U.S. v. Taylor

• Decision Date: 25 October 1996
• Docket Number: No. 95-3675,95-3675
• Citation: 98 F.3d 768
• Parties: UNITED STATES of America v. Kevin E. TAYLOR, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 768

98 F.3d 768

UNITED STATES of America v. Kevin E. TAYLOR, Appellant.

No. 95-3675.

United States Court of Appeals Third Circuit.

Argued June 12, 1996.

Decided Oct. 25, 1996.

Shelley Stark, Federal Public Defender, W. Penn Hackney, I, Karen Sirianni Gerlach (argued), Assistant Federal Public Defenders, Pittsburgh, PA, for Appellant.

Frederick W. Thieman, United States Attorney, Bonnie R. Schlueter, Bruce J. Teitelbaum (argued), Assistant United States Attorneys, Pittsburgh, PA, for Appellee.

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

OPINION OF THE COURT

RESTANI, Judge.

Defendant Kevin E. Taylor ("Taylor") appeals his sentence from the United States District Court for the Western District of Pennsylvania following the denial of his motion for modification of sentence based on recent amendments to the United States Sentencing Guidelines (the "Sentencing Guidelines" or "USSG"). Taylor challenges his designation as a career offender pursuant to USSG § 4B1.1, claiming that his two prior convictions for statutory rape do not constitute the predicate "crimes of violence" required to apply that guideline.

BACKGROUND

On April 3, 1989, Taylor entered a plea of guilty to three felony drug counts, specifically, one count of conspiring to distribute 3-methyl-fentanyl, heroin, and cocaine, and two substantive counts of distribution of heroin. At the sentencing hearing held on June 28, 1989, the district court ruled that Taylor was a career offender pursuant to USSG § 4B1.1. The court determined that Taylor's previous conviction for aggravated assault and two separate convictions for statutory rape constituted three prior convictions for "crimes of violence" under section 4B1.1. As a result, Taylor was sentenced to a term of 20 years imprisonment. Taylor appealed and his sentence was affirmed by an order dated March 8, 1990. United States v. Taylor, 899 F.2d 1220 (3d Cir.1990). On November 30, 1995, the district court denied Taylor's motion for modification of sentence because of Sentencing Guideline changes with regard to prior convictions for "crimes of violence." (App.311) Taylor does not challenge the determination that his 1984 conviction for aggravated assault is a "crime of violence" under the new law. Taylor does, however, challenge the district court's finding that his two prior convictions for statutory rape in 1975 and 1980 continue to qualify as "crimes of violence."

JURISDICTION

Taylor appeals from an order of the United States District Court for the Western District of Pennsylvania denying his motion for modification of sentence. The district court had subject matter jurisdiction of the original proceeding against Taylor pursuant to 18 U.S.C. § 3231 and the authority to consider the motion for modification of sentence pursuant to 18 U.S.C. § 3742(a). We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.

STANDARD OF REVIEW

We review a district court's factual determinations underlying the application of the sentencing guidelines for clear error. United States v. McMillen, 917 F.2d 773, 774 (3d Cir.1990). Although we give due deference to the district court's application of the sentencing guidelines to those facts, id. (citing 18 U.S.C. § 3742(e)), we exercise plenary review over legal questions concerning the proper interpretation of the Sentencing Guidelines. United States v. Holifield, 53 F.3d 11, 12-13 (3d Cir.1995).

DISCUSSION

The Sentencing Guidelines provide that a defendant is a career offender if (1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense is a felony that is either a "crime of violence" or a controlled substance offense, and (3) the defendant has at least two prior felony convictions for either "crimes of violence" or controlled substance offenses. See United States Sentencing Commission, Guidelines Manual, § 4B1.1 (Nov.1995) [hereinafter "USSG"]. Taylor does not dispute the district court's finding that the first two subsections of § 4B1.1 are satisfied. He does, however, argue that neither of his prior convictions for statutory rape qualify as "crimes of violence" under section 4B1.1. In order to satisfy the two prior "crimes of violence" requirement, one of these convictions must qualify, along with the admittedly qualifying aggravated assault felony conviction.

