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


5-3-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1551




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Recommended Citation
"USA v. Sturdivant" (2007). 2007 Decisions. Paper 1139.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1139


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        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                  ____________

                       No. 06-1551
                      ____________

            UNITED STATES OF AMERICA

                             v.

          EUGENE DEWAYNE STURDIVANT,

                               Appellant.
                      ____________

      On Appeal from the United States District Court
         for the Western District of Pennsylvania
             (D.C. Criminal No. 03-cr-00039)
        District Judge: Hon. Donetta W. Ambrose

        Submitted Under Third Circuit LAR 34.1(a)
                    March 29, 2007

Before: RENDELL, BARRY, and CHAGARES, Circuit Judges.


                      ____________

                   (Filed May 3, 2007)




               OPINION OF THE COURT
CHAGARES, Circuit Judge.

         Pursuant to a plea agreement, Eugene D. Sturdivant (Sturdivant) pled guilty to

possession with intent to distribute in excess of 50 grams of crack cocaine, and was

subsequently sentenced to 262 months incarceration. Sturdivant seeks to appeal his

sentence on the grounds (i) that the District Court improperly classified him as a career

offender based on his prior conviction for simple assault under Pennsylvania law; and (ii)

that the 100:1 ratio between powder and crack cocaine in the sentencing ranges Congress

has prescribed resulted in the imposition of a unreasonable sentence. Because

Sturdivant’s plea agreement contains an explicit waiver of his right to appeal on most

grounds, and because neither of these challenges falls within the narrow category of

appeal rights Sturdivant reserved, we will affirm the sentence imposed by the District

Court.

                                              I.

         On June 24, 2005, Sturdivant pled guilty to a one-count indictment charging him

with knowingly, intentionally, and unlawfully possessing with intent to distribute fifty

(50) grams or more of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(A)(iii). In exchange for Sturdivant’s plea of guilty, the Government agreed not

to seek an elevated sentence based on one of Sturdivant’s prior drug convictions, one

which would have triggered a mandatory minimum sentence of twenty years




                                              2
incarceration. Additionally, the Government agreed to a three-level downward departure

for acceptance of responsibility.

       At the plea hearing, the Government estimated Sturdivant’s Sentencing Guideline

range to be between 135 and 168 months, apparently not anticipating that the District

Court might determine that Sturdivant would qualify for a career offender enhancement.

However, the District Court explicitly stated that it would not be able to determine the

Guideline range that would apply to Sturdivant until after the creation of a Presentence

Report, which had yet to be completed at that time. The District Court also confirmed

Sturdivant’s desire to waive his right to appeal any sentence the District Court would

impose, subject to the reservations contained in his plea agreement. Satisfied that

Sturdivant’s plea of guilty was knowing and voluntary, the District Court accepted

Sturdivant’s plea agreement and directed the preparation of a Presentence Report.

       The Presentence Report determined that Sturdivant was a career offender, pursuant

to U.S.S.G. § 4B1.1, due to his prior conviction for possession with intent to distribute

cocaine and his conviction for simple assault under 18 Pa. C. S. § 2701.1 This resulted in

an offense level of 37 which was reduced by three levels to 34 for acceptance of

responsibility. Sturdivant’s status as a career offender also caused his criminal history

category to rise from category IV to category VI. Based on this offense level and



       1
        It is undisputed that the drug conviction that formed the basis for the career
offender enhancement is separate and distinct from the one that the Government agreed
not to introduce pursuant to the plea agreement.

                                             3
criminal history category, the District Court calculated Sturdivant’s Guideline range to be

262 to 327 months, and sentenced Sturdivant at the bottom of that range, to 262 months.

Sturdivant now appeals.

                                             II.

