U.S. v. Langford

• Decision Date: 22 February 2008
• Docket Number: No. 06-2774.,06-2774.
• Parties: UNITED STATES of America v. Shawn LANGFORD, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

516 F.3d 205

UNITED STATES of America v. Shawn LANGFORD, Appellant.

No. 06-2774.

United States Court of Appeals, Third Circuit.

Argued November 2, 2007.

Filed: February 22, 2008.

Renee Pietropaolo, [Argued], Kimberly R. Brunson, Office of Federal Public Defender, Pittsburgh, PA, for Appellant.

Robert L. Eberhardt, Rebecca R. Haywood, [Argued], Office of the U.S. Attorney, Pittsburgh, PA, for Appellee.

Before: RENDELL, WEIS and NYGAARD, Circuit Judges.

OPINION OF THE COURT

RENDELL, Circuit Judge.

Shawn Langford appeals the sentence imposed after he pled guilty to bank robbery in violation of 18 U.S.C. § 2113(a), armed bank robbery in violation of 18 U.S.C. § 2113(d), and carrying and brandishing a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii). Langford was sentenced to 46 months' imprisonment for Counts One and Two, to be served concurrently, and a mandatory term of 84 months' imprisonment for Count Three, to be served consecutively, for a total of 130 months' imprisonment. Langford argues that the District Court improperly calculated his criminal history score and consequently chose an erroneous Sentencing Guidelines range as the first step in the sentencing process, and that he should therefore be resentenced. The government urges that the error is harmless because the applicable Guidelines range overlaps with the correct range. The application of the harmless error standard to a sentence in this fact setting is an issue of first impression in our Court. We will join our sister courts of appeals who have decided this issue and hold that the error is not harmless. We will accordingly vacate Langford's sentence and remand to the District Court for resentencing.

I. FACTS AND PROCEDURAL HISTORY

On March 9, 2005, Langford and his uncle, Charles Collier, a career criminal, robbed the Iron and Glass Bank in. Scott Township, Pennsylvania. PSR ¶ 5-6. Armed with a pistol, Langford remained in the lobby while Collier vaulted the teller counter, announced the robbery, and emptied the money from the teller drawers. PSR ¶ 7. Both men fled, were captured by the police following a chase, and confessed to the bank robbery.

Langford was indicted for bank robbery in violation of 18 U.S.C. § 2113(a), armed bank robbery in violation of 18 U.S.C. § 2113(d), and carrying and brandishing a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii). He pled guilty to the charges on December 20, 2005. App. 85.

Langford was eighteen years old at the time of the bank robbery and this was his first adult offense. App. 34. Langford does, however, have a history of adjudications as a juvenile. In the Presentence Investigation Report ("PSR"), the probation officer concluded that consideration of three of Langford's prior adjudications of juvenile delinquency resulted in five criminal history points.

The two adjudications not at issue on appeal were as follows:

1. In 2001, at age fourteen, Langford was adjudicated delinquent for criminal conspiracy, possession, and, possession with intent to deliver crack cocaine and ordered committed to a Community Intensive Supervision Program (and subsequently a detention center for violating the terms of his program). PSR ¶ 31, App. 126.

2. In 2003, at age sixteen, he was adjudicated delinquent for robbery, criminal conspiracy, and fleeing the police. PSR ¶ 32.

While the charges were pending for his second offense, Langford was released with electronic home monitoring. He failed to appear for arraignment and a warrant was issued. On September 29, 2003, he was apprehended by the police as he attempted to steal a vehicle. PSR ¶ 33. That same day, a petition for his second adjudication was filed in juvenile court charging the defendant with the previous robbery charge. PSR ¶ 32. As to the robbery charge, he was adjudicated delinquent on October 28, 2003 and committed to a youth development center. PSR ¶ 32. On October 28, 2003, he was also adjudicated delinquent as to criminal attempt (auto theft), possession of instruments of crime, resisting arrest, criminal mischief, and disorderly conduct. The court discontinued that third adjudication and, according to the PSR, ordered the defendant to provide a DNA sample. PSR ¶ 33. This third adjudication (the "auto theft adjudication") is at issue on appeal.

Because the 2005 bank robbery occurred less than two years after Langford's release from juvenile commitment to a youth development center, the probation officer added an additional criminal history two points, establishing a criminal history category of IV. PSR ¶ 33.

