United States v. Richardson

Opinions of the United

2002 Decisions States Court of Appeals

for the Third Circuit

11-13-2002

USA v. Richardson

Precedential or Non-Precedential: Precedential

Docket No. 01-1517

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PRECEDENTIAL

Filed November 13, 2002

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 01-1517

UNITED STATES OF AMERICA

v.

CECIL RICHARDSON,

a/k/a SYED RICHARDSON

Cecil Richardson,

Appellant

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

D.C. Crim. No. 00-cr-00251

District Judge: The Honorable Stewart Dalzell

Argued: September 24, 2002

Before: BARRY, AMBRO, and COWEN, Circuit Judge s

(Opinion Filed: November 13, 2002)

David L. McColgin, Esquire (Argued)

Defender Association of Philadelphia

Federal Court Division

Curtis Center, Independence Square

West

Suite 540 West

Philadelphia, PA 19106

Attorney for Appellant

Bernadette A. McKeon, Esquire

(Argued)

Michael A. Schwartz, Esquire

Suite 1250

Office of United States Attorney

615 Chestnut Street

Philadelphia, PA 19106

Attorneys for Appellee

OPINION OF THE COURT

BARRY, Circuit Judge:

We are called upon to decide an issue which no court of

appeals, including our own, has yet discussed, much less

decided. Simply stated, the issue before us for decision is

whether, when a juvenile adjudication is invoked to

enhance a sentence under the Armed Career Criminal Act,

the sentencing court is required to look only to the fact of

conviction and the statutory definition of the prior offense

-- the "categorical approach" -- or whether it may look to

the conduct in which the juvenile engaged and make a

factual determination that the juvenile committed-- or did

not commit -- an offense which may be used for

enhancement purposes. We conclude that the sentencing

court must follow the categorical approach, and it did not

do so here. Accordingly, although we will affirm the

judgment of conviction, we will vacate the sentence imposed

and remand for resentencing.

I.

On the evening of February 2, 2000, Philadelphia Police

Officers Victor Davila and Gary McNeil were patrolling West

Philadelphia in an unmarked car. Davila and McNeil

observed two men standing on the corner of 59th and

Walton Streets -- Mark Newman, a/k/a "Black," who the

officers knew from the neighborhood, and a man whom the

officers did not know but was later identified as appellant

Cecil Richardson. Richardson, according to the officers, was

holding a nine-millimeter pistol, showing it to Newman.

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When the officers stopped their vehicle, Richardson threw

the gun into a snowbank, and he and Newman ran north

on 59th Street. Davila pursued Richardson and Newman on

foot, while McNeil returned to the patrol car and radioed for

assistance. Richardson was quickly apprehended. Davila

then returned to the intersection of 59th and Walton

Streets, accompanied by an officer who had responded to

McNeil’s call, and retrieved the gun from the snowbank

where Richardson had discarded it.

Richardson was arrested and charged in the Eastern

District of Pennsylvania with one count of possession of a

firearm by a convicted felon, in violation of 18 U.S.C.

S 922(g). He went to trial -- twice, the first trial having

ended in a hung jury -- and was found guilty, the jury

quite clearly rejecting his testimony that on the evening of

February 2 it was Newman who was showing the firearm to

him and he, Richardson, never touched it.

At sentencing, the District Court considered whether the

Armed Career Criminal Act, 18 U.S.C. S 924(e) ("ACCA"),

applied to enhance Richardson’s sentence. The Court

concluded that a 1994 juvenile adjudication for robbery

and other offenses, along with two adult convictions for

possessing crack cocaine with intent to distribute, satisfied

section 924(e)’s requirement that the defendant be

convicted of at least three prior violent felonies or serious

drug offenses. As a result, Richardson faced a statutory

mandatory minimum term of imprisonment of fifteen years

with sentencing guidelines of 235-293 months. The District

Court sentenced Richardson to a term of 235 months.

