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United States v. Fisher

United States District Court, Third Circuit

January 15, 2014

UNITED STATES OF AMERICA,
v.
JAMAR FISHER

Matthew T. Smith, AUSA, Office of the U.S. Attorney District of New Jersey, Camden Federal Building & Courthouse Camden, New Jersey,

Rocco C. Cipparone, Jr., Esquire, Law Office of Rocco C. Cipparone, Jr. Haddon Heights, New Jersey.

MEMORANDUM OPINION

RENÉE MARIE BUMB, District Judge.

The issue before the Court is whether the defendant, Jamar Fisher (the "Defendant"), qualifies as a career offender under Section 4B1.1 of the United States Sentencing Guidelines ("U.S.S.G."). The answer lies in whether Defendant's violation of New Jersey's Intensive Supervision Program ("ISP") resurrects an otherwise uncounted, more than fifteen-year-old drug conviction. For the reasons that follow, the Court holds that it does not. A violation of ISP is not the same as a violation of supervised release for criminal history computation purposes. Accordingly, the Defendant is not a Career Offender under U.S.S.G. § 4B1.1 because he does not have two qualifying prior convictions.

Background

On May 15, 2012, Defendant plead guilty to one count of possession with intent to distribute 1-Benzylpiperazine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(c). After various objections, the United States Probation Office prepared a final Pre-sentence Investigation Report. In its final Report, the Probation Office sustained Defendant's objection to the application of U.S.S.G. § 4B1.1, the Career Offender enhancement for the instant offense. In response, the United States objected to Probation's finding that Defendant is not a Career Offender. The Court must resolve that objection.

Analysis

Under U.S.S.G. § 4B1.1(a), a Defendant is a "Career Offender" if:

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

See U.S.S.G. § 4B1.1(a).

There is no dispute that the first two prongs of § 4B1.1 are satisfied. The Defendant was in his early thirties when he committed this crime, and the Defendant pleaded guilty to a drug distribution charge. The disputed issue is whether the Defendant has at least two qualifying convictions of either crimes of violence or controlled substance offenses.

In examining the third prong of § 4B1.1, section 4A1.2(e) imposes time restrictions on whether prior convictions are counted.[1] Under § 4A1.2(e)(2) a probationary sentence imposed outside of ten years of the defendant's commencement of the offense is not counted. U.S.S.G. § 4A1.2(a), (e). Clearly, Defendant's conviction resulting from his arrest on March 1, 1999 (the "March 1, 1999 conviction") and conviction resulting from his arrest on March 18, 1999 (the "March 18, 1999 conviction") are both controlled substance offenses. U.S.S.G. § ...


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