At sentencing, Langford's counsel argued that the appropriate criminal history category was III, rather than IV, because the last adjudication did not result in a sentence and, accordingly, no point should have been added. App. 116. The Court disagreed and calculated a criminal history category of IV which, when combined with a total offense level of 19, resulted in a Sentencing Guidelines range of 46 to 57 months' incarceration for Counts One and Two. App. 123. Langford was sentenced to 46 months for Counts One and Two, to be served concurrently. For Count Three, carrying and brandishing a firearm during a crime of violence, Langford was subject to a mandatory minimum term of 84 months' imprisonment to be served consecutively to the bank robbery charges. Langford's total sentence, therefore, was 130 months' imprisonment. Langford does not appeal his sentence for Count Three, but rather contends that the District Court miscalculated the Sentencing Guidelines range for Counts One and Two, thus resulting in a longer overall sentence.

Langford timely appealed. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). See United States v. Lloyd, 469 F.3d 319, 321 (3d Cir.2006). We review the District Court's interpretation of the Sentencing Guidelines de novo. United States v. Pojilenko, 416 F.3d 243, 246 (3d Cir.2005).

II. CALCULATION OF LANGFORD'S CRIMINAL HISTORY CATEGORY

Langford argues that the District Court should not have imposed a criminal history point for his juvenile adjudication for attempted auto theft because it resulted in a "discontinuance" of the delinquency petition. He maintains that a discontinuance is not a "sentence" within the meaning of U.S.S.G. § 4A1.2(a). Because no "sentence" was imposed, the adjudication should not have been counted, and the proper criminal history category was III, not. IV. Accordingly, the Sentencing Guidelines range should have been 37 to 46 months.

U.S.S.G. § 4A1.2(a)(1) defines a prior sentence as "any sentence previously imposed upon adjudication of guilt, whether by guilty plea, trial, or plea of nolo contendere, for conduct not part of the instant offense." To be sure, as the government argues, juvenile adjudications are not exempted from the calculation of a defendant's criminal history score. United States v. Bucaro, 898 F.2d 368, 373 (3d Cir.1990). Not all juvenile adjudications, however, result in criminal history points, largely because "[a]ttempting to count every juvenile adjudication would have the potential for creating large disparities due to the differential availability of records." U.S.S.G. § 4A1.2, cmt. n. 7. Therefore, for offenses committed prior to age eighteen, the Guidelines comments limit criminal history points to "those that resulted in adult sentences of imprisonment exceeding one year and one month, or resulted in imposition of an adult or juvenile sentence or release from confinement on that sentence within five years of the defendant's commencement of the instant offense." Id. (emphasis added). Because the other categories of juvenile adjudications that are to be counted are not relevant here, "the imposition of an adult or juvenile sentence" is a prerequisite to using Langford's auto theft adjudication in the calculation of his criminal history score.

The key question is whether the discontinuance of Langford's auto theft adjudication constitutes a "sentence" under the Guidelines. We must review the operations of the Pennsylvania juvenile system to determine whether a "discontinuance" falls within the definition of a prior "sentence" set forth in U.S.S.G. § 4A1.2. See United States v. McKoy, 452 F.3d 234, 238-40 (3d Cir.2006) (noting that while we use federal, rather than state, law definitions and terminology, the state proceeding and statutory scheme is relevant to determining whether the adjudication actually resulted in a sentence as defined by the Guideline and its commentary); accord U.S. v. Morgan, 390 F.3d 1072, 1074 (8th Cir.2004).

In Pennsylvania, a juvenile delinquency adjudication requires a court to find beyond a reasonable doubt that a child committed acts that would constitute crimes if committed by an adult. See 42 Pa.C.S.A. § 6341(b). Typically, the court then orders a disposition. Completed with the aid of a comprehensive social study and investigation, a disposition may operate as the functional equivalent of an adult sentence. See id. § 6339. However, "[i]f the court finds that the child is not in need of treatment, supervision or rehabilitation it shall dismiss the proceeding and discharge the child from any detention or other restriction theretofore ordered." See id. ¶ 6341(b). Here, the juvenile court adjudicated Langford delinquent in connection with the attempted auto theft offense. Thereafter, however, it ordered that the petition be discontinued.

In the PSR for Langford's sentencing, the probation officer added one criminal history point for this adjudication in reliance on U.S.S.G. 4A1.2(a)(3), which provides that "[a] conviction for which the imposition or execution of sentence was totally suspended or stayed shall be counted as a prior sentence under § 4A1.1(c)." Langford objected on the ground that no sentence had actually been imposed. In response, the probation officer admitted that the adjudication had resulted in the "imposition of no...