Absent an enhancement by virtue of the ACCA,

Richardson’s sentence would have been limited to the ten-

year statutory maximum for possession of a firearm by a

convicted felon, and his sentencing guideline range would

have been 100-120 months. He timely appealed. We have

jurisdiction under 18 U.S.C. S 3742(a) and 28 U.S.C. S 1291.1

_________________________________________________________________

1. Richardson raises numerous issues on appeal, all of which we have

carefully considered. Only one, however, merits relief -- the sentencing

issue. We thus reject Richardson’s contentions that (1) the District Court

should have granted a continuance of the trial when a defense witness

did not appear; (2) Richardson’s girlfriend and mother should have been

3

II.

The ACCA, as Richardson’s case well illustrates, provides

for dramatically increased penalties, including a mandatory

minimum sentence of fifteen years, for violation of the

felon-in-possession statute, 18 U.S.C. S 922(g), if the

defendant has three prior convictions for a "violent felony"

or a "serious drug offense." Section 924(e) provides in

pertinent part:

(1) In the case of a person who violates section 922(g)

of this title and has three previous convictions . .. for

a violent felony or a serious drug offense, or both . . .

such person shall be fined not more than $25,000 and

imprisoned not less than fifteen years . . . .

(2) As used in this subsection --

. . .

(B) the term "violent felony" means any crime

punishable by imprisonment for a term exceeding one

year or any act of juvenile delinquency involving the

use or carrying of a firearm, knife, or destructive device

that would be punishable by imprisonment for such

term if committed by an adult, 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, arson, or extortion, involves use of

explosives, or otherwise involved conduct that

presents a serious potential risk of physical injury to

another; and

(C) the term "conviction" includes a finding that a

person has committed an act of juvenile delinquency

involving a violent felony.

_________________________________________________________________

permitted to testify under Fed. R. Evid. 804(b)(3) to statements Newman

allegedly made to them; (3) the testimony of the firearm’s owner was

wrongly excluded under Fed. R. Evid. 401 and 403; (4) the District

Court’s instruction on joint possession should not have been given; and

(5) 18 U.S.C. S 922(g) is unconstitutional.

4

18 U.S.C. S 924(e). Richardson does not dispute that his

two adult convictions for drug possession qualify as

predicate offenses under the ACCA. Neither does he dispute

that if his 1994 juvenile adjudication involved a"violent

felony," it, too, would qualify as a "conviction" for purposes

of the ACCA. The only issue, then, is whether the District

Court correctly concluded that Richardson’s 1994 juvenile

adjudication constituted a "violent felony" such that his

sentence should be enhanced under the ACCA.

The juvenile adjudication at issue was for numerous

offenses -- robbery, criminal conspiracy, theft by unlawful

taking, receiving stolen property, simple assault, and

possessing an instrument of crime.2 Defense counsel

argued that this adjudication did not qualify as a"violent

felony" under section 924(e)(2)(B) because it was unclear

from the juvenile records whether a knife was actually used

in the robbery, and for a juvenile offense to count as a

predicate offense (or "violent felony"), the statute requires

that a firearm, knife or destructive device have been used

or carried. Counsel also argued that because juveniles in

Pennsylvania do not have a right to a jury trial and because

any finding of "violent felony" must be, but was not, found

by a jury beyond a reasonable doubt, Apprendi error would

be committed and Richardson’s due process and Sixth

Amendment rights would be violated were the ACCA to

apply. See Apprendi v. New Jersey, 530 U.S. 466 (2000).

The District Court considered and rejected Richardson’s

objections, concluding that his juvenile adjudication

qualified as a violent felony and that Apprendi did not

require that this finding be made by a jury beyond a

reasonable doubt. The Court found that although it could

not be determined from the complaint or the Family Court

records whether Richardson himself held a knife in the

1994 robbery, a knife had been involved and a "newly

discovered police report" showed that it was held by

Richardson’s accomplice. Because, in the Court’s view, the

language of the statute was broad enough to encompass

this factual scenario, the juvenile adjudication qualified as

_________________________________________________________________

2. The relevant Pennsylvania criminal statutes are 18 Pa. Cons. Stat.

Ann. SS 3701, 903, 3921, 3925, 2701 and 907, respectively.

