United States v. Carey, CRIMINAL NO. 3:CR-18-037

UNITED STATES OF AMERICA v. JESSE CAREY, Defendant

CRIMINAL NO. 3:CR-18-037

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA

April 30, 2020

(JUDGE MANNION)

MEMORANDUM

Pending before the court are the government's objections, (Doc. 167), to the final Presentence Investigation Report ("PSR"), (Doc. 176), prepared by the United States Probation Office as to the defendant Jesse Carey ("Carey"). The objections have been fully briefed in the parties' sentencing memoranda and are ripe for this court's review. For the reasons that follow, the government's objections to the final PSR will be SUSTAINED.

I. BACKGROUND

Since the court set forth the facts and procedural history of this case in its prior memoranda, it need not repeat it herein. Pertinent here, on February 6, 2018, Carey was indicted on one count of possession with intent to distribute a controlled substance, namely, cocaine. He was arraigned and entered a plea of not guilty. Through his first appointed counsel, Carey filed an unopposed motion requesting the court order a pre-plea presentence investigation and request for immediate sentencing after disclosure of the presentence report. (Doc. 32). The motion was granted on June 15, 2018. (Doc. 34).

After the court appointed Carey new counsel at his request, the final presentence report was issued on April 2, 2019. (Doc. 56). On May 14, 2019, however, Carey was charged in a Superseding Indictment with two counts of possession with intent to distribute controlled substances—namely, cocaine and a mixture of heroin and fentanyl in Count 1, and cocaine and heroin in Count 2. (Doc. 61). Carey again pleaded not guilty. At Carey's request, the court reappointed his first attorney.

Eventually, Carey chose to proceed pro se, and with the assistance of standby counsel, he separately entered a guilty plea to Count I of the Superseding Indictment and a conditional guilty plea pursuant to Federal Rule of Criminal Procedure 11(a)(2), reserving his right to appeal the denial of his motions to suppress. (Doc. 131; Doc. 144). Shortly thereafter, Carey filed a motion to withdraw his guilty plea, (Doc. 147), and, subsequently, a motion to withdraw the motion to withdraw his guilty plea, (Doc. 164). The court denied those motions by separate memorandum and order. Additionally, at Carey'sinsistence, the court granted his standby counsel's motion to withdraw. (Doc. 162).

On February 25, 2020, the Probation Office issued a revised draft PSR. (Doc. 166). On March 6, 2020, the government filed its objections in a sentencing memorandum. (Doc. 167). Out of an abundance of caution, the court sua sponte convened a presentence hearing on March 6, 2020, to discuss what the court anticipated would be a sentencing issue with respect to Carey's career offender status. (Doc. 168). Given the complicated nature of the issue, the court asked Carey if he would accept representation by CJA Attorney Carl Poveromo for the purposes of briefing the issue. Carey declined the court's invitation. Nevertheless, for purposes of aiding the court in analyzing the issue, the court appointed Attorney Poveromo as standby counsel and asked that he prepare a defense brief on the issue. (Doc. 173).¹

The final presentence report was filed on April 1, 2020. (Doc. 176). In contrast to the first PSR which found that Carey was a career offender pursuant to §4B1.1 of the United States Sentencing Guidelines ("Guidelines"), the revised PSR concludes that Carey is not a career offender.Accordingly, the PSR finds that Carey's offense level is 12 and his criminal history category is VI, resulting in an advisory guideline range of 30 to 37 months imprisonment. (Doc. 176, ¶70).² By contrast, the government contends that, with the career offender enhancement, Carey's offense level would be 30,³ his criminal history category would remain VI, and his guideline range would be 168 to 210 months imprisonment.

On April 1, 2020, Carey, through his standby counsel, filed a sentencing memorandum in support of the second PSR. (Doc. 179). On April 14, 2020, the government filed a response to Carey's sentencing memorandum. (Doc. 180). The matter is now ripe for this court's review.

