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


6-7-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2773




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 06-2773
                                    ____________

                          UNITED STATES OF AMERICA

                                           v.

                                AARON SCHWARTZ,

                                          Appellant
                                    ____________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                                (D.C. No. 05-cr-00210)
                     District Judge: Honorable Gustave Diamond
                                    ____________

                      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.

       After pleading guilty to a charge of being a felon in possession of a firearm, Aaron

Schwartz was sentenced to 70 months imprisonment in May 2006. Schwartz appeals his

sentence, claiming that the District Court erred (1) by applying United States Sentencing

Guidelines (“Guidelines”) § 2K2.1(a)(2) to calculate his sentence, and (2) by double

counting his prior felony convictions. Additionally, Schwartz claims that the District

Court’s requirement that he submit DNA samples as a condition of his supervised release

violates the Fourth Amendment. For the reasons that follow, we will affirm the District

Court’s judgment.

                                             I.

       We write only for the parties and thus will forgo a lengthy recitation of the factual

and legal background to this case. Schwartz was indicted for being a felon in possession

of a firearm in violation of 18 U.S.C. § 922(g)(1), and he pleaded guilty to the charge.

The underlying facts of the crime are undisputed: Schwartz stole several guns from his

uncle and grandmother. The dispute is over the Presentence Report’s (“PSR”)

recommendations, and the District Court’s determination of Schwartz’s sentence.

       The PSR recommended calculating Schwartz’s base offense level as 24 under

Guidelines § 2K2.1(a)(2) because Schwartz had two prior felony convictions, plus two

additional points under Guidelines § 2K2.1(b)(4) because Schwartz stole the guns. The

PSR also recommended granting a three point reduction because Schwartz accepted

responsibility. Therefore, the ultimate base offense level according to the PSR was 23.

                                             2
       Schwartz was originally given 6 criminal history points. The PSR added two

points under Guidelines § 4A1.1(d) because Schwartz was on probation at the time he

committed the offense, and one point under Guidelines § 4A1.1(e) because the instant

offense occurred within two years of Schwartz’s release from prison. Therefore, his

criminal history points rose to 9. Nine criminal history points yields a criminal history

category of IV. A base offense level of 23 and a criminal history of IV yields a

Guidelines range of 70-87 months imprisonment.

       Schwartz made objections to the PSR. First, Schwartz attacked the calculation of

his base offense level. He claimed that Guidelines § 2K2.1(a)(2) did not apply because

only one of his prior crimes (escape) constituted a crime of violence. According to

Schwartz, his arson conviction was not a crime of violence. He argued that he pleaded

guilty to “possession of explosive or incendiary materials or devices” under Pa. Con. Stat.

§ 3301(f), so he did not technically plead guilty to arson. This conviction, according to

Schwartz, did not fit within the definition of Guidelines §§ 4B1.2(a)(1) or 4B1.2(a)(2),

which define crime of violence. If Schwartz was only convicted of one crime of violence

his base offense level would be 20 under Guidelines § 2K2.1(a)(4).

       Schwartz also argued that he was only given minimal sentences for his prior

offenses. Based on this, he claimed that he was entitled to a downward departure under

Guidelines § 4A1.3(b)(1) because the criminal history overstates the seriousness of his

prior offenses.



                                             3
       The District Court rejected Schwartz’s argument that he did not have two prior

crimes of violence as it determined that the arson conviction was such a crime under

Guidelines § 4B1.2(a)(2) because it involved the “use of explosives” and posed “a serious

potential risk of physical injury to another.” It also rejected Schwartz’s argument that his

criminal history category overstated the seriousness of his prior crimes. The District

Court adopted the PSR and agreed that the offense level was 23 and the criminal history

was IV, which produced a Guidelines sentencing range of 70-87 months. After

considering the factors of 18 U.S.C. § 3553(a), the District Court imposed a sentence of

70 months imprisonment, followed by three years of supervised release, with the

condition that Schwartz provide a DNA sample.

       Schwartz filed this timely appeal.1

                                             II.

