                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 08-4677


                           UNITED STATES OF AMERICA

                                            v.

                               DENNIS MASS, Appellant



                      Appeal from the United States District Court
                              for the District of New Jersey
                     (D.C. Criminal Action No. 1-08-cr-00547-001)
                       District Judge: Honorable Robert B. Kugler


                       Submitted Under Third Circuit LAR 34.1(a)
                                   October 1, 2009

                  Before: AMBRO, GARTH and ROTH, Circuit Judges

                              (Opinion filed: June 3, 2010)


                                        OPINION


AMBRO, Circuit Judge

       Dennis Mass pled guilty to one count of conspiracy to distribute, and possess with

intent to distribute, heroin. He was sentenced to 262 months’ imprisonment. In this

appeal, he brings two challenges to his sentence: 1) that he was inappropriately sentenced

as a career offender under the Sentencing Guidelines; and 2) that the District Court
abused its discretion by not departing downward. We reject both of these challenges, and

therefore affirm.

                                             I.

       Prior to his arrest, Mass led a large drug-trafficking organization, mass-purchasing

heroin and cocaine and then selling it to mid-level distributors. The Drug Enforcement

Agency (“DEA”) began investigating Mass’s organization in June 2007 in conjunction

with state and local law enforcement. The investigation included interviews with related

parties, a confidential source, recorded telephone calls and meetings, phone-record

analysis, a court-authorized wiretap, physical surveillance, seizures of money, and hand-

to-hand purchases of cocaine and heroin directly from Mass.

       Based on interviews with the confidential source, law enforcement determined that

Mass operated several “drug sets” throughout Camden, New Jersey, with the bulk of his

drug sales involving street-level distribution of heroin. According to the confidential

source, Mass usually purchased heroin in bulk quantities of 200, 300, and 500 grams and

then sold it to mid-level traffickers in increments of $65-$70 per gram. During the

investigation, the CS recorded several drug-related conversations with Mass, made a

number of controlled purchases of heroin (totaling over 100 grams), and purchased

approximately one kilogram of cocaine directly from Mass.

       In January 2008, law enforcement set up surveillance at Mass’s residence in New

Jersey. Eventually, officers saw Mass leave his residence, carrying a multi-colored bag.

He placed the bag in the cargo area of his vehicle and then drove off. Officers then pulled

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over Mass’s vehicle. During that stop, a narcotics-trained dog detected drugs in the

vicinity of a cardboard box that was found in the multi-colored bag. An officer opened

the heavily taped box and found money hidden underneath two shirts. All told, the box

contained $246,825. Mass was then arrested.

       In August 2008, Mass pled guilty to one count of conspiring to distribute, and

possess with intent to distribute, one kilogram or more of heroin, contrary to 21 U.S.C.

§§ 841(a)(1) and (b)(1)(A), as well as 21 U.S.C. § 846. As noted, the District Court

sentenced him to 262 months’ imprisonment, which, based on a career offender

designation, was within his advisory Sentencing Guidelines range of 262-327 months.

Mass appealed, challenging his designation as a career offender under the Sentencing

Guidelines, as well as the Court’s failure to grant a downward departure. We consider

each argument in turn.

                                            II.

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

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

       Whether a particular crime is one of violence is a question of law, which is subject

to plenary review. United States v. Dorsey, 174 F.3d 331, 332 (3d Cir. 1999). We also

exercise plenary review over questions concerning our own jurisdiction. United States v.

Cooper, 437 F.3d 324, 332-33 (3d Cir. 2006).

                                            III.

