U.S. v. Preston

• Decision Date: 20 September 1990
• Docket Number: No. 89-5833,89-5833
• Citation: 910 F.2d 81
• Parties: UNITED STATES of America, Appellee, v. Dale M. PRESTON, a/k/a Jami Mansour Shabazz, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 81

910 F.2d 81

UNITED STATES of America, Appellee, v. Dale M. PRESTON, a/k/a Jami Mansour Shabazz, Appellant.

No. 89-5833.

United States Court of Appeals Third Circuit.

Argued Feb. 27, 1990.

Decided Aug. 3, 1990.

Rehearing and Rehearing In Banc Denied

Sept. 20, 1990.

James V. Wade (Argued), Harrisburg, Pa., for appellant.

Dennis C. Pfannenschmidt (Argued), Asst. U.S. Atty., U.S. Attorney's Office, Harrisburg, Pa., for appellee.

Before HIGGINBOTHAM, Chief Judge, HUTCHINSON and COWEN, Circuit Judges.

OPINION OF THE COURT

HUTCHINSON, Circuit Judge.

Dale M. Preston (Preston) appeals from an enhanced sentence imposed under the Career Criminals Amendment Act of 1986 (Act), Subtitle I of the Anti-Drug Abuse Act of 1986, Pub.L. No. 99-570, Sec. 1402, 100 Stat. 3207-39 to -40 (1986), 18 U.S.C.A. Sec. 924(e) (West Supp.1990). The Career Criminals Amendment Act--which amended the Armed Career Criminal Act of 1984, Pub.L. No. 98-473, ch. 18, 98 Stat. 2185 (1984), 18 U.S.C.A. Sec. 1202, as recodified at 18 U.S.C.A. Sec. 924(e) by the Firearm Owners' Protection Act of 1986, Pub.L. No. 99-308, Sec. 104, 100 Stat. 458 (1986)--requires an enhanced sentence in convictions for possession of firearms when the defendant has three prior convictions for violent felonies. After convicting Preston for illegal possession of firearms by a felon, the government produced evidence of three prior felony convictions on his record.

On appeal, Preston contends that two of the three prior convictions introduced by the government cannot properly be used to enhance his sentence under the Career Criminals Amendment Act. He argues that one of the prior convictions, for criminal conspiracy to commit robbery, is not a "violent felony" under the Act. He argues that another of the prior convictions should not be considered because a potential conflict of interest in the 1971 proceedings that led to the conviction casts doubt upon whether he received effective assistance of counsel. Preston also argues that some, or all, of his prior convictions are now too stale to be considered during sentencing. Finally, Preston challenges the fine imposed by the district court after conviction.

We find no merit in any of Preston's arguments. Criminal conspiracy to commit robbery is a "violent felony" that can properly be counted for purposes of sentencing under the Career Criminals Amendment Act. Evidence of a potential conflict of interest is insufficient to support a claim of ineffective assistance of counsel made in collateral proceedings, and hence Preston's 1971 conviction can be considered in the absence of a showing of an actual conflict of interest in the earlier proceedings. The sentence enhancement language of the Career Criminals Amendment Act does not support Preston's staleness argument, and the fine that the district court imposed was reasonable and supported by the evidence. Therefore, we will affirm the district court's judgment of conviction and sentence.

I.

While conducting surveillance of Preston's house in York, Pennsylvania, in early 1988 after receiving a tip that he was dealing in stolen goods, city police discovered that Preston was in possession of several firearms. Police confiscated five rifles after obtaining a search warrant for Preston's house. He was indicted for possessing the rifles in violation of 18 U.S.C.A. Sec. 922(g) (West Supp.1990), which prohibits the possession of firearms by a convicted felon. After a jury trial, Preston was found guilty.

The United States government sought to have Preston's sentence enhanced under the Career Criminals Amendment Act, 18 U.S.C.A. Sec. 924(e). Section 924(e)(1) provides:

In the case of a person who violates section 922(g) of this title and has three previous convictions by any court ... for a violent felony or serious drug offense, or both, committed on occasions different from one another, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years....

Id. Sec. 924(e)(1). The government filed an information listing three previous convictions Preston had received in Pennsylvania state courts in the 1970's: (1) a 1971 conviction in the York County Court of Common Pleas for robbery with an accomplice; (2) a 1977 conviction in the same court for resisting arrest, disorderly conduct and aggravated assault on a police officer; and (3) a 1977 conviction in the Cumberland County Court of Common Pleas for criminal conspiracy to rob the Embers Motel and Restaurant.

