United States v. Marrero

• Decision Date: 25 April 2012
• Docket Number: No. 11–2351.,11–2351.
• Citation: 677 F.3d 155
• Parties: UNITED STATES of America v. Ricardo MARRERO, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

677 F.3d 155

UNITED STATES of America

v.Ricardo MARRERO, Appellant.

No. 11–2351.

United States Court of Appeals, Third Circuit.

Argued Jan. 26, 2012.Filed: April 25, 2012.

Rebecca R. Haywood, Michael L. Ivory [Argued], Office of the United States Attorney, Pittsburgh, PA, for Plaintiff–Appellee.

Karen S. Gerlach [Argued], Office of Federal Public Defender, Pittsburgh, PA, for Defendant–Appellant.

Before: AMBRO, CHAGARES and HARDIMAN, Circuit Judges.

OPINION OF THE COURT

HARDIMAN, Circuit Judge.

Ricardo Marrero appeals his judgment of sentence after pleading guilty to two counts of bank robbery. Marrero claims the District Court erred in classifying him as a “career offender” under § 4B1.1 of the United States Sentencing Guidelines. Because we agree with the District Court that Marrero's convictions for simple assault and third-degree murder qualify as “crimes of violence,” we will affirm.

I

In December 2010, Marrero pleaded guilty to two counts of bank robbery in violation of 18 U.S.C. § 2113(a). Thereafter, the Probation Office prepared a Presentence Investigation Report (PSR), which recommended that Marrero be sentenced as a career offender under § 4B1.1 of the United States Sentencing Guidelines (USSG or Guidelines) because he had three convictions for crimes of violence: (1) third-degree murder under 18 Pa. Cons.Stat. Ann. § 2502(c) in 1997; (2) simple assault under 18 Pa. Cons.Stat. Ann. § 2701(a)(1) in 2004; and (3) the bank robberies in this case.

The PSR described Marrero's third-degree murder conviction as follows. In 1997, a man named Guy Prange approached Marrero and others outside a house in Coatesville, Pennsylvania, and asked for drugs. He was told they did not have any drugs. When Prange began walking away, Marrero ran up and hit him from behind, knocking him to the ground. Marrero then kicked Prange numerous times. Prange died in the hospital twenty-five days later from complications from a ruptured spleen. In September 2002, Marrero pleaded guilty to murder in the third degree.

The PSR also indicated that Marrero pleaded guilty to simple assault following two attacks on his wife in 2004. The transcript of Marrero's guilty plea colloquy states, in relevant part:

[Assistant District Attorney]: Your Honor, the defendant is charged with two separate incidents of simple assault. On Information 2804–04, the date of May 29 of 2004 ... the defendant was seen placing his hands on the victim's neck. The victim's name is Lucy Marrero. And he did, at that time, threaten serious bodily injury. On Information 38—

The Court: Do you admit those facts?

The Defendant: Yes, Sir.

[Assistant District Attorney]: On Information 3839–04, the date was April 27, 2004, ... the defendant grabbed Mrs. Marrero by the neck, attempting to drag her upstairs to the second floor. When she tried to make a phone call, he ripped the phone cord out of the wall as she was attempting to call 911.

The Court: Do you admit those facts?

The Defendant: Yes, Sir.

The Probation Office concluded that Marrero's convictions for third-degree murder and simple assault constituted “crimes of violence” under the Guidelines. Accordingly, the PSR classified Marrero as a career offender, which increased his offense level from 21 to 32. After a three-point reduction for acceptance of responsibility, Marrero's total offense level was 29. The career offender enhancement also increased his criminal history category from IV to VI. See USSG § 4B1.1(b). This resulted in a final Guidelines range of 151 to 188 months' imprisonment. Had Marrero not been deemed a career offender, his Guidelines range would have been 57 to 71 months.

Marrero objected to the career offender classification, arguing that under Pennsylvania law neither third-degree murder nor simple assault qualifies as a crime of violence because “a conviction for mere recklessness cannot constitute a crime of violence.” The District Court disagreed, holding that he was a career offender under USSG § 4B1.1. According to the District Court, Marrero's simple assault conviction was a crime of violence because: (1) our decision in United States v. Johnson, 587 F.3d 203 (3d Cir.2009), established that intentional or knowing simple assault under Pennsylvania law is a crime of violence; and (2) the transcript of Marrero's guilty plea colloquy “indicated that he pled guilty to an intentional and knowing violation of the simple assault statute.” As for Marrero's third-degree murder conviction, the District Court found that it constituted a crime of violence because “murder” is expressly enumerated as such in Application Note 1 to USSG § 4B1.2.

