U.S. v. Ward, s. 97-4226

• Decision Date: 22 March 1999
• Docket Number: 97-4247 and 97-4248,Nos. 97-4226,s. 97-4226
• Citation: 171 F.3d 188
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lancelot WARD, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Bernard Gibson, Jr., Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Kevin Cox, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 188

171 F.3d 188

UNITED STATES of America, Plaintiff-Appellee, v. Lancelot WARD, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Bernard Gibson, Jr., Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Kevin Cox, Defendant-Appellant.

Nos. 97-4226, 97-4247 and 97-4248.

United States Court of Appeals Fourth Circuit.

Argued Dec. 4, 1998.

Decided March 22, 1999.

ARGUED: Fred Warren Bennett, Greenbelt, Maryland, for Appellant Ward; Deborah Naomi Abramson, Baltimore, Maryland, for Appellant Gibson; Joseph Edmond Beshouri, Washington, D.C., for Appellant Cox. Sandra Wilkinson, Assistant United States Attorney, Greenbelt, Maryland, for Appellee. ON BRIEF: Lynne A. Battaglia, United States Attorney, Stuart A. Berman, Assistant United States Attorney, Greenbelt, Maryland, for Appellee.

Before HAMILTON and LUTTIG, Circuit Judges, and MICHAEL, Senior United States District Judge for the Western District of Virginia, sitting by designation.

Affirmed by published opinion. Senior Judge Michael wrote the opinion, in which Judge Hamilton and Judge Luttig joined.

OPINION

MICHAEL, Senior District Judge:

I.

On October 4, 1996 a jury found Lancelot Ward, Bernard Gibson, and Kevin Cox guilty of conspiring to distribute and to possess with an intent to distribute heroin and cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Ward, Gibson, and Cox were indicted following a lengthy investigation by the FBI into a drug distribution enterprise headed by appellant Gibson's father. The appellants in this case raise a litany of issues which we address in turn. Because we find no error in the proceedings below, we affirm.

II.

We turn first to Ward's assertion that the district court erred in sentencing him as a career offender. As a threshold issue, Ward argues that the district court lacked authority to correct the sentence it first imposed on Ward. At Mr. Ward's first sentencing hearing the court declined to find that Ward was a career offender pursuant to § 4B1.2 of the United States Sentencing Guidelines ("U.S.S.G."). At this first hearing, the court ruled that Ward's plea of guilty to conspiracy to commit robbery in Virginia Circuit Court could not serve as a predicate offense. The court found that the conviction was not a "crime of violence" because Virginia's conspiracy statute does not have as one of its elements proof of a violent crime. The government, arguing that the court's determination was wrong as a matter of law, filed a timely motion pursuant to Fed.R.Crim.P 35(c) to correct the sentence. After considering the government's motion, the court indicated that at the time of the first sentence it had not been aware of this court's decision in United States v. Cook, 26 F.3d 507 (4th Cir.), cert. denied, 513 U.S. 953, 115 S.Ct. 373, 130 L.Ed.2d 324 (1994). We held in Cook that under narrow circumstances, a sentencing court may look beyond the elements of the predicate offense to charging papers and jury instructions to determine whether the offense is a "violent felony." 26 F.3d at 508-509.

Rule 35(c) of the Federal Rules of Criminal Procedure provides for correction of a sentence by the sentencing court: "The court, acting within 7 days after the imposition of sentence, may correct a sentence that was imposed as a result of arithmetical, technical, or other clear error." A district court's authority to correct a sentence imposed as a result of "clear error" is limited to "cases in which an obvious error or mistake has occurred in the sentence, that is, errors which would almost certainly result in a remand of the case to the trial court for further action under Rule 35(a)." United States v. Waters, 84 F.3d 86 (2d Cir.1996) (quoting United States v. Abreu-Cabrera, 64 F.3d 67, 72 (2d Cir.1995)). Because the district court's first imposition of sentence was based on a misperception of the governing law in this Circuit, we find that the district court was authorized to correct the sentence previously given.

In resentencing Ward, the district court ruled that Ward's conviction for conspiracy to commit robbery was a "crime of violence." This conspiracy conviction coupled with the appellant's 1982 conviction for armed bank robbery brought the career offender guideline into play. To merit a sentence as a career offender, a defendant must be (1) at least eighteen years old at the time of the offense, (2) guilty, presently, of a "felony that is either a crime of violence or a controlled substance offense," and (3) guilty, historically, of "at least two prior felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1. Ward takes issue only with the sentencing court's determination that his conspiracy conviction was a "crime of violence".

