United States v. McQuilkin

Opinions of the United

1996 Decisions States Court of Appeals

for the Third Circuit

10-15-1996

United States v. McQuilkin

Precedential or Non-Precedential:

Docket 95-2092

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UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 95-2092

___________

UNITED STATES OF AMERICA

v.

ROBERT McQUILKIN

Robert McQuilken,

Appellant

_______________________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Criminal No. 94-cr-00356-1)

___________________

Argued June 11, 1996

Before: SCIRICA and ROTH, Circuit Judges

and RESTANI, Judge, Court of International Trade*

(Filed October 15, 1996)

ROBERT J. DONATONI, ESQUIRE (ARGUED)

Goldberg, Evans, Malcolm,

Donatoni & Rohlfs

135-137 West Market Street

West Chester, Pennsylvania 19382

Attorney for Appellant

EMILY McKILLIP, ESQUIRE (ARGUED)

Office of the United States Attorney

615 Chestnut Street, Suite 1250

Philadelphia, Pennsylvania 19106

Attorney for Appellee

*The Honorable Jane A. Restani, Judge, United States Court of

International Trade, sitting by designation.

__________________

OPINION OF THE COURT

__________________

SCIRICA, Circuit Judge.

In this appeal Robert McQuilkin challenges his

sentence. We will affirm.

I.

Between March 1994 and July 1994, Robert McQuilkin sold

methamphetamine. All sales took place within 1,000 feet of St.

Francis Xavier, a parochial elementary school in Philadelphia.

A jury found McQuilkin guilty of conspiracy to distribute

methamphetamine (21 U.S.C. § 846); distribution of methamphetamine

(21 U.S.C. § 841(a)); distribution of methamphetamine within 1,000

feet of a school (21 U.S.C. § 860); and use of a communication

facility in furtherance of a drug trafficking crime (21 U.S.C. §

843(b)).

The district court determined that McQuilkin was a

"career offender" under U.S.S.G. § 4B1.1, which raised his criminal

history from Category III to Category IV and his offense level to

thirty-seven. The applicable guideline range was 360 months to

life. The district court sentenced McQuilkin to 360 months

imprisonment on §§ 846, 841(a) and 860 and 48 months on § 843(b),

to run concurrently.

On appeal, McQuilkin contends he did not qualify as a

"career offender." Alternatively, he argues a downward departure

was warranted because the "career offender" designation overstated

his criminal history and he suffered from a "severe medical

impairment."

II.

A.

To qualify as a "career offender" under § 4B1.1 of the

Sentencing Guidelines, a defendant must have at least two prior

felony convictions of either "crimes of violence" or controlled

substance offenses. McQuilkin does not challenge the propriety of

counting his 1987 drug trafficking conviction as a predicate

offense. What is in dispute is whether McQuilkin's 1988 conviction

for aggravated assault is a "crime of violence," and thereby

constitutes the second predicate offense required for "career

offender" status. While under the influence of alcohol and drugs,

McQuilkin crashed a motorcycle, severely injuring himself and his

passenger. As a result, he was convicted of aggravated assault (18

Pa. Cons. Stat. Ann. § 2702 (1995)) for injuring his passenger.

The district court considered the aggravated assault conviction a

"crime of violence" and counted it as the second predicate offense.

But McQuilkin contends that "mere recklessness" should not

constitute a "crime of violence" under § 4B1.1.

"Crime of violence" is defined in § 4B1.2 of the

guidelines:

The term `crime of violence' means any offense under

federal or state law punishable by imprisonment for a

term exceeding one year 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 risk of physical injury to another

U.S.S.G., § 4B1.2. Application Note 2 to § 4B1.2 states that the

term "`[c]rime of violence' includes . . . aggravated assault."

The government maintains Application Note 2 definitively

establishes that McQuilkin's conviction for aggravated assault

qualifies as a "crime of violence" under § 4B1.2, and a predicate

offense under the "career offender" provision.