During the 1971 criminal proceedings for robbery with an accomplice, Preston and his accomplice were not given separate representation. Instead, they both were represented by the same public defender. There was no written waiver of individual representation by the two defendants, nor is there any evidence in the court transcripts that this possible conflict of interest was discussed with them. After a jury trial, both defendants were found guilty.

The 1977 criminal conviction in the Cumberland County Court of Common Pleas resulted from a criminal conspiracy between Preston and another man to rob the Embers Motel and Restaurant. Shots were fired during the crime. Although Preston was not the armed robber, he was parked in a stolen car outside the Embers and was unlawfully carrying a firearm when the robbery took place. He was later arrested when he entered the Embers. A jury convicted Preston under Pennsylvania's conspiracy statute, 18 Pa.Cons.Stat.Ann. Sec. 903 (Purdon 1983).

On October 2, 1989, the district court enhanced Preston's sentence under the Career Criminals Amendment Act because of the three prior convictions. It imposed a fifteen year sentence and fined Preston $2000. Preston then appealed his conviction and sentence to this Court. ¹

We have jurisdiction to hear Preston's appeal pursuant to 28 U.S.C.A. Sec. 1291 (West Supp.1990) and 18 U.S.C.A. Sec. 3742(a) (West 1985 & Supp.1990). The legal questions raised by Preston are subject to plenary review. See Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98, 102 (3d Cir.1981). We review the fine imposed by the district court for reasonableness, while the court's associated factual findings are reviewed for clear error. See 18 U.S.C.A. Sec. 3742(e) (West Supp.1990).

II.

We first consider Preston's argument that his 1977 conviction in the Cumberland County Court of Common Pleas for criminal conspiracy to commit robbery should not be considered a "violent felony" under the Career Criminals Amendment Act. Preston urges us to adopt a categorical approach for determining what constitutes a "violent felony" under Sec. 924(e). Under such an approach, he argues that his conspiracy conviction cannot be categorized as a violent felony since the use or threat of physical force is not invariably involved in this crime. He refers to the language of 18 Pa.Cons.Stat.Ann. Sec. 903, Pennsylvania's criminal conspiracy statute, ² and asserts that the use or threat of physical force is not specifically mentioned as an element of the crime of conspiracy. Nor, he argues, does criminal conspiracy necessarily involve conduct that presents a serious potential risk of physical injury to others. Thus, if we use his categorical approach for determining what crimes are "violent felonies" under Sec. 924(e), he argues that conspiracies should be excluded from consideration and his sentence should not be enhanced.

The government does not deny that a categorical approach should be used to determine what offenses may be considered "violent felonies" within the meaning of Sec. 924(e). It does argue, however, that criminal conspiracy to commit robbery is a violent felony under Sec. 924(e) and may be considered for the purpose of enhancing Preston's sentence under the Career Criminals Amendment Act. The government urges us to rely on the plain language of Sec. 924(e), which defines "violent felony" as

any crime punishable by imprisonment for a term exceeding one year ... that--

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

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

18 U.S.C.A. Sec. 924(e)(2)(B).

We agree that a categorical approach must be used to determine which prior convictions may be considered by a sentencing court under the Career Criminals Amendment Act. All other federal appeals courts that have examined this issue have concluded that Sec. 924(e) mandates looking at the fact of conviction and the statutory definitions of the prior offenses for which the defendant has been convicted, but not to the particular facts underlying those convictions. See United States v. Taylor, 882 F.2d 1018, 1023 (6th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 2592, 110 L.Ed.2d 273 (1990); United States v. Dombrowski, 877 F.2d 520, 527-28 (7th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 2592, 110 L.Ed.2d 272 (1990); United States v. Leonard, 868 F.2d 1393, 1395-97 (5th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 2585, 110 L.Ed.2d 266 (1990); United States v. Sherbondy, 865 F.2d 996, 1005-10 (9th Cir.1988); United States v. Headspeth, 852 F.2d 753, 758-59 (4th Cir.1988). When necessary, a sentencing court may refer to the relevant indictment or information papers and the jury instructions in the prior conviction along with the certified record of conviction, see Taylor, 882 F.2d at 1030 (using indictment to clear up uncertainty on record of conviction and to help determine the defendant's prior offense), but the inquiry should not extend beyond these documents.

The Supreme Court examined the language and legislative history of Sec. 924(e) recently in Taylor v. United States, --- U.S. ----, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and agreed with the reasoning of these earlier pro-categorical cases. See id., 110 S.Ct. at 2160 ("We think the only plausible ...