                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-13-2002

USA v. Richardson
Precedential or Non-Precedential: Precedential

Docket No. 01-1517




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PRECEDENTIAL

       Filed November 13, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-1517

UNITED STATES OF AMERICA

v.

CECIL RICHARDSON,
a/k/a SYED RICHARDSON

Cecil Richardson,
       Appellant

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
D.C. Crim. No. 00-cr-00251
District Judge: The Honorable Stewart Dalzell

Argued: September 24, 2002

Before: BARRY, AMBRO, and COWEN, Circuit Judge s

(Opinion Filed: November 13, 2002)

       David L. McColgin, Esquire (Argued)
       Defender Association of Philadelphia
       Federal Court Division
       Curtis Center, Independence Square
        West
       Suite 540 West
       Philadelphia, PA 19106

       Attorney for Appellant




       Bernadette A. McKeon, Esquire
        (Argued)
       Michael A. Schwartz, Esquire
       Suite 1250
       Office of United States Attorney
       615 Chestnut Street
       Philadelphia, PA 19106

       Attorneys for Appellee

OPINION OF THE COURT

BARRY, Circuit Judge:

We are called upon to decide an issue which no court of
appeals, including our own, has yet discussed, much less
decided. Simply stated, the issue before us for decision is
whether, when a juvenile adjudication is invoked to
enhance a sentence under the Armed Career Criminal Act,
the sentencing court is required to look only to the fact of
conviction and the statutory definition of the prior offense
-- the "categorical approach" -- or whether it may look to
the conduct in which the juvenile engaged and make a
factual determination that the juvenile committed-- or did
not commit -- an offense which may be used for
enhancement purposes. We conclude that the sentencing
court must follow the categorical approach, and it did not
do so here. Accordingly, although we will affirm the
judgment of conviction, we will vacate the sentence imposed
and remand for resentencing.

I.

On the evening of February 2, 2000, Philadelphia Police
Officers Victor Davila and Gary McNeil were patrolling West
Philadelphia in an unmarked car. Davila and McNeil
observed two men standing on the corner of 59th and
Walton Streets -- Mark Newman, a/k/a "Black," who the
officers knew from the neighborhood, and a man whom the
officers did not know but was later identified as appellant
Cecil Richardson. Richardson, according to the officers, was
holding a nine-millimeter pistol, showing it to Newman.

                                2


When the officers stopped their vehicle, Richardson threw
the gun into a snowbank, and he and Newman ran north
on 59th Street. Davila pursued Richardson and Newman on
foot, while McNeil returned to the patrol car and radioed for
assistance. Richardson was quickly apprehended. Davila
then returned to the intersection of 59th and Walton
Streets, accompanied by an officer who had responded to
McNeil’s call, and retrieved the gun from the snowbank
where Richardson had discarded it.

Richardson was arrested and charged in the Eastern
District of Pennsylvania with one count of possession of a
firearm by a convicted felon, in violation of 18 U.S.C.
S 922(g). He went to trial -- twice, the first trial having
ended in a hung jury -- and was found guilty, the jury
quite clearly rejecting his testimony that on the evening of
February 2 it was Newman who was showing the firearm to
him and he, Richardson, never touched it.

At sentencing, the District Court considered whether the
Armed Career Criminal Act, 18 U.S.C. S 924(e) ("ACCA"),
applied to enhance Richardson’s sentence. The Court
concluded that a 1994 juvenile adjudication for robbery
and other offenses, along with two adult convictions for
possessing crack cocaine with intent to distribute, satisfied
section 924(e)’s requirement that the defendant be
convicted of at least three prior violent felonies or serious
drug offenses. As a result, Richardson faced a statutory
mandatory minimum term of imprisonment of fifteen years
with sentencing guidelines of 235-293 months. The District
Court sentenced Richardson to a term of 235 months.
Absent an enhancement by virtue of the ACCA,
Richardson’s sentence would have been limited to the ten-
year statutory maximum for possession of a firearm by a
convicted felon, and his sentencing guideline range would
have been 100-120 months. He timely appealed. We have
jurisdiction under 18 U.S.C. S 3742(a) and 28 U.S.C. S 1291.1
_________________________________________________________________

1. Richardson raises numerous issues on appeal, all of which we have
carefully considered. Only one, however, merits relief -- the sentencing
issue. We thus reject Richardson’s contentions that (1) the District Court
should have granted a continuance of the trial when a defense witness
did not appear; (2) Richardson’s girlfriend and mother should have been

                                3


II.

