United States v. Timothy Wilson

• Court: Court of Appeals for the Third Circuit
• Decided: September 12, 2024
• Docket: 17-2072
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 17-2072 ___________

UNITED STATES OF AMERICA

v.

TIMOTHY WILSON, a/k/a WILLIAM GURLEY, a/ka/ TIMMOTHY WILSON, a/k/a WILLIAM WILSON, a/k/a TIMOTHY GURLEY WILSON, Appellant ____________

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 2-12-cr-00009-001) District Judge: Honorable Donetta W. Ambrose ____________

Submitted Under Third Circuit L.A.R. 34.1(a) September 4, 2024

Before: JORDAN, HARDIMAN, and PORTER, Circuit Judges.

(Filed: September 12, 2024)

____________

OPINION * ____________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. HARDIMAN, Circuit Judge.

Timothy Wilson appeals the District Court’s order denying his motion under 28

U.S.C. § 2255 to vacate, set aside, or correct his sentence. We will affirm. 1

I

A jury found Wilson guilty of one count of possession by a felon of a firearm or

ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) and one count of

possession of an unregistered firearm in violation of 26 U.S.C. § 5861(d). The District

Court determined Wilson had three predicate convictions for violent felonies, applied the

Armed Career Criminal Act’s mandatory-minimum sentence of fifteen years’

imprisonment, 18 U.S.C. § 924(e)(1), and sentenced Wilson to 262 months’

imprisonment on the § 922(g)(1) conviction. Wilson’s § 2255 motion challenges the

District Court’s application of ACCA’s enhanced penalties.

II

At issue in this appeal is whether Wilson’s prior Pennsylvania convictions for

three separate robberies in violation of 18 Pa. Cons. Stat. § 3701(a)(1) constitute the three

requisite violent felonies under ACCA. As the Government concedes, a conviction under

subsection (i) of § 3701(a)(1) does not. See Borden v. United States, 593 U.S. 420, 444

(2021) (where crime can be committed with a mens rea of recklessness it is not a violent

felony under ACCA). And we recently held that a conviction under subsection (ii) of

1 The District Court had jurisdiction under 28 U.S.C. § 2255(a). We have jurisdiction under 28 U.S.C. § 2253(a).

2 § 3701(a)(1) does. United States v. Henderson, 80 F.4th 207, 212 (3d Cir. 2023). So our

decision here turns on which of these two subsections Wilson was convicted under.

To answer the question, we consider statutory elements, charging documents, and

the plea colloquy. See Shepard v. United States, 544 U.S. 13, 16, 20 (2005); see also

United States v. Howard, 599 F.3d 269, 272 (3d Cir. 2010) (courts may consider

documents specified in Shepard and “comparable judicial records of sufficient

reliability”).

Wilson argues that the Shepard documents show either that he was convicted

under subsection (i), or it is unclear under which of the two subsections he was convicted.

The Government contends that the Shepard documents establish that Wilson was

convicted under Section 3701(a)(1)(ii) in at least three separate robbery cases.

The documents Wilson urges us to consult, at first blush, seem equivocal as to

which subsection Wilson was convicted under. But on careful examination of the

Shepard documents, they confirm that Wilson was convicted under subsection (ii).

Wilson appeared in the Court of Common Pleas of Allegheny County on August

29, 2007 to plead guilty to five crimes charged by information. Four of those crimes are

at issue and were listed simply as “Robbery-Inflict Serious Bodily Injury” on the docket

face sheets and as “robbery – serious bodily injury” on the signed plea forms. App. 78,

87, 96, 106 (face sheets); App. 76, 85, 94, 104 (plea forms). The almost identical heading

“ROBBERY-SERIOUS BODILY INJURY” appears in each criminal information. Supp.

App. 13, 14, 15, 16. But the parties agree—and review of the criminal informations

confirms—that all four charge as stated in their body that Wilson violated “Section 3 3701(a)(1)(i) or (ii).” Id. (emphasis added). And each plea form signed by Wilson states

he “pleads guilty plea to the preferred charges in the within information.” App. 76, 85,

94, 104 (emphasis added). So the docket face sheets listing only Section 3701(a)(1)(i)

and the plea forms referring simply to “robbery – serious bodily injury” do not answer

the question of which of the two subsections of the robbery statute Wilson was convicted

under. For that answer we must consider the closest analog to jury instructions—the

transcript of the state court plea colloquy, see Shepard, 544 U.S. at 20, which here also

included Wilson’s sentencing.

The Government points us to the portions of the transcript where, as required by

Pennsylvania law, see Commonwealth v. Anthony, 475 A.2d 1303, 1307–08 (Pa. 1984),

the prosecutor explained the factual bases of the guilty pleas as to the four cases, after

which Wilson’s counsel asked the court to accept the plea agreement she had negotiated.

And when given the opportunity, Wilson did not contradict the recitation of the factual

basis for his pleas. See Commonwealth v. Morrison, 878 A.2d 102, 106 (Pa. Super. 2005)

(“Appellant entered a guilty plea; ipso facto, he admitted to the details of the crimes

outlined in the factual basis.”); see also United States v. Taylor, 659 F.3d 339, 348 (4th

Cir. 2011) (factual recitation assented to by counsel as to which defendant declined

opportunity to make corrections himself sufficed). For three of the four robbery

convictions, the prosecutor’s description of the factual basis included Wilson’s display of

the weapon and demand for money and belongings but included no description of any

bodily injury, much less the “serious bodily injury” required to sustain a conviction under

Section 3701(a)(1)(i). 4 In sum, we know from the guilty pleas and transcript of the sentencing colloquy

that Wilson was convicted under Section 3701(a)(1)(ii) in at least three separate cases. So

the District Court did not err in holding Wilson was subject to ACCA. We will therefore

affirm.