Having found the career offender designation appropriate in Marrero's case, the District Court agreed with the Probation Office that his applicable Guidelines range was 151 to 188 months' imprisonment. Marrero sought a below-Guidelines sentence, and the Government opposed that request. Applying the factors set forth in 18 U.S.C. § 3553(a), the District Court determined that a substantial downward variance was warranted and sentenced Marrero to 96 months' imprisonment and three years of supervised release.

Marrero timely appealed and has raised one issue: his classification as a career offender. If either of his prior offenses is not a crime of violence, Marrero's sentence, which was based in part on his career offender designation, cannot stand. See, e.g., United States v. Keller, 666 F.3d 103, 109 (3d Cir.2011); United States v. Friedman, 658 F.3d 342, 359 (3d Cir.2011).

II

The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1). Whether a prior conviction constitutes a crime of violence for purposes of the career offender Guideline is a question of law over which we exercise plenary review. E.g., Johnson, 587 F.3d at 207.

III

Our legal analysis begins with the text of the relevant Guidelines. Under USSG § 4B1.1, one is a career offender if:

(1) [he] was at least eighteen years old at the time [he] committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) [he] has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

Under the Guidelines, “crime of violence”

means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or

(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

USSG § 4B1.2(a). Finally, Application Note 1 to USSG § 4B1.2 provides that “ ‘[c]rime of violence’ includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling.”

A

The first question presented is whether Marrero's Pennsylvania simple assault conviction is a qualifying offense for purposes of the career offender Guideline. See USSG § 4B1.1. Under Pennsylvania law, “[a] person is guilty of [simple] assault if he: (1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury; (2) negligently causes bodily injury to another with a deadly weapon; [or] (3) attempts by physical menace to put another in fear of imminent bodily injury.” 18 Pa. Cons.Stat. Ann. § 2701(a). Apart from “aggravated assault,” assault is not enumerated in either § 4B1.2(a)(2) of the Guidelines or the application note thereto, and neither party argues that Marrero's simple assault conviction could qualify as a crime of violence under § 4B1.2(a)(1). Therefore, we must determine whether Marrero's simple assault offense was a crime of violence under the so-called “residual clause” in § 4B1.2(a)(2), which refers to offenses that “otherwise involve[ ] conduct that presents a serious potential risk of physical injury to another.”

As we noted in Johnson, the Supreme Court's decision in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), altered the analytical framework for residual clause cases. ¹ 587 F.3d at 207. Reasoning that the residual clause must be interpreted with reference to the enumerated crimes that precede it—namely, burglary, arson, extortion, and crimes involving the use of explosives—the Supreme Court concluded that the residual clause “covers only similar crimes, rather than every crime that ‘presents a serious potential risk of physical injury to another.’ ” Begay, 553 U.S. at 142, 128 S.Ct. 1581 (quoting 18 U.S.C. § 924(e)(2)(B)(ii)). Accordingly, “[p]ost- Begay, to qualify as a crime of violence [under the residual clause] the crime in question ‘must (1) present a serious potential risk of physical injury and (2) be “roughly similar, in kind as well as degree of risk posed, to the examples [of burglary, arson, extortion, or use of explosives] themselves.” ’ ” Johnson, 587 F.3d at 207–08 (third alteration in original) (quoting United States v. Polk, 577 F.3d 515, 518 (3d Cir.2009)). And “[a] crime is similar in kind to one of the enumerated examples if it ‘typically involve[s] purposeful, violent, and aggressive conduct.’ ” Id. at 208 (quoting Begay, 553 U.S. at 144–45, 128 S.Ct. 1581).

To determine whether Marrero's case satisfies the residual clause, we first apply the categorical approach prescribed by the Supreme Court in Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). This approach requires us to ask “whether the elements of the offense are of the type that would justify its inclusion within the residual provision, without inquiring into the specific conduct of this particular offender.” James v. United States, 550 U.S. 192, 202, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007); accord John...