U.S. v. John, 90-3680

Decision Date13 June 1991
Docket NumberNo. 90-3680,90-3680
Citation936 F.2d 764
PartiesUNITED STATES of America, Appellee, v. Keithroy JOHN, Appellant.
CourtU.S. Court of Appeals — Third Circuit

Melody M. Walcott (argued), Office of Federal Public Defender, Christiansted, Saint Croix, V.I., for appellant.

Terry M. Halpern, U.S. Atty., James R. Fitzner (argued), Asst. U.S. Atty., Christiansted, Saint Croix, V.I., for appellee.

Before BECKER, SCIRICA and ALITO, Circuit Judges.

OPINION OF THE COURT

BECKER, Circuit Judge.

Under the United States Sentencing Guidelines ("Guidelines"), a defendant over the age of 18, who is convicted of a felony that is either a crime of violence or a controlled substance offense, will be subject to sentencing as a career offender if he has at least two prior felony convictions of either a crime of violence or a controlled substance offense. Guidelines Sec. 4B1.1 et seq. Defendant Keithroy John, who was convicted of a controlled substance offense in the District Court of the Virgin Islands, had prior convictions for assault in the third degree, which John concedes to be a crime of violence, and grand larceny under a Virgin Islands statute, which he does not. The statutory elements of grand larceny do not implicate violence but the underlying facts of the offense do. This appeal from the judgment of sentence therefore presents the question whether, in determining the existence vel non of a crime of violence as a predicate to career offender status, the sentencing court properly considered the actual facts underlying the predicate conviction, or whether it should have been constrained by the statutory elements of the offense.

We conclude that the district court properly considered the underlying facts, and that it did not err in determining that John was a career offender and in sentencing him accordingly. We therefore will affirm.

I.

On March 1, 1990, at approximately 8:30 p.m., while John was standing across the street from his home in Estate Mon Bijou, St. Croix, he was observed by Narcotics Strike Force agents engaged in a hand-to-hand drug sale. When the agents approached, John dropped a plastic sandwich bag, some portion of the contents of which he apparently was about to hand to a Mr. Didier in exchange for a twenty-dollar bill. The bag was retrieved and, upon examination, was found to contain seventeen rock-like pieces which ultimately tested positive for the presence of crack cocaine. John entered a plea of not guilty but was convicted by a jury of possession of crack with intent to distribute in violation of 21 U.S.C.A. Sec. 841(a)(1) (West 1981). 1

The critical issue at the sentencing hearing was John's career offender status, which turned on whether his prior grand larceny conviction qualified as a crime of violence. If he were not a career offender, absent a departure from the Guidelines John would have been sentenced within a Guidelines range of 63 to 78 months based upon an offense level of 22 and a criminal history category of IV. See Guidelines Ch. 5, Part A. However, career offender status required elevation of John's offense level to 32 and his criminal history category to VI, which combination yields a Guidelines sentencing range of 210 to 262 months. Id.

The Virgin Islands Code defines grand larceny as "the unlawful taking, ... [of] the personal property of another ... of $100.00 or more in value." See V.I.Code Ann. tit. 14, Secs. 1081, 1083 (1964). On its face, this definition does not indicate that violence is a necessary element of the offense. However, the presentence investigation report ("PSI") made available to the district court described the underlying conduct for which John had been convicted as follows:

The defendant, in concert with two codefendants, entered a home and threatened the occupants with guns. Cash and other personal property was [sic] taken. He entered a guilty plea and was paroled on May 14, 1979. Parole was revoked on October 10, 1980, following his conviction in Cr. No. 80/21.

John agreed at the sentencing hearing that the PSI was accurate in every respect, including presumably in its description of the circumstances surrounding his grand larceny conviction.