McQuilkin contends the conduct underlying his conviction

was not the type contemplated by Congress when it enacted 28 U.S.C.

§ 994, or by the Sentencing Commission when it promulgated Section

4B1.2. He asserts his conviction for aggravated assault from the

motorcycle accident was based on a finding of "mere recklessness,"

and notwithstanding Application Note 2's reference to "aggravated

assaults" as a class or generic category, should not qualify as a

"crime of violence."

To support his argument, McQuilkin invokes the last

sentence of Application Note 2's first paragraph which provides:

"[u]nder this section, the conduct of which the defendant was

convicted is the focus of the inquiry." U.S.S.G., § 4B1.2,

comment. (n.2). This sentence was added to Application Note 2 as

Amendment 433 to the Sentencing Guidelines, and became effective

November 1, 1991. Amendment 433, U.S.S.G. App. C, at 312 (1995).

McQuilkin maintains this directive requires a court to look beyond

the offense categories listed in the Application Note and evaluate

the underlying conduct to determine whether the defendant committed

a "crime of violence."

B.

Construction of the guidelines is subject to plenary

review, while factual determinations underlying guideline

application are reviewed under a clearly erroneous standard. SeeUnited

States v. Sokolow, 91 F.3d 396, 411 (3d Cir. 1996). The

proper construction of the term "crime of violence" is a question

of law, and our review is plenary. United States v. Parson, 955

F.2d 858, 863 (3d Cir. 1992).

As we have previously noted, the relevant Pennsylvania

statute defines aggravated assault as one who "attempts to cause

serious bodily injury to another, or causes such injury

intentionally, knowingly or recklessly under circumstances

manifesting extreme indifference to the value of human life . . .

." 18 Pa. Cons. Stat. Ann. § 2702 (1995). McQuilkin contends his

aggravated assault conviction was predicated upon a determination

that his conduct was reckless. The government has not contradicted

McQuilkin's characterization of his offense. Although the record

of the aggravated assault conviction is inconclusive, it does

appear that McQuilkin's conviction was based on a finding of

recklessness.

Our jurisprudence, however, does not permit us to examine

the actual conduct underlying the offense, notwithstanding the

Sentencing Commission's instruction that "the conduct of which the

defendant was convicted is the focus of the inquiry." U.S.S.G. §

4B1.2, Comment. (n.2). To demonstrate why this is so, we will

undertake a brief review of our case law and Amendment 433.

Before Amendment 433 was adopted, we held that when

considering crimes specifically enumerated in the guidelines or

application notes, the sentencing judge may not consider the

underlying conduct. See Parson, 955 F.2d at 872; United States v.

John, 936 F.2d 764, 767-78 (3d Cir. 1991); United States v.

McAllister, 927 F.2d 136, 139 (3d Cir.), cert. denied, 502 U.S. 833

(1991). As for crimes not specifically enumerated, the Courts of

Appeals disagreed over whether the "crime of violence" designation

turned on the facts of the underlying behavior, or on the statutory

definition of the offense. Compare John, 936 F.2d at 768 (courts

may look to defendant's actual conduct); United States v. Goodman,

914 F.2d 696, 699 (5th Cir. 1990) ("When the instant offense is not

one of those enumerated, . . . [the] court is permitted to look

beyond the face of the indictment and consider all facts disclosed

by the record"); United States v. Alvarez, 914 F.2d 915, 918 (7th

Cir. 1990) (the court must look to the specific conduct of the

defendant as well as the elements of the offense charged), cert.

denied, 500 U.S. 934 (1991); with United States v. Gonzalez-Lopez,

911 F.2d 542, 547 (11th Cir. 1990) (a court may only review the

statutory definition of the crime or the generic category of the

offense, and not the defendant's actual conduct), cert. denied, 500

U.S. 933 (1991); United States v. Becker, 919 F.2d 568, 570 (9th

Cir. 1990) (courts may only look to statutory definition of

offense), cert. denied, 499 U.S. 911 (1991).