The ACCA, as Richardson’s case well illustrates, provides
for dramatically increased penalties, including a mandatory
minimum sentence of fifteen years, for violation of the
felon-in-possession statute, 18 U.S.C. S 922(g), if the
defendant has three prior convictions for a "violent felony"
or a "serious drug offense." Section 924(e) provides in
pertinent part:

       (1) In the case of a person who violates section 922(g)
       of this title and has three previous convictions . .. for
       a violent felony or a serious drug offense, or both . . .
       such person shall be fined not more than $25,000 and
       imprisoned not less than fifteen years . . . .

       (2) As used in this subsection --

       . . .

       (B) the term "violent felony" means any crime
       punishable by imprisonment for a term exceeding one
       year or any act of juvenile delinquency involving the
       use or carrying of a firearm, knife, or destructive device
       that would be punishable by imprisonment for such
       term if committed by an adult, that --

       (i) has as an element the use, attempted use, or
       threatened use of physical force against the person
       of another; or

       (ii) is burglary, arson, or extortion, involves use of
       explosives, or otherwise involved conduct that
       presents a serious potential risk of physical injury to
       another; and

       (C) the term "conviction" includes a finding that a
       person has committed an act of juvenile delinquency
       involving a violent felony.
_________________________________________________________________

permitted to testify under Fed. R. Evid. 804(b)(3) to statements Newman
allegedly made to them; (3) the testimony of the firearm’s owner was
wrongly excluded under Fed. R. Evid. 401 and 403; (4) the District
Court’s instruction on joint possession should not have been given; and
(5) 18 U.S.C. S 922(g) is unconstitutional.

                                4


18 U.S.C. S 924(e). Richardson does not dispute that his
two adult convictions for drug possession qualify as
predicate offenses under the ACCA. Neither does he dispute
that if his 1994 juvenile adjudication involved a"violent
felony," it, too, would qualify as a "conviction" for purposes
of the ACCA. The only issue, then, is whether the District
Court correctly concluded that Richardson’s 1994 juvenile
adjudication constituted a "violent felony" such that his
sentence should be enhanced under the ACCA.

The juvenile adjudication at issue was for numerous
offenses -- robbery, criminal conspiracy, theft by unlawful
taking, receiving stolen property, simple assault, and
possessing an instrument of crime.2 Defense counsel
argued that this adjudication did not qualify as a"violent
felony" under section 924(e)(2)(B) because it was unclear
from the juvenile records whether a knife was actually used
in the robbery, and for a juvenile offense to count as a
predicate offense (or "violent felony"), the statute requires
that a firearm, knife or destructive device have been used
or carried. Counsel also argued that because juveniles in
Pennsylvania do not have a right to a jury trial and because
any finding of "violent felony" must be, but was not, found
by a jury beyond a reasonable doubt, Apprendi error would
be committed and Richardson’s due process and Sixth
Amendment rights would be violated were the ACCA to
apply. See Apprendi v. New Jersey, 530 U.S. 466 (2000).

The District Court considered and rejected Richardson’s
objections, concluding that his juvenile adjudication
qualified as a violent felony and that Apprendi did not
require that this finding be made by a jury beyond a
reasonable doubt. The Court found that although it could
not be determined from the complaint or the Family Court
records whether Richardson himself held a knife in the
1994 robbery, a knife had been involved and a "newly
discovered police report" showed that it was held by
Richardson’s accomplice. Because, in the Court’s view, the
language of the statute was broad enough to encompass
this factual scenario, the juvenile adjudication qualified as
_________________________________________________________________

2. The relevant Pennsylvania criminal statutes are 18 Pa. Cons. Stat.
Ann. SS 3701, 903, 3921, 3925, 2701 and 907, respectively.

