                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-7-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2503




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 06-2503
                                    ____________

                          UNITED STATES OF AMERICA

                                           v.

                                ROBERT L. GRANT,

                                          Appellant
                                    ____________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                                 (D.C. No. 04-cr-00257)
                       District Judge: Honorable Alan N. Bloch
                                     ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   May 17, 2007

      Before: FISHER and ROTH, Circuit Judges, and RAMBO,* District Judge.

                                 (Filed: June 7, 2007)

                                    ____________

                             OPINION OF THE COURT
                                  ____________




      *
        The Honorable Sylvia H. Rambo, United States District Judge for the Middle
District of Pennsylvania, sitting by designation.
FISHER, Circuit Judge.

       Robert L. Grant pleaded guilty to possessing with the intent to distribute and

distributing less than 100 grams of heroin in violation of 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(C), and was sentenced to 151 months imprisonment followed by 3 years of

supervised release. He now appeals the District Court’s determination that he was a

career offender under the United States Sentencing Guidelines (“Guidelines”) § 4B1.1,

and contends that his sentence is unreasonable. For the reasons that follow, we will

affirm the sentence imposed by the District Court.

                                             I.

       As we write only for the parties, we will forgo a lengthy recitation of the factual

and legal background to this case. On April 21, 2004, detectives with the Pennsylvania

State Police arranged a drug purchase between Grant and a confidential informant. The

police recorded a conversation between the two during which they discussed how the

informant was to obtain three ounces of heroin from Grant in exchange for $7,500. Later

that day, surveillance agents watched the informant obtain the heroin from Grant’s car in

a mall parking lot. As Grant began to drive away, detectives arrested him. Lab tests

confirmed that 84.8 grams of heroin were involved in the transaction.

       On October 7, 2004, a grand jury returned a one-count indictment against Grant,

charging him with possessing with the intent to distribute and distributing less than 100

grams of heroin in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). After initially

pleading not guilty, Grant changed his plea to guilty on December 12, 2005.

                                             2
       During sentencing, the District Court determined that Grant’s offense level was 29

and his criminal history category was level VI. The latter determination was reached in

part because the District Court classified Grant as a career offender since his record

contained, among other things: (1) a 1992 guilty plea for one count of possession with

the intent to deliver heroin, (2) a 1994 felony charge for escaping from a halfway house to

which he had been sentenced, (3) a 1996 simple assault conviction, and (4) a 1998 felony

escape charge for failing to return to a halfway house where he had been an inmate.

Given his criminal history and offense levels, the advisory Guidelines range for Grant’s

crime was 151 to 188 months. After a sentencing hearing, the District Court sentenced

him to 151 months imprisonment followed by 3 years of supervised release. This appeal

followed.

                                             II.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a)(1). When reviewing a sentence imposed by a district court, we review its

factual findings for clear error, overturning them only where a review of the entire record

provides a “definite and firm conviction that a mistake has been committed.” United

States v. Grier, 475 U.S. 556, 570 (3d Cir. 2007) (en banc) (internal quotation marks and

citations omitted). We exercise plenary review over a district court’s interpretation of the

Guidelines and constitutional determinations, United States v. McKoy, 452 F.3d 234, 236

(3d Cir. 2006), and we review the ultimate sentence imposed for reasonableness, United

States v. Cooper, 437 F.3d 324, 327 (3d Cir. 2006).

                                             3
                                             III.

       Grant’s first argument on appeal is that the District Court erred in finding that he

was a career offender under the Guidelines. Specifically, he contends that his convictions

for simple assault and escaping from a halfway house do not constitute “crimes of

violence” under the Guidelines. Section 4B1.1 of the Guidelines provides that a

defendant is to be considered 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. The term

“crime of violence,” in turn, is defined under the Guidelines as follows:

       (a) 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) (emphasis added).

       Under this definition, we have previously held that both a conviction for simple

assault under Pennsylvania law and a conviction for escape from a halfway house under

Pennsylvania law constitute convictions for “crimes of violence” for career offender

purposes under the Guidelines. United States v. Dorsey, 174 F.3d 331, 333 (3d Cir. 1999)

(simple assault); United States v. Luster, 305 F.3d 199, 201-02 (3d Cir. 2002) (escape

                                              4
from a halfway house). Grant implores us to reconsider these holdings based on

subsequent cases, but we are not persuaded. The opinions on which he relies, including

Leocal v. Ashcroft, 543 U.S. 1 (2004), base their reasoning on statutory language that

does not include within the scope of a “crime of violence” an offense that “otherwise

involves conduct that presents a serious potential risk of physical injury to another,”

U.S.S.G. § 4B1.2(a). Because we have previously concluded that the crimes of simple

assault and felony escape under Pennsylvania law include such a risk, Grant’s arguments

are unavailing.

       Next, Grant argues that the sentence imposed by the District Court is unreasonable.

Specifically, he contends that the Guidelines range obtained considering his career

offender status overstated the seriousness of his criminal history, and that the District

Court should have imposed a sentence closer to the Guidelines range without that

enhancement. We disagree. The District Court clearly articulated its belief that the

sentence was reasonable given the substantial length of Grant’s criminal record:

       While it may be that other more serious crimes can also constitute predicate
       crimes of violence for purposes of Section 4B1.1, that does not lessen the
       significance of [Grant’s] prior convictions. The fact remains that [Grant]
       has four convictions for crimes of violence or controlled substance offenses
       as defined by the [G]uidelines which is twice the number of such
       convictions required to render [him] a career offender. His criminal history
       is serious . . . .

In addition, the District Court noted that Grant “has five additional adult convictions for

which he received no criminal history points.” Given this, and given that the District

Court “gave meaningful consideration to the § 3553(a) factors” and “sentencing grounds

                                              5
properly raised by the parties which have recognized legal merit and factual support in the

record,” Cooper, 437 F.3d at 329, 331, we cannot conclude that Grant’s sentence is

unreasonable.

                                             IV.

         For the foregoing reasons, we will affirm the sentence imposed by the District

Court.




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