                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                ______________

                                      No. 08-3323
                                    ______________

                           UNITED STATES OF AMERICA

                                            v.

                                 KEVIN CLEVELAND,

                                                              Appellant
                                    ______________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                          (D.C. Crim. No. 2:04-00472-002)
                     Honorable Gene E.K. Pratter, District Judge
                                  ______________

                       Submitted under Third Circuit LAR 34.1(a)
                                  December 17, 2010

    BEFORE: SLOVITER, GREENAWAY, JR., and GREENBERG, Circuit Judges

                                (Filed: February 8, 2011)
                                    ______________

                              OPINION OF THE COURT
                                  ______________

GREENBERG, Circuit Judge

      This matter comes on before this Court on an appeal from a sentence imposed at a

resentencing on July 15, 2008, followed by an amended judgment entered on July 22,

2008, after we remanded this case for resentencing in our disposition of appellant Kevin

Cleveland’s first appeal. The prosecution leading to Cleveland’s case arose from two
robberies that Cleveland committed in Philadelphia on consecutive days in August 2003.

He committed the first robbery on August 13 when he robbed a pizza delivery man at

gunpoint and took the victim’s cash and car. The next day Cleveland and Perry Smith

committed an armed robbery at a business called Shernoff Salads. During the course of

the Shernoff robbery, Cleveland shot Heidi Shernoff, an employee at that business.

Philadelphia police arrested Cleveland and Smith on August 14, 2003, and thereafter the

Commonwealth of Pennsylvania charged both men with state law crimes.

       The prosecutions, however, were federalized when, on April 20, 2004, a federal

grand jury indicted Cleveland for conspiracy to commit robbery which interfered with

interstate commerce, in violation of 18 U.S.C. § 1951(a) (Count One); interfering and

aiding and abetting interference with interstate commerce by robbery, in violation of 18

U.S.C. §§ 1951(a) and 2 (Count Two); using and carrying and aiding and abetting the use

and carrying of a firearm during and in relation to a crime of violence, in violation of 18

U.S.C. §§ 924(c)(1) and 2 (Count Three); carjacking, in violation of 18 U.S.C. § 2119

(Count Four); and using and carrying a firearm during and in relation to the carjacking, in

violation of 18 U.S.C. § 924(c)(1) (Count Five). The grand jury indicted Smith in the

first three counts of the indictment which related to the Shernoff Salads robbery but it did

not indict him in the last two counts involving the robbery of the pizza delivery man.

After the District Court dismissed the indictment, without prejudice, by reason of a

Speedy Trial Act violation, a grand jury returned a second indictment against Cleveland

and Smith repeating the charges from the first indictment.



                                             2
       At the ensuing trial, a jury convicted both defendants on all of the counts of the

indictment against each of them. Thereafter, on April 14, 2006, the District Court

sentenced Cleveland to a total custodial term of 528 months to be followed by a three

year term of supervised release.1 The total custodial sentence reflected concurrent

custodial terms of 144 months each on Counts One, Two, and Four and consecutive 300-

month and 84-month terms on Count Three and Count Five.

       18 U.S.C. § 924(c) required the District Court to impose the consecutive sentences

totaling 384 months on Counts Three and Five.2 But the 144-month custodial sentences

on Counts One, Two, and Four reflected a substantial downward variance from the

guidelines sentencing range that the Court calculated. In making its computations the

Court determined that Cleveland was a career offender under U.S.S.G. § 4B1.1(a) and

that he had a total offense level of 34 and a criminal history category of VI. Thus, his

guidelines custodial range was 262 to 327 months. The Court concluded that Cleveland

was a career offender because he had two prior felony convictions for “crimes of

violence”: a 1992 Pennsylvania conviction for aggravated assault, and a 1993

Pennsylvania conviction for conspiracy and that this case also involved crimes of

violence. The Court’s determination that Cleveland was a career offender, to the extent

that the Court relied on his 1993 conviction to reach that conclusion, is at the heart of this

appeal.

1
 The sentence also provided for a fine, restitution, and a special assessment but we are
not concerned with those provisions of the sentence on this appeal.

2
 We need not explain why the consecutive terms were required as Cleveland does not
challenge them by asserting that their consecutive imposition was not mandatory.
                                              3
         Cleveland appealed from both his conviction and his sentence but we rejected all

of his bases for challenging his conviction and sentence except one. See United States v.

Smith, 256 F. App’x 497 (3d Cir. 2007).3 The limited exception was that we determined

that the District Court erred in concluding on the basis of the record then before it that

Cleveland’s 1993 conviction for conspiracy constituted a crime of violence. Id. at 500-

01.

