                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-15-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4973




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                                               NOT PRECEDENTIAL

   IN THE UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT


               NOS. 05-4973 and 06-2388


           UNITED STATES OF AMERICA

                           v.

                  PERRY SMITH
               Appellant in No. 05-4973




           UNITED STATES OF AMERICA

                           v.

                KEVIN CLEVELAND
               Appellant in No. 06-2388




     On Appeal From the United States District Court
         For the Eastern District of Pennsylvania
(D.C. Crim. Action Nos. 04-cr-00472-1 and 04-cr-00472-2)
          District Judge: Hon. Gene E.K. Pratter


    Submitted Pursuant to Third Circuit LAR 34.1(a)
                   October 26, 2007

    BEFORE: FISHER, STAPLETON and COWEN,
                 Circuit Judges

          (Opinion Filed: November 15, 2007)
                               OPINION OF THE COURT




STAPLETON, Circuit Judge:

              Following a trial on several counts relating to an armed robbery of

Philadelphia’s Shernoff Salad Company, Perry Smith and Kevin Cleveland were each

convicted of (1) one count of conspiracy to commit a robbery that interfered with

interstate commerce, in violation of 18 U.S.C. § 1951(a); (2) one count of committing a

robbery that interfered with interstate commerce, in violation of 18 U.S.C. § 1951(a); and

(3) one count of using, or aiding and abetting the use of, a firearm during and a crime of

violence, in violation of 18 U.S.C. § 924(c)(1)(A). Cleveland was also convicted of one

count of taking a motor vehicle by force or violence, in violation of 18 U.S.C. § 2119;

and of one count of possession of a firearm during and in relation to a crime of violence,

in violation of 18 U.S.C. § 924(c)(1)(A). Smith and Cleveland were sentenced to 260 and

528 months of incarceration, respectively, as well as subsequent periods of supervised

release, fines and restitution. They now appeal.

                                             I.

              Because we write only for the parties who are familiar with the factual

context and procedural history of the case, we set forth only those facts necessary to our

                                             2
analysis.

              On August 13, 2003, at a little past 10 p.m., Kevin Cleveland stole Terry

Muchison’s car at gun point, and later in the evening, transferred Muchison’s license

plates to a Grey Oldsmobile.

              The next morning, at approximately 10.30 a.m., Smith and Cleveland

entered the offices of the Shernoff Salad Company, brandished guns, and demanded

money from Jeffrey Shernoff. In response, he turned over the company’s main cash box

and then took the pair to a nearby office where another cashbox was stored.

              Heidi Shernoff, Mr. Shernoff’s cousin and secretary, had been in the

bathroom connected to the office where the second cash box was kept when the robbers

arrived. She had not heard any commotion, so when she left the bathroom, she was

surprised to see the robbery occurring. She yelled to alert her co-workers, and in

response, Cleveland drew his pistol, and said, “This is for you.” Then Cleveland shot her

on his way out of the office. Once the defendants fled in the Oldsmobile disguised by

Muchison’s plates, someone at Shernoff’s called the police and reported the robbery.

              After piecing together a description of the robbers, police broadcasted this

information over their radio network. Officers on patrol spotted the Olds traveling

towards the Lakes, an area park, and relayed the information. At the Lakes, other officers

pursued the suspects into the park, where they apprehended Smith and Cleveland. After

being escorted to the police station, the pair was processed, booked, and offered the



                                             3
chance to make a statement. Although Cleveland declined, Smith opted to do so, telling

officers that he had been at Shernoff’s that day, though he did not participate in the

robbery.

              The pair was subsequently tried together, convicted, and sentenced on the

charges listed above.

                                             II.

              Smith and Cleveland appeal their convictions and sentences on a myriad of

grounds, and this Court has appellate jurisdiction over these timely appeals pursuant to 28

U.S.C. § 1291 (judgments of conviction), and 18 U.S.C. § 3742 (sentencing). Save for a

single claim by Cleveland, we find no merit in any of them. We first address the

challenges to their convictions.

                                            A.

              Smith argues that he was unduly prejudiced by the joint trial because

Muchison, the car-jacking victim, testified that Cleveland brandished a gun, which could

have led the jury to “infer[] that Smith had a firearm since he was in the company of a

man who several days prior . . . similarly robbed” someone else.