Following the sentencing hearing, at which the career offender issue was the primary focus, the district court concluded that the grand larceny conviction, like the assault conviction, constituted a crime of violence because: (1) larceny is included among those crimes defined as a "crime of violence" under the Control, Firearms, and Ammunition Chapter of Title 23 of the Virgin Islands Code, see 23 V.I.Code Ann. tit. 23, Sec. 451(d) (Supp.1990); and (2) the description set forth in the PSI of John's conduct clearly indicated that the grand larceny conviction qualified as a crime of violence. The district court therefore sentenced John as a career offender to a term of 210 months, the bottom of the applicable Guidelines range. This appeal followed, in which the only contention of substance relates to the career offender issue. 2

II.

John argues, as he must, that the district court erred both in relying on the Virgin Islands Code's definition of grand larceny as a "crime of violence" and in looking through to the actual conduct underlying John's grand larceny conviction, instead of limiting its inquiry to the statutory elements of the offense, to determine whether the crime involved violence. We consider only John's latter claim in detail here, as the former is clearly correct. See infra n. 4.

The term "crime of violence," which is the essential element of career offender status at issue, is defined under the Guidelines as follows:

The term "crime of violence" means any offense under federal or state law 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 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.

Guidelines Sec. 4B1.2(1) (emphasis added).

The Application Notes to this section restate this definition, and clarify it somewhat, as follows:

"Crime of violence" includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included where (A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth in the count of which the defendant was convicted involved use of explosives or, by its nature, presented a serious potential risk of physical injury to another.

Application Note 2 to Guidelines Sec. 4B1.2 (emphasis added).

We think it plain from these passages that the Sentencing Commission essentially envisioned three independent ways by which a prior conviction will be considered a "crime of violence": (1) the prior conviction is for a crime that is among those specifically enumerated (murder, manslaughter, kidnapping, etc.); (2) the prior conviction is for a crime that, although not specifically enumerated, has as an element of the offense the use, attempted use, or threatened use of physical force; or (3) the prior conviction is for a crime that, although neither specifically enumerated nor involving physical force as an element of the offense, involves conduct posing a serious potential risk of physical injury to another.

Obviously, and consistent with John's argument, it is not only impermissible, but pointless, for the court to look through to the defendant's actual criminal conduct under the first two prongs. All that the court needs to know can be gleaned from the fact of conviction and the charging paper. See United States v. McAllister, 927 F.2d 136, 139 (3d Cir.1991), discussed infra at 770. However, in our view, the third prong quite clearly permits the court to examine the defendant's actual conduct to ascertain whether that conduct posed a sufficient potential risk of physical injury to another to elevate the crime to a "crime of violence."

This insight is not novel. Indeed, we already have interpreted Sec. 4B1.2 as permitting a court to look through to the defendant's underlying conduct in determining whether a prior conviction constitutes a "crime of violence." See United States v. Williams, 892 F.2d 296, 304 (3d Cir.1989) cert. denied, 110 S.Ct. 3221 (1990). 3 The other courts of appeals to consider the issue are in accord. See United States v. Goodman, 914 F.2d 696, 699 (5th Cir.1990); United States v. Terry, 900 F.2d 1039, 1041-43 (7th Cir.1990); United States v. Baskin, 886 F.2d 383, 389 (D.C.Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1831, 108 L.Ed.2d 960 (1990).

John argues that even if this interpretation once may have appeared correct, a different result is now compelled by the decision of the United States Supreme Court in Taylor v. United States, --- U.S. ----, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), which was decided after Williams, Terry, and Baskin, and, although preceding Goodman, was not discussed by the Fifth Circuit in that opinion. We disagree. To the contrary, we believe Taylor is fully consistent with these decisions.

Taylor arose under the sentencing enhancement provision of the Armed Career Criminal Act ("ACCA"), 18 U.S.C.A. Sec. 924(e) (West Supp.1991). ACCA generally prohibits certain persons, including convicted felons, from transporting, receiving, or possessing firearms or ammunition. Id. Sec. 922(g). ACCA further provides that any person who violates this prohibition, and who has three previous convictions for a "violent felony or serious drug offense," is subject to a sentencing enhancement requiring a minimum period of incarceration of fifteen years. Id. at Sec. 924(e)(1). For this purpose "violent felony" is defined, nearly...

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