                                                          NOT PRECEDENTIAL


                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT

                                  __________

                                  No. 10-3523
                                  __________

                         UNITED STATES OF AMERICA

                                       v.

                         ARTHUR HOMER JACKSON,
                                       Appellant
                               __________

                On Appeal from the United States District Court
                     for the Western District of Pennsylvania
                     (D.C. Criminal No. 2-08-cr-00115-001)
              District Judge: The Honorable Terrence F. McVerry

                 Submitted Under Third Circuit L.A.R. 34.1(a)
                               April 18, 2012

         BEFORE: SCIRICA, AMBRO, and NYGAARD, Circuit Judges


                           (Filed: September 10, 2012)

                                  __________

                           OPINION OF THE COURT
                                 __________

NYGAARD, Circuit Judge
       Arthur Homer Jackson appeals the 110-month sentence imposed by the District

Court. This sentence followed our remand, after we vacated his original sentence

because Jackson’s reckless endangerment convictions no longer were crimes of violence

under the United States Sentencing Guidelines.

       Jackson argues that the District Court abused its discretion by reopening the

sentencing proceeding and allowing the Government to argue that vehicular flight was a

crime of violence. We disagree. While we are generally reticent to reopen sentencing

proceedings upon remand, we by no means prohibit the District Court from exercising its

discretion to allow it where fairness is served and prejudice to the convicted party is

minimal. At the original sentence hearing, the District Court relied upon prior precedent

to rule that Jackson’s reckless endangerment convictions were crimes of violence. Upon

this ruling it passed over consideration of Jackson’s vehicular flight convictions as an

unnecessary exercise.

       The precise implications of the Supreme Court’s ruling in Begay v. United States,

553 U.S. 137 (2008), as to reckless conduct were unclear at the time of sentencing. It

was only after Jackson’s sentencing that we signaled in United States v. Johnson, 587

F.3d 203, 210 n.8 (3d Cir. 2009), that, post-Begay, reckless conduct no longer qualified

as a crime of violence. In light of this change, the District Court was well within its

discretion to reopen proceedings and allow the government to present evidence

concerning vehicular flight, particularly since Jackson had ample opportunity to respond

to the Government’s argument. The District Court did not err.



                                              2
       Next, we reject Jackson’s contention that a vehicular flight conviction cannot be

regarded as a crime of violence. United States Sentencing Guidelines Section 4B1.2(a)

defines a crime of violence as one that has the threatened use of force as an element, or

that “involves conduct that presents a serious potential risk of physical injury to another.”

Under the Pennsylvania statute, vehicular flight involves refusing to bring a vehicle to a

stop after being instructed to do so by police, or otherwise fleeing or attempting to elude

police who are in pursuit. 75 Pa.C.S. § 3733. We are not persuaded by Jackson’s

contention that vehicular flight cannot be a crime of violence because, in a particular

case, it might occur in a manner that does not place persons at risk. Moreover, we need

not decide whether the statute is divisible between violent and non-violent crime, because

the plea colloquies reveal that Jackson did not object to the Government’s

characterization of his charges on each occasion as fleeing in a vehicle, with the police

giving “chase” and in “pursuit.” In fact, at one plea hearing, his counsel acknowledged

that Jackson was resolving to no longer be involved in “high speed chases.” Jackson

pleaded guilty to fleeing police in a vehicle. Therefore, regardless of whether the

Pennsylvania vehicular flight statute is divisible, the record supports the District Court’s

conclusion that Jackson pleaded guilty to a crime of violence. 1

       Finally, Jackson objected to the sentence enhancement arising from the obliterated

serial number on the gun. Jackson argues that the District Court was procedurally


1
 We note that by failing to stop when commanded by pursuing police, by fleeing, or by
using a vehicle to elude police, the driver inherently places others at serious risk of injury
by causing police to give chase. This is consistent with the definition of a crime of
violence in section 4B1.2(a).
                                              3
unreasonable because it failed to provide an explanation for the enhancement. Yet, the

record indicates that the District Court did, in the first sentencing hearing, consider

Jackson’s argument for a variance. It highlighted the fact that the second intact serial

number on the gun—on which Jackson relies in this appeal to assert procedural and

substantive unreasonableness—was not plainly visible and was only discovered by a

forensic examination of the weapon. Therefore, in applying the enhancement, the

District Court reasonably viewed Jackson’s argument as lacking merit. At resentencing,

having already questioned Jackson on this issue, there was no need for the District Court

to revisit it. This is particularly the case where Jackson—in his argument on sentencing

factors—conceded that he could not cite any authority to support his objection to the

enhancement; and where Jackson failed to press his argument after the District Court

explicitly raised the topic on resentencing. Jackson raised nothing new to support his

objection. The District Court gave adequate consideration to the section 3553(a) factors.

Finally, the District Court did not give undue consideration to Jackson’s criminal history.

Jackson’s 110 month sentence, at the low end of the advisory range, is procedurally and

substantively reasonable.

       For all of these reasons, we will affirm the sentence.




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