         In holding that the District Court erred we observed that the government contended

at Cleveland’s sentencing that the 1993 conspiracy charge on which he had been

convicted had four possible objects, three of which would have been for crimes of

violence but one of which, possession of an instrument of a crime, would not have been

for a crime of violence. Id. Nevertheless, because possession of an instrument of a crime

is a first-degree misdemeanor carrying a maximum penalty of a five-year term of

imprisonment, 18 Pa. Cons. Stat. Ann. §§ 907(a), 1104(1) (West 1998), the District Court

reasoned that the state court’s imposition of a five-to-ten year custodial sentence for the

conspiracy conviction established that Cleveland must have been convicted of conspiring

to commit a crime of violence rather than being convicted of possession of an instrument

of crime. Smith, 256 F. App’x at 500-01.

         We, however, rejected that conclusion as it was possible that Cleveland’s

conspiracy charge could have been for a conspiracy to violate the Uniform Firearms Act,

a statute which included punishment for non-violent crimes of the same length as the five-

to-ten year custodial sentence that the state court imposed on him. Id. at 501. Inasmuch

3
    Smith also appealed but we are not concerned with his case at this time.
                                               4
as a violation of the Uniform Firearms Act would not have been for a crime of violence

for career offender purposes under the guidelines, if the conspiracy charge on which there

had been a conviction had as its object a violation of that Act, Cleveland would not have

been a career offender. Id. Accordingly, we vacated Cleveland’s sentence and remanded

the case for resentencing. Id. Critically, however, we did not reject the possibility that

the conspiracy conviction was for a crime of violence, as we indicated that on the remand

the District Court was not precluded “from resentencing Cleveland as a career offender if

it is able, upon further consideration and/or development of the record, to determine that

[his] conspiracy conviction pertained to a crime of violence.” Id. Thus, our remand was

for a very limited redetermination, and, of course, the resentencing depended on the

District Court’s conclusions on that redetermination.

       The District Court held a new sentencing hearing on July 15, 2008. At that

hearing the government presented evidence that it had not presented at Cleveland’s

original sentencing in support of its argument that Cleveland’s 1993 conviction was for a

conspiracy to commit a crime of violence. This evidence consisted of a certified copy of

the criminal complaint containing the conspiracy charge and a copy of the portion of the

transcript from Cleveland’s 1993 trial in which the judge charged the jury on the

conspiracy charge. Based on this additional evidence, the District Court readopted its

finding that Cleveland’s 1993 conspiracy conviction was for a crime of violence, which

meant that the Court’s initial determination that Cleveland was a career offender had been

correct.



                                              5
       Nevertheless, on the resentencing the conscientious District Court made a plenary

analysis of the factors leading to its calculation of Cleveland’s guidelines range. The

Court began by applying the guidelines grouping rules and determining that Cleveland’s

convictions on Counts One and Two, formed one group, and his carjacking conviction on

Count Four constituted a second group. The Court determined that for the first group

Cleveland’s base offense level was 20 under U.S.S.G. § 2B3.1, but there would be a 4-

level enhancement under U.S.S.G. § 2B3.1(b)(3)(B) because a victim, Heidi Shernoff,

had suffered a serious bodily injury. However, inasmuch as Cleveland was a career

offender under U.S.S.G. § 4B1.1, his offense level for this group was 32.

       The District Court then determined that the base offense level for Cleveland’s

carjacking conviction was also 20, but that there would be a 2-level enhancement to his

sentencing level, pursuant to U.S.S.G. § 2B3.1(b)(5), because the offense involved

carjacking. Inasmuch as Cleveland was a career offender, the total adjusted offense level

for this group was 29. The Court then assigned one unit to each group, and determined

that 2 points should be added to the offense level for the first group for a total offense

level of 34.

       The District Court also determined that Cleveland had 9 criminal history points, a

number that ordinarily would have placed him in criminal history category IV. However,

because Cleveland was a career offender, his criminal history category was increased to

level VI. The attorneys agreed with these rather complex calculations, and Cleveland

does not challenge them on this appeal beyond contending that he is not a career offender.



                                              6
       The District Court pointed out that, with a total offense level of 34 and a criminal

history category of VI, under the guidelines Cleveland’s sentencing range was for a

custodial term of 262-327 months for his convictions on Counts One, Two, and Four.

The Court, however, granted a substantial downward variance on those counts, and again

imposed a custodial sentence of 144 months on those counts. When combined with the

statutorily mandated sentences of 84 months on Count Five and 300 months on Count

Three, both to run consecutively to any other sentence, the Court again imposed a total

custodial sentence on Cleveland of 528 months. The Court entered an amended

judgment, in accordance with its findings on July 22, 2008. Cleveland then filed this

appeal.

