Sherbondy

ORDER DENYING MOTION TO STRIKE

In this criminal proceeding, the defendant, Kevin James Sherbondy, is charged with a violation of 18 U.S.C. § 922 (g)(1), charging possession of a firearm following conviction of a felony, commonly known in slang terminology as “ex-con with a gun.” The indictment also invokes the provisions of 18 U.S.C. § 924 (e)(1), which provides for a minimum of a fifteen-year federal penitentiary sentence, without probation or parole, for a defendant convicted under § 922(g)(1) who has three prior “violent felony” convictions.

The indictment alleges that Sherbondy has three prior convictions, two of which are for robbery and which are not at issue on this motion. The third alleged prior conviction is for a violation of California Penal Code § 136.1(c)(1), a section which makes it a felony under California law to prevent or dissuade a victim or witness from testifying in a trial:

Defendant seeks to strike the allegation of the third felony on the ground that the said felony may involve, so far as the statute is concerned, a threat of force upon property, which, it is argued, would not suffice to meet the definition of a “violent felony” within the meaning of §…