US v. Jeffrey Tucker
Filing
OPINION/ORDER DIRECTING LIMITED REMAND [4CCA retains jurisdiction]. Order--remanding case for limited purpose [4cca retains jurisdiction], updating status report deadline. Status report due: 9/26/16. Originating case number: 5:14-cr-00083-RLV-DCK-1. Copies to all parties and the district court. [999917956] [16-4134]
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JEFFREY DEAN TUCKER,
Defendant-Appellant.
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DOCKET NO. 16-4134
JOINT MOTION FOR PARTIAL REMAND
Appellant Jeffrey Dean Tucker and the United States, through undersigned counsel,
hereby move the Court to suspend the briefing schedule in this case, vacate Tucker’s
sentence, and remand for the limited purpose of resentencing Tucker in light of United States
v. Gardner, 823 F.3d 793 (4th Cir. 2016). In support of this motion, the parties submit the
following:
1.
On May 7, 2015, Tucker was convicted of one count of Possession of a
Firearm by a Convicted Felon in violation of 18 U.S.C. § 922(g)(1). On February 29, 2016,
the district court concluded that Tucker was subject to an enhanced sentence under the
Armed Career Criminal Act (“ACCA”) based in part on his prior conviction for North
Carolina common law robbery. The court then imposed a sentence of 188 months. Absent
the ACCA enhancement, Tucker faced a statutory maximum sentence of 120 months.
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2.
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In Gardner, this Court held that North Carolina common law robbery does not
qualify as an ACCA predicate. 823 F.3d at 804. As a result of Gardner, Tucker does not have
three prior convictions that support the ACCA enhancement. The government therefore
concedes that this Court must vacate his current ACCA sentence and remand the case for
resentencing.
3.
The parties respectfully request that this Court remand the case for
resentencing while retaining jurisdiction over the appeal. This Court and others have
followed a similar procedure when the parties agree that a remand for resentencing is
appropriate. E.g., Order (Dkt. No. 24), United States v. Morrison, No. 10-4807 (4th Cir. Nov. 2,
2010) (remanding for resentencing issue while retaining jurisdiction over appeal challenging
conviction); Order, United States v. John, No. 11-2179 (3d Cir. 2011) (same).
4.
Remanding the case for a resentencing at this point would serve the interests
of justice and judicial efficiency for at least three reasons. First, such a remand will allow this
Court to consider any remaining contested issues in this case—whether related to the
conviction or the sentence—in a single proceeding rather than in two separate proceedings.
Second, a remand will allow the district court to clarify the record on whether Tucker’s
federal sentence is to run concurrent or consecutive to the state sentence he is currently
serving on related charges. Third, given that Tucker has likely served more time already than
is called for by the non-ACCA guidelines range, it is possible that he would choose to
voluntarily dismiss his appeal if the district court imposes a sentence of time served on
remand.
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WHEREFORE, the parties respectfully request that the Court suspend the briefing
schedule in this case, vacate Tucker’s sentence, and remand for resentencing without the
ACCA enhancement.
Date: August 15, 2016
Respectfully submitted,
Ross Hall Richardson, Executive Director
Federal Defenders of Western North
Carolina, Inc
Jill Westmoreland Rose
United States Attorney
/s/Joshua B. Carpenter___________
Joshua B. Carpenter
Appellate Chief
Federal Defenders of Western North
Carolina, Inc.
1 Page Avenue, Suite 210
Asheville, NC 28801
Joshua_Carpenter@fd.org
/s/Amy E. Ray__________
Amy E. Ray
Assistant United States Attorney
U.S. Courthouse, Room 233
100 Otis Street
Asheville, North Carolina 28801
Amy.Ray@usdoj.gov
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CERTIFICATE OF SERVICE
Undersigned counsel certifies that the foregoing Motion was served on the
government’s counsel by ECF filing.
Date: August 15, 2016
s/Joshua B. Carpenter___________
Joshua B. Carpenter
Appellate Chief
Joshua_Carpenter@fd.org
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