       Sturdivant challenges his sentence on two grounds. First, he argues that his prior

conviction for simple assault under Pennsylvania law should not count as a predicate

felony sufficient to invoke career offender status under the Guidelines. Noting that

simple assault is a misdemeanor, not a felony, under the laws of other jurisdictions in the

Third Circuit and elsewhere, Sturdivant maintains that the District Court’s treatment of

his Pennsylvania simple assault conviction as a predicate felony for career offender

purposes violates his Fifth Amendment Equal Protection Clause rights. Second,

Sturdivant argues that the disparity in sentencing ranges associated with offenses

involving powder cocaine and those involving crack cocaine runs afoul of Congress’

dictate that courts should fashion sentences in a manner that avoids unwarranted

disparities. See 18 U.S.C. § 3553(a)(6). In essence, then, Sturdivant challenges the

District Court’s calculation of his Guideline range, as well as the reasonableness of the

ultimate sentence it imposed.

       At the outset, we note that it is undisputed that Sturdivant’s plea of guilty was

knowing and voluntary. Thus, analysis proceeds to whether Sturdivant waived his right




                                              4
to assert either or both of these challenges pursuant to his plea agreement. The plea

agreement stated in pertinent part that:

          Sturdivant waives the right to take a direct appeal from his
          conviction or sentence under 28 U.S.C. § 1291 or 18 U.S.C. § 3742,
          subject to the following exceptions:

                  (a)    If the United States appeals from the sentence,
                         [Appellant] may take a direct appeal from the sentence.

                  (b)    If (1) the sentence exceeds the applicable statutory
                         limits set forth in the United States Code, or (2) the
                         sentence unreasonably exceeds the guideline range
                         determined by the Court under the Sentencing
                         Guidelines, [Appellant] may take a direct appeal from
                         the sentence.

          The foregoing reservations of the right to appeal on the basis of
          specified issues do not include the right to raise issues other than
          those specified.

22A.

       It is undisputed that the Government has not appealed Sturdivant’s sentence, and

that Sturdivant’s sentence does not exceed the statutory maximum stated in the United

States Code. Thus, Sturdivant’s appeal is barred by the terms of his plea agreement

unless “the sentence unreasonably exceeds the guideline range determined by the Court

under the Sentencing Guidelines.” Id. It is clear that Sturdivant’s sentence does not

“exceed the guideline range determined by the Court” -- let alone unreasonably -- as he

was sentenced at the low end of the Guideline range the District Court calculated. Thus,

Sturdivant’s challenges to his sentence are barred by the terms of his plea agreement.



                                             5
       This does not end the analysis, however, as we have refused to enforce plea

agreements if doing so would work a manifest injustice even if they were knowing and

voluntary. This exception is exceedingly narrow, and operates only in “unusual

circumstance[s] where an error amounting to a miscarriage of justice may invalidate the

waiver.” United States v. Khattak, 273 F.3d 557, 562 (3d Cir. 2001). We have refused to

promulgate an exhaustive list of circumstances in which we might disregard an otherwise

valid waiver of appeal, preferring instead to adjudicate such claims on a case-by-case

basis. See id. To make this determination, we have employed a multi-factor balancing

test which takes into consideration “the clarity of the error, its gravity, its character (e.g.,

whether it concerns a fact issue, a sentencing guideline, or a statutory maximum), the

impact of the error on the defendant, the impact of correcting the error on the

government, and the extent to which the defendant acquiesced in the result.” Id. at 563.

The question, then, is whether either or both of Sturdivant’s challenges fit within the

“manifest injustice” exception.

       We hold that neither one does. With respect to the District Court’s career offender

determination, we need not engage in an extended weighing of these factors here, as it is

clear that the District Court committed no error by determining that Sturdivant’s prior

conviction for simple assault under Pennsylvania law qualified as a predicate offense for

career offender status purposes. Indeed, we have previously held that it does. See United




                                                6
States v. Dorsey, 174 F.3d 331 (3d Cir. 1999) (affirming career offender enhancement

based on Pennsylvania simple assault conviction).

         The same result obtains with respect to Sturdivant’s challenge based on the

sentencing disparity between powder and crack cocaine. Put simply, Sturdivant’s attempt

to launch a broadside attack on the respective terms of incarceration that Congress has

seen fit to promulgate for powder and crack cocaine offenses is foreclosed by his broad

waiver of appeal rights.

                                             III.

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

Court.




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