              We disagree. First, the jury was instructed not to hold this evidence against

Smith, an instruction that they are presumed to have followed. United States v. Hakim,

344 F.3d 324, 326 (3d Cir. 2003). Second, as this Court has repeatedly said, “neither a

disparity in evidence nor the introduction of evidence more damaging to one defendant



                                              4
than another entitles the seemingly less culpable defendant to severance.” United States

v. Sebetich, 776 F.2d 412, 427 (3d Cir. 1985) (quoting United States v. Dickens, 695 F.2d

765, 778-79 (3d Cir.1983)). Finally, third, the evidence would have been admissible

against Smith in a separate trial as evidence of an overt act in furtherance of the

conspiracy. See United States v. Hart, 273 F.3d 363, 370 (3d Cir. 2001).

              On the other hand, Cleveland contends that the joint trial caused a Bruton

violation, because Smith’s out of court statement was admitted into his trial. See Bruton

v. United States, 391 U.S. 123, 125 (1968) (prohibiting the admission of a co-defendant’s

confession at the other’s trial, if the confessor is not subject to cross-examination).

Again, we disagree, because Smith’s statement was properly redacted and was

accordingly admissible under Bruton. See, e.g., Gray v. Maryland, 523 U.S. 185, 196-97

(1998). Further, the subsequent admission of Smith’s unredacted statement after he

testified did not implicate Bruton because Smith had taken the stand and was subject to

cross-examination on its contents.

              Taking a different tact, Cleveland claims that Smith’s decision to take the

stand during their joint trial violated his right to remain silent because the jury was left to

wonder why he did not follow suit. However, in reaching his conclusion, Cleveland

overlooks the fact that Smith could have testified against him whether or not the two were

tried together, since Smith’s testimony was relevant to Cleveland’s case. Zafiro v. United

States, 506 U.S. 534, 540 (1993) (“A defendant normally would not be entitled to exclude



                                               5
the testimony of a former codefendant if the district court did sever their trials, and we see

no reason why relevant and competent testimony would be prejudicial merely because the

witness is also a codefendant.”). Accordingly, the fact that Smith testified at their joint

trial is no basis for reversal.

               Finally, Smith and Cleveland both argue that, because they made off with

very little money from Shernoff’s (a debatable point), the event’s de minimis effect on

interstate commerce could not justify a conviction under the Hobbs Act.

               To the contrary, the Hobbs Act applies to precisely these kind of robberies.

See, e.g., United States v. Urban, 404 F.3d 754, 766-67 (3d Cir. 2005); United States v.

Mazzei, 521 F.2d 639, 642 (3d Cir. 1975). In fact, we have held that a robbery netting

approximately $50.00 from a Virgin Islands bar that sold Heineken and Miller beer, both

of which were shipped in from the mainland United States, had a sufficient nexus with

interstate commerce to permit the application of the Hobbs Act. United States v.

Haywood, 363 F.3d 200, 202, 210 (3d Cir. 2004).1

   1
    Smith and Cleveland make a number of additional meritless claims related to their
convictions. Specifically, Cleveland objects to certain offhand remarks he says
implicated his right to remain silent, as well as certain jury instructions he believed left
the jurors confused. Finally, he objects to Muchison’s in-court identification, claiming it
was tainted. In turn, Smith claims that there was insufficient evidence to support his
convictions on the weapons and conspiracy counts, and that his prior statement to police
should have been suppressed since it was made under duress. Further, both argue that
they were arrested without probable cause, that they were denied a speedy trial, that the
District Court constructively amended the indictment in its instructions to the jury, that
the eyewitness identifications were tainted, and that certain evidence was admitted in
violation of the best evidence rule. We have reviewed all of these claims and find them to
be without merit.

                                              6
                                              B.

               We now turn to Smith and Cleveland’s challenges to the sentencing

proceedings, which are also, for the most part, meritless.

               Smith argues that the District Court erred in enhancing the Guidelines

sentence six levels after finding that Ms. Shernoff suffered a permanent or

life-threatening bodily injury, as defined by the U.S. S ENTENCING G UIDELINES M ANUAL §

2B3.1(b)(3).

