The 11th Circuit recently held that, for federal sentencing purposes, it is a separate offense to be a career offender under U.S.S.C. §4B1.1.
In Gilbert v. United States, the defendant, Gilbert, had been convicted of a crack cocaine offense in 1997. Because he had previous convictions for possession of crack with intent to sell and carrying a concealed firearm, Gilbert was sentenced as a career offender under § 4B1.1. To qualify as a career offender under § 4B1.1, a defendant must have at least two prior felony convictions for a crime of violence or a controlled substance offense.
At the time there were mandatory sentencing guidelines that increased Gilberts sentencing range from 151-188 months to 292-365 months because he was considered a career offender. The district court judge dismissed Gilbert’s argument that carrying a concealed firearm is not a crime of violence, and sentenced Gilbert to 292 months.
Gilbert filed a § 2255 motion to vacate his sentence, but was unsuccessful because the 11th Circuit determined that carrying a concealed firearm a crime of violence under the career offender statute.
Then, in 2008, the Supreme Court heard the case of Begay v. United States. In that case, the Court held that “violent felony” under the Armed Career Criminal Act only applies to crimes that are similar in degree of risk and kind as those expressly listed by the statute. When the 11th Circuit later applied the Begay analysis in the case of U.S. v. Archer, it determined that the carrying of a concealed firearm is no longer considered a crime of violence under Sentencing Guidelines.
After this decision, the parties in Gilbert’s case filed responses to the possibility of Gilbert’s eligibility for a sentence reduction. The district court held that Gilbert was not entitled to a sentence reduction under Archer and Begay because Gilbert filed a second §2255 motion, which is not allowed unless new evidence is discovered or a constitutional law that was previously unavailable is made retroactive.
Gilbert filed a motion with the 11th Circuit seeking to reopen his original § 2255 motion. He asked the 11th Circuit to treat his motion as one under § 2241, as provided by the savings clause of § 2255. This clause allows traditional habeas corpus relief under § 2241 when a § 2255 motion would be inadequate to determine the legality of the defendant’s detention. The savings clause of § 2255 applies in cases where three elements are met:
(1) The claim asserted is based on a retroactively applicable Supreme Court decision
(2) The Supreme Court’s decision establishes that the defendant was convicted for a nonexistent offense
(3) The claim was foreclosed by circuit law when it should have been raised
The 11th Circuit Court disagreed with the government’s argument that Gilbert was not convicted for a nonexistent offense because the career offender guideline was not a separate offense. The Court held that there is a separate offense when there must be proof of statutory aggravating factors that can lead to a sentencing enhancement. The Court found that this situation increases the possibility that a defendant might be innocent of that offense.
So, because Gilbert did not actually commit two violent felonies, as required to be considered a career offender, he could not be guilty of being a career offender. Gilbert was unable to succeed on his claim at his sentencing, on appeal and in his first § 2255 motion because it was precluded by 11th Circuit law. Therefore, he was entitled to relief under § 2241.
The maximum sentence he could have received for the crack cocaine offense was 188 months, and he is likely entitled to have his sentencing range amended to 130-162 months. Gilbert has already served 171 months. His sentence was vacated and the Court remanded the case so he could be resentenced.
Source: “Gilbert v. United States” 6/21/10