-degree rape and third-degree sodomy.
- The PSR set base offense level at 23 (after acceptance of responsibility) and a criminal history category of III, yielding a Guidelines range of 57–71 months.
- At sentencing the district court adopted the PSR and stated the Guidelines were generous but sentenced at the top end within the range.
- Leshen appealed, arguing the larceny conviction was too old to count and the sex-offense convictions were not crimes of violence; the government argued the sex offenses were forcible offenses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May the old larceny conviction increase base level? | Larcceny is too old to create a predicate. | If counted, it supports the career-offender enhancement. | Plain error to count larceny; does not alone determine the range. |
| Are the sex-offense convictions crimes of violence? | Kentucky and Pennsylvania offenses are nonforcible sex offenses not crimes of violence. | They are forcible sex offenses under the commentary and thus crimes of violence. | Kentucky and Pennsylvania offenses are not crimes of violence under the Career-Offender Guideline. |
| Should the commentary on forcible sex offenses bind the Court to treat these convictions as crimes of violence? | Commentary broadens coverage; endorses government position. | Commentary is not controlling when inconsistent with Begay/ Thornton. | Guideline text controls; commentary cannot transform nonforcible offenses into crimes of violence. |
| Did the error affect the sentencing outcome warrant remand? | Error affected the Guidelines range and thus the sentence. | Remand unnecessary if the sentence would be the same. | Yes; the error affected the sentence and remand for resentencing is required. |
Key Cases Cited
- Thornton, 554 F.3d 443 (4th Cir. 2008) (forcible vs nonforcible sex offenses linked to violence analysis)
- Chacon, 533 F.3d 250 (4th Cir. 2008) (distinguishing immigration guideline from career-offender in violence analysis)
- Wynn, 579 F.3d 567 (6th Cir. 2009) (noting forcible vs nonforcible sex offenses in violence determinations)
- Rivers, 595 F.3d 558 (4th Cir. 2010) ( parallels between ACCA violent-felony and § 4B1.2 definitions)
- Jarmon, 596 F.3d 228 (4th Cir. 2010) (application of 4B1.2 to determine crimes of violence)
- Maxwell, 285 F.3d 336 (4th Cir. 2002) (remedial resentencing for substantial sentencing error)