                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                ______________

                                      No. 10-1302
                                    ______________

                           UNITED STATES OF AMERICA

                                           v.

                               ANTOINE CHAMBERS,
                                   a/k/a “Twiz”

                                        Antoine Chambers,
                                                    Appellant
                                    ______________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                          (D.C. Crim. No. 09-cr-00133-001)
                    Honorable William W. Caldwell, District Judge
                                   ______________

                       Submitted under Third Circuit LAR 34.1(a)
                                  November 18, 2010

           BEFORE: AMBRO, FISHER, and GREENBERG, Circuit Judges

                              (Filed: November 22, 2010)
                                   ______________

                              OPINION OF THE COURT
                                  ______________

GREENBERG, Circuit Judge.

      This matter comes on before this Court on an appeal from a judgment of

conviction and sentence entered in the District Court on January 14, 2009, predicated on
appellant Antoine Chambers’ plea of guilty to an information charging him with use of a

communication facility to facilitate drug trafficking in violation of 21 U.S.C. § 843(b).

The information replaced a two-count indictment charging Chambers with conspiracy to

distribute heroin in violation of 21 U.S.C. § 846 and the unlawful distribution and

possession of heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1). The

District Court sentenced Chambers as a career offender to a custodial term of 46 months

at the top of his 37- to 46-month guidelines range, to be followed by a three-year term of

supervised release. In addition, it imposed a $500 fine and a $100 special assessment.

The judgment of conviction and sentence, however, also dismissed the indictment.

       Chambers’ first contention on this appeal is that the District Court erred in

classifying him as a career offender, thereby enhancing his custodial guidelines range

from the 15- to 21-month period that it would have been without the career offender

designation. This contention centers on the circumstance that one of the two underlying

convictions needed for the career offender designation was a state conviction based on a

guilty plea to conspiracy to commit a burglary. Chambers contends that the District

Court should not have treated this conviction as a crime of violence for career offender

purposes. In this regard, Chambers argues that the Court erred “by failing to consider the

facts underlying the burglary conviction”, appellant’s br. at 13, and that those facts “were

more consistent with the [nonviolent] crime of receiving stolen property,” id., than

burglary and thus could not support a finding that the offense could be used as a predicate

offense in a career offender determination. Chambers’ second contention is that the

District Court acted unreasonably in imposing a sentence of 46 months because it failed

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to address relevant sentencing factors under 18 U.S.C. § 3553(a) that should have

resulted in it imposing a lesser sentence.

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

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. Inasmuch as the District

Court rejected Chambers’ first contention on the legal basis that it could not look at the

facts underlying the burglary conviction in making its career offender determination, we

will exercise plenary review of that issue. See United States v. Lennon, 372 F.3d 535,

538 (3d Cir. 2004); United States v. Mackins, 218 F.3d 263, 266 (3d Cir. 2000). We will

consider Chambers’ second contention, which involves consideration of the procedural

and substantive reasonableness of the sentence, on an abuse of discretion basis. See

United States v. Merced, 603 F.3d 203, 214 (3d Cir. 2010); United States v. Levinson,

543 F.3d 190, 195 (3d Cir. 2008).

       There is no question that viewing the state burglary conviction solely on the basis

of its statutory elements and taking into consideration that, as Chambers explains in his

brief, the burglary was of a residence, the burglary, and thus the conspiracy to commit it,

was a crime of violence for career offender purposes. U.S.S.G. § 4B1.1(a); U.S.S.G. §

4B1.2. Though U.S.S.G. § 4A1.3(b)(1) provides that if an offender’s criminal history

category substantially over-represents the seriousness of his criminal history or the

likelihood that he will commit other crimes, a downward departure may be warranted,

such a departure would not change the fact that a conviction for a crime of violence in the

offender’s history would remain a predicate offense for a career offender determination.

After all, a departure from a range does not require a modification of the range.

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Chambers nevertheless contends that, based on the actual facts, his conspiracy offense

“should have been classified as receiving stolen property.” Appellant’s br. at 12. Such

an offense would not be for a crime of violence and thus would not be a predicate career

offender underlying offense. But it is perfectly clear that the District Court correctly used

the categorical approach as our precedents required it to do in its treatment of the state

burglary conviction. See United States v. Siegel, 477 F.3d 87, 90-91 (3d Cir. 2007).

Thus, we reject Chambers’ first contention.

       We have considered Chambers’ second contention and see no basis on which to

sustain it. The contention does not require protracted discussion, as the District Court did

not abuse its discretion procedurally or substantively in imposing a sentence within the

appropriately calculated guidelines range.

       For the foregoing reasons the judgment of conviction and sentence entered on

January 14, 2007, will be affirmed.




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