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United States v. McCranie

United States Court of Appeals, Tenth Circuit

May 3, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
EDWARD DEAN McCRANIE, a/k/a Edward Dean McCrainie, Defendant-Appellant.

         Submitted on the briefs:[*]

          Appeal from the United States District Court for the District of Colorado (D.C. No. 1:16-CR-00198-LTB-1)

          Virginia L. Grady, Federal Public Defender, and Howard A. Pincus, Assistant Federal Public Defender, Office of the Federal Public Defender, Denver, Colorado, for Defendant-Appellant.

          Robert C. Troyer, United States Attorney, and James C. Murphy, Assistant United States Attorney, Office of the United States Attorney, Denver, Colorado, for Plaintiff-Appellee.

          Before HARTZ, SEYMOUR, and PHILLIPS, Circuit Judges.

          PHILLIPS, Circuit Judge.

         We must determine whether a conviction for federal bank robbery categorically qualifies as a crime of violence under the elements clause of the career-offender sentencing guideline. We conclude that it does, so exercising jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291, we affirm.

         BACKGROUND

         Edward Dean McCranie pleaded guilty to federal bank robbery. See 18 U.S.C. § 2113(a).[1] The presentence report (PSR) treated that conviction as a crime of violence under U.S. Sentencing Guidelines (U.S.S.G.) Manual § 4B1.2(a)(1)-as it also did for McCranie's earlier convictions for federal bank robbery, see 18 U.S.C. § 2113(a), and Colorado aggravated robbery, see Colo. Rev. Stat. § 18-4-302(1)(d) (2017). With these predicate convictions, McCranie qualified as a career offender under U.S.S.G. § 4B1.1(a).[2] As a career offender, McCranie's total offense level rose to 29, and his criminal history category rose to VI. See U.S.S.G. § 4B1.1(b). Under the sentencing table, the advisory guideline range is 151 to 188 months' imprisonment.

         At the sentencing hearing, McCranie objected to the PSR's career-offender recommendation, arguing that none of his three referenced felony convictions qualify as a crime of violence. The district court rejected this argument. First, it noted that under our circuit's precedent Colorado robbery qualifies as a crime of violence under U.S.S.G. § 4B1.2(a)(1). Second, it reached the same conclusion for federal bank robbery. So the district court applied the career-offender enhancement and sentenced McCranie to a mid-level, 175-month term of imprisonment.

         DISCUSSION

         On appeal, McCranie raises the same issues: He claims that neither Colorado robbery nor federal bank robbery qualify as a crime of violence. But he "recognize[s] that this court has held that Colorado robbery is categorically a crime of violence."[3]Appellant's Opening Br. at 45 (citing United States v. Harris, 844 F.3d 1260, 1262, 1266 (10th Cir. 2017) (concluding that Colorado aggravated robbery, which requires a "violent taking, " satisfies the Armed Career Criminal Act's (ACCA) elements clause, 18 U.S.C. § 924(e)(2)(B)(i))); see also United States v. Crump, 674 Fed.Appx. 802, 803 (10th Cir. 2017) (unpublished) ("Applying the same reasoning outlined in Harris, we conclude [the defendant's] Colorado robbery conviction qualifies as a crime of violence under § 4B1.2(a)(1).").

         So we can resolve this appeal by deciding one issue-whether federal bank robbery by taking property by force, violence, or intimidation qualifies categorically as a crime of violence. If so, then McCranie qualifies as a career offender under § 4B1.1. We review de novo whether a prior conviction qualifies as a crime of violence under U.S.S.G. § 4B1.2(a)(1). See United States v. Maldonado-Palma, 839 F.3d 1244, 1246 (10th Cir. 2016).

         In the district court, the government relied on only the elements clause of § 4B1.2(a). Under that section, "[t]he term 'crime of violence' means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that . . . has as an element the use, attempted use, or threatened use of physical force against the person of another . . . ." U.S.S.G. § 4B1.2(a)(1). In deciding whether McCranie's convictions qualify as crimes of violence under this language, we must determine whether his federal bank robbery offenses categorically meet the crime-of-violence definition without reference to the underlying facts of his convictions.[4]United States v. Armijo, 651 F.3d 1226, 1230 (10th Cir. 2011). To decide if they do, we ...


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