       The District Court had jurisdiction under 18 U.S.C. § 3231 and we have

jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291. We exercise plenary review

over the District Court’s interpretation of the sentencing guidelines, see United States v.

Yeaman, 194 F.3d 442, 456 (3d Cir. 1999), but review the District Court’s findings of

fact to determine if they were clearly erroneous. See United States v. Powell, 113 F.3d

464, 467 (3d Cir. 1997).

       Cleveland argues that the District Court erred when it held that he was a career

offender under U.S.S.G. § 4B1.1(a) because the government did not prove by a

preponderance of the evidence that the 1993 conviction for conspiracy was for a “crime

of violence.” Cleveland’s contention that the District Court’s determination with respect

to the 1993 conspiracy conviction was erroneous presents the only issue that we address

on this appeal.

                                              7
       There are three requirements for a defendant to be classified as a career offender

under the guidelines: (1) the defendant must have been at least 18 years old at the time

that he committed the crime for which the court is sentencing him; (2) the crime for

which the court is sentencing him must have been a “crime of violence or a controlled

substance offense;” and (3) the defendant must have a prior criminal record with “at least

two prior felony convictions of either a crime of violence or a controlled substance

offense.” U.S.S.G. § 4B1.1(a). The guidelines define “crime of violence” to include 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), so far as germane here, “otherwise involves

conduct that presents a serious potential risk of physical injury to another.” U.S.S.G. §

4B1.2(a).

       Cleveland does not dispute that he was older than 18 years of age when he

committed any of his current federal offenses, and he does not contend that his current

convictions do not include crimes of violence. Moreover, on his original appeal he

conceded that his 1992 conviction for aggravated assault was a felony conviction for a

“crime of violence” under U.S.S.G. § 4B1.2(a), see Smith, 256 F. App’x at 500, and he

does not contend otherwise on this appeal. Consequently, as we have indicated, the only

issue on this appeal is whether Cleveland’s 1993 conviction for conspiracy was for a

crime of violence. Indeed, Cleveland admits as much for in his brief he states that the

issue on appeal is “[w]hether the District Court erred in its determination that [his prior



                                              8
conviction] for conspiracy constituted a crime of violence, permitting the Court to

characterize [him] as a career offender . . . .” Appellant’s br. at 5.

       The conspiracy statute under which Cleveland was convicted, 18 Pa. Cons. Stat.

Ann. § 903(a) (West 1998), provides that a person is guilty of conspiracy “if with the

intent of promoting or facilitating its commission he: (1) agrees with such other person or

persons that they or one or more of them will engage in conduct which constitutes such

crime or an attempt or solicitation to commit such crime; or (2) agrees to aid such other

person or persons in the planning or commission of such crime or of an attempt or

solicitation to commit such crime.” Under the sentencing guidelines a conspiracy

conviction qualifies as a crime of violence if the predicate crime for that conspiracy was,

itself, a crime of violence. U.S.S.G. § 4B1.2(a) app. note 1 (stating that a crime of

violence includes conspiring to commit such an offense). Thus, in United States v.

Hawkins, 139 F.3d 29, 34 (1st Cir. 1998), the Court of Appeals pointed out that “[w]e

have . . . unequivocally held that conspiracy to commit a crime of violence, as defined in

the career offender guidelines, is itself a crime of violence for purposes of its treatment

under the Guidelines.” Accordingly, a determination of whether the conspiracy for which

Cleveland was convicted was a crime of violence depends entirely on a determination of

whether the crime which Cleveland and his co-conspirators conspired to commit was a

crime of violence.

       Experience has shown that it is not always clear from a judgment whether a

defendant’s conviction was for a crime of violence. When the judgment is not clear on

this point a sentencing court in a later case may examine the charging documents and jury

                                               9
instructions from the earlier case to assist it in making that determination. See Shepard v.

United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 1257 (2005); Taylor v. United States, 495

U.S. 575, 602, 110 S.Ct. 2143, 2160 (1990); United States v. Siegal, 477 F.3d 87, 90-93

(3d Cir. 2007). We reiterate that on the remand following Cleveland’s first appeal the

District Court expanded the record so that it included both the state court criminal

complaint charging Cleveland with conspiracy and the jury instructions from his 1993

trial on that charge. When these documents are examined, it is clear that Cleveland was

convicted of a conspiracy to commit murder, which is unquestionably a crime of

violence.

       We reach this conclusion for the following reasons. Cleveland’s state court

criminal complaint identified the conspiracy charge as a felony in the second degree and

included, inter alia, two charges of murder and a charge of aggravated assault, which, like

murder, is a crime of violence. Under Pennsylvania law the conspiracy charge had the

same classification and degree as the murder charge, as that charge was the most serious

charge that was an object of the conspiracy. 18 Pa. Con. Stat. Ann. § 905(a) (West

1998).4 Thus, the criminal complaint made it clear that Cleveland was charged with a

conspiracy to commit a crime of violence.