       We disagree that Mass was inappropriately sentenced as a career offender. Under

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the Sentencing Guidelines, a defendant qualifies as a career offender if he: “(1) was at

least eighteen years old when the instant offense occurred; (2) the instant offense of

conviction is a crime of violence or a controlled substance offense; and (3) he ‘has at least

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

offense.’” United States v. Stinson, No. 08-1717, 2010 WL 114949, at *3 (3d Cir. Jan. 14,

2010) (quoting U.S.S.G. § 4B1.1(a)) (emphasis in original). Mass concedes that the

crime for which he was sentenced in this case was a controlled substance offense. He

also does not dispute that he had one prior controlled substance conviction and that he

was over 18 years old when he committed the offense before us. Thus, the sole question

on appeal is whether any of his other convictions—one for simple assault and two for

resisting arrest—were crimes of violence, as defined by the Sentencing Guidelines. The

District Court concluded that Mass’s third-degree resisting arrest conviction from

February 2001 qualified as a crime of violence. We agree.1

       Under the Sentencing Guidelines:

              The term “crime of violence” means any offense . . .
              punishable by imprisonment of 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) is burglary of a dwelling, arson, or extortion, involves use of explosives,


   1
    Since this conclusion is dispositive, we do not consider whether Mass’s other
conviction under a different provision of the New Jersey resisting arrest statute, or his
conviction for simple assault, similarly constituted a crime of violence.

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       or otherwise involves conduct that presents a serious potential risk of
       physical injury to another.

U.S.S.G. § 4B1.2(a). In determining whether a conviction qualifies as a crime of

violence, we apply a “categorical approach,” “ask[ing] ‘whether the elements of the

offense are of the type that would justify its [classification as a crime of violence].’”

Stinson, 2010 WL 114949 at *1 (quoting James v. United States, 550 U.S. 192, 202

(2007)) (emphasis in original). In this, we “look only to the fact of the conviction and the

statutory definition of the prior offense.” Taylor v. United States, 495 U.S. 575, 602

(1990).

       In the current case, the text of the New Jersey resisting arrest statute closely tracks

that of the “crime of violence” definition in the Sentencing Guidelines.

       The New Jersey statute reads in relevant part:

       a.     (1) . . . [A] person is guilty of a disorderly persons offense if he
              purposely prevents or attempts to prevent a law enforcement officer
              from effecting an arrest.

       ...

              (3) An offense under paragraph (1) . . . is a crime of the third degree
              if the person:

                      (a) Uses or threatens to use physical force or violence against
                      the law enforcement officer or another; or

                      (b) Uses any other means to create a substantial risk of
                      causing physical injury to the public servant or another.




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N.J. Stat. Ann. § 2C:29-2.2 In this case, Mass pled guilty to third-degree resisting arrest,

which required him either to “[u]se[] or threaten[] to use physical force or violence”

against another or “[u]se[] any other means to create a substantial risk of causing physical

injury to . . . another.” Id. § 2C:29-2.3 Textually, this is almost identical to the key

provision of the Sentencing Guidelines, which (to repeat) defines a “crime of violence” as

either “the use, attempted use, or threatened use of physical force against the person of

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

U.S.S.G. § 4B1.2(a).

       This analysis is bolstered by our recent holding in Stinson. We determined that a

Pennsylvania conviction for resisting arrest qualified as a crime of violence for career

offender purposes.4 Just as in Stinson, the conduct proscribed by statute in this appeal

“poses as great or greater a risk as burglary or extortion,” as “resisting arrest necessarily

involves confronting the authority of the police officer who is likely armed and charged


   2
     The indictment tracked the statutory language for third-degree resisting arrest:
“Dennis J. Mass . . . did purposely prevent or attempt to prevent a law enforcement
officer . . . from effecting a lawful arrest by using or threatening to use physical force or
violence against said officer and/or did create a substantial risk of causing physical
injury.” S.A. 44.
   3
    Mass was sentenced to five years for the offense, to run concurrently with another
sentence.
   4
     The Pennsylvania statute provides that “[a] person commits a misdemeanor of the
second degree if, with the intent of preventing a public servant from effecting a lawful
arrest . . . , the person creates a substantial risk of bodily injury to the public servant or
anyone else, or employs means justifying or requiring substantial force to overcome the
resistance.” 18 Pa. Cons. Stat. Ann. § 5104.