Through Amendment 433, the Sentencing Commission sought

to clarify the "crime of violence" designation to include only the

"conduct of which the defendant was convicted." Sentencing judges

were directed not to examine the actual underlying behavior when

conducting the "career offender" analysis. Amendment 433, U.S.S.G.

App. C, at 312 (1995); Joshua, 976 F.2d at 856 ("[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 the offense is a crime of violence . . ."); United States

v. Fitzhugh, 954 F.2d 253, 255 (5th Cir. 1992) ("[t]he sentencing

court should consider conduct expressly charged in the count of

which the defendant was convicted, but not any other conduct that

might be associated with the offense").

Nevertheless, this clarification is inconsequential to

our analysis for specifically enumerated crimes. In a recent

decision, which post-dates the adoption of Amendment 433, we held

that no inquiry into the facts of the predicate offense is

permitted when a predicate conviction is enumerated as a "crime of

violence" in Application Note 2 to § 4B1.2. United States v.

McClenton, 53 F.3d 584 (3d Cir.), cert. denied, ___ U.S. ___, 116

S.Ct. 330, 133 L.Ed.2d 230 (1995). The fact of conviction remains

dispositive for such crimes.

In McClenton we were asked to decide whether a hotel

guest room constituted a "dwelling," thereby making burglary of a

hotel room a "crime of violence" under § 4B1.2. The hotel room was

unoccupied at the time of the burglary and the defendant argued

that his crime was against property, not habitation, and therefore

should not be considered a "crime of violence." We found

otherwise, concluding the guidelines did not support a distinction

between inhabited and uninhabited dwellings. In explaining our

decision we wrote, "the only issue we must decide is whether the

prior convictions for burglary involved a dwelling. Because

burglary of a dwelling is specifically enumerated in the

Guidelines, no further inquiry is warranted." McClenton, 53 F.3d

at 588.

Because the Sentencing Commission has adopted a

categorical approach to the determination of whether an underlying

offense is a "crime of violence," we reaffirmed in McClenton our

earlier judgment that "where the predicate offense is expressly

listed as a crime of violence, a more detailed inquiry into the

underlying facts is inappropriate". McClenton, 53 F.3d at 588.

Arguably, one can read the Commission's instruction that

the "conduct of which the defendant was convicted is the focus of

inquiry" as referring only to § 4B1.2(1)(ii) -- to "conduct that

presents a serious risk of physical injury to another." But we

need not reach this question, for whatever uncertainty lingers over

the meaning and scope of Amendment 433 (when, and to what extent,

a court can look to the offense of conviction's facts in assessing

"crime of violence" status), we have determined that no inquiry

into the facts is permitted when a predicate offense is enumerated

as a "crime of violence" in Application Note 2 to § 4B1.2. SeeMcClenton,

53 F.3d at 584.

In the past we have expressed misgivings about including

"pure recklessness" offenses within the "crime of violence"

category. In Parson, a pre-Amendment 433 case, we "urge[d] that

the Commission reconsider its career offender Guidelines to the

extent that they cover . . . `pure recklessness' crimes." Parson,

955 F.2d at 874 (noting displeasure with the Commission's broad

definition of "crime of violence" which included possible

unintentional uses of force when the original congressional

definition excluded such crimes). Since there has been no change

in the "crime of violence" definition, "purely reckless" crimes

continue to count as predicate offenses for purposes of "career

offender" consideration. Nevertheless, we renew our request to the

Sentencing Commission to reexamine its position on the inclusion of

"purely reckless" crimes as predicate offenses under the "career

offender" sentencing provisions. As currently written, a defendant

could be considered a "career offender" and subjected to enhanced

penalties on the basis of two prior convictions for reckless

conduct.

III.

A.

Having concluded McQuilkin was appropriately sentenced as

a "career offender," we will address his contention the district

court erred in failing to depart below the applicable guidelines

range.

