                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-2-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2221




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"USA v. Cottman" (2008). 2008 Decisions. Paper 1078.
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                                                              NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT


                                  No. 07-2221


                       UNITED STATES OF AMERICA

                                       v.

                            VAUGHN COTTMAN,

                                                      Appellant


                 On Appeal from the United States District Court
                         for the District of New Jersey
                       (D.C. Criminal No. 06-cr-00125)
                  District Judge: Honorable Robert B. Kugler


                   Submitted Under Third Circuit LAR 34.1(a)
                              on March 25, 2008

          Before: McKEE, RENDELL, and TASHIMA,* Circuit Judges.

                              (Filed: June 2, 2008)



                          OPINION OF THE COURT




*   Honorable A. Wallace Tashima, Senior Judge of the United States Court of
    Appeals for the Ninth Circuit, sitting by designation.
RENDELL, Circuit Judge.

       Vaughn Cottman appeals his sentence, urging that the District Court erred in

applying the career offender provision. Although the parties have argued only those

issues taken into account by the District Court, namely relevant conduct and the

relatedness of the prior felony convictions, we have concluded, and the parties appear to

agree, that the two state court convictions that preceded Cottman’s sentencing in this case

and formed the basis for the career offender application do not fit within the definition of

“two prior felony convictions” under section 4B1.2 of the Sentencing Guidelines.1

       While we recognize that the defendant did not raise this issue either in the District

Court or on appeal, we acknowledge and applaud the willingness of the government,

through Assistant United States Attorney Sabrina G. Comizzoli, to remand this matter for

resentencing as a matter of fairness, as well as its indication that “at resentencing, the



  1
   This section of the Sentencing Guidelines states:

              The term “two prior felony convictions” means (1) the defendant
              committed the instant offense of conviction subsequent to sustaining
              at least two felony convictions of either a crime of violence or a
              controlled substance offense . . .

U.S.S.G. § 4B1.2(c). While Cottman was arrested for possession of cocaine in March
2004, he was not convicted in state court until he pled guilty on June 15, 2005; he was
then sentenced in August 2005. See Presentence Report ¶¶ 154-55. The instant offenses
for which he was sentenced occurred in February 2004 and July 2004. See Plea Tr.
25-26. Thus, the instant offense was committed almost a year before, not “subsequent
to,” the state conviction in August 2005. Thus, the state conviction is not a “prior felony
conviction” as required by section 4B1.2(c).


                                              2
government would continue to stand by its plea agreement and, thus, would not argue for

imposition of the career offender enhancement.”

      In light of the foregoing, we will VACATE the Judgment and Commitment Order

of the District Court and REMAND for resentencing.




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