In concluding that Taylor's prior convictions for statutory rape were "crimes of violence," the sentencing court originally looked to the underlying conduct which gave rise to the offense. This analysis was later affirmed as the law in this circuit in United States v. John, 936 F.2d 764, 767 (3d Cir.1991). On November 1, 1991 and November 1, 1992, however, Application Note 2 to USSG § 4B1.2 was modified by Amendments 433 and 461, respectively. USSG App. C at 311-12, 342-43. Application Note 2 now provides in relevant part:

"Crime of violence" includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included where (A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth (i.e., expressly charged ) in the count of which the defendant was convicted involved use of explosives (including any explosive material or destructive device) or, by its nature, presented a serious potential risk of physical injury to another. Under this section, the conduct of which the defendant was convicted is the focus of the inquiry.

USSG § 4B1.2, comment. (n. 2) (emphasis added to indicate additions made by Amendments 433 and 461).

The retroactivity of the amendments is specifically addressed in USSG § 1B1.10, which provides:

(a) Where a defendant is serving a term of imprisonment, and the guideline range applicable to that defendant has subsequently been lowered as a result of an amendment to the Guidelines Manual listed in subsection (c) below, a reduction in the defendant's term of imprisonment is authorized under 18 U.S.C. § 3582(c)(2)....

* * * * * *

(c) Amendments covered by this policy statement are listed in Appendix C as follows: ... 433, ... 461....

USSG § 1B1.10. The retroactivity of Amendments 433 and 461 was recognized by the district court in its denial of Taylor's motion for modification of sentence. (App.312)

Prior to the amendments to Application Note 2, this court stated that:

the Sentencing Commission essentially envisioned three independent ways by which a prior conviction will be considered a "crime of violence": (1) the prior conviction is for a crime that is among those specifically enumerated (murder, manslaughter, kidnapping, etc.); (2) the prior conviction is for a crime that, although not specifically enumerated, has as an element of the offense the use, attempted use, or threatened use of physical force; or (3) the prior conviction is for a crime that, although neither specifically enumerated nor involving physical force as an element of the offense, involves conduct posing a serious potential risk of physical injury to another.

United States v. John, 936 F.2d at 767 (emphasis in original). While recognizing that it is "impermissible" and "pointless" for the court to look to the defendant's actual criminal conduct under the first two prongs, the court found that, "the third prong quite clearly permits the court to examine the defendant's actual conduct to ascertain whether that conduct posed a sufficient potential risk of physical injury to another to elevate the crime to a 'crime of violence.' " Id. at 767-68.

Following the amendments to Application Note 2, this court reconsidered its prior holding in John. United States v. Joshua, 976 F.2d 844, 852 (3d Cir.1992). The Joshua court noted that its prior holding in John entitled the sentencing court to look beyond the facts charged in the indictment to the defendant's underlying conduct, including all relevant conduct under USSG § 1B1.3, in determining whether the defendant's predicate offense involved a serious potential risk of injury to another under the third prong of the analysis. Id. The court acknowledged, however, that the recent amendment to Application Note 2 restricted the sentencing court's power to look beyond the conduct expressly charged in the indictment. Id. Given the conflict between the court's holding in John and the amended commentary, the Joshua court decided that "a panel may consider new commentary text where another panel of this court has already resolved the ambiguity and that a second panel is entitled to defer to the new commentary even when it mandates a result different from that of the prior panel." Id. at 856; accord Stinson v. United States, 508 U.S. 36, 46, 113 S.Ct. 1913, 1919, 123 L.Ed.2d 598 (1993) (stating, "[a]mended commentary is binding on the federal courts even though it is not reviewed by Congress, and prior judicial constructions of a particular guideline cannot prevent the Commission from adopting a conflicting interpretation that satisfies the standard we set forth today"). The court then concluded that, "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 that offense is a crime of violence under subsection (ii) of the guideline." Joshua, 976 F.2d at 856. This law guides us today, as it did the district court's consideration of the motion for sentence modification.

Taylor's first statutory rape conviction occurred in 1975. The indictment for this offense charges six counts, in which crimes were not specifically named. The guilty plea form, however, summarizes the indictment as follows: 1st Count: Attempt Rape (Sec.901-3121); 2nd Count: Involuntary Sexual Deviate Intercourse (Sec.3123); 3rd Count: Indecent Assault (Sec.3126); 4th Count: Recklessly...