McQuilkin contends that his designation as a "career

offender" overstates his criminal history, and the district court

should have departed downward. To support his view, he cites

United States v. Shoupe ("Shoupe III"), 35 F.3d 835, 836 (3d Cir.

1994), where we held a sentencing court may depart downward on both

a defendant's offense level and criminal history designation if the

defendant's "criminal offender" status overstates his criminal

history and likelihood of recidivism. The Shoupe decision was

grounded in U.S.S.G. § 4A1.3, a policy statement which provides:

"[i]f reliable information indicates that the criminal history

category does not adequately reflect the seriousness of the

defendant's past criminal conduct or the likelihood that the

defendant will commit other crimes, the court may consider imposing

a sentence departing from the otherwise applicable guidelines

range." Although McQuilkin does not rely directly on § 4A1.3, he

generally argues for a departure on the same basis as that set

forth in § 4A1.3's policy statement.

We lack jurisdiction to review a refusal to depart

downward when the district court, knowing it may do so, nonetheless

determines that departure is not warranted. See United States v.

Denardi, 892 F.2d 269, 272 (3d Cir. 1989) ("To the extent this

appeal attacks the district court's exercise of discretion in

refusing to reduce the sentences below the sentencing guidelines,

it will be dismissed for lack of subject matter jurisdiction.");

United States v. Georgiadis, 933 F.2d 1219, 1222 (3d Cir. 1991)

("we have jurisdiction to decide whether a sentencing court erred

legally when not making a requested departure, but we cannot hear

a challenge to the merits of a sentencing court's discretionary

decision not to depart downward from the Guidelines"); United

States v. Evans, 49 F.3d 109, 111 (3d Cir. 1995) ("[a]

discretionary decision by the trial judge that a departure is not

justified is not reviewable").

Here, the district court neither misunderstood nor

misapplied the law in evaluating McQuilkin's downward departure

request for "overstatement of criminal history." While the

district court did not explain its rationale for declining to

exercise its discretion to depart under § 4A1.3, the court

explicitly stated "I am satisfied in my mind, among other reasons,

that the guidelines are necessary because I believe that really you

need to be institutionalized because I believe not only you are a

danger to yourself, but in fact you have proven to be a danger to

other people." This statement reinforces what the court's actions

conveyed; its view that McQuilkin's criminal history designation

did not overstate his past criminal conduct or the likelihood he

would commit future crimes. Because there is no allegation the

district court misapprehended the law in reviewing McQuilkin's

request for departure, we have no authority to review its valid

exercise of discretion.

B.

McQuilkin also argues for departure based on his physical

condition. As a result of his motorcycle accident, McQuilkin

suffered injuries to his left arm. He also has a congenital defect

in his left eye, affecting the eye muscle. McQuilkin contends

these "handicaps" constitute a "severe medical impairment," and the

district court should have departed downward in light of his

condition.

Section 5H1.4 of the sentencing guidelines provides that

although physical condition or appearance is not ordinarily

relevant in sentencing, "an extraordinary physical impairment may

be reason to impose a sentence below the applicable guideline

range." McQuilkin seizes on this language, claiming he suffers

from an "extraordinary physical impairment," which would place him

at risk for improper medical treatment in prison and make him a

target of other prison inmates.

At sentencing, the district court found McQuilkin's

condition was "not that type of an impairment so severe and

complete that the downward departure [was] . . . warranted." The

court's determination that McQuilkin did not have the kind of

impairment described in §5H1.4 which "warrants" a departure could

have meant one of two things: that McQuilkin's impairment was not

extraordinary enough to allow the court to depart under the

authority of § 5H1.4; or that the nature of the impairment was

sufficiently extraordinary to allow the court to depart, but that

the court elected not to depart on this occasion. We believe the

court meant the former, in which case, we review this finding for

clear error. There is no clear error here. If the court meant the

latter, it would be unreviewable as a refusal to exercise

discretion. See Denardi, 892 F.2d 269. Either way, McQuilkin's

contention the court erred in refusing to depart on the basis of

his physical condition lacks merit.