                                               6
with defending the public.” Stinson, 2010 WL 114949 at *4. “Because the police officer

is duty-bound to effect[] the arrest, the offense engenders . . . a significant risk of injury.”

Id. At Mass’s sentencing hearing, even defense counsel conceded that the similarities

between the Pennsylvania and New Jersey resisting arrest statutes presented “a tough

issue for the defense” and was “problematic” for Mass, noting that there was only a

“minor difference” between these statutes and conceding that “there is certainly case law

in the Government’s favor.” S.A. 3-4.

       In the end, the District Court noted the similarities between the New Jersey statute

and the “crime of violence” definition, explaining that “if you look at the New Jersey

statute, you put it side by side with the [G]uideline, they match up almost identical[ly].”

S.A. 5. Because of this, the Court concluded that whether Mass’s conviction for third-

degree resisting arrest under the New Jersey statute was a crime of violence was not

“really a close question.” S.A. 5.

       We agree, especially in light of our recent holding in Stinson. Given the similarity

between the conduct outlawed by the Pennsylvania and New Jersey statutes, as well as

the definition of a “crime of violence,” we hold that Mass’s conviction for third-degree

resisting arrest in New Jersey constitutes a “crime of violence” under the Sentencing

Guidelines. Therefore, Mass qualifies as a career offender.

       We turn to Mass’s challenge to the District Court’s refusal to grant a downward

departure to the sentencing range initially calculated under the Sentencing Guidelines.

“We continue to treat ‘discretionary denials of departure motions in calculating

                                               7
sentencing ranges’ the same as we did pre-Booker.” United States v. Jones, 566 F.3d 353,

366 (3d Cir. 2009) (quoting United States v. Jackson, 467 F.3d 834, 839 (3d Cir. 2006)).

In other words, “[w]e do not have jurisdiction to review discretionary decisions by district

courts to not depart downward.” United States v. Vargas, 477 F.3d 94, 103 (3d Cir.

2007). “Jurisdiction arises, however, if the district court's refusal to depart downward is

based on the mistaken belief that it lacks discretion to do otherwise.” Id.

       In this appeal, Mass claims that his criminal history category overstates the

seriousness of his prior convictions and his likelihood of committing future crimes. At

Mass’s sentencing hearing, defense counsel argued that, although Mass “technically fit[]”

the definition of a career offender, this designation “over-represents his criminal history,”

S.A. 6, as he had “no aggravated assaults” and “[n]o weapons offenses of any kind”

(including “no gun offenses”), S.A. 7. Defense counsel asked the Court to “consider

[these factors] in evaluating . . . whether [it] can deviate and find [Mass] . . . a criminal

history five instead of six.” S.A. 7-8.

       In response, the District Court recognized its power to grant a downward

departure, exercised its discretion, and refused to grant the proposed departure. It spoke

directly

       as to the defendant’s motion in this case for a downward departure, under
       [G]uideline 4[A]1.3, whether or not his criminal history substantially over-
       represents the seriousness of his actual conduct. Any future threat to
       society. I recognize clearly I have the discretion to entertain and grant this
       motion under the proper conditions. However, I’m going to deny the
       application . . . .


                                               8
S.A. 15. From there, the Court analyzed Mass’s criminal history, observing that Mass

had been convicted of three felonies and one “very serious non-felony conviction.” S.A.

16. Given his number of offenses (as well as their close proximity to one another), it was

clear that “the system hasn’t gotten through to [Mass].” S.A. 17. Therefore, it concluded

that Mass’s criminal history did not “significantly over-represent[] the seriousness of his

conduct and future threat to society.” S.A. 17. This was a discretionary decision of the

District Court that we lack jurisdiction to review.

       For these reasons, we affirm the District Court’s judgment as it pertain to Mass’s

designation as a career offender under the Sentencing Guidelines, and dismiss Mass’s

challenge to the District Court’s discretionary decision not to depart downward for lack of

jurisdiction.




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