Friday, May 04, 2012

Convictions in Pennsylvania state court for simple assault and third-degree murder can qualify as “crimes of violence” for purposes of career offender designation under U.S.S.G. § 4B1.1.

In United States v. Marrero, No. 11-2351 (3d Cir. April 25, 2012), Ricardo Marrero, who pleaded guilty to two counts of bank robbery, appealed his sentence, arguing that the District Court erred in classifying him as a career offender under U.S.S.G. § 4B1.1, because two of the required three convictions for career offender status were not "crimes of violence": (1) simple assault (18 Pa. Cons. Stat. Ann. § 2701(a)(1)); and (2) third-degree murder (18 Pa. Cons. Stat. Ann. § 2502(c)). Marrero argued that neither conviction qualified as a crime of violence because both of his convictions could have been based on conduct that was reckless, rather than intentional. And if either one of these prior offenses were not a crime of violence, then he should not have been designated and sentenced as a career offender.

The Third Circuit rejected Marrero’s argument as to both convictions, finding that the District Court properly ruled that both were crimes of violence.

As to simple assault, the Court reasoned that for the simple assault conviction to satisfy the "residual clause" in § 4B1.2(a)(2), referring to offenses that "otherwise involve[] conduct that presents a serious potential risk of physical injury to another," the Court would have to find that it "typically involve[s] purposeful, violent, and aggressive conduct." To determine whether the simple assault conviction was for intentional or knowing conduct, rather than merely reckless or negligent conduct, the Court applied the "modified categorical approach," in which the Court can examine "the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented." Here, in the plea colloquy, Marrero admitted to placing his hands around his wife’s neck and attempting to pull her up a flight of stairs. The Court found that the District Court properly ruled that this conduct constituted intent to cause bodily harm, which the Third Circuit has already held to qualify as a crime of violence.

As to third-degree murder, the Court looked to § 4B1.2 (Application Note 1), which states that the term "‘crime of violence’ includes murder," and so is an "enumerated" offense for purposes of the crime-of-violence analysis. For such enumerated offenses, the categorical approach of United States v. Taylor, 495 U.S. 575, 602 (1990) applies, and so "no inquiry into the facts of the predicate offense is permitted . . . ." The Court concluded that third-degree murder under Pennsylvania law is equivalent to the enumerated offense of "murder" and thus qualifies as a crime of violence for purposes of the career offender designation.

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