United States v. Sherman, 041311 FED3, 10-2030

Docket Nº:10-2030
Opinion Judge:FISHER, Circuit Judge.
Judge Panel:Before: FISHER, JORDAN and COWEN, Circuit Judges.
Case Date:April 13, 2011
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit




No. 10-2030

United States Court of Appeals, Third Circuit

April 13, 2011


Submitted Pursuant to Third Circuit LAR 34.1(a) April 11, 2011.

On Appeal from the United States District Court for the District of New Jersey (D.C. No. 2-09-cr-00511-001) District Judge: Honorable Peter G. Sheridan.

Before: FISHER, JORDAN and COWEN, Circuit Judges.


FISHER, Circuit Judge.

Roland Sherman pled guilty to one count of assaulting a person with intent to commit theft of property belonging to the United States, in violation of 18 U.S.C. § 2114(a), and one count of interference with commerce by threat or violence, in violation of 18 U.S.C. § 1951(a). The District Court sentenced him to 188 months' imprisonment on each count to be served concurrently. On appeal, Sherman challenges the District Court's application of the career offender enhancement under U.S.S.G. § 4B1.1 and the reasonableness of his sentence. For the reasons set forth below, we will affirm.


We write exclusively for the parties, who are familiar with the factual context and legal history of the case. Therefore, we will set forth only those facts necessary to our analysis.

On May 19, 2009, Sherman approached a postal clerk outside of the Ampere Station Post Office in East Orange, New Jersey. Sherman pointed a handgun at her head and demanded money. After forcing the clerk into the post office, he took approximately $7, 500 in cash, checks, and money orders from the post office safe and $190 from the cash drawer. Before leaving the premises, Sherman ordered the clerk to get on the floor and duct taped her wrists behind her back.

Sixteen days later, Sherman robbed a Papa John's restaurant in Irvington, New Jersey. He walked into the restaurant, pointed a handgun at restaurant employees, and demanded money. He received approximately $150 from the cash register and fled.

A grand jury returned a two-count indictment charging Sherman with robbery of a federal employee, in violation of 18 U.S.C. § 2114(a), and obstructing commerce by robbery, in violation of 18 U.S.C. § 1951. He pled guilty to the indictment pursuant to a plea agreement.

The Presentence Investigation Report ("PSR") calculated Sherman's initial base offense level at 27. He was placed in a criminal history category of VI, based on his significant criminal history dating back to 1979. Because Sherman qualified as a career offender under U.S.S.G. § 4B1.1, the offense level was adjusted to 34. Specifically, Sherman had prior convictions for armed robbery, conspiracy to commit robbery, unlawful possession of a weapon, attempted murder, aggravated assault, terroristic threats, and possession of a controlled dangerous substance with intent to distribute ("Possession with Intent"). Sherman then received a three-level decrease, in accordance with the plea agreement stipulation regarding acceptance of responsibility and cooperation. The PSR's final recommended offense level was 31.

At the sentencing hearing, Sherman objected to consideration of his alleged prior conviction for Possession with Intent. He argued that the conviction in question was for possession of a controlled dangerous substance rather than Possession with Intent. This fact, if true, would render him ineligible for a career offender enhancement under U.S.S.G. § 4B1.1. The Probation Officer did not provide a judgment of conviction for the offense, but instead provided a PSR and a parole discharge form indicating that Sherman's conviction was for Possession with Intent. Sherman argued that these documents did not suffice to prove the offense by a preponderance of the evidence.

The District Court overruled Sherman's objection and found that the two documents provided by the Probation Officer met the preponderance of the evidence standard. It stated:

So, those are the two reports that were presented by the probation officer. And I don't disagree with [Sherman] that it would be best to have the judgment. But we have two state reports, they're official records, they both indicate that he was charged with intent to possess and distribute I guess. And as such, I think that[] meets the preponderance of the evidence. . . . So with regard to the career offender status, we'll include paragraph 101 because it's a crime of possession with intent to distribute.

(App. at 60.) Accordingly, the District Court calculated a Guidelines...

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