IV.

A.

The final issue is whether the district court used the

correct "offense statutory maximum" to calculate McQuilkin's

offense level under § 4B1.1. Section 4B1.1 contains a table which

determines a defendant's offense level based on the maximum

sentence authorized by statute for an offense. "If the offense

level for a career criminal offender from the table . . . is

greater than the offense level otherwise applicable, the offense

level from the table . . . shall apply." U.S.S.G. § 4B1.1. The

table offense level is combined with the criminal history status of

a "career offender" (always Category VI) to arrive at the sentence

for that "career offender."

The offense level for a "career offender" depends on the

statutory maximum term of imprisonment, which in the case of drug

offenses depends on the type and quantity of drugs involved. The

district court found McQuilkin was responsible for more than 100

grams of methamphetamine. Because McQuilkin had a prior

conviction for a felony drug offense, the maximum statutory penalty

he faced was life imprisonment; if he had not previously been

convicted of a drug felony, the maximum penalty for his offense

would have been forty years.

The district court used life imprisonment as the maximum

statutory penalty to determine McQuilkin's offense level under §

4B1.1's table for career offenders, and concluded his offense level

was 37. But Application Note 2 to § 4B1.1 directs the sentencing

court to ignore any increases in the offense statutory maximum

based on the defendant's prior criminal record. McQuilkin

contends that by using life rather than 40 years to determine the

appropriate offense level under § 4B1.1, the district court erred

and imposed a longer sentence than the law permits. He suggests

his offense level under § 4B1.1 should have been 34, resulting in

a sentencing range of 262-327 months.

The government contends Application Note 2's instruction

to ignore any increases in the offense statutory maximum based on

the defendant's prior criminal record is invalid, because it is

inconsistent with a federal statute, 28 U.S.C. § 994(h). McQuilkin

argues the Application Note does not conflict with § 994(h).

B.

The validity of U.S.S.G. § 4B1.1's Application Note 2 is

a matter that has vexed several sister Courts of Appeals, yielding

opposing views. United States v. Fountain, 83 F.3d 946 (8th Cir.

1996) (finding Note invalid); United States v. Hernandez, 79 F.3d

584 (7th Cir. 1996) (same), petition for cert. filed, 64 U.S.L.W.

2627 (U.S. June 17, 1996) (No. 95-9335); United States v. Novey, 78

F.3d 1483 (10th Cir. 1996) (same), petition for cert. filed, 64

U.S.L.W. 2627 (U.S. April 29, 1996) (No. 95-8791); but see United

States v. Dunn, 80 F.3d 402 (9th Cir. 1996) (finding Note valid);

United States v. LaBonte, 70 F.3d 1396 (1st Cir. 1995) (same),

cert. granted, 116 S. Ct. 2545 (1996). Even though the Supreme

Court has decided to review the conflict, pending appeal, we

nonetheless align ourselves with the Courts of Appeals for the

Seventh, Eighth and Tenth Circuits, which have found Application

Note 2 and § 994(h) irreconcilable.

C.

Commentary in the guidelines is binding unless it runs

afoul of the Constitution or a federal statute, or is plainly

erroneous or inconsistent with the section of the guidelines it

purports to interpret. Stinson, 508 U.S. at 42-45. We find

Application Note 2 to § 4B1.1 invalid because it conflicts with the

statutory mandate of § 994(h).

Forceful arguments discussing the validity of Application

Note 2 have been advanced by the five Courts of Appeals that have

already spoken. We need not reinvent the wheel by repeating their

exhaustive analyses. It is sufficient to say we are convinced by

the approach of the Seventh, Eighth, and especially, Tenth

Circuits, and note the principal reasons for our agreement.

