                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-2-2009

USA v. Morales
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3299




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 08-3299


                          UNITED STATES OF AMERICA

                                           v.

                               ANTONIO MORALES,
                                        Appellant


                      Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                        (D.C. Criminal No. 4-06-cr-00427-009)
                      District Judge: Honorable John E. Jones, III


                      Submitted Under Third Circuit LAR 34.1(a)
                                   May 21, 2009

          Before: RENDELL, STAPLETON and ALARCÓN*, Circuit Judges

                                 (Filed: June 2, 2009)



                             OPINION OF THE COURT




       *Honorable Arthur L. Alarcón, Senior Judge, United States Court of Appeals for
the Ninth Circuit, sitting by designation.
RENDELL, Circuit Judge.

       Antonio Morales pled guilty to conspiracy to distribute marijuana, heroin, and

cocaine on January 29, 2008. The Pre-Sentence Investigation Report (“PSR”) calculated

his offense level under the Sentencing Guidelines at 29 and defined him as a career

offender. Morales filed a sentencing memorandum challenging his career offender status,

arguing that the court should not consider his 1992 New York youthful offender

adjudication for robbery and weapons possession when making the career offender

calculation. The government filed a sentencing memorandum supporting Morales’s

career offender status and arguing that the 1992 adjudication should constitute an adult

conviction. At sentencing, on July 21, 2008, the District Court classified Morales as a

career offender with a criminal history category of VI, and calculated the Guideline range

at 151-188 months. The court sentenced Morales to 120 months’ imprisonment.

       On appeal, Morales argues that the District Court abused its discretion when it

determined that the 1992 robbery adjudication counted as an adult conviction, because,

first, the government did not prove by a preponderance of the evidence that the

adjudication was an adult conviction under §§ 4A1.2(d)(1) and 4B1.1(a) of the

Guidelines, and second, he was later adjudicated a youthful offender under New York

law.1 We have jurisdiction over this appeal under 28 U.S.C. § 1291 and 18 U.S.C. §


 1
   Section 4B1.1(a) of the Guidelines defines career offender: “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 . . . a controlled substance offense; and 3) the defendant has at least two

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3742(a), and we review alleged sentencing errors under an abuse of discretion standard.

Gall v. United States, 128 S. Ct. 586, 597 (2007). We hold that the District Court was

correct in counting the 1992 adjudication as an adult conviction for purposes of the career

offender calculation.

       Morales did not challenge the accuracy of the PSR – he acknowledges that the

1992 offenses of which he was convicted were robbery and possession of a weapon, that

the offenses were committed when he was 16 years old, and that he received a 16-48

month sentence, of which he served 17 months. We have held that “a sentencing court

may rely on the facts set forth in the presentence report when their accuracy is not

challenged by the defendant.” United States v. Watkins, 54 F.3d 163, 167-68 (3d Cir.

1995). The District Court, therefore, properly relied on the PSR to conclude that the 1992

adjudication could be treated as an adult conviction under the career offender provision of

the Guidelines.

       Morales also urges that under the New York youthful offender statute a defendant



prior felony convictions of either a crime of violence or a controlled substance offense.”
U.S.S.G. § 4B1.1. A prior felony conviction is defined as “a prior adult federal or state
conviction for an offense punishable by death or imprisonment for a term exceeding one
year . . . . A conviction for an offense committed prior to age eighteen is an adult
conviction if it is classified as an adult conviction under the laws of the jurisdiction in
which the defendant was convicted.” U.S.S.G. § 4B1.2 cmt. n.1.
        Section 4A1.2(d)(1) provides than an offense committed prior to age eighteen is
worth three criminal history points “if the defendant was convicted as an adult and
received a sentence of imprisonment exceeding one year and one month . . ..” U.S.S.G. §
4A1.2(d)(1).


                                             3
who is an eligible “youth” (at least 16 years old but less than 19 years old when the

alleged crime was committed) can have his conviction vacated. After the defendant has

been tried and convicted, the court has the discretion to vacate that adult conviction and

replace it with a youthful offender finding. See N.Y. Crim. Proc. Law § 720.10,

720.20(1)(a). Morales’s 1992 conviction was replaced with a youthful offender

adjudication.

       In United States v. Driskell, 277 F.3d 150, 154-55 (2d Cir. 2002), a case with facts

very similar to this one, the United States Court of Appeals for the Second Circuit held

that when a district court calculates a defendant’s criminal history under the Guidelines, it

may consider a defendant’s eligible past conviction, even when that conviction has been

vacated and deemed a youthful offender adjudication under New York law. The court

said that § 4A1.2(d)(1) was satisfied because the defendant was convicted as an adult and

received a sentence of imprisonment exceeding one year and one month. Even though the

defendant’s conviction was subsequently vacated and replaced by a youthful offender

adjudication, the court said that the district court properly considered that conviction in

calculating his sentence. Id. at 158.

       Here, Morales is in a similar situation: as a youth in New York, he was convicted

of robbery as an adult and received a sentence of imprisonment exceeding one year and

one month. While Driskell does not control our decision here, its reasoning that an adult

conviction is a conviction for sentencing purposes, even if it is later replaced by a

youthful offender adjudication, is persuasive. The Guidelines say that a conviction for an

                                              4
offense committed prior to age eighteen is an adult conviction if it is classified as an adult

conviction under the laws of the jurisdiction in which the defendant was convicted.

U.S.S.G. § 4B1.2 cmt. n.1. New York considers Morales’s 1992 robbery conviction an

adult conviction. Therefore, under the Guidelines, the District Court properly considered

it for purposes of calculating Morales’s criminal history and career offender status. The

District Court did not err in holding that the 1992 New York robbery conviction was a

predicate for career offender status and properly assessed three criminal history points.

       For the reasons set forth above, we will AFFIRM the Order of the District Court.




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