Ok, the first thing you need to know to beat your career offender and armed career offender is about the categorical approach and the modified categorical approach. I have turned the above words into links where you click and can read my previous articles about the categorical approach and the modified categorical approach. They are short articles, but the categorical approach and the modified categorical approach present complex legal issues that many lawyers and prosecutors do not understand, but they are powerful tools when used effectively can be used to beat many armed and career armed sentences. So please read and understand the above articles about the categorical approach and the modified categorical approach, and if you have any questions do not hesitate to click the contact link above and ask me!
I AM GOING TO DEFINE THE LAW AND TERMS HERE, IF YOU DO NOT WANT TO READ LAW STUFF SKIP DOWN TO HOW TO BEAT! (look for the picture of the boxer!)
OK, now we are going to go into what is a career offender and what is an armed career offender.
A career offender is from the United States Sentencing Guidelines (U.S.S.G) section 4B1.1 as states:
§4B1.1. Career Offender
- (a) 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 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.
- (b) Except as provided in subsection (c), if the offense level for a career offender from the table in this subsection is greater than the offense level otherwise applicable, the offense level from the table in this subsection shall apply. A career offender’s criminal history category in every case under this subsection shall be Category VI.
§4B1.2. Definitions of Terms Used in Section 4B1.1
- (a) 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 murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c).
- (b) The term “controlled substance offense” means an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.
- (c) The term “two prior felony convictions” means (1) the defendant committed the instant offense of conviction subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense (i.e., two felony convictions of a crime of violence, two felony convictions of a controlled substance offense, or one felony conviction of a crime of violence and one felony conviction of a controlled substance offense), and (2) the sentences for at least two of the aforementioned felony convictions are counted separately under the provisions of §4A1.1(a), (b), or (c). The date that a defendant sustained a conviction shall be the date that the guilt of the defendant has been established, whether by guilty plea, trial, or plea of nolo contender.
Commentary
Application Notes:
- 1. Definitions.—For purposes of this guideline—
“Crime of violence” and “controlled substance offense” include the offenses of aiding and abetting, conspiring, and attempting to commit such offenses. (This commentary section is very important and I will address it below)
(there are more definitions dealing with crimes of murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm, but I am not going to get into those in this article if your conviction involves contact me using the contact link above.)
The below chart is the guideline range for career offenders:
| Offense Statutory Maximum | Offense Level* | |
| (1) | Life | 37 |
| (2) | 25 years or more | 34 |
| (3) | 20 years or more, but less than 25 years | 32 |
| (4) | 15 years or more, but less than 20 years | 29 |
| (5) | 10 years or more, but less than 15 years | 24 |
| (6) | 5 years or more, but less than 10 years | 17 |
| (7) | More than 1 year, but less than 5 years | 12. |
For comparison, I am including the sentencing table for non-career offenders that is in effect at the time of this article. I will try to make sure that is always updated, but you may wish to double-check to make sure that this is the sentencing table that is in effect when you are evaluating your case:
As you can see the time difference for career offenders and non-career offenders can be dramatic.
An armed career offender is defined in 18 U.S.C § 924(e)
(1) In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years (This means that if you have an ACCA sentence you have a mandatory minimum sentence of fifteen years!), and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g).
(2) As used in this subsection—(A)the term “serious drug offense” means—(i)
an offense under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46 for which a maximum term of imprisonment of ten years or more is prescribed by law; or
(ii) an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of ten years or more is prescribed by law;
(B) the term “violent felony” means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that—
(I) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another; and (This bolded phrase is called the residual clause and has been invalidated as constitutionally vague by the United States Supreme Court in Johnson v. United States, 136 S. Ct. 12 – 2015).
(C) the term “conviction” includes a finding that a person has committed an act of juvenile delinquency involving a violent felony.
OK, that was a lot! But it is necessary for a person to understand the definitions and terms used in the respected statutes.
HOW TO BEAT!
Above I said that I was going to address the commentary section of the guidelines dealing with attempts and conspiracy. In United States v. Winstead, No. 12-3036 (D.C. Cir. 2018) (Read the whole case here), the D.C. Circuit said that the commentary that was added after the sentencing commission had written the career offender part of the guidelines was void. This means that if you are in a circuit that accepts Winstead and the government is trying to make you a career offender because if a conspiracy, you can beat the career offender designation.
Even if your circuit does not accept Winstead, you should still make the argument to preserve the issue in case the circuit later gets overruled.
State-level drug convictions.
To beat a state-level drug conviction, you must first decide if the crime is divisible or indivisible (you will know what this means if you read my articles about the categorical approach and the modified categorical approach). Once you break the crime down to its indivisible form you must compare the crime with the federal drug schedules. You can only be designated a career offender or an armed career offender if you have necessarily been convicted of a federal drug crime. An example of this is the case of Harbin v. Sessions, 860 F.3d 58 (2d Cir. 2017) (Read the full case here). This case shows that New York’s drug schedule is Harbin’s crime of conviction was broader than the federal schedule> Even though Harbin was specifically selling cocaine his conviction was categorically overly broad. (Note that Harbin is an immigration case, but the categorical approach works exactly the same for immigration cases as it does career offender cases).
Another way to show that a crime is categorically overly broad is to show that the conduct criminalized under the statute is overly broad. An example of this is United States v. Hinkle, No. 15-10067 (5th Cir. 2016) (Read the full case here). In Hinkle, he beat his career offender designation by showing that the Texas law that he was convicted under included mere offers to sell drugs, and federal law does not.
Federal drug convictions can also be beaten sometimes, but those can be complicated and you probably need to contact me using the link in the above header and tell me your exact situation.
Crimes of violence.
For the most part, a crime of violence is defined as a crime that has the use attempted use or threatened use of physical force, this force must be intentional and violent. There are some enumerated crimes in some cases such as murder, burglary, and arson. If your status is based on one of these enumerated crimes you have to compare the predicate crime with the federal definition of that crime. For example in MATHIS v. UNITED STATES No. 15–6092 in the Supreme Court (I’m including a link if you want to read the actual case here), the Court held that Mathis’ state burglary conviction was not a categorical match to federal burglary because Mathis’ conviction could have been predicated on a land, water, or air vehicle, but federal burglary only includes a building or a structure.
If your enhancement is based on the “force clause” that is use attempted use or threatened use of physical force part then you need to compare your crime of conviction and see if it can be committed with a reckless mental state (mens rea), or de minimus force (less than violent). If this is this is the case, you can beat career offenders and ACCA sentences.
Keep in mind that the categorical approach ignores actual conduct, and only focuses on the minimum conduct required to convict, NOT the conduct that formed the basis of the conviction. When you categorically compare the minimum conduct required to convict to the federal definition, if they do not match, that is the state law, or even federal law can be violated in more ways than the predicate enhancement, you can beat your career offender or armed career sentence enhancement!
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