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Federal court rejects Waimanalo man's objection to sentence

By Nigel Duara

Associated Press

POSTED:
LAST UPDATED: 11:33 a.m. HST, Jul 31, 2013



A federal appeals court panel has rejected a Hawaii man's objection to a longer sentence imposed in part because of a decade-old conviction for property destruction, an offense that a judge called a "crime of violence."

Ashford Kaipo Spencer was convicted of two federal drug-trafficking felonies. At sentencing, the district court determined Spencer was a "career offender" because he had two prior convictions for crimes of violence.

He argued the property destruction count wasn't violence, but the court affirmed that it was.

Spencer, of Waimanalo, was sentenced to 17 years in prison for selling methamphetamine to someone cooperating with law enforcement. A jury found him guilty in 2011 of selling about two ounces of meth for $6,000 and $5,500 in April and June 2009.

His prior felony convictions in state court also involved kidnapping and robbery, to which Spencer didn't object as being violent. But his objection to the property crime being categorized as violent took the case to the 9th U.S. Circuit Court of Appeals.

To prove that a crime was violent under federal sentencing guidelines, the crime has to either constitute a use of force or attempted use of force against a person, or be a burglary, arson or a crime involving the use of explosives.

But it comes with a broad caveat: "conduct that presents a serious potential risk of physical injury to another." And it's that last bit under which a district court judge enhanced Spencer's sentence.

The law isn't as straightforward as interpreting the statute's language, Judge Jay Bybee of the three-judge panel 9th Circuit panel said in the opinion. The U.S. Supreme Court has held differing opinions in several cases on the definition of "violent felony."

Fleeing from law enforcement in Indiana and an attempted burglary in Florida were counted by the Supreme Court as violent felonies; drunken driving in New Mexico and failure to report to prison in Illinois were not.

"It seems relatively apparent that 'intentionally damaging property and thereby recklessly placing another person in danger of death or bodily injury ... involves conduct that presents a serious potential risk of physical injury to another,'" Bybee wrote.





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