                                5


a predicate under the ACCA. The Court acknowledged that
it was making "what amount to factual findings about the
circumstances of these past crimes, and this is particularly
vexing in this case because the record from the juvenile
conviction is to a certain extent ambiguous on the matter."

Richardson, who argued facts to the District Court and,
more particularly, the fact -- if fact it be -- that he did not
use or carry a knife when he committed the 1994 offenses,
now argues to us what he did not in so many words argue
before, i.e. that by making factual findings concerning the
circumstances of those offenses, the District Court failed to
employ the "categorical approach" mandated by the
Supreme Court -- and, in its wake, by this Court-- in
determining whether a particular conviction falls within
section 924(e). See Taylor v. United States, 495 U.S. 575,
602 (1990); United States v. Preston, 910 F.2d 81, 85 (3d
Cir. 1990). As to this issue, our review is plenary. Preston,
910 F.2d at 84. Richardson argues, as well, that because
the application of the ACCA increased the otherwise
applicable statutory maximum sentence, the rule of
Apprendi requires that the jury, not the judge, determine
whether his juvenile adjudication was a "violent felony" for
purposes of the ACCA and that, in any event, a juvenile
adjudication without a jury trial cannot be used to enhance
a sentence under the ACCA. Because we agree with
Richardson as to the first issue, we need not reach his
second. We do not therefore decide whether a juvenile
adjudication can be characterized as a "prior conviction"
under Apprendi and, thus, can be used to increase the
penalty for a crime beyond the statutory maximum without
being submitted to or found by a jury. Compare United
States v. Smalley, 294 F.3d 1030 (8th Cir. 2002) (holding
that juvenile adjudications are "prior convictions" within
the meaning of Apprendi) with United States v. Tighe, 266
F.3d 1187 (9th Cir. 2001) (holding that juvenile
adjudications are not "prior convictions" within the
meaning of Apprendi).

In Taylor, the Supreme Court held that, in determining
whether a defendant’s prior conviction constitutes a violent
felony under section 924(e)(2)(B), courts must employ a
"categorical approach," which "requires the trial court to

                                6


look only to the fact of conviction and the statutory
definition of the prior offense" as defined by state law and
not to the conduct and circumstances underlying the
conviction. Taylor, 495 U.S. at 602. The Court reasoned
that the language of section 924(e) -- which refers to
"previous convictions" as opposed to previous acts, and
which defines a "violent felony" as a crime punishable by
more than one year of imprisonment that "has as an
element" the use or threatened use of force -- evidenced
Congress’s intent that the categorical approach be used. Id.
at 600. The Court also noted the "daunting" practical
difficulties and potential unfairness that requiring a
sentencing court to engage in factfinding concerning a
defendant’s prior convictions would occasion:

        In all cases where the Government alleges that the
       defendant’s actual conduct would fit the generic
       definition of burglary, the trial court would have to
       determine what that conduct was. In some cases, the
       indictment or other charging paper might reveal the
       theory or theories of the case presented to the jury. In
       other cases, however, only the government’s actual
       proof at trial would indicate whether the defendant’s
       conduct constituted generic burglary. Would the
       Government be permitted to introduce the trial
       transcript before the sentencing court, or if no
       transcript is available, present the testimony of
       witnesses? Could the defense present witnesses of its
       own and argue that the jury might have returned a
       guilty verdict on some theory that did not require a
       finding that the defendant committed generic burglary?
       If the sentencing court were to conclude, from its own
       review of the record, that the defendant actually
       committed a generic burglary, could the defendant
       challenge this conclusion as abridging his right to a
       jury trial? Also, in cases where the defendant pleaded
       guilty, there often is no record of the underlying facts.
       Even if the Government were able to prove those facts,
       if a guilty plea to a lesser, nonburglary offense was the
       result of a plea bargain, it would seem unfair to impose
       a sentence enhancement as if the defendant had
       pleaded guilty to burglary.