The guidelines define "a crime of violence" as a felony 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 potential risk of physical injury to another.

U.S.S.G. § 4B1.2(1). The application notes indicate that a " 'crime of violence' includes ... robbery." U.S. SENTENCING GUIDELINES MANUAL § 4B1.2 application note 1. The appellant argues that the district court impermissibly found that the conspiracy conviction was a crime of violence because to make this determination, the court had to look beyond the elements of Virginia's conspiracy statute. ¹ Ward pled guilty to § 18.2-22 of the Code of Virginia which provides:

If any person shall conspire, confederate or combine with another, either within or without this Commonwealth, to commit a felony within this Commonwealth, or if he shall so conspire, confederate or combine with another within this Commonwealth to commit a felony either within or without this Commonwealth, he shall be guilty of a felony....

No explicit element of this statutory provision includes the use, attempted use, or threatened use of physical force against the person of another. In ruling that appellant's conspiracy conviction was a crime of violence, the district court looked to the object of the conspiracy, robbery. The object of the conspiracy was distilled from the indictment which charged that Ward "did conspire, confederate, and combine with another person to commit a felony in this State, to-wit: Robbery."

To determine whether a prior felony conviction meets the Sentencing Guideline's definition of a crime of violence, a court must determine whether the elements of the prior offense involved conduct that presented a serious risk of physical injury to another. United States v. Kirksey, 138 F.3d 120, 124 (4th Cir.), cert. denied, --- U.S. ----, 119 S.Ct. 122, 142 L.Ed.2d 98 (1998). This determination must be made using a categorical approach. Taylor v. United States, 495 U.S. 575, 600, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). The categorical approach generally limits the court's inquiry to the fact of conviction and the statutory elements of the prior offense. Id. This prevents district courts from having to conduct complex mini-trials in an attempt to unearth relevant facts.

This court has unambiguously acknowledged that in keeping with the categorical approach, a sentencing court may look beyond the elements of the charged offense in a limited class of cases to determine whether that offense is a "crime of violence." United States v. Coleman, 158 F.3d 199 (4th Cir.1998); United States v. Kirksey, 138 F.3d 120 (4th Cir.), cert. denied, --- U.S. ----, 119 S.Ct. 122, 142 L.Ed.2d 98 (1998); United States v. Cook, 26 F.3d 507 (4th Cir.), cert. denied, 513 U.S. 953, 115 S.Ct. 373, 130 L.Ed.2d 324 (1994). Though this court has not had occasion to decide whether a sentencing court may look to the object of a conspiracy to determine if the conspiracy is a crime of violence, our decision in Kirksey is instructive. In Kirksey the court addressed the question of whether convictions in Maryland state courts for common law assault and battery qualify as predicate crimes of violence. 138 F.3d at 120. Because Maryland recognizes common law crimes, no statute defines their elements and it is not possible to determine whether an assault and battery conviction is a crime of violence by referring solely to the elements of the offense. ² Id. We reasoned that the categorical approach mandated by Taylor is accommodated where the defendant's violent conduct was revealed by consulting the charging documents. This common sense approach also applies to a conspiracy conviction.

As with the crimes addressed by this court in Coleman, Kirksey, and Cook, the Virginia conspiracy statute does not fully define the criminal act. Before one may be convicted of a conspiracy charge, it must always be asked: "conspiracy to do what ?" United States v. Fiore, 983 F.2d 1, 3 (1st Cir.1992), cert. denied, 507 U.S. 1024, 113 S.Ct. 1830, 123 L.Ed.2d 458 (1993). Though Virginia's conspiracy statute does not explicitly include as an element "the use, attempted use, or threatened use of physical force against the person of another," that element logically must be proven to support a conviction for conspiracy to commit a violent felony. United States v. Preston, 910 F.2d 81, 86 (3d Cir.1990), cert. denied, 498 U.S. 1103, 111 S.Ct. 1002, 112 L.Ed.2d 1085 (1991). Simply because some conspiracy convictions will not be predicate offenses, Taylor 's categorical approach does not require a finding that all conspiracy convictions are exempt from serving as predicate offenses. Such a rule would ignore the policy underlying Taylor 's categorical approach as one meant "to capture all offenses of a certain level of seriousness that involve violence or an inherent risk thereof, and that are likely to be committed by career offenders." Taylor, 495 U.S. at 590, 110 S.Ct. 2143; see also United States v. Fiore, 983 F.2d 1 (...