An Arkansas man’s 10-year sentence for cocaine distribution was cut in half Thursday when he was resentenced without a “career-offender” designation that was applied during his original sentencing last year.
At Terys Boose’s initial sentencing, U.S. District Judge D. Price Marshall Jr. determined that two “crimes of violence” on his criminal record made the career-offender designation apply. It applies to people who have been convicted of a violent or drug crime after having been convicted of at least two of the same types of offenses in the past. It significantly increases a defendant’s penalty range.
On Jan. 16, a federal appeals court declared that one of Boose’s prior offenses, for first-degree battery, didn’t count as a crime of violence under federal law because Arkansas’ first-degree battery statute can be violated by someone acting in a “reckless” mental state. The U.S. Supreme Court has said that to qualify as a crime of violence, a crime must demonstrate a propensity toward “purposeful, violent and aggressive conduct.”
First-degree battery charges are routinely applied in Arkansas to people who are suspected of causing “serious physical injury to another person under circumstances manifesting extreme indifference to the value of human life,” which in most cases involves shooting or stabbing someone. It also can apply when seriously injuring someone with an object, such as a car.
The problem with the statute, according to a three-judge panel of the 8th U.S. Circuit Court of Appeals in St. Louis, is that it doesn’t also require that the person acted “purposely, violently and aggressively.” The panel said it therefore reads Arkansas law as supporting the position that a person “can cause serious physical injury to another under circumstances manifesting extreme indifference with a reckless state of mind.”
In deciding whether Boose was properly classified as a career offender, the panel said it had to look at the fact of conviction and the statutory definition of the prior offense, without considering any particular facts of the prior offense.
Defense attorney Louis Etoch of Helena-West Helena had argued at Boose’s initial sentencing that his earlier convictions shouldn’t count against him because they were more than 10 years old, didn’t involve prison time and occurred when he was a young man. He is now 35.
But Assistant U.S. Attorney Ed Walker convinced Marshall that Boose, whose first-degree battery conviction involved hitting someone on the head with a hard object that caused a serious injury, should be classified as a career offender.
The career-offender designation meant that Boose faced between 15½ and 19½ years in prison under federal sentencing guidelines. But Marshall, considering the dates of the prior convictions and Boose’s age at the time, decided to give him a break by imposing a 10-year sentence.
Etoch’s appeal of the sentence to the 8th Circuit resulted in a directive to Marshall to resentence Boose without the career-offender designation, which reduced his penalty range under the guidelines to between 5 and 5¼ years.
Because federal statutes require a minimum 5-year sentence, Marshall on Thursday imposed that sentence. Federal judges cannot sentence below a statutory minimum but can depart downward from the guideline range when circumstances warrant it.
The guidelines were designed to ensure fair sentencing across the country for defendants charged with the same crime and having similar criminal histories.
Neither Etoch nor Walker offered additional testimony at Thursday’s hearing, instead relying on testimony at the earlier hearing, a recent sentencing memo that Etoch filed on Boose’s behalf and the 8th Circuit ruling.
The attorneys didn’t address the likely effect of the 8th Circuit ruling on other federal cases in which a defendant is considered a career offender based at least partly on a first-degree battery conviction in an Arkansas court.
Etoch said after the hearing that he doesn’t see the ruling being applied retroactively unless a defendant successfully could argue that his attorney was ineffective at sentencing by failing to challenge his career-offender status if it was based on a first-degree battery conviction.
Between June 1996 and September 2011, more than 2,100 career offenders were sentenced in the 8th Circuit, including 292 Arkansas defendants, according to the latest U.S. Sentencing Commission report on the subject.
Besides Arkansas, the 8th Circuit has jurisdiction over Missouri, Iowa, Nebraska, Minnesota, South Dakota and North Dakota.
In fiscal 2011, federal judges sentenced 2,157 career offenders nationwide - slightly less than 3 percent of all federal cases. Of those, 178 were in the 8th Circuit, and 38 were in Arkansas.
It is unclear how many of those defendants had first-degree battery convictions in Arkansas because the commission doesn’t track that information. Drug cases made up nearly three-quarters of all defendants sentenced as career offenders.
Information for this report also was provided by Chad Day of the Arkansas Democrat-Gazette.
Arkansas, Pages 9 on 04/11/2014