U.S. v. Stinson

• Decision Date: 14 January 2010
• Docket Number: No. 08-1717.,08-1717.
• Citation: 592 F.3d 460
• Parties: UNITED STATES of America v. Melvin STINSON, a/k/a Tank Melvin Stinson, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

592 F.3d 460

UNITED STATES of America v. Melvin STINSON, a/k/a Tank Melvin Stinson, Appellant.

No. 08-1717.

United States Court of Appeals, Third Circuit.

Originally Submitted Under Third Circuit LAR 34.1(a) on July 6, 2009.

Argued on Panel Rehearing October 8, 2009.

Filed January 14, 2010.

Opinion Filed July 28, 2009.

Vacated September 24, 2009.

Thomas F. Burke, Law Office of William J. Brennan, Philadelphia, PA, for Appellant.

Robert A. Zauzmer (Argued), Assistant United States Attorney, Chief of Appeals, Maria M. Carrillo, Assistant United States Attorney, Philadelphia, PA, for Appellee.

Sarah S. Gannett, Assistant Federal Defender, David L. McColgin (Argued), Supervising Appellate Attorney, Leigh M. Skipper, Chief Federal Defender, Federal Community Defender Office for Defender Association of Philadelphia, Federal Court Division, Philadelphia, PA, for Amici Curiae.

Before: SLOVITER, AMBRO, and JORDAN, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

This matter is before us on this court's grant of the petition for panel rehearing filed on behalf of Appellant Melvin Stinson supported by Amici Curiae Federal Public and Community Defender Organizations for each District in the Third Circuit. Because our prior opinion was vacated with the order granting rehearing, we include here the relevant facts.

I.

Stinson, who was arrested by local police in a Philadelphia bar pursuant to an arrest warrant for failing to appear in court, was found to be in possession of 23 glass vials of cocaine base, totaling approximately 1.5 grams, and a .357 Magnum revolver. Thereafter, Stinson pled guilty to possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1), using and carrying a firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1), and possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1).

The presentence investigation report ("PSR") found Stinson to be a career offender under the 2006 United States Sentencing Guidelines based on his 1998 conviction for distribution of a controlled substance and his 1994 conviction in Pennsylvania for "simple assault." The PSR also noted that Stinson had been convicted in Pennsylvania of resisting arrest. The District Court agreed that Stinson was a career offender and, as a result, gave Stinson an enhanced offense level of 32, but deducted 3 points for acceptance of responsibility. As a career offender, Stinson had a criminal history category of VI and received a Guidelines range of 262 to 327 months imprisonment. He was sentenced to 262 months, the bottom of the range. This matter is before us on Stinson's challenge to that sentence.¹

When this matter was originally before us, Stinson claimed that the District Court (1) incorrectly considered his simple assault crime to be a crime of violence under the relevant sentencing provisions and (2) did not reasonably apply the 18 U.S.C. § 3553(a) factors when determining his sentence. See United States v. Stinson, 574 F.3d 244, 245 (3d Cir.2009), vacated, 2009 U.S.App. LEXIS 21202, at *1 (3d Cir.2009). Stinson conceded that the District Court's conclusion that his simple assault conviction qualified as a crime of violence was required after our precedent in United States v. Dorsey, 174 F.3d 331 (3d Cir.1999), noting in his brief that "it would seem to be difficult to distinguish Dorsey from the case at bar, factually." Appellant's Br. at 10. He argued only that "[t]he District Court must make a specific finding as to whether the offense of conviction [i.e., the simple assault] established a crime of violence by reference to the charged conduct [in the assault charge]." Appellant's Br. at 12. We do not understand Stinson to have argued that the sentencing court should inquire into the specific conduct of this particular offender, which would be contrary to the Supreme Court's direction that courts must apply the categorical approach to classify a prior conviction. See Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Under that approach, a court must ask "whether the elements of the offense are of the type that would justify its [classification as a crime of violence]." James v. United States, 550 U.S. 192, 202, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007).

