U.S. v. Richardson

• Decision Date: 13 November 2002
• Docket Number: No. 01-1517.,01-1517.
• Parties: UNITED STATES of America v. Cecil RICHARDSON, a/k/a Syed Richardson Cecil Richardson, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

313 F.3d 121

UNITED STATES of America v. Cecil RICHARDSON, a/k/a Syed Richardson

Cecil Richardson, Appellant.

No. 01-1517.

United States Court of Appeals, Third Circuit.

Argued September 24, 2002.

Filed November 13, 2002.

David L. McColgin (Argued), Defender Association of Philadelphia, Federal Court Division, Philadelphia, PA, for Appellant.

Bernadette A. McKeon (Argued), Michael A. Schwartz, Office of United States Attorney, Philadelphia, PA, for Appellee.

Before BARRY, AMBRO, and COWEN, Circuit Judges.

OPINION OF THE COURT

BARRY, Circuit Judge.

We are called upon to decide an issue which no court of appeals, including our own, has yet discussed, much less decided. Simply stated, the issue before us for decision is whether, when a juvenile adjudication is invoked to enhance a sentence under the Armed Career Criminal Act, the sentencing court is required to look only to the fact of conviction and the statutory definition of the prior offense — the "categorical approach" — or whether it may look to the conduct in which the juvenile engaged and make a factual determination that the juvenile committed — or did not commit — an offense which may be used for enhancement purposes. We conclude that the sentencing court must follow the categorical approach, and it did not do so here. Accordingly, although we will affirm the judgment of conviction, we will vacate the sentence imposed and remand for resentencing.

I.

On the evening of February 2, 2000, Philadelphia Police Officers Victor Davila and Gary McNeil were patrolling West Philadelphia in an unmarked car. Davila and McNeil observed two men standing on the corner of 59th and Walton Streets — Mark Newman, a/k/a "Black," who the officers knew from the neighborhood, and a man whom the officers did not know but was later identified as appellant Cecil Richardson. Richardson, according to the officers, was holding a nine-millimeter pistol, showing it to Newman. When the officers stopped their vehicle, Richardson threw the gun into a snowbank, and he and Newman ran north on 59th Street. Davila pursued Richardson and Newman on foot while McNeil returned to the patrol car and radioed for assistance. Richardson was quickly apprehended. Davila then returned to the intersection of 59th and Walton Streets, accompanied by an officer who had responded to McNeil's call, and retrieved the gun from the snowbank where Richardson had discarded it.

Richardson was arrested and charged in the Eastern District of Pennsylvania with one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). He went to trial — twice, the first trial having ended in a hung jury — and was found guilty, the jury quite clearly rejecting his testimony that on the evening of February 2 it was Newman who was showing the firearm to him and he, Richardson, never touched it.

At sentencing, the District Court considered whether the Armed Career Criminal Act, 18 U.S.C. § 924(e) ("ACCA"), applied to enhance Richardson's sentence. The Court concluded that a 1994 juvenile adjudication for robbery and other offenses, along with two adult convictions for possessing crack cocaine with intent to distribute, satisfied section 924(e)'s requirement that the defendant be convicted of at least three prior violent felonies or serious drug offenses. As a result, Richardson faced a statutory mandatory minimum term of imprisonment of fifteen years with sentencing guidelines of 235-293 months. The District Court sentenced Richardson to a term of 235 months. Absent an enhancement by virtue of the ACCA, Richardson's sentence would have been limited to the ten-year statutory maximum for possession of a firearm by a convicted felon, and his sentencing guideline range would have been 100-120 months. He timely appealed. We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.¹

II.

The ACCA, as Richardson's case well illustrates, provides for dramatically increased penalties, including a mandatory minimum sentence of fifteen years, for violation of the felon-in-possession statute, 18 U.S.C. § 922(g), if the defendant has three prior convictions for a "violent felony" or a "serious drug offense." Section 924(e) provides in pertinent part:

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

(2) As used in this subsection —

...