                                7


Id. at 601-02. The Court held, however, that"in a narrow
range of cases," where the elements of the statute under
which the defendant was convicted encompassed non-
violent as well as violent felonies, the sentencing court may
consider the charging document or jury instructions, but
only to determine whether the jury must necessarily have
found the elements of a violent felony in order to convict
the defendant. Id. at 602.

We strictly applied the categorical approach in United
States v. Preston, noting that, even before Taylor, "[a]ll other
federal appeals courts that have examined this issue have
concluded that S 924(e) mandates looking at the fact of
conviction and the statutory definitions of the prior offenses
for which the defendant has been convicted, but not to the
particular facts underlying those convictions." Preston, 910
F.2d at 85. In considering whether Preston’s prior
conviction for conspiracy to commit robbery constituted a
"violent felony" for purposes of the ACCA, we stated that,
"[w]hen necessary, a sentencing court may refer to the
relevant indictment or information papers and the jury
instructions in the prior conviction . . . [,] but the inquiry
should not extend beyond these documents." Id. Thus,
utilizing the categorical approach, we held that because
Pennsylvania law requires that the elements of the crime
that was the object of a criminal conspiracy be defined for
the jury, a Pennsylvania conviction for conspiracy to
commit robbery necessarily encompasses the elements of
robbery itself, and is therefore a "violent felony" as defined
by section 924(e)(2)(B)(ii). Id. at 86.
While the categorical approach prescribed by Taylor is
simply stated and relatively easily applied when considering
a defendant’s prior adult convictions, it can become more
difficult when a court must determine whether a juvenile
adjudication comes within the ACCA. For one thing,
although the categorical approach prohibits factual
determinations concerning a defendant’s prior convictions,
an "act of juvenile delinquency" introduces an additional
wrinkle, for it will only count as a violent felony if the
offense involved "the use or carrying of a firearm, knife, or
destructive device," 18 U.S.C. S 924(e)(2)(B), a seemingly
paradigmatic factual determination. For another, the

                                8


documents that the Supreme Court and the various Courts
of Appeals have held that a district court may consider in
the context of an adult conviction -- the indictment or
information, the jury charge, and/or plea agreements--
may be nonexistent where there has been an adjudication
of juvenile delinquency given that, for starters, there is no
right to trial by jury for juvenile offenses. That having been
said, we can perceive no basis for saying that the reasons
the Taylor Court found as warranting the categorical as
opposed to the factual approach when considering an adult
conviction are not equally persuasive when considering a
juvenile adjudication. We note, however, that we are in
uncharted waters because, in the context of juvenile
adjudications and the ACCA, virtually nothing has been
written by any court.

We briefly reprise how the District Court came to the
conclusion that Richardson’s 1994 juvenile adjudication
should count as a "conviction" under the ACCA. Richardson
was "adjudicated delinquent" by the Philadelphia Family
Court for robbery, criminal conspiracy, theft by unlawful
taking, theft by receiving stolen property, simple assault,
and possessing an instrument of crime. While this is
certainly a virtual laundry list of offenses, none of them
requires "the use or carrying of a firearm, knife, or
destructive device that would be punishable by
imprisonment for [a term exceeding one year] if committed
by an adult, that -- (i) has as element the use, attempted
use, or threatened use of physical force against the person
of another . . . ." 18 U.S.C. S 924(e)(2)(B).3 Accordingly, the
District Court considered the juvenile complaint filed in
Family Court, which stated:

       [Wh]ile at Overbrook H.S. . . . the deft. in concert with
       [an]other/others did forcibly take from the
       complainant, Dawud Harrigan, his property, to wit; the
_________________________________________________________________

3. While a conviction under the possession of an instrument of crime
statute can be based on possession of a weapon, it can also be based on
possession of any tool that is used to commit a crime. Possession of a
firearm, knife or other destructive device need not, therefore, necessarily
be proved by the government in order to obtain a conviction under this
statute.
                                 9


        defendant demanded money from complainant, and
        then [at] point of knife did go through the
        complainant’s pocket and did take [$4]0 U.S.C.

868a.