5

a predicate under the ACCA. The Court acknowledged that

it was making "what amount to factual findings about the

circumstances of these past crimes, and this is particularly

vexing in this case because the record from the juvenile

conviction is to a certain extent ambiguous on the matter."

Richardson, who argued facts to the District Court and,

more particularly, the fact -- if fact it be -- that he did not

use or carry a knife when he committed the 1994 offenses,

now argues to us what he did not in so many words argue

before, i.e. that by making factual findings concerning the

circumstances of those offenses, the District Court failed to

employ the "categorical approach" mandated by the

Supreme Court -- and, in its wake, by this Court-- in

determining whether a particular conviction falls within

section 924(e). See Taylor v. United States, 495 U.S. 575,

602 (1990); United States v. Preston, 910 F.2d 81, 85 (3d

Cir. 1990). As to this issue, our review is plenary. Preston,

910 F.2d at 84. Richardson argues, as well, that because

the application of the ACCA increased the otherwise

applicable statutory maximum sentence, the rule of

Apprendi requires that the jury, not the judge, determine

whether his juvenile adjudication was a "violent felony" for

purposes of the ACCA and that, in any event, a juvenile

adjudication without a jury trial cannot be used to enhance

a sentence under the ACCA. Because we agree with

Richardson as to the first issue, we need not reach his

second. We do not therefore decide whether a juvenile

adjudication can be characterized as a "prior conviction"

under Apprendi and, thus, can be used to increase the

penalty for a crime beyond the statutory maximum without

being submitted to or found by a jury. Compare United

States v. Smalley, 294 F.3d 1030 (8th Cir. 2002) (holding

that juvenile adjudications are "prior convictions" within

the meaning of Apprendi) with United States v. Tighe, 266

F.3d 1187 (9th Cir. 2001) (holding that juvenile

adjudications are not "prior convictions" within the

meaning of Apprendi).

In Taylor, the Supreme Court held that, in determining

whether a defendant’s prior conviction constitutes a violent

felony under section 924(e)(2)(B), courts must employ a

"categorical approach," which "requires the trial court to

6

look only to the fact of conviction and the statutory

definition of the prior offense" as defined by state law and

not to the conduct and circumstances underlying the

conviction. Taylor, 495 U.S. at 602. The Court reasoned

that the language of section 924(e) -- which refers to

"previous convictions" as opposed to previous acts, and

which defines a "violent felony" as a crime punishable by

more than one year of imprisonment that "has as an

element" the use or threatened use of force -- evidenced

Congress’s intent that the categorical approach be used. Id.

at 600. The Court also noted the "daunting" practical

difficulties and potential unfairness that requiring a

sentencing court to engage in factfinding concerning a

defendant’s prior convictions would occasion:

In all cases where the Government alleges that the

defendant’s actual conduct would fit the generic

definition of burglary, the trial court would have to

determine what that conduct was. In some cases, the

indictment or other charging paper might reveal the

theory or theories of the case presented to the jury. In

other cases, however, only the government’s actual

proof at trial would indicate whether the defendant’s

conduct constituted generic burglary. Would the

Government be permitted to introduce the trial

transcript before the sentencing court, or if no

transcript is available, present the testimony of

witnesses? Could the defense present witnesses of its

own and argue that the jury might have returned a

guilty verdict on some theory that did not require a

finding that the defendant committed generic burglary?

If the sentencing court were to conclude, from its own

review of the record, that the defendant actually

committed a generic burglary, could the defendant

challenge this conclusion as abridging his right to a

jury trial? Also, in cases where the defendant pleaded

guilty, there often is no record of the underlying facts.

Even if the Government were able to prove those facts,

if a guilty plea to a lesser, nonburglary offense was the

result of a plea bargain, it would seem unfair to impose

a sentence enhancement as if the defendant had

pleaded guilty to burglary.

