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United States v. Krepps

United States District Court, N.D. Oklahoma

July 9, 2018




         I. Background

         The defendant, Joshua Edward Krepps, has filed a Motion to Vacate or Correct Sentence under 28 U.S.C. § 2255 (Doc. 95). The defendant asserts that he was considered a career offender in violation of the Due Process Clause of the Fifth Amendment. (Id. at 2).

         The defendant pleaded guilty to a one count Information, which charged him with aiding and abetting attempted carjacking, in violation of 18 U.S.C. §§ 2119(1) and 2(a). (Doc. 52, 62). In connection with his guilty plea, the defendant stated that, on June 15, 2016, he helped Timothy Ignatovich threaten a woman and attempt to carjack her car. (See Doc. 62 at 2; Doc. 63 at 8). The defendant believed that he and Ignatovich were to collect money from the woman and, when it was clear she did not have money, the defendant suggested that they take her car, which they then attempted to do through intimidation. (Doc. 63 at 8; Doc. 62 at 3). The car was also occupied by the woman's two children, ages nine and ten, and the defendant sat in the backseat with the children. (Doc. 63 at 8). The children asked the defendant if they were going to hurt their mother. (Doc. 62 at 3). While the defendant and Ignatovich believed the woman was calling someone to come to get her children, the woman actually contacted law enforcement, who arrived on the scene and stopped the carjacking that was in progress. If law enforcement had not intervened or the woman had otherwise continued to refuse to give the defendant and Ignatovich the car, Ignatovich and others were prepared to “give her a ‘beat down' or cause serious physical harm to her.” (Doc. 63 at 8; see also Doc. 62 at 3).

         The statutory maximum for the offense of conviction was 15 years. See 18 U.S.C. § 2119(1). Pursuant to § 2B3.1 of the United States Sentencing Guidelines (USSG), the Presentence Investigation Report (PSIR) assessed a base offense level of 20. Because the defendant was present when his co-defendant threatened a person's life, two levels were added, and two levels were added because the offense involved carjacking. Because the defendant knew or should have known two of the victims of the offense were vulnerable victims, one nine year old child and another child who was ten years old, two more levels were added. Defendant's adjusted offense level was thus 26. Pursuant to USSG § 4B1.1, the defendant's offense level was determined to be that of a career offender, where the maximum sentence is 15 years, at offense level of 29, because he had previously been convicted of at least two convictions for controlled substance offenses. (PSIR at ¶ 22). He received a three-level reduction for acceptance of responsibility, to bring his total offense level to 26. Based on the total offense level of 26 and a criminal history category of VI, the guidelines range in the PSIR was 120 to 150 months. (PSIR at ¶ 53).

         The defendant did not object to the PSIR. (See Addendum to PSIR). The defendant moved for a two-level downward departure based on a history of untreated mental illness. (Doc. 84). The Court granted that motion, bringing the total offense level to 24 and resulting in the departure guidelines range of 100 to 125 months. The Court sentenced the defendant to 100 months' imprisonment. (Doc. 87 at 2). The defendant did not file a direct appeal.

         The defendant filed the instant motion to vacate under § 2255 within one year of the date on which his conviction became final. Accordingly, the Court finds that the motion was timely.

         II. Discussion

         A. Discretionary sentencing guidelines are not subject to a void for vagueness due process challenge.

         In his § 2255 motion, the defendant argues that the application of the USSG § 4B1.1 career offender guideline violated his due process rights under the Fifth Amendment to the United States Constitution. (See Doc. 95). He claims that he is entitled to relief under Johnson v. United States, 576 U.S. __, 135 S.Ct. 2551 (2015) and Sessions v. Dimaya, __ U.S. __, 138 S.Ct. 1204 (2018), which held that statutory residual definitions of crimes of violence were void for vagueness and thus in violation of the Due Process Clause. (See Doc. 95 at 4). Defendant also cites United States v. Salas, 889 F.3d 681 (10th Cir. 2018). That case involved statutory “crime of violence” language similar to that in Dimaya, which was determined unconstitutionally vague.

         The defendant in this case was not sentenced as a career offender under any statute that would result in an increased statutory maximum or imposition of a mandatory minimum sentence. Indeed, defendant was sentenced to 100 months, which was 80 months less than the 15-year statutory maximum applicable to carjacking under the statute of conviction, § 2119(1). The career offender Sentencing Guidelines - not a statute setting a different statutory range than the statute governing the substantive offense - were utilized in calculating his offense level to assist the Court in exercising sentencing discretion. Specifically, the PSIR determined that defendant was a career offender “because he was 30 at the time of the offense, Count One is a crime of violence pursuant to USSG § 4B1.2, comment (n.1), and [he] has at least two prior convictions for controlled substance offenses.” (PSIR at ¶ 22). The defendant did not object to the PSIR.

         Because the USSG are discretionary, and district courts are required to make an individualized assessment based on the facts presented and other factors under 18 U.S.C. § 3553(a), the guidelines are not subject to a void for vagueness challenge. Beckles v. United States, __ U.S. __, 137 S.Ct. 886, 892-895 (2017). The Supreme Court has explained the distinction between mandatory statutes and the USSG:

Unlike the [statutory Armed Career Criminal Act], however, the advisory Guidelines do not fix the permissible range of sentences. To the contrary, they merely guide the exercise of a court's discretion in choosing an appropriate sentence within the statutory range. Accordingly, the Guidelines are not subject to a vagueness challenge under the Due Process Clause. The residual clause in § 4B1.2(a)(2) therefore is not void for vagueness.

Beckles, 137 S.Ct. at 892. The Supreme Court thus held “that the advisory Sentencing Guidelines are not subject to a vagueness challenge under the Due Process Clause and that § 4B1.2(a)'s residual clause is ...

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