(B) the term "violent felony" means any crime punishable by imprisonment for a term exceeding one year or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, 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 involved conduct that presents a serious potential risk of physical injury to another; and

(C) the term "conviction" includes a finding that a person has committed an act of juvenile delinquency involving a violent felony.

18 U.S.C. § 924(e). Richardson does not dispute that his two adult convictions for drug possession qualify as predicate offenses under the ACCA. Neither does he dispute that if his 1994 juvenile adjudication involved a "violent felony," it, too, would qualify as a "conviction" for purposes of the ACCA. The only issue, then, is whether the District Court correctly concluded that Richardson's 1994 juvenile adjudication constituted a "violent felony" such that his sentence should be enhanced under the ACCA.

The juvenile adjudication at issue was for numerous offenses — robbery, criminal conspiracy, theft by unlawful taking, receiving stolen property, simple assault, and possessing an instrument of crime.² Defense counsel argued that this adjudication did not qualify as a "violent felony" under section 924(e)(2)(B) because it was unclear from the juvenile records whether a knife was actually used in the robbery, and for a juvenile offense to count as a predicate offense (or "violent felony"), the statute requires that a firearm, knife or destructive device have been used or carried. Counsel also argued that because juveniles in Pennsylvania do not have a right to a jury trial and because any finding of "violent felony" must be, but was not, found by a jury beyond a reasonable doubt, Apprendi error would be committed and Richardson's due process and Sixth Amendment rights would be violated were the ACCA to apply. See Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

The District Court considered and rejected Richardson's objections, concluding that his juvenile adjudication qualified as a violent felony and that Apprendi did not require that this finding be made by a jury beyond a reasonable doubt. The Court found that although it could not be determined from the complaint or the Family Court records whether Richardson himself held a knife in the 1994 robbery, a knife had been involved and a "newly discovered police report" showed that it was held by Richardson's accomplice. Because, in the Court's view, the language of the statute was broad enough to encompass this factual scenario, the juvenile adjudication qualified as a predicate under the ACCA. The Court acknowledged that it was making "what amount to factual findings about the circumstances of these past crimes, and this is particularly vexing in this case because the record from the juvenile conviction is to a certain extent ambiguous on the matter."

Richardson, who argued facts to the District Court and, more particularly, the fact — if fact it be — that he did not use or carry a knife when he committed the 1994 offenses, now argues to us what he did not in so many words argue before, i.e. that by making factual findings concerning the circumstances of those offenses, the District Court failed to employ the "categorical approach" mandated by the Supreme Court — and, in its wake, by this Court — in determining whether a particular conviction falls within section 924(e). See Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990); United States v. Preston, 910 F.2d 81, 85 (3d Cir.1990). As to this issue, our review is plenary. Preston, 910 F.2d at 84. Richardson argues, as well, that because the application of the ACCA increased the otherwise applicable statutory maximum sentence, the rule of Apprendi requires that the jury, not the judge, determine whether his juvenile adjudication was a "violent felony" for purposes of the ACCA and that, in any event, a juvenile adjudication without a jury trial cannot be used to enhance a sentence under the ACCA. Because we agree with Richardson as to the first issue, we need not reach his second. We do not therefore decide whether a juvenile adjudication can be characterized as a "prior conviction" under Apprendi and, thus, can be used to increase the penalty for a crime beyond the statutory maximum without being submitted to or found by a jury. Compare United States v. Smalley, 294 F.3d 1030 (8th Cir.2002) (holding that juvenile adjudications are "prior convictions" within the meaning of Apprendi) with United States v. Tighe, 266 F.3d 1187 (9th Cir.2001) (holding that juvenile adjudications are not "prior convictions" within the meaning of Apprendi).

In Taylor, the Supreme Court held that, in determining whether a defendant's prior conviction constitutes a violent felony under section 924(e)(2)(B), courts must employ a "categorical approach," which "requires the trial court to look only to the fact of conviction and the statutory definition of the prior offense" as defined by state law and not to the conduct and circumstances underlying the conviction. Taylor, 495 U.S. at 602, 110 S.Ct....