United States v. Leshen

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. HARRY EDMUND LESHEN, a/k/a Harry E. Leshen, II, Defendant - Appellant.

No. 08-5128

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: March 26, 2010

Decided: November 10, 2011

UNPUBLISHED

Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Rebecca Beach Smith, District Judge. (4:08-cr-00053-RBS-TEM-1)

Before MICHAEL¹ and DAVIS, Circuit Judges, and Eugene E. SILER, Jr., Senior Circuit Judge of the United States Court of Appeals for the Sixth Circuit, sitting by designation.

Vacated and remanded by unpublished per curiam opinion.

ARGUED: Frances H. Pratt, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Richard Daniel Cooke, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Michael S. Nachmanoff, Federal PublicDefender, Alexandria, Virginia, Keith Loren Kimball, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Norfolk, Virginia, for Appellant. Dana J. Boente, Acting United States Attorney, Alexandria, Virginia, Timothy R. Murphy, Special Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Newport News, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Appellant Harry Edmund Leshen pled guilty without a plea agreement to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Leshen's presentence investigation report (PSR), adopted by the district court, increased his base offense level because he had been convicted of two or more "crime[s] of violence" under U.S.S.G. § 4B1.1 (the Career-Offender Guideline), as defined in U.S.S.G. § 4B1.2(a). On appeal Leshen argues for the first time that his prior conviction for grand larceny is too old to be the basis of the enhancement, and that his two convictions for sex offenses are not crimes of violence. The government contends that the sex offenses are "forcible sex offenses" and thus constitute crimes of violence. For the reasons explained below we vacate Leshen's sentence and remand for resentencing.²

I.

On May 13, 2008, a federal grand jury sitting in the Eastern District of Virginia returned an indictment charging Leshen with one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). J.A. 6-7. On July 18, 2008, Leshen waived his right to have his plea taken before the district court and pled guilty before a magistrate judge. J.A. 8-25. The magistrate judge set a sentencing hearing for October 27, 2008, and ordered a probation officer to prepare a PSR. J.A. 23-24. At sentencing the district court accepted Leshen's guilty plea and found him guilty. J.A. 43. The district court also adopted the PSR that is the basis of Leshen's appeal. Id.

The criminal history portion of the PSR details three sets of convictions at issue here. Leshen was convicted of grand larceny, a felony, in Virginia in 1988. J.A. 79. In 1996 in Pennsylvania he was convicted of aggravated indecent assault, indecent assault, and corruption of a minor.³ J.A. 80-81. And in 2008 in Kentucky Leshen pled guilty to and was convicted ofthird-degree rape and third-degree sodomy.⁴ J.A. 84-85. Applying the relevant Guideline, U.S.S.G. § 2K2.1, the probation officer initially set Leshen's base offense level at 26 because the firearm was a semiautomatic weapon "that is capable of accepting a large capacity magazine and the defendant committed the instant offense subsequent to sustaining two felony convictions for crimes of violence." J.A. 95. The PSR elsewhere cited Leshen's convictions for larceny and third-degree rape, J.A. 75, 77, but did not assign any criminal history points to the larceny conviction, J.A. 96.

The PSR set the final base offense level at 23 on the basis of Leshen's acceptance of responsibility. J.A. 77-78, 99. The PSR deemed Leshen to have a criminal history category of III. J.A. 96-98. Based on these figures, the PSR calculated a Guidelines range of 57 to 71 months. J.A. 99. The PSR calculation properly assigned only one criminal history point to the Kentucky convictions because he had not yet been sentenced for those offenses. J.A. 97; see U.S.S.G. § 4A1.2(a)(4). Since then Leshen has been sentenced in Kentucky to two five-year terms to run consecutively to one another and consecutively to his federal sentence.

At the sentencing hearing the district court adopted the PSR and its Guidelines calculation, to which Leshen did not object. J.A. 29-35, 48-52. In pronouncing the sentence the court explained, "frankly I think the Guidelines are pretty generous, given your criminal background here and your record. But I am going to sentence you within the Guidelines at the top end of 71 months." J.A. 56. Leshen timely filed a notice of appeal on November 6, 2008. J.A. 69.