Initially, the government argued that the juvenile
complaint proved that Richardson himself had held a knife
in the course of the robbery. The government retreated from
this position -- and from the categorical approach-- when
the District Court went on to consider the police report,
which stated that the knife allegedly used in the robbery
was held not by Richardson, but by a co-conspirator. While
conceding that Richardson did not himself use the knife,
the government argued that the fact that a co-conspirator
did so was enough. The District Court agreed. Relying on
the juvenile complaint and the police report, the Court held
that even though the latter stated that Richardson himself
had not held or possessed the knife, his participation in a
robbery where his co-conspirator used a knife constituted
a "violent felony . . . involving the use or carrying of a
firearm, knife, or destructive device" as required by 18
U.S.C. S 924(e)(2)(B).

There is no real dispute that the District Court did not
comply with the categorical approach mandated by Taylor;
indeed, neither side urged the categorical approach on the
Court and both sides urged only their version of the facts.
Had the Court applied the categorical approach, however,
all it would have had to do would be to review the
Pennsylvania criminal statutes underlying the juvenile
adjudication, which review would have left no doubt that
none of the offenses which Richardson was found to have
committed had as a necessary element "the use or carrying
of a firearm, knife, or destructive device" required for a
juvenile adjudication to count as a predicate offense under
the ACCA. That, in our view, would have been game, set,
and match.

But even if, under Taylor’s refinement for the "narrow
range of cases," the District Court would be permitted to
make a limited examination beyond the fact of the juvenile
adjudication and the relevant criminal statutes to the
charging document itself, error was committed.4 First, the
_________________________________________________________________

4. We need not decide whether, as the Ninth Circuit seems to have
decided, Taylor’s refinement of the categorical approach is restricted to

                                 10


Court failed to recognize that Taylor only allowed
consideration of the charging document to show "that the
jury necessarily had to find" the elements of a "violent
felony" as defined by section 924(e) in order to convict the
defendant. Taylor, 495 U.S. at 602 (emphasis added).
Clearly, in a return to our "game, set, and match"
conclusion, an enhancement cannot be based solely on an
allegation in the charging document when the conviction for
the charged offense or offenses could have been obtained
without that allegation having been proved. Here, the finder
of fact in Richardson’s juvenile adjudication (presumably a
family court judge) did not "necessarily" have to find that
the 1994 robbery at Overbrook High School involved a knife
in order to find that Richardson committed the robbery and
his other assorted offenses because, as we have said, none
of those offenses has as a necessary element the use of a
knife -- or firearm or destructive device. Stated differently,
there could have been an adjudication of delinquency for
the same offenses without any evidence of a knife. And, of
course, the District Court also erred not only by engaging
in factfinding but by finding as a fact that a knife had been
involved, thus at least implicitly finding that the charging
document was correct, despite the absence of any
transcript of the family court hearing or other documents
which, even if they could be considered, proved that a knife
was actually and necessarily involved.

III.

The daunting practical difficulties and the due process
and Sixth Amendment concerns that surface when a
sentencing court makes factual determinations concerning
a defendant’s prior convictions highlight the necessity of
strict adherence to the categorical approach prescribed by
Taylor. Because it cannot be said that the finder of fact
necessarily found that in 1994 a "violent felony" was
committed by Richardson, nor can it be said that
Richardson himself admitted on the record or that it was
_________________________________________________________________

burglary cases. See United States v. Parker, 5 F.3d 1322, 1326 (9th Cir.
1993).

                                11


otherwise unequivocally established that he had committed
a violent felony, his juvenile adjudication cannot be used to
enhance his sentence under the ACCA. We, therefore, will
vacate Richardson’s sentence and remand for resentencing.5

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

_________________________________________________________________

5. The Court noted in Taylor that if an enhancement is not available
under section 924(e), evidence of the defendant’s actual prior criminal
conduct may be presented by the government to increase his sentence
for the section 922(g)(1) violation under the sentencing guidelines. 495
U.S. at 602 n.10. We, of course, express no opinion as to whether the
government could or should do so here, although we cannot help but
observe that it is anything but clear what Richardson’s "actual prior
criminal conduct" was in connection with the juvenile adjudication.

                                12
