                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-21-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3922




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                     No. 06-3922


                          UNITED STATES OF AMERICA

                                          v.

                       ROMEL TUCKER, a/k/a Kenneth Dixon
                                            Appellant


            APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                          (D.C. Crim. No. 06-cr-00013-1)
                  District Judge: The Honorable John R. Padova


                      Submitted Under Third Circuit LAR 34.1(a)
                                  January 14, 2008


               Before: BARRY, CHAGARES and ROTH, Circuit Judges

                          (Opinion Filed: February 21, 2008)


                                      OPINION




BARRY, Circuit Judge

      Appellant Romel Tucker pled guilty to possession of a firearm by a felon in

violation of 18 U.S.C. § 922(g)(1), and was sentenced to 84 months imprisonment and
three years supervised release. He appeals his sentence, arguing that: (1) the District

Court erred in concluding that his previous convictions for conspiracy to commit robbery

and simple assault were “crimes of violence” under U.S.S.G. §§ 2K2.1(a)(2) and

4B1.2(a); and (2) his sentence is unreasonable. We will affirm.

                                              I.

       Because we write only for the parties, familiarity with the facts is presumed, and

we include only those facts that are relevant to our analysis.

       On November 3, 2005, Tucker was stopped by Philadelphia police for a traffic

infraction. As officers approached his vehicle, he reached out the driver’s side window

and dropped a handgun on the street. He was placed under arrest, and a federal grand

jury subsequently returned an indictment charging him with possession of a firearm by a

felon in violation of 18 U.S.C. § 922(g)(1). He pled guilty and, following a hearing on

August 16, 2006, the District Court found that his previous convictions for conspiracy to

commit robbery and simple assault constituted “crimes of violence” under U.S.S.G. §§

2K2.1(a)(2) and 4B1.2(a), resulting in a Sentencing Guidelines range of 77-96 months.

As noted above, the District Court imposed a sentence of 84 months imprisonment and

three years supervised release. Tucker filed a timely notice of appeal.

                                            II.

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. Our jurisdiction

is premised on 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We “exercise plenary review


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over a district court’s interpretation of the Guidelines.” United States v. Grier, 475 F.3d

556, 570 (3d Cir. 2007). “The proper construction of the term ‘crime of violence’ is a

question of law, and our review is plenary.” United States v. McQuilkin, 97 F.3d 723,

727 (3d Cir. 1996).

                                            III.

       In relevant part, the Guidelines define a “crime of violence” as any offense

punishable by imprisonment for more than one year that “has as an element the use,

attempted use, or threatened use of physical force against the person of another,”

U.S.S.G. § 4B1.2(a)(1), as well as conspiracy to commit any such offense. Id. at

Application Note 1. The Guidelines explicitly identify robbery as a crime of violence. Id.

       Tucker claims that his conviction for conspiracy to commit robbery is not a crime

of violence because he was convicted under a Pennsylvania statute proscribing

“physically tak[ing] or remov[ing] property from the person of another by force however

slight.” 18 Pa. Cons. Stat. § 3701. Essentially, Tucker argues that the minimal amount of

force required – “however slight” – under the statute takes his conviction outside the

definition of crime of violence. This argument lacks merit. First, on its face, §

4B1.2(a)(1) includes all prior offenses punishable by imprisonment for more than one

year in which the use of force is an element, and makes no distinctions based on the

amount of force used. Moreover, we have held that a prior Pennsylvania robbery

conviction under § 3701 “is necessarily a crime of violence,”United States v. McAllister,


                                             3
927 F.2d 136, 139 n.4 (3d Cir. 1991), as is a “prior [Pennsylvania] conviction for

conspiracy to commit robbery.” United States v. Preston, 910 F.2d 81, 87 (3d Cir. 1990).

       Tucker also claims that his conviction for simple assault is not a crime of violence

because it is designated a misdemeanor under Pennsylvania law. As Tucker himself

acknowledges, however, his argument is foreclosed by United States v. Dorsey, 174 F.3d

331 (3d Cir. 1999), in which we held that simple assault in Pennsylvania, notwithstanding

its misdemeanor status in that state, is a crime of violence under U.S.S.G. § 4B1.2(a). See

Dorsey, 174 F.3d at 333. To the extent that Tucker asks us to reconsider Dorsey, we

decline to do so.

       Finally, Tucker argues that his sentence is unreasonable because, assuming “these

prior convictions are ‘crimes of violence’, they barely meet the threshold.” (Appellant’s

Br. 10-11.) “The touchstone of ‘reasonableness’ is whether the record as a whole reflects

rational and meaningful consideration of the factors enumerated in 18 U.S.C. § 3553(a).”

Grier, 475 F.3d at 571. The record reflects that the District Court, having adequately

considered those factors and properly calculated the Guidelines range (based on its

finding, with which we agree, that Tucker’s convictions constitute crimes of violence),

imposed a sentence that fell within that range. There is no basis to conclude that the

sentence was unreasonable.

                                            IV.

       For the foregoing reasons, we will affirm the judgment of the District Court.


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