       Schwartz’s first argument on appeal is that his arson conviction is not a crime of

violence under Guidelines § 2K2.1(a)(2). Schwartz admits that his escape conviction

constitutes a crime of violence, but he claims that his arson conviction does not. We

agree with the District Court’s determination that Schwartz’s arson conviction is a crime

of violence.



       1
        We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a)(1). 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). We review the ultimate sentence imposed for reasonableness. United
States v. Cooper, 437 F.3d 324, 327 (3d Cir. 2006).

                                             4
       Section 2K2.1(a)(2) provides a base offense level of 24 when the defendant has

two prior convictions for crimes of violence. A crime of violence is defined, in part, as a

state or federal offense punishable by imprisonment for more than one year that “is a

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.

Sentencing Guidelines Manual § 4B1.2(a)(2).

       Schwartz’s arson conviction was under 18 Pa. Cons. Stat. § 3301(f):

       A person commits a felony of the third degree if he possesses,
       manufactures, or transports any incendiary or explosive material with the
       intent to use or to provide such device or material to commit any offense
       described in subsection (a), (c) or (d).

18 Pa. Cons. Stat. § 3301(f). The subsections referenced are arson endangering persons,

arson endangering property, and reckless burning or exploding. In order to determine

whether Schwartz’s conviction constitutes a crime of violence we must employ a

categorical approach, considering the elements of the crime and not the underlying

conduct or facts. See United States v. Galo, 239 F.3d 572, 581 (3d Cir. 2001).

       The District Court determined that the arson conviction was a crime of violence

because it presented a serious potential risk of physical injury.2 In United States v.

Jackson, 199 F.3d 1279 (11th Cir. 2000), the United States Court of Appeals for the



       2
        Although the District Court also concluded that the arson conviction constituted
the use of explosives making it a crime of violence, it is unnecessary to reach this
question as we find that the conviction included conduct involving a serious potential risk
of physical injury to another.

                                              5
Eleventh Circuit held that a prior conviction for possession of a fire bomb constituted a

crime of violence. The offense included the possession of a fire bomb and the intent to

use it to damage property. Id. at 1280. Possession of a fire bomb with the intent to use it

to destroy property “is inherently conduct that presents a serious potential risk of physical

injury to another.” Id. at 1281. Such an offense, the court explained, is merely “a

subcategory of arson that presents at least the same potential risk of physical injury to

another person as arson.” Id.

       As in Jackson, we find that the possession of an incendiary or explosive device

with the intent to use it to commit arson or reckless burning or exploding is “inherently

conduct that presents a serious risk of physical injury to another.” Id. As in Jackson,

Schwartz’s crime was a subcategory of arson and presents the same potential risk of

injury. Therefore, the District Court properly concluded that Schwartz had two prior

convictions for crimes of violence making § 2K2.1(a)(2) applicable.

       Schwartz also claims that the calculation of his sentence was unreasonable as the

same prior convictions were used to calculate both his base offense level and his criminal

history. Schwartz argues that such double counting is improper. This argument fails.

       Application note 10 to § 2K2.1 provides that when a defendant has prior felony

convictions that increase his or her base offense level under subsection (a)(2), the

convictions are also counted when calculating criminal history. U.S. Sentencing

Guidelines Manual § 2K2.1 cmt. n.10. Additionally, such “double counting” is

permissible because “the offense level and criminal history scores embody distinctly

                                              6
separate notions related to sentencing.” United States v. Wyckoff, 918 F.2d 925, 927

(11th Cir. 1990). The District Court’s consideration of the prior felonies in its

determination of the base offense level and criminal history was proper and Schwartz’s

sentence is reasonable.

       Finally, Schwartz claims that the District Court’s requirement that he submit DNA

as a condition of his supervised release violates the Fourth Amendment. As Schwartz

recognizes, our decision in United States v. Sczubelek, 402 F.3d 175 (3d Cir. 2005), made

clear that “the taking of a DNA sample from an individual on supervised release is not an

unreasonable search.” Id. at 184. Therefore, we will affirm the District Court’s

imposition of this condition.

                                             III.

       For the reasons stated above, we will affirm the District Court’s judgment.




                                              7