       Yet the mere fact that the charge against Cleveland included a crime of violence

does not mean that he was convicted for committing a crime of violence as the criminal

complaint included charges of conspiracy to commit offenses that were not crimes of


4
 In Pennsylvania certain murders are second degree offenses. 18 Pa. Cons. Stat. Ann. §
2502(b) (West 1998).
                                             10
violence. But the court’s charge to the jury established that Cleveland was convicted of a

conspiracy to commit murder and not a conspiracy to commit a lesser charge that was not

a crime of violence. At the conclusion of the 1993 trial, the state court instructed the jury

on the elements of the offenses charged which included a conspiracy which the judge

repeatedly characterized as a “conspiracy to commit murder”:

The defendants have been charged with here a conspiracy to commit murder.

                                             ***

Therefore, in order to find the defendant guilty of a conspiracy to commit murder you
must be satisfied initially the following two elements of a conspiracy have been proven
beyond a reasonable doubt: First, that the defendant agreed with another person or
persons that they or one or more of them would engage in conduct which constitutes the
crime of murder, and secondly, that the defendant did so with the intent of promoting or
facilitating the commission of the crime of murder.

Supp. App. at 77-79. In fact, the state trial judge did not instruct the jury that any of the

defendants had been charged with conspiracy to commit any crimes other than murder.

       Moreover, the judge mentioned only one alleged overt act that the defendants

undertook in furtherance of the conspiracy, the killing of two people:

Now, it is not necessary that the crime which is the object of the conspiracy be committed
or even attempted. That is because the essence of the crime of conspiracy is the
agreement itself. However, it is necessary that at least one of the parties do something
more than merely conspiring with his fellow conspirators. After the conspiracy comes
into existence he must perform an overt act in pursuance of the conspiracy.

                                             ***

One overt act is sufficient. However, you must all agree on the same overt act.

                                             ***

No person may be convicted of conspiracy unless an overt act in pursuance of the
conspiracy is alleged and proven to have been done by him or by a person with whom he

                                              11
conspired. In the case it is alleged that the killing of Ronald Bradley and Aaron Hainey
was the overt act.

Supp. App. at 78-79. Thus, the 1993 conspiracy conviction was for a conspiracy to

commit murder, certainly a crime of violence.

       In reaching our conclusion, we have not overlooked Cleveland’s argument that the

jury instructions provide inadequate evidence of the nature of the conspiracy charge

because they did not distinguish between the other defendants charged in the case and

Cleveland. Rather, we reject that argument. The criminal complaint establishes that

Cleveland was one of the defendants charged with criminal conspiracy and the judgment

from the 1993 case establishes that Cleveland was convicted of that charge. Accordingly,

when the state judge provided the jury with instructions on conspiracy, those instructions

applied to Cleveland as he was one of the defendants on trial. Indeed, on this appeal

Cleveland does not contend that he objected in the state court to the charge on the basis

that it was not clear as to which defendant or defendants the charge applied. Thus,

Cleveland does not contend that, at the state court trial, Cleveland argued that the state

court needed to identify Cleveland by name to include him among the defendants to

whom the conspiracy to murder instructions applied.

       We also have not overlooked Cleveland’s argument that because he was acquitted

of the substantive crime of murder, his conspiracy conviction may have pertained to some

other crime. This argument fails because the state trial judge told the jury that the crime

that was the object of the conspiracy did not have to be committed or even attempted for

it to convict the defendant of the conspiracy to commit the crime. Thus, the fact that the


                                             12
jury acquitted Cleveland of the substantive crime of murder is immaterial in a

determination of the identification of the object of the conspiracy for which that state jury

convicted him. Moreover, we reiterate that, given the jury instructions, the object of that

conspiracy undoubtedly was the commission of a murder. We also point out that in view

of the trial court’s charge which Cleveland does not claim incorrectly stated the law, it

cannot be said that the jury returned an inconsistent verdict when it acquitted Cleveland

of murder but convicted him of conspiracy to commit murder.

       Overall, it is clear from the charging documents and the jury instructions relating

to Cleveland’s 1993 conspiracy that the jury convicted him of conspiracy to commit

murder. Consequently, the conspiracy conviction meets the definition of a “crime of

violence” under U.S.S.G. § 4B1.2(a) and, accordingly, the District Court correctly

determined that Cleveland was a career offender under U.S.S.G. § 4B1.1(a).

       For the foregoing reasons the amended judgment of conviction and sentence

entered on July 22, 2008, will be affirmed.




                                              13
