U.S. v. Witscher, Crim. No. 10-09E
| Decision Date | 08 June 2011 |
| Docket Number | Crim. No. 10-09E |
| Parties | UNITED STATES OF AMERICA, v. JEFFREY KENT WITSCHER, Defendant. |
| Court | U.S. District Court — Western District of Pennsylvania |
Pending before the Court is "Defendant's Objections to the Presentence Report" [Doc. #39]. Defendant's objections are directed towards paragraphs 19 through 30 (collectively) and paragraph 35 of the Pre-Plea Investigation Report ("PPIR").
With respect to paragraphs 19 to 30 of the PPIR, Defendant argues:
[t]he description of the offense in each of these paragraphs claims that Mr. Witscher "willfully and feloniously committed and/or attempted to commit a lewd and lascivious act against a minor female who was under the age of 16." Mr.Witscher objects to this allegation. Mr. Witscher pled no contest to these charges. Under North Carolina law, a plea of no contest may not be used in another case prove that the defendant committed the crime to which he pled no contest because he has not admitted he committed the offense." State v. Holden, 362 S.E.2d 513, 536 (N.C. 1987). Mr. Witscher denies the accuracy of the descriptions and the descriptions of the offense should be stricken.
Defendant's Objections to the Presentence Report, p. 1.
While the language varies slightly in each of the paragraphs, the essential facts in each paragraph to which Defendant objects is as follows.
Records provided by the United States Probation Office for the Western District of North Carolina reflect that on or about [a specified date], the defendant willfully and feloniously committed and/or attempted to commit a lewd and lascivious act against a minor female who was under the age of 16. It is further reflected that the defendant was represented by legal counsel in this case. On January 19, 2006, the defendant appeared before the North Carolina Superior Court (Wilkes County) located inWilkesboro, North Carolina, and was adjudged guilty of the above-listed offense. The defendant was sentenced before the court on that same date to not less than 21 but not more than 26 months' imprisonment with credit awarded for [a specified number] days. The defendant's sentence in this case was completed on [a specified date]. Additional details relative to the defendant's arrest and/or conviction, including a description of the defendant's criminal conduct or charging documents, were not provided.
PPIR, ¶19. See also PPIR. ¶¶ 20-30.
The September 16, 2002 transcript of Defendant's plea and sentencing hearing, where Defendant pled no contest to 12 counts of Felony Indecent Liberties with Child in violation of North Carolina state law, contains a detailed recitation by the prosecutor of the evidence it had to support the charges against Defendant. September 16, 2002 Transcript, pp. 7-9. In U.S. v. Leekins, 493 F.3d 143 (3d Cir.), cert, den'd, 552 U.S. 1002 (2007), the appellate court explained:
The facts upon which a judge bases a sentence must have '"sufficient indicia of reliability to support [their] probable accuracy'." Such indicia may be sufficient even if they do not meet trial standards; the Federal Rules of Evidence do not apply. See U.S.S.G. § 6A1.3(a) ()."
Id. at 149-150 (citations omitted). Based upon the contents of the September 16, 2002 Transcript, and not considering the Defendant's no contest plea to the charges, we find that there is a "sufficient indicia of reliability to support the[] probable accuracy" of the Probation Office's description of Defendant's convictions at paragraphs 19-30 of the PPIR. Therefore, while Defendant's continued denial of the accuracy of the descriptions of the offenses in paragraph 30 through 37 of the PPIR is noted, Defendant's request that the descriptions of the offenses in paragraphs 30 through 37 of the PPIR be stricken is DENIED.
At paragraph 35 of the PPIR, the probation office concluded that:
The defendant possesses a history of prior criminal convictions, including multiple convictions of Felony Liberties with Child; and Felony Escape Local Jail, all of which are crimes of violence. Since the instant offenses are crimes of violence and the defendant was 18 years or older at the time of the commission of the instant offenses, the defendant is a career offender within the meaning of § 4B1.1 of the guidelines. Accordingly, because it appears he would be considered a career offender, the defendant's criminal history category would otherwise be enhanced to VI, pursuant to U.S.S.G. § 4B1.1.
Defendant objects to the conclusion that he is a career offender. Specifically, Defendant contends that he does not qualify for career offender enhancement because: (1) his indecent liberties with children convictions were not a "crime of violence;" and (2) the government cannot establish that his escape conviction was not a walkaway escape and therefore, his prior felony escape conviction cannot be counted as a "crime of violence." Defendant's Objections to the Presentence Report, p. 1.
U.S.S.G. § 4B1.1 is titled "Career Offender," and states in relevant part: "(a) A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction 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 of either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1(a). The term "crime of violence" is defined in U.S.S.G. § 4B1.2 as follows:
In Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581 (2008), the United States Supreme Court addressed whether a driving under the influence offense was to be counted as a "violent felony" under the Armed Career Criminal Act ("ACCA"). Here, we are concerned with the definition of "crime of violence" under section 4B1.2(a) of the Sentencing Guidelines. Begay is relevant to our inquiry, however, because the definitions of "violent felony" and "crime of violence" are identical in all relevant respects. United States v. Polk, 577 F.3d 515, 519 n.5 (3d Cir. 2009); United States v. Hopkins, 577 F.3d 507, 511 (3d Cir. 2009).
In Begay. the Supreme Court held that a New Mexico Driving Under the Influence statute was not a "violent felony" within the meaning of the Armed Career Criminal Act. Begay, 128 S.Ct. at 1588. In so holding, the Court reaffirmed its "categorical approach" to determining what is a "violent felony" and considered "the offense generically, that is to say, . . . in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion." Id. at 1584 ().
Under the categorical approach then, looking "only to the fact of conviction and the statutory definition of the prior offense," we must determine whether the Defendant's prior convictions: (1) have as an element of the crimes, "the use, attempted use, orthreatened use of physical force against the person of another" or (2) was "burglary, arson, or extortion, involve[d] use of explosives, or otherwise involve[d] conduct that presents a serious potential risk of physical injury to another" ("the residual clause"). Taylor v. U.S., 495 U.S. at 602; 18 U.S.C. § 924(e)(2)(B)(ii). Further, and notably, the United States Court of Appeals for the Third Circuit has explained that "the conduct falls within the residual clause if it poses a degree of risk that is similar to the degree of risk posed by the enumerated offenses ('burglary of a dwelling, arson, extortion [or] involves use of explosives'), and is similar in kind to those offenses." U.S. v. Stinson, 592 F.3d 460, 465 (3d Cir. 2010) (citing Begay, 128 S.Ct. at 1586) (emphasis added). "Begay further explains that an offense is similar in kind to the enumerated offenses if it 'typically involve[s] purposeful, violent, and aggressive conduct'." Id. (citing Begay, 128 S.Ct. at 1586) (internal quotations and citations omitted).
It is not always possible, however, to use a categorical approach to classify a prior conviction. Where a single statute criminalizes different kinds of conduct, some of which would constitute crimes of violence while others would not, then the statute is divisible, and we "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." Stinson, 592 F.3d at 462; see also Johnson, 587 F.3d 203, 208 (3d Cir.2009) (same). In so determining, we may look to "the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record." Shepard v. U.S., 544 U.S. 13. 17, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005).
Defendant pled no contest to, and was convicted of, violating North Carolina's "Taking Indecent Liberties...
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