United States District Court, W.D. Virginia, Abingdon Division
Jennifer R. Bockhorst, Assistant United States Attorney,
Abingdon, Virginia, for the United States; Brian J. Beck,
Assistant Federal Public Defender, Abingdon, Virginia, for
OPINION AND ORDER
P. Jones United States District Judge
connection with sentencing, the defendant in this criminal
case has submitted objections to the calculation of the
advisory Sentencing Guidelines range proposed by the
probation officer. He contends that the probation
officer's calculation misstates his Base Offense Level.
The objections have been fully briefed and are ripe for
decision. For the reasons stated below, I conclude that the
calculation correctly states the defendant's Base Offense
Level, and I will overrule the objections.
defendant, James Reece Fields (also referred to by the
parties as James Reece Fields, Jr.) was sentenced by this
court (Williams, J.) on January 31, 2000, to 293 months
imprisonment after his conviction by a jury of five counts of
being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g)(1). As shown by the Presentence
Investigation Report (“PSR”) prepared at the
time, Fields, who was then 58 years old, had been previously
convicted of 57 separate Virginia felony burglaries in four
different Virginia localities between 1967 and 1982, as well
as two North Carolina burglaries, and Virginia unlawful
wounding, abduction, and robbery felony offenses. He had also
been convicted of numerous other crimes, including a 1982
conviction in federal court for being a felon in possession
of a firearm. These convictions resulted in his being in
either state or federal custody between 1981 and 1994.
objection was made to the probation officer's
recommendation in the PSR that Fields be sentenced under the
Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e). His Sentencing Guidelines range was determined
to be 235 to 293 months and he was sentenced at the high end
of that range. Fields' appeal was unsuccessful.
United States v. Fields, No. 00-4119, 2000 WL
1336483, at *1 (4th Cir. Sept. 15, 2000) (unpublished)
(holding that evidence was sufficient for jury to convict).
Thereafter, Fields filed a pro se motion to vacate his
sentence under 28 U.S.C. § 2255, which was dismissed as
untimely. Fields v. United States, No.
Civ.A.7:05-CV-00778, 2005 WL 3533432 (W.D. Va. Dec. 22,
September 8, 2015, following Johnson v. United
States, 135 S.Ct. 2551 (2015), the Federal Public
Defender for this district was appointed by the court to
represent Fields in connection with a possible § 2255
motion. On May 19, 2016, the Federal Public Defender filed in
the court of appeals an Application for Leave to File a
Successive Motion on Fields' behalf, together with a
proposed § 2255 motion. The court of appeals granted the
application and transferred the § 2255 motion for filing
in this court. In re Fields, No. 16-848 (4th Cir.
June 13, 2016). The § 2255 motion asserted that
Fields' Virginia burglary convictions and Virginia
abduction conviction were invalid predicates for his ACCA
briefing of the United States' Motion to Dismiss, I
granted the motion and dismissed Fields' § 2255
motion, finding that it was barred by the applicable statute
of limitations, 28 U.S.C. § 2255(f). Op. & Order,
Nov. 2, 2016, ECF No. 56. Fields appealed and following
decisions interpreting Johnson by the court of
appeals, the United States moved the court of appeals to
remand Fields' § 2255 motion for further proceedings
by this court, asserting that it would now waive any
procedural defenses and consent to the resentencing of Fields
as a non-ACCA offender. The court of appeals granted the
motion, United States v. Fields, No. 16-7560 (4th
Cir. Nov. 13, 2017), and I then granted Fields' §
2255 motion, vacating his prior sentence, subject to
resentencing. Order, Nov. 20, 2017, ECF No. 82.
preparation for Fields' resentencing, the probation
office recalculated his Sentencing Guidelines range. Fields
was scored with a Base Offense Level of 20, pursuant to U.S.
Sentencing Guidelines Manual (“USSG”) §
2K2.1(a)(4)(A) (2016), based on his prior Virginia conviction
for robbery. Fields filed objections to this scoring,
contending that Virginia common law robbery does not qualify
as a crime of violence under USSG § 4B1.1(a), and that
instead of Base Offense Level of 20, his Base Offense Level
ought to be 14, pursuant to USSG §
Sentencing Guidelines provide that when convicted of being a
felon in possession of a firearm, USSG § 2K2.1 applies
in order to determine the Base Offenses Level. It provides,
in pertinent part, as follows:
(a) Base Offense Level (Apply the Greatest):
. . . ...