United States v. Midgley

218 F. App'x 117
CourtCourt of Appeals for the Third Circuit
DecidedMarch 2, 2007
DocketNo. 05-5019
StatusPublished

This text of 218 F. App'x 117 (United States v. Midgley) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Midgley, 218 F. App'x 117 (3d Cir. 2007).

Opinion

OPINION OF THE COURT

ALDISERT, Circuit Judge.

In his appeal from a 27-month sentence, imposed on a guilty plea, Neil A. Midgley argues that the District Court erred in determining that he previously had been convicted of a crime of violence, the basis for a 16-level enhancement in his total offense level and a corresponding increase in his Sentencing Guidelines range. We will affirm.

I.

In 1994, Midgley was arrested in connection with the shooting of his girlfriend. He pleaded guilty to two misdemeanors: possession of an instrument of crime in violation of 18 Pa.C.S. § 907, and simple assault in violation of 18 Pa.C.S. § 2701. In Pennsylvania, simple assault carries a two-year statutory maximum sentence and possession of an instrument of a crime carries a five-year statutory maximum sentence. Midgley was deported to Jamaica in 1999, but was arrested again on January 5, 2005, this time by federal Immigration and Customs Enforcement agents in Philadelphia. He pleaded guilty to one count of illegal re-entry after deportation in violation of 8 U.S.C. § 1326(a) and (b)(1). In calculating his sentence, the Probation Office found that Midgley deserved a base offense level of eight under U.S.S.G. § 2L1.2(a), and a 16-level increase under U.S.S.G. § 2L1.2(b)(l)(A) because he had been deported after a prior conviction for a felony that was a crime of violence. Combined with a three-point reduction for acceptance of responsibility, this yielded a total offense level of 21 and an advisory guideline range of 37 to 46 months. The District Court accepted the 16-level enhancement but employed its discretion to sentence Midgley to 27 months, 10 months below the low end of the Sentencing Guidelines range. Midgley now argues that the 16-level enhancement was improper.

II.

Section 2L1.2(b)(l)(A) of the United States Sentencing Guidelines provides for a 16-level enhancement if “the defendant previously was deported, or unlawfully remained in the United States, after ... a conviction for a felony that is ... a crime of violence.” Midgley does not seriously contest that he was convicted of a felony for purposes of 2L1.2(b)(l)(A), but argues that he was not convicted of a crime of violence.

We take a categorical approach to assessing whether a statute qualifies as a crime of violence under § 2L1.2(b)(1)(A). Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Thus, Midgley cannot be found to have committed a crime of violence based on the bare statute of conviction unless every crime falling into the category of acts described by the statute qualifies as a crime of violence.

The provision of the Sentencing Guidelines at issue in this case defines a crime of violence as “... any offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G. § 2L1.2, Application [119]*119Notes l(B)(iii). This definition fits within that of 18 U.S.C. § 16(a):

The term “crime of violence” means—
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another....

In Leocal v. Ashcroft, the Court addressed the level of intent required for an offense to qualify as a crime of violence under 18 U.S.C. § 16(a), finding that “the key phrase in § 16(a) — the ‘use ... of physical force against the person or property of another’ — most naturally suggests a higher degree of intent than negligent or merely accidental conduct.” 543 U.S. 1, 9, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004) (alteration in original). In Popal v. Gonzales, addressing the Pennsylvania simple assault statute at issue in this case, we held that “[i]t is now settled law in this Circuit that an offender has committed a ‘crime of violence’ under 18 U.S.C. § 16(a) only if he acted with an intent to use force.” 416 F.3d 249, 254 (3d Cir.2005). We concluded in Popal that recklessness does not satisfy the requirements of § 16(a). Id.

Midgley was convicted of simple assault in Pennsylvania, defined in 18 Pa.C.S. § 2701(a) as occurring when a person:

(1) Attempts to cause or intentionally, knowingly, or recklessly causes bodily injury to another;
(2) negligently causes bodily injury to another with a deadly weapon; [or]
(3) attempts by physical menace to put another in fear of imminent serious bodily injury.... 2

Given that (1) could be satisfied by recklessness and (2) by negligence, Midgley’s conviction after being charged with subsections (1), (2) and (3) does not necessarily qualify as a crime of violence.

III.

Our inquiry does not, however, end here. Midgley’s prior conviction was on a guilty plea, and both parties agree we may look to the plea colloquy to gain more information about whether Midgley’s act that led to his prior conviction qualified as a crime of violence.

The government suggests that we might not be limited to the sources of evidence approved by Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). Shepard may be distinguishable, the government suggests, because it involved a mandatory minimum sentence under the Armed Career Criminal Act. 18 U.S.C. § 924(e), while the case at bar involves a Guidelines enhancement, and the Guidelines are no longer mandatory. United States v. Booker, 543 U.S. 220, 259, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). While any distinction between the case at bar and Shepard may depend on a conclusion that Shepard rested wholly on a Sixth Amendment rationale — unlike the case it interpreted, Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) — we will not reach the issue of Shepard’s applicability to Guidelines enhancements. In the case at bar, the plea colloquy provides sufficient basis for our decision, and it is a source of evidence acceptable under Shepard.3 544 U.S. at 26, 125 S.Ct. 1254.

The plea colloquy took place in the Pennsylvania Common Pleas Court, First Judicial District of Pennsylvania, on August 8,1996:

[120]*120THE COURT: Okay.

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Johnson v. Zerbst
304 U.S. 458 (Supreme Court, 1938)
United States v. Young
470 U.S. 1 (Supreme Court, 1985)
Taylor v. United States
495 U.S. 575 (Supreme Court, 1990)
Freytag v. Commissioner
501 U.S. 868 (Supreme Court, 1991)
United States v. Olano
507 U.S. 725 (Supreme Court, 1993)
Johnson v. United States
520 U.S. 461 (Supreme Court, 1997)
Leocal v. Ashcroft
543 U.S. 1 (Supreme Court, 2004)
United States v. Booker
543 U.S. 220 (Supreme Court, 2004)
Shepard v. United States
544 U.S. 13 (Supreme Court, 2005)
United States v. William M. Dorsey
174 F.3d 331 (Third Circuit, 1999)

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Bluebook (online)
218 F. App'x 117, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-midgley-ca3-2007.