Where a statute criminalizes different kinds of conduct, some of which would constitute crimes of violence while others would not, the court must apply a modified categorical approach by which a court may look beyond the statutory elements to determine the particular part of the statute under which the defendant was actually convicted. See Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); Evanson v. Att'y Gen., 550 F.3d 284, 290-91 (3d Cir.2008); see also United States v. Smith, 544 F.3d 781, 786 (7th Cir.2008) ("Such an examination ... is `only to determine which part of the statute the defendant violated.'" (quoting United States v. Howell, 531 F.3d 621, 623 (8th Cir.2008))).

After the briefs in the original appeal were filed, the Supreme Court issued its opinion in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). Begay interpreted the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(1), which imposes a special mandatory prison term on a felon who unlawfully possesses a firearm and who has three or more prior convictions for committing certain drug crimes or "violent felon[ies]." Under the ACCA:

[T]he 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 involves conduct that presents a serious potential risk of physical injury to another....

18 U.S.C. § 924(e)(2)(B). Begay focused on the meaning of the latter clause, i.e., "or otherwise involves conduct that presents a serious potential risk of physical injury to another," which has been called "the residual clause." See 128 S.Ct. at 1586.

In our original opinion we declined to address the effect of Begay on the District Court's characterization of Stinson's conviction for simple assault as a crime of violence under U.S.S.G. § 4B1.1(a), reasoning that it was "an issue that would benefit from initial briefing and exploration before a trial judge [in light of the subsequent decision in Begay]." Stinson, 574 F.3d at 246. We nevertheless affirmed the sentence on the basis that resisting arrest, of which Stinson was also convicted, was a crime of violence under the Sentencing Guidelines.

Thereafter, another panel of this court decided the issue of the characterization of "simple assault" that we had declined to reach in Stinson and held that "an intentional or knowing violation of the [Pennsylvania simple assault statute] is a crime of violence under U.S.S.G. § 4B1.2(a)(2)." United States v. Johnson, 587 F.3d 203, 212 (3d Cir.2009). Under the Pennsylvania simple assault statute, a person is guilty who "attempts to cause or intentionally, knowingly, or recklessly causes bodily injury to another." 18 Pa. Cons.Stat. Ann. § 2701(a)(2). Although the criminal information charged Johnson with intentional and knowing conduct, the Johnson court was unable to decide whether Johnson's simple assault conviction was a crime of violence because it was unclear, "based on the information alone, whether Johnson actually admitted to acting intentionally or knowingly." Id. In light of the Government's position "that reckless conduct, standing alone, is not the type of purposeful conduct that can constitute a crime of violence under § 4B1.2(a)(2)'s residual clause," we vacated Johnson's sentence and remanded to the sentencing court. Id. at 210. We included a reminder that the Supreme Court's decision in Shepard foreclosed the court from inquiring into the facts underlying the earlier conviction but required the court to determine the part of the Pennsylvania simple assault statute to which Johnson pled guilty. Id. at 209.

In this case, as in Johnson, the record fails to show the part of Pennsylvania's simple assault statute on which Stinson's 1994 conviction was based. We therefore turn from the simple assault issue to analyze instead whether Stinson's conviction for resisting arrest qualifies as a categorical crime of violence. If so, the District Court did not err in denominating Stinson a career offender.

II.

In his motion for panel rehearing, Stinson raises three challenges to his sentence. He argues that the Pennsylvania resisting arrest statute, 18 Pa. Cons.Stat. Ann. § 5104, is not a categorical crime of violence after Begay; that the court should not have affirmed the career offender sentence based on Stinson's prior conviction for resisting arrest; and that the court's holding that resisting arrest is a crime of violence is at odds with United States v. Hopkins, 577 F.3d 507 (3d Cir.2009).

We turn to consider these arguments.

Under the United States Sentencing Guidelines The term "crime of violence" means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or

(2) 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.

U.S. Sentencing Guidelines Manual ("U.S.S.G.") § 4B1.2(a) (2006) (emphasis added). The definition in the Sentencing Guidelines is sufficiently similar to the definition of a violent felony under the ACCA that authority...