                                                 NOT PRECEDENTIAL



                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            _____________

                                No. 13-1773
                               _____________

                      UNITED STATES OF AMERICA

                                      v.

                       SHANTELL LAMONT JONES,
                                       Appellant
                     ____________________________________

                On Appeal from the United States District Court
                     for the Western District of Pennsylvania
                      District Court No. 1-12-cr-00038-001
               District Judge: The Honorable Sean J. McLaughlin
                     ____________________________________

                          Argued November 20, 2013

                   Before: AMBRO, SMITH, Circuit Judges
                   and O’CONNOR, Associate Justice (Ret.)

                           (Filed: January 14, 2014)

Robert L. Eberhardt, Esq.
Rebecca R. Haywood, Esq.        [ARGUED]
Office of United States Attorney
700 Grant Street
Suite 4000


 The Honorable Sandra Day O’Connor, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
Pittsburgh, PA 15219
       Counsel for Appellee

John J. Mead, Esq.       [ARGUED]
900 State Street
Suite 103
Erie, PA 16501
       Counsel for Appellant

                              _____________________

                                     OPINION
                              _____________________

SMITH, Circuit Judge.

      Shantell Jones pled guilty on October 16, 2012, to two separate counts of

distributing cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(2). In

calculating Jones’s Guidelines’ range, the Presentence Investigation Report

(“PSR”) recommended that Jones be sentenced as a career offender under United

States Sentencing Guideline § 4B1.1 because he had “at least two prior felony

convictions of either a crime of violence or a controlled substance offense.” The

career offender recommendation was based on two previous convictions listed in

the PSR: (1) a 1997 conviction under Pennsylvania’s simple assault statute, 18 Pa.

Const. Stat. § 2701, and (2) a 2003 felony conviction for possession and

distribution of cocaine.

      Jones filed an objection to the PSR, arguing that there was insufficient

evidence that his 1997 simple assault conviction constituted a “crime of violence”
                                        2
under U.S.S.G. § 4B1.2, and thus the career offender enhancement should not

apply. More specifically, he argued that some subsections of Pennsylvania’s

simple assault statute—in particular subsections (a)(1) and (a)(2)—criminalize

negligent or reckless conduct, and therefore do not qualify as crimes of violence

under the Sentencing Guidelines. The Government responded by producing a copy

of the charging document (the “Information”) from Jones’s simple assault case.

The Information specifically charged Jones with violating 18 Pa. Const. Stat. §

2701(a)(3),1 a subsection of Pennsylvania’s simple assault statute that this Court

previously held to be a crime of violence in Singh v. Gonzales, 432 F.3d 533, 539

(3d. Cir. 2006). Pointing to the Information, the Government argued it had

sufficiently established that Jones’s conviction qualified as a predicate offense for

purposes of the career offender enhancement.

       Relying on the materials produced by the Government, the District Court


1
       The Information in Jones’s 1997 simple assault case stated, in pertinent part:

       The District Attorney of Erie County by this Information charges that on (or
       about), February 22, 1997, in the said County of Erie and State of Pennsylvania
       the said SHANTELL LAMONT JONES did attempt by physical menace to put
       another in fear of imminent serious bodily injury, to-wit: TOMMIE DIXON, in
       that the said SHANTELL LAMONT JONES did attempt to re-enter the Steppin’
       Out Lounge with a handgun putting the victim in fear, occurring at 1956 Buffalo
       Road, Erie, Pennsylvania; thereby the said SHANTELL LAMONT JONES did
       commit the crime of SIMPLE ASSAULT, a misdemeanor of the second degree.

At bottom of the page above “Citation of Statute & Section,” the Information listed “18 P.S.
2701(a)(3).”

                                                3
concluded that Jones’s 1997 conviction was a crime of violence as contemplated

by the Sentencing Guidelines. Therefore, the District Court applied the career

offender enhancement, raising Jones’s Guidelines’ range from 33 to 41 months to

151 to 188 months, and sentenced him to a term of 168 months’ imprisonment.

Following the District Court’s ruling on the career offender enhancement, Jones

argued that the enhancement overstated his criminal history and therefore asked the

Court for a downward departure from the prescribed range. The District Court

denied this request, stating that Jones is “the quintessential career offender.” Jones

timely appealed.2

       On appeal, Jones argues that the Government’s evidence was insufficient to

prove he was convicted of violating 18 Pa. Const. Stat. § 2701(a)(3) because the

Information established only that he was charged with a crime of violence, not that

he was convicted of such an offense. The question of whether a charging document

is, by itself, sufficient evidence to satisfy the Government’s burden of proving that

the defendant was convicted of a crime of violence is one that has not been

squarely addressed by this Court. With the filing by the Government, post-oral

argument, of a Rule 28(j) letter, we need not answer that question today.

       At argument, counsel for the Government informed the Court—for the first

time—that the Information was not the only evidentiary document presented to the
2
       The District Court had jurisdiction over this criminal action pursuant to 18 U.S.C. § 3231,
and we have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
                                                 4
District Court to show that Jones was convicted of a § 2701(a)(3) offense.3 In a

revelatory announcement, counsel for the Government informed the Court that an

entry on the District Court’s docket sheet contained various exhibits related to

Jones’s conviction. Included within that entry was a copy of the state court’s 1997

judgment of sentence and a signed copy of the “Defendant’s Statement of

Understanding of Rights Prior To No Contest Plea.” Both specifically and clearly

provide that Jones pled no contest to the offense “as charged” in the Information.4

       In view of the record now before us, resolution of this appeal is

straightforward. That the criminal information filed in 1997 charged Jones with

simple assault under 18 Pa. Const. Stat. § 2701(a)(3) has never been called into

question. Nor can it be disputed that that offense is a “crime of violence” as that

term is defined in the Sentencing Guidelines. With the judgment of sentence and

signed plea agreement (which were apparently submitted to the District Court but

only recently brought to our attention) now part of the record, we are satisfied that

Jones pled “no contest as charged” under subsection (a)(3) of Pennsylvania’s


3
       In its responsive brief, the Government made the bald assertion that the District Court
“was presented with a record which established Jones’ conviction of simple assault under [18 Pa.
Const. Stat. § 2701(a)(3)] following his plea of nolo contendere.” This assertion, however, was
unsupported by a discussion of, or citation to, any evidence in the record other than the charging
instrument. It was not until oral argument that the Government advised this panel of specific
documents presented to the District Court which showed that the offense to which Jones pled
nolo contendere in 1997 was a § 2701(a)(3) assault.
4
       On November 27, 2013, the Government submitted these missing documents along with
a Rule 28(j) letter acknowledging its failure to cite to, or otherwise identify, the documents in
connection with its merit brief.
                                                 5
simple assault statute. Accordingly, we will affirm the District Court’s application

of the career offender enhancement.




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