U.S. v. McQuilkin

• Decision Date: 15 October 1996
• Docket Number: No. 95-2092,95-2092
• Citation: 97 F.3d 723
• Parties: UNITED STATES of America v. Robert McQUILKIN, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 723

97 F.3d 723

UNITED STATES of America v. Robert McQUILKIN, Appellant.

No. 95-2092.

United States Court of Appeals, Third Circuit.

Argued June 11, 1996.

Decided Oct. 15, 1996.

Robert J. Donatoni (argued), Goldberg, Evans, Malcolm, Donatoni & Rohlfs, West Chester, PA, for Appellant.

Emily McKillip (argued), Office of the United States Attorney, Philadelphia, PA, for Appellee.

Before SCIRICA and ROTH, Circuit Judges and RESTANI, Judge, Court of International Trade. ^*

OPINION OF THE COURT

SCIRICA, Circuit Judge.

In this appeal Robert McQuilkin challenges his sentence. We will affirm.

I.

Between March 1994 and July 1994, Robert McQuilkin sold methamphetamine. All sales took place within 1,000 feet of St. Francis Xavier, a parochial elementary school in Philadelphia. ¹

A jury found McQuilkin guilty of conspiracy to distribute methamphetamine (21 U.S.C. § 846); distribution of methamphetamine (21 U.S.C. § 841(a)); distribution of methamphetamine within 1,000 feet of a school (21 U.S.C. § 860); and use of a communication facility in furtherance of a drug trafficking crime (21 U.S.C. § 843(b)).

The district court determined that McQuilkin was a "career offender" under U.S.S.G. § 4B1.1, which raised his criminal history from Category III to Category IV and his offense level to thirty-seven. ² The applicable guideline range was 360 months to life. The district court sentenced McQuilkin to 360 months imprisonment on §§ 846, 841(a) and 860 and 48 months on § 843(b), to run concurrently.

On appeal, McQuilkin contends he did not qualify as a "career offender." Alternatively, he argues a downward departure was warranted because the "career offender" designation overstated his criminal history and he suffered from a "severe medical impairment."

II.

A.

To qualify as a "career offender" under § 4B1.1 of the Sentencing Guidelines, a defendant must have at least two prior felony convictions of either "crimes of violence" or controlled substance offenses. ³ McQuilkin does not challenge the propriety of counting his 1987 drug trafficking conviction as a predicate offense. What is in dispute is whether McQuilkin's 1988 conviction for aggravated assault is a "crime of violence," and thereby constitutes the second predicate offense required for "career offender" status. While under the influence of alcohol and drugs, McQuilkin crashed a motorcycle, severely injuring himself and his passenger. As a result, he was convicted of aggravated assault (18 Pa. Cons.Stat. Ann. § 2702 (1995)) for injuring his passenger. ⁴ The district court considered the aggravated assault conviction a "crime of violence" and counted it as the second predicate offense. But McQuilkin contends that "mere recklessness" should not constitute a "crime of violence" under § 4B1.1.

"Crime of violence" is defined in § 4B1.2 of the guidelines:

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 risk of physical injury to another

U.S.S.G., § 4B1.2. Application Note 2 to § 4B1.2 states that the term " '[c]rime of violence' includes ... aggravated assault." ⁵ The government maintains Application Note 2 definitively establishes that McQuilkin's conviction for aggravated assault qualifies as a "crime of violence" under § 4B1.2, and a predicate offense under the "career offender" provision.

McQuilkin contends the conduct underlying his conviction was not the type contemplated by Congress when it enacted 28 U.S.C. § 994, or by the Sentencing Commission when it promulgated Section 4B1.2. He asserts his conviction for aggravated assault from the motorcycle accident was based on a finding of "mere recklessness," and notwithstanding Application Note 2's reference to "aggravated assaults" as a class or generic category, should not qualify as a "crime of violence."

To support his argument, McQuilkin invokes the last sentence of Application Note 2's first paragraph which provides: "[u]nder this section, the conduct of which the defendant was convicted is the focus of the inquiry." U.S.S.G., § 4B1.2, comment. (n. 2). This sentence was added to Application Note 2 as Amendment 433 to the Sentencing Guidelines, and became effective November 1, 1991. ⁶ Amendment 433, U.S.S.G.App. C, at 312 (1995). McQuilkin maintains this directive requires a court to look beyond the offense categories listed in the Application Note and evaluate the underlying conduct to determine whether the defendant committed a "crime of violence."

B.

