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Possession of a Pipe Bomb Is a Crime of Violence for Career Offender Purposes - U.S. v. Kelly

I’ve written recently about the power of sentence enhancements to put defendants in prison for a long time, even for a relatively minor crime. There are several federal rules that can do that, including sentencing as a “career offender.” In U.S. v. Kelly, Timothy Eugene Kelly got career offender status after the relatively unusual crime of possession of a pipe bomb by a convicted felon. Kelly argued on appeal that he should not have been sentenced as a career offender, because possession of a pipe bomb is not in itself a “crime of violence” as the statute defines it. In addition, he said, the government did not prove that this pipe bomb was a “destructive device,” as the statute requires. The Eleventh U.S. Circuit Court of Appeals ultimately rejected the arguments.

Kelly’s prior crimes stretch back to 1992, according to his indictment. They include witness tampering, aggravated assault,aggravated battery, lewd acts in the presence of a child, forgery, drug crimes and resisting an officer. His 2009 indictment added a charge of possession of a destructive device by a convicted felon. He was sentenced as a career offender, which means the court found that the pipe bomb offense was a felony and either a crime of violence or a controlled substances violation, and that Kelly had at least two prior felonies that involved drugs or violence. He was sentenced to 20 years in prison. On appeal, Kelly challenged only his sentence, arguing that he should not have been sentenced as a career offender because mere possession of a pipe bomb is not a crime of violence, and because the government didn’t adequately prove that the pipe bomb was a destructive device.

The Eleventh Circuit rejected both arguments. A crime of violence is defined as any federal or state offense, punishable by more than a year in prison, that includes an element of force against another person or is a residential burglary, arson, extortion, involves explosives or otherwise presents a serious risk of injury to someone else. The commentary expressly excludes possession of most firearms by a felon, but importantly, that does not apply to a “bomb.” Thus, the Eleventh said, possession of a bomb is a crime of violence, by the standards of the Sentencing Guidelines. As for the second argument, the court said, Kelly didn’t raise it in trial court, so it could review only for plain error. It found none, because Kelly’s guilty plea was to possession of a destructive device, and his plea colloquy and the PSI made similar statements without his objection. Thus, the court said, he cannot now argue that the device was not intended as a weapon.

Interestingly, the Eleventh Circuit noted that Kelly’s 20-year sentence was below the Guidelines range. A sentence within the range would therefore be even higher. As I’ve written here before, I question the value to society of imposing these very long sentences. Nonetheless, long sentences are the inevitable result of prior convictions and the popularity of sentence enhancement rules such as career offender status and the Armed Career Criminal Act. That’s why people facing criminal charges—even a first charge—should get help from an experienced criminal defense attorney right away. If you can prevent that first conviction, you won’t face more serious penalties for any subsequent conviction. An experienced defense lawyer can help find flaws in the case against you or negotiate a favorable plea deal.

If you’re charged with a serious crime in Florida, Seltzer Mayberg, LLC can help. We answer the phone 24 hours a day and seven days a week, because we know police officers don’t stop work after business hours end. For a free consultation, call us today at 1-888-THE-DEFENSE (1-888-843-3333) or send us an email.

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