In Novey, 78 F.3d 1483, the Tenth Circuit turned first to

the language in § 994(h), and found Application Note 2 inconsistent

with the statute. Id. at 1487. Section 994(h) provides:

The Commission shall assure that the guidelines specify

a sentence to a term of imprisonment at or near the

maximum term authorized for categories of defendants in

which the defendant is eighteen years old or older and --

(1) had been convicted of a felony that is --

(A) a crime of violence; or

(B) an offense described in section

401 of the Controlled Substances Act

(21 U.S.C. § 841), sections 1002(a),

1005 and 1009 of the Controlled

Substances Import and Export Act (21

U.S.C. §§ 952(a), 955, and 959), and

the Maritime Drug Law Enforcement

Act (46 U.S.C.App. § 1901 et seq.);

and

(2) has previously been convicted of two or

more prior felonies, each of which is --

(A) a crime of violence; or

(B) an offense described in section

401 of the Controlled Substances Act

(21 U.S.C. § 841), sections 1002(a),

1005 and 1009 of the Controlled

Substances Import and Export Act (21

U.S.C. §§ 952(a), 955, and 959), and

the Maritime Drug Law Enforcement

Act (46 U.S.C.App. § 1901 et seq.).

28 U.S.C. § 994(h). The court concluded the phrase "maximum term

authorized" could only be interpreted to mean "maximum enhanced

term authorized." It explained, "[b]ecause the `maximum term

authorized' for categories of defendants in which the defendant has

two prior qualifying felony convictions is necessarily the enhanced

statutory maximum, we find no ambiguity in the statute. It would

make no sense for the statute to require the `maximum term

authorized' to be considered in the context of defendants with two

or more prior qualifying felony convictions unless it was intended

that phrase mean the enhanced sentence resulting from the pattern

of recidivism." Id.; see also Fountain, 83 F.3d at 952 ("There is

no ambiguity in the directive contained in section 994(h)."). We

find this analysis convincing.

We also agree with the Seventh, Eighth and Tenth Circuits

that reading Application Note 2's use of the term "maximum" to

refer to unenhanced sentences "relegates the enhanced penalties

Congress provided for in [statutes like 21 U.S.C § 841] . . . to

the dust bin." Hernandez, 79 F.3d at 595; see also Fountain, 83

F.3d at 953; Novey, 78 F.3d at 1488; LaBonte, 70 F.3d at 1415

(Stahl, J., concurring in part and dissenting in part). Such an

interpretation strains credulity, and would undermine Congress'

clear intent in § 994(h) to augment rather than scale back the

sentences of qualifying recidivist offenders.

Finally, we concur with the Tenth Circuit's overview of

the statute. "Section 994(h) does not mandate that each individual

defendant receive a sentence `at or near the maximum term

authorized.' Rather, the statute directs the Commission to assure

that the guidelines specify such a term `for categories of

defendants' in which the defendant is a recidivist violent felon or

drug offender. Sentence adjustments based on the circumstances of

an individual defendant, such as acceptance of responsibility,

substantial assistance to the investigation, or any other

mitigating factor, are not implicated." Novey, 78 F.3d at 1489-90

(footnote omitted) (emphasis in original). In light of our

understanding of § 994(h), the First Circuit's view that it is

difficult for the Commission to ensure "that career offenders will

invariably receive sentences `at or near' each individual's"

enhanced sentence maximum is not convincing. Such a rationale

cannot support the notion that Application Note 2 rests on a

permissible Commission interpretation of the statute. LaBonte, 70

F.3d at 1409-10 ("[T]he phrase `at or near,' as employed in this

statute, suggests a continuum of sentences, each relatively further

from, or closer to, the statutory maximum"). Given the clear

language of § 994(h), and its apparent tension with a proliferating

scheme of statutory sentence enhancement provisions based on past

criminal conduct, we believe Application Note 2 is fatally

inconsistent with § 994(h).

V.

For the foregoing reasons we will affirm the judgment of

sentence imposed by the district court.