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United States v. Curry

United States District Court, N.D. Indiana, Fort Wayne Division

April 18, 2018

UNITED STATES OF AMERICA
v.
BYRON CURRY

          OPINION AND ORDER

          THERESA L. SPRINGMANN CHIEF JUDGE

         The Defendant, Byron Curry, is awaiting sentence on his conviction for bank robbery and aiding and abetting, violations of 18 U.S.C. § 2113(a) and 18 U.S.C. § 2. An officer with the United States Probation Office prepared a Presentence Investigation Report (PSR) in anticipation of the Defendant's sentencing. The Defendant has objected to the Probation Officer's conclusion that at least two of the Defendant's prior convictions qualify as crimes of violence under United States Sentencing Guideline § 4B1.2(a), thus making him a career offender as defined in § 4B1.1(a). The difference between the advisory Guideline range with the career offender enhancement and without it is ten levels. The range of imprisonment, as currently calculated in the PSR is 151 to 188 months of imprisonment. If the career offender enhancement does not apply, it would reduce the range to 63 to 78 months of imprisonment.

         ANALYSIS

         The PSR's recommendation for career offender status is based on three Indiana convictions: a 1995 robbery conviction, a 2011 domestic battery conviction, and a 2012 domestic battery conviction. For both domestic battery convictions, the Defendant's offense was elevated from a Class A Misdemeanor to a Class D Felony under Indiana law because it was committed in the presence of a child younger than sixteen years old. See Ind. Code § 35-42-2-1.3 (2012). The Defendant contends that his convictions for domestic battery do not qualify as crimes of violence.

         When he was convicted in 2011 and 2012, the Indiana statute criminalized the following conduct:

(a) A person who knowingly or intentionally touches an individual who:
(1) is or was a spouse of the other person
(2) is or was living as if a spouse of the other person as provided in subsection (c); or
(3) has a child in common with the other person;
in a rude, insolent, or angry manner that results in bodily injury to the person described in subdivision (1), (2), or (3) commits domestic battery, a Class A misdemeanor.
(b) However, the offense under subsection (a) is a Class D felony if the person who committed the offense:
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(2) committed the offense in the physical presence of a child less than sixteen (16) years of age, knowing that the child was present and might ...

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