               To apply the Guidelines, the District Court had to determine (1) whether the

shooting resulted in a “Serious bodily injury” to Ms. Shernoff, i.e. whether she was left in

“extreme physical pain,” suffered “the protracted impairment of a function of a bodily

member, organ, or mental faculty,” or required “medical intervention such as surgery,

hospitalization, or physical rehabilitation,” Id. at § 1B1.1, Application Note (L), or,

alternatively, (2) whether Ms. Shernoff suffered a “Permanent or Life-Threatening Bodily

Injury,” i.e. whether she faced “a substantial risk of death,” or suffered the “loss or

substantial impairment of the function of a bodily member, organ, or mental faculty that is

likely to be permanent; or an obvious disfigurement that is likely to be permanent.” Id. at

§ 1B1.1, Application Note (J).

               We review the District Court’s determination on this matter for clear error,

and correspondingly will not reverse it unless we are “left with the definite and firm

conviction that a mistake has been committed” based on the record as a whole. United



                                              7
States v. Grier, 475 F.3d 556, 571 (3d Cir. 2007) (quoting Concrete Pipe & Prods. of

Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602, 622 (1993)).

              Here, Cleveland’s shot tore a hole in Ms. Shernoff’s uterus and took a

substantial portion of her small intestine. Obviously, this shooting left Ms. Shernoff

gravely injured, and accordingly, we cannot conclude based on the record before us that

the District Court’s decision to classify the injury as permanent or life-threatening was

clearly erroneous.

              We similarly find no merit in Smith and Cleveland’s claims that their

sentences were unreasonable, and that the District Court’s factfinding by a preponderance

standard was in error.

              Finally, Cleveland contests the District Court’s finding that he had “at least

two prior felony convictions [for] crime[s] of violence” and is correspondingly a career

offender. See U.S. S ENTENCING G UIDELINES M ANUAL § 4B1.1(a). Cleveland concedes

that he has been convicted of aggravated assault, which was a crime of violence, and also

of criminal conspiracy. However, he points out that conspiracy is not considered a crime

of violence for sentencing purposes unless the conspiracy was predicated on such a crime,

and Cleveland argues that the District Court’s conclusion that his conspiracy conviction

pertained to a crime of violence was clearly erroneous. E.g., Id. at § 4B1.2 Application

Note 1.

              We agree. At sentencing, the government represented to the Court that the



                                             8
conspiracy charge had only four possible objects: three were crimes of violence, though

the fourth, possession of an instrument of a crime, was not. Further, all parties agreed

that, under the relevant law, a conspiracy conviction carried the same sentence as the

most serious underlying offense, and possession of an instrument of a crime could yield –

at worst – five years. Considering these facts, the District Court reasoned that because

Cleveland received a five to ten year sentence for his involvement in the conspiracy, he

could not have been convicted only of conspiring to possess an instrument of a crime, and

must have been convicted of a conspiring to commit a crime of violence.

              However, the District Court erred in its reasoning because it overlooked the

fact that Cleveland was also charged with conspiring to violate the Uniform Firearms Act,

which included non-violent crimes meriting the same five to ten year sentence Cleveland

received. See 18 Pa.C.S.A. § 6105. So, had his conspiracy conviction been predicated on

a Uniform Firearms Act charge, which is possible, his five to ten year sentence may not

have been indicative of a crime of violence.

              The District Court erred in classifying Cleveland as a career offender.

Consequently, we will vacate Cleveland’s sentence, and remand the matter for

resentencing only. However, this does not preclude the District Court from resentencing

Cleveland as a career offender if it is able, upon further consideration and/or development

of the record, to determine that Cleveland’s conspiracy conviction pertained to a crime of

violence. See generally United States v. Siegel, 477 F.3d 87 (3d Cir. 2007) (reviewing



                                               9
permissible sources of information for use in applying U.S. Sentencing Guideline §

4B1.2).

                                           III.

             The judgment of the District Court in No. 05-4973 will be affirmed. We

will vacate the judgement of the District Court in No. 06-2388 and remand that matter for

resentencing only.




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