7

Id. at 601-02. The Court held, however, that"in a narrow

range of cases," where the elements of the statute under

which the defendant was convicted encompassed non-

violent as well as violent felonies, the sentencing court may

consider the charging document or jury instructions, but

only to determine whether the jury must necessarily have

found the elements of a violent felony in order to convict

the defendant. Id. at 602.

We strictly applied the categorical approach in United

States v. Preston, noting that, even before Taylor, "[a]ll other

federal appeals courts that have examined this issue have

concluded that S 924(e) mandates looking at the fact of

conviction and the statutory definitions of the prior offenses

for which the defendant has been convicted, but not to the

particular facts underlying those convictions." Preston, 910

F.2d at 85. In considering whether Preston’s prior

conviction for conspiracy to commit robbery constituted a

"violent felony" for purposes of the ACCA, we stated that,

"[w]hen necessary, a sentencing court may refer to the

relevant indictment or information papers and the jury

instructions in the prior conviction . . . [,] but the inquiry

should not extend beyond these documents." Id. Thus,

utilizing the categorical approach, we held that because

Pennsylvania law requires that the elements of the crime

that was the object of a criminal conspiracy be defined for

the jury, a Pennsylvania conviction for conspiracy to

commit robbery necessarily encompasses the elements of

robbery itself, and is therefore a "violent felony" as defined

by section 924(e)(2)(B)(ii). Id. at 86.

While the categorical approach prescribed by Taylor is

simply stated and relatively easily applied when considering

a defendant’s prior adult convictions, it can become more

difficult when a court must determine whether a juvenile

adjudication comes within the ACCA. For one thing,

although the categorical approach prohibits factual

determinations concerning a defendant’s prior convictions,

an "act of juvenile delinquency" introduces an additional

wrinkle, for it will only count as a violent felony if the

offense involved "the use or carrying of a firearm, knife, or

destructive device," 18 U.S.C. S 924(e)(2)(B), a seemingly

paradigmatic factual determination. For another, the

8

documents that the Supreme Court and the various Courts

of Appeals have held that a district court may consider in

the context of an adult conviction -- the indictment or

information, the jury charge, and/or plea agreements--

may be nonexistent where there has been an adjudication

of juvenile delinquency given that, for starters, there is no

right to trial by jury for juvenile offenses. That having been

said, we can perceive no basis for saying that the reasons

the Taylor Court found as warranting the categorical as

opposed to the factual approach when considering an adult

conviction are not equally persuasive when considering a

juvenile adjudication. We note, however, that we are in

uncharted waters because, in the context of juvenile

adjudications and the ACCA, virtually nothing has been

written by any court.

We briefly reprise how the District Court came to the

conclusion that Richardson’s 1994 juvenile adjudication

should count as a "conviction" under the ACCA. Richardson

was "adjudicated delinquent" by the Philadelphia Family

Court for robbery, criminal conspiracy, theft by unlawful

taking, theft by receiving stolen property, simple assault,

and possessing an instrument of crime. While this is

certainly a virtual laundry list of offenses, none of them

requires "the use or carrying of a firearm, knife, or

destructive device that would be punishable by

imprisonment for [a term exceeding one year] if committed

by an adult, that -- (i) has as element the use, attempted

use, or threatened use of physical force against the person

of another . . . ." 18 U.S.C. S 924(e)(2)(B).3 Accordingly, the

District Court considered the juvenile complaint filed in

Family Court, which stated:

[Wh]ile at Overbrook H.S. . . . the deft. in concert with

[an]other/others did forcibly take from the

complainant, Dawud Harrigan, his property, to wit; the

_________________________________________________________________

3. While a conviction under the possession of an instrument of crime

statute can be based on possession of a weapon, it can also be based on

possession of any tool that is used to commit a crime. Possession of a

firearm, knife or other destructive device need not, therefore, necessarily

be proved by the government in order to obtain a conviction under this

statute.

9

defendant demanded money from complainant, and

then [at] point of knife did go through the

complainant’s pocket and did take [$4]0 U.S.C.

868a.