II.

When a defendant unlawfully possesses a firearm in violation of 18 U.S.C. § 922(g)(1) and the weapon is semiautomatic and can accept a large-capacity magazine, the defendant receives a base offense level of at least 20. U.S.S.G. § 2K2.1(a). The base offense level increases to 22 if the defendant has a prior conviction for a crime of violence, and to 26 for two or more such convictions. Leshen challenges the increase in his base offense level from 20 to 26, arguing the district court erred in using his larceny conviction because it was too old, and erred in using his convictions for sex offenses because they are not crimes of violence. Because Leshen did not object below, we review for plain error. See United States v. Lynn, 592 F.3d 572, 576-77 (4th Cir. 2010). To prevail Leshen must demonstrate that (1) an error occurred that(2) was plain and (3) affected the outcome of the sentencing, and that (4) the appellate court should exercise its discretion to correct the error because it "seriously affects the fairness, integrity, or public reputation of judicial proceedings." Puckett v. United States, 129 S. Ct. 1423, 1429 (2009) (internal quotations and citations omitted).

We conclude that the larceny conviction cannot increase Leshen's base offense level, and that — notwithstanding Leshen's heavy burden — the district court plainly erred in classifying Leshen's prior sex offenses as crimes of violence.

A.

We first consider the larceny conviction. The government does not dispute that it would be plain error to increase Leshen's base offense level on account of that 1988 conviction. U.S. Br. at 13-14. We agree. Only prior felonies receiving criminal history points under U.S.S.G. § 4A1.1(a)-(c) count for career-offender purposes. U.S.S.G. § 2K2.1 cmt. n.10. The larceny conviction here received no criminal history points because it exceeded the Guidelines' fifteen-year counting period. See U.S.S.G. § 4A1.2(e).

The record does not reveal whether the district court relied on the larceny conviction. On the one hand, Worksheet C of the PSR assigns no criminal history points to the conviction. J.A. 96. On the other hand, the narrative portion of the PSRdescribing the underlying felony convictions giving rise to Leshen's § 922(g)(1) disqualification cites the larceny conviction and the Kentucky conviction, but not the Pennsylvania conviction. J.A. 75. At sentencing the district court remarked that the larceny conviction "hasn't actually been counted in some of these calculations." J.A. 55.

It is enough to say that the conviction cannot increase Leshen's base offense level, and that any such error would be plain. Such error would not affect the calculation of Leshen's Guideline range, however, unless the district court plainly erred in counting at least one of his other convictions as a crime of violence. We now address those offenses.

B.

The term "crime of violence" in U.S.S.G. § 2K2.1(a) has the same meaning as in the Career-Offender Guideline. U.S.S.G. § 2K2.1 cmt. n.1. The Career-Offender Guideline, in turn, contains a two-pronged definition:

The term "crime of violence" means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that -

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

(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

U.S.S.G. § 4B1.2(a). The application note elaborates:

"Crime of violence" includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included as "crimes of violence" if (A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted involved use of explosives (including any explosive material or destructive device) or, by its nature, presented a serious potential risk of physical injury to another.

U.S.S.G. § 4B1.2 cmt. n.1 (emphasis added).

Two methodological points inform whether an offense constitutes a crime of violence. First, we utilize the familiar "categorical approach," looking only to the elements of the offense. United States v. Seay, 553 F.3d 732, 737 (4th Cir. 2009). Thus "we consider the offense generally, that is to say, we examine it 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." Begay v. United States, 128 S. Ct. 1581, 1584 (2008).⁵ Second, we are guided by the "nearly identical" and "materially indistinguishable" language defining the term "violent felony" in the Armed Career Criminal Act(ACCA). ⁶ United States v. Rivers, 595 F.3d 558, 560 n.1 (4th Cir. 2010). Our "precedents evaluating the ACCA apply with equal force to U.S.S.G. § 4B1.2."...