II. DISCUSSION

Under the Guidelines,

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 parties do not disagree that the first two criteria apply. As to the third, the parties agree that Carey's 2007 conviction in New Jersey for manufacturing and distributing cocaine is a qualifying prior offense. However, the parties disagree as to whether Carey's 2015 conviction in Luzerne County for third-degree robbery is a qualifying prior offense. Accordingly, the issue presently before the court is whether a conviction for third-degree robbery under Pennsylvania Statute, 18 Pa.C.S. §3701(a)(1)(v), constitutes a crime of violence under §4B1.2(a) of the Guidelines. If so, the Guidelines call for Carey to be sentenced as a career offender pursuant to §4B1.1.

The enhancement for career offenders requires that the defendant have two or more prior felony convictions that are either a crime of violence or a controlled substances offense. U.S.S.G. §4B1.1(a). A "crime of violence" isany state or federal offense punishable by more than one year in prison that either:

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or

(2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. §5845(a) or explosive material as defined in 18 U.S.C. §841(c).

U.S.S.G. §4B1.2(a) (emphasis added).

To determine whether a prior state court conviction constitutes a federally defined crime of violence, the court must apply the categorical approach which involves comparing the elements of the state offense with elements of the "generic" crime. United States v. Graves, 877 F.3d 494, 501 (3d Cir. 2017). A conviction will qualify as a crime of violence only if the elements of the state offense are "the same as, or narrower than, those of the generic offense." Id. (internal quotation marks omitted). If, however, the state offense allows for conviction on a broader basis than the generic offense, it will not qualify as a crime of violence. Id.

Here, because Pennsylvania's robbery statute at issue is divisible, United States v. Peppers, 899 F.3d 211, 232 (3d Cir. 2018), the court willapply the modified categorical approach, which permits the court "to examine a limited class of documents to determine which of a statute's alternative elements formed the basis of the defendant's prior conviction." Descamps v. United States, 570 U.S. 254, 262 (2013). These documents, referred to as "Shepard documents," include the charging document, guilty plea allocution, jury instructions, and judgment of conviction. United States v. McCants, 952 F.3d 416, 427 (3d Cir. 2020).

Here, a review of the Luzerne County docket records shows that Carey pleaded guilty to third-degree robbery under (a)(1)(v) of the Pennsylvania robbery statute.⁴ (Doc. 167, at 16, 20-21). Therefore, the court must consider whether Carey's conviction is a qualifying prior offense under either the "elements" or "enumerated offense" clause of §4B1.2(a) of the Guidelines. See McCants, 952 F.3d at 428 (analyzing New Jersey's robbery statute under both the elements and enumerated clauses). The prior conviction is a crime of violence only if the state crime's elements "are the same as, or narrower than, those of the generic offense." United States v. Brown, 765 F.3d 185, 189 (3d Cir. 2014).

Under the elements clause of §4B1.2(a)(1) of the Guidelines, a conviction qualifies if it "has as an element the use, attempted use, or threatened use of physical force against the person of another." U.S.S.G. §4B1.2(a)(1). The Third Circuit has held that the "use of physical force . . . involves the intentional employment of something capable of causing physical pain or injury to another person, regardless of whether the perpetrator struck the victim's body." Chapman, 866 F.3d at 133 (internal quotation marks omitted).

Subsection (a)(1)(v) of the Pennsylvania robbery statute states that "[a] person is guilty of robbery if, in the course of committing a theft, he . . . physically takes or removes property from the person of another by force however slight." 18 Pa.C.S §3701(a)(1)(v).

In McCants, the Third Circuit cited the parties agreed upon definition of generic robbery as "the taking of property from another person or from the immediate presence of another person by force or by intimidation," and reaffirmed its earlier holding that robbery "'requires no more than de minimis force.'" McCants, 952 F.3d at 428-29 (quoting Graves, 877 F.3d at 503). Thus, the question here is whether the Pennsylvania statute's requirementthat the perpetrator employ force "however slight" is broader than the federal generic requirement of "no more than de minimis force."

As noted, the government disagrees with the PSR's finding that the conviction at issue does not qualify as a crime of violence. The government acknowledges that in Peppers, the Third Circuit held that section (a)(1)(v) of Pennsylvania's robbery statute did not qualify as a crime of violence under the Armed Career Criminal Act ("ACCA") and, further, that the Supreme Court previously held that the phrase "physical force" under the ACCA's identical elements clause requires "violent force"—to wit, "force capable of causing physical pain or injury to another person." (Doc. 167, at 12) (quoting Peppers, 899 F.3d at...