Initially, the government argued that the juvenile

complaint proved that Richardson himself had held a knife

in the course of the robbery. The government retreated from

this position -- and from the categorical approach-- when

the District Court went on to consider the police report,

which stated that the knife allegedly used in the robbery

was held not by Richardson, but by a co-conspirator. While

conceding that Richardson did not himself use the knife,

the government argued that the fact that a co-conspirator

did so was enough. The District Court agreed. Relying on

the juvenile complaint and the police report, the Court held

that even though the latter stated that Richardson himself

had not held or possessed the knife, his participation in a

robbery where his co-conspirator used a knife constituted

a "violent felony . . . involving the use or carrying of a

firearm, knife, or destructive device" as required by 18

U.S.C. S 924(e)(2)(B).

There is no real dispute that the District Court did not

comply with the categorical approach mandated by Taylor;

indeed, neither side urged the categorical approach on the

Court and both sides urged only their version of the facts.

Had the Court applied the categorical approach, however,

all it would have had to do would be to review the

Pennsylvania criminal statutes underlying the juvenile

adjudication, which review would have left no doubt that

none of the offenses which Richardson was found to have

committed had as a necessary element "the use or carrying

of a firearm, knife, or destructive device" required for a

juvenile adjudication to count as a predicate offense under

the ACCA. That, in our view, would have been game, set,

and match.

But even if, under Taylor’s refinement for the "narrow

range of cases," the District Court would be permitted to

make a limited examination beyond the fact of the juvenile

adjudication and the relevant criminal statutes to the

charging document itself, error was committed.4 First, the

_________________________________________________________________

4. We need not decide whether, as the Ninth Circuit seems to have

decided, Taylor’s refinement of the categorical approach is restricted to

10

Court failed to recognize that Taylor only allowed

consideration of the charging document to show "that the

jury necessarily had to find" the elements of a "violent

felony" as defined by section 924(e) in order to convict the

defendant. Taylor, 495 U.S. at 602 (emphasis added).

Clearly, in a return to our "game, set, and match"

conclusion, an enhancement cannot be based solely on an

allegation in the charging document when the conviction for

the charged offense or offenses could have been obtained

without that allegation having been proved. Here, the finder

of fact in Richardson’s juvenile adjudication (presumably a

family court judge) did not "necessarily" have to find that

the 1994 robbery at Overbrook High School involved a knife

in order to find that Richardson committed the robbery and

his other assorted offenses because, as we have said, none

of those offenses has as a necessary element the use of a

knife -- or firearm or destructive device. Stated differently,

there could have been an adjudication of delinquency for

the same offenses without any evidence of a knife. And, of

course, the District Court also erred not only by engaging

in factfinding but by finding as a fact that a knife had been

involved, thus at least implicitly finding that the charging

document was correct, despite the absence of any

transcript of the family court hearing or other documents

which, even if they could be considered, proved that a knife

was actually and necessarily involved.

III.

The daunting practical difficulties and the due process

and Sixth Amendment concerns that surface when a

sentencing court makes factual determinations concerning

a defendant’s prior convictions highlight the necessity of

strict adherence to the categorical approach prescribed by

Taylor. Because it cannot be said that the finder of fact

necessarily found that in 1994 a "violent felony" was

committed by Richardson, nor can it be said that

Richardson himself admitted on the record or that it was

_________________________________________________________________

burglary cases. See United States v. Parker, 5 F.3d 1322, 1326 (9th Cir.

1993).

11

otherwise unequivocally established that he had committed

a violent felony, his juvenile adjudication cannot be used to

enhance his sentence under the ACCA. We, therefore, will

vacate Richardson’s sentence and remand for resentencing.5

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

_________________________________________________________________

5. The Court noted in Taylor that if an enhancement is not available

under section 924(e), evidence of the defendant’s actual prior criminal

conduct may be presented by the government to increase his sentence

for the section 922(g)(1) violation under the sentencing guidelines. 495

U.S. at 602 n.10. We, of course, express no opinion as to whether the

government could or should do so here, although we cannot help but

observe that it is anything but clear what Richardson’s "actual prior

criminal conduct" was in connection with the juvenile adjudication.

12