Construction of the guidelines is subject to plenary review, while factual determinations underlying guideline application are reviewed under a clearly erroneous standard. See United States v. Sokolow, 91 F.3d 396, 411 (3d Cir.1996). The proper construction of the term "crime of violence" is a question of law, and our review is plenary. United States v. Parson, 955 F.2d 858, 863 (3d Cir.1992).

As we have previously noted, the relevant Pennsylvania statute defines aggravated assault as one who "attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life...." 18 Pa. Cons.Stat. Ann. § 2702 (1995). McQuilkin contends his aggravated assault conviction was predicated upon a determination that his conduct was reckless. The government has not contradicted McQuilkin's characterization of his offense. Although the record of the aggravated assault conviction is inconclusive, it does appear that McQuilkin's conviction was based on a finding of recklessness.

Our jurisprudence, however, does not permit us to examine the actual conduct underlying the offense, notwithstanding the Sentencing Commission's instruction that "the conduct of which the defendant was convicted is the focus of the inquiry." U.S.S.G. § 4B1.2, Comment. (n. 2). To demonstrate why this is so, we will undertake a brief review of our case law and Amendment 433.

Before Amendment 433 was adopted, we held that when considering crimes specifically enumerated in the guidelines or application notes, the sentencing judge may not consider the underlying conduct. See Parson, 955 F.2d at 872; United States v. John, 936 F.2d 764, 767-68 (3d Cir.1991); United States v. McAllister, 927 F.2d 136, 139 (3d Cir.), cert. denied, 502 U.S. 833, 112 S.Ct. 111, 116 L.Ed.2d 80 (1991). As for crimes not specifically enumerated, the Courts of Appeals disagreed over whether the "crime of violence" designation turned on the facts of the underlying behavior, or on the statutory definition of the offense. Compare John, 936 F.2d at 768 (courts may look to defendant's actual conduct); United States v. Goodman, 914 F.2d 696, 699 (5th Cir.1990) ("When the instant offense is not one of those enumerated, ... [the] court is permitted to look beyond the face of the indictment and consider all facts disclosed by the record"); United States v. Alvarez, 914 F.2d 915, 918 (7th Cir.1990) (the court must look to the specific conduct of the defendant as well as the elements of the offense charged), cert. denied, 500 U.S. 934, 111 S.Ct. 2057, 114 L.Ed.2d 462 (1991); with United States v. Gonzalez-Lopez, 911 F.2d 542, 547 (11th Cir.1990) (a court may only review the statutory definition of the crime or the generic category of the offense, and not the defendant's actual conduct), cert. denied, 500 U.S. 933, 111 S.Ct. 2056, 114 L.Ed.2d 461 (1991); United States v. Becker, 919 F.2d 568, 570 (9th Cir.1990) (courts may only look to statutory definition of offense), cert. denied, 499 U.S. 911, 111 S.Ct. 1118, 113 L.Ed.2d 226 (1991).

Through Amendment 433, the Sentencing Commission sought to clarify the "crime of violence" designation to include only the "conduct of which the defendant was convicted." Sentencing judges were directed not to examine the actual underlying behavior when conducting the "career offender" analysis. Amendment 433, U.S.S.G.App. C, at 312 (1995); Joshua, 976 F.2d at 856 ("[A] sentencing court should look solely to the conduct alleged in the count of the indictment charging the offense of conviction in order to determine whether the offense is a crime of violence ..."); United States v. Fitzhugh, 954 F.2d 253, 255 (5th Cir.1992) ("[t]he sentencing court should consider conduct expressly charged in the count of which the defendant was convicted, but not any other conduct that might be associated with the offense").

Nevertheless, this clarification is inconsequential to our analysis for specifically enumerated crimes. In a recent decision, which post-dates the adoption of Amendment 433, we held that no inquiry into the facts of the predicate offense is permitted when a predicate conviction is enumerated as a "crime of violence" in Application Note 2 to § 4B1.2. United States v. McClenton, 53 F.3d 584 (3d Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 330, 133 L.Ed.2d 230 (1995). The fact of conviction remains dispositive for such crimes. ⁷

In McClenton we were asked to decide whether a hotel guest room constituted a "dwelling," thereby making burglary of a hotel room a "crime of violence" under § 4B1.2. The hotel room was unoccupied at the time of the burglary and the defendant argued that his crime was against property, not habitation, and therefore should not be considered a "crime of violence." We found otherwise, concluding the guidelines did not support a distinction between inhabited and uninhabited dwellings. In explaining our decision we wrote, "the only issue we must decide is whether the prior convictions for burglary involved a dwelling. Because burglary of a dwelling is specifically enumerated in the Guidelines, no further inquiry is...