                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-2-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3114




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 07-3114


                          UNITED STATES OF AMERICA

                                          v.

                          RAYMOND DARRYL HARVEY,
                                              Appellant


                     Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                         (D.C. Criminal No. 06-cr-00348-1)
                     District Judge: Honorable Juan R. Sanchez


                      Submitted Under Third Circuit LAR 34.1(a)
                                 November 21, 2008

            Before: SCIRICA, Chief Judge, RENDELL, Circuit Judge and
             O’CONNOR, Retired Associate Justice, U.S. Supreme Court

                               (Filed: January 2, 2009)




                             OPINION OF THE COURT




      *Honorable Sandra Day O’Connor, retired Associate Justice of the United States
Supreme Court, sitting by designation.
RENDELL, Circuit Judge.

                                     I. Background

       Raymond Harvey was arrested on August 8, 2005, following an investigation in

which an undercover detective and confidential informant (CI) twice met with Harvey at

his home to purchase cocaine. During the first meeting, Harvey sold the detective

one-eighth of an ounce of cocaine and a Smith & Wesson .44 caliber handgun. He also

displayed other guns to the detective. The detective subsequently had the CI contact

Harvey again to inquire about purchasing additional cocaine and viewing a rifle that

Harvey had previously offered to sell. At the second meeting, Harvey sold the detective

seven grams of cocaine and allowed him to take the rifle and provide payment later.

       After Harvey’s arrest, detectives executed search warrants at both his home and the

location from which he retrieved the rifle. At Harvey’s home, the detectives recovered:

a Wesson .414 caliber revolver with ammunition, $5,740.00 in U.S. currency, a scale with

cocaine residue, and other drug paraphernalia. At the second location, the detectives

found: bags containing marijuana, five additional firearms, and a backpack containing

ammunition.

       Harvey was indicted on five counts: two counts of knowingly distributing a

controlled substance, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C); and three counts

of possessing a firearm as a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and



                                            2
924(e). The statutory maximum punishment for the first two counts was 30 years’

imprisonment, and for the latter three counts, a life sentence with a mandatory minimum

of 15 years’ imprisonment. Harvey pleaded guilty to all five counts. He now challenges

the sentence imposed by the District Court.

      Following Harvey’s guilty plea, the District Court convened a sentencing hearing,

but continued it in order to consider additional evidence and argument regarding Harvey’s

prior convictions. At the second sentencing hearing, the District Court imposed a

sentence of 195 months imprisonment, a term of supervised release of six years, a fine of

$1,500, and a special assessment of $500. The District Court found that Harvey was a

“career offender” pursuant to U.S.S.G. § 4B1.1, because his crime involved cocaine and

he had two prior felony convictions for violent crimes. The District Court also found that

Harvey was an “armed career criminal” within the meaning of 18 U.S.C. 924(e) and

U.S.S.G. § 4B1.4(a) because he had been convicted twice of burglary and once of

attempted burglary. Pursuant to U.S.S.G. § 4B1.4(b)(3)(A), Harvey’s offense level was

enhanced because he possessed the firearm in connection with cocaine distribution. The

District Court determined that Harvey’s offense level was 31 with a corresponding

guideline range of 188 to 235 months. The District Court imposed a sentence within the

guideline range: 195 months.

      At the sentencing hearing, the District Court stated that it reviewed the Bills of




                                              3
Information, the criminal complaints filed, and transcripts from the preliminary hearings.1

Based upon its review of those documents, the District Court found that Harvey’s two

burglary convictions and his attempted burglary conviction constituted three violent

felony convictions under the ACCA. Further, the District Court concluded that one

burglary conviction and the one attempted burglary conviction were of dwellings, an

element necessary for Harvey to qualify as a career criminal.

       The informations included the following: the date of the burglary, the name of the

defendant, the address burglarized, the name of the owner of the property, and the

statement that the defendant “feloniously did enter a building or occupied structure . . .

with intent to commit a crime therein . . . [without] being licensed or privileged to enter.”

       The District Court reviewed the preliminary hearing transcript and was satisfied

that Harvey had pleaded guilty to burglarizing and attempting to burglarize dwellings.

The District Court also made a factual finding that the attempted burglary conviction

presented the potential for risk of physical injury, as the neighbor of the complaining

witness saw Harvey attempting to open the window of the home at 1234 North Conestoga

Street, called the police, and stopped Harvey from entering the home.




  1
    The government offered as evidence of prior convictions copies of the state court Bills
of Information, the judgments, the underlying criminal complaints, the police arrest
reports, the preliminary hearing transcripts, and with respect to the one burglary
conviction of 506 N. 55th Street only, a written guilty plea colloquy.

                                              4
       Harvey argues that the District Court erred by improperly enhancing his sentence

on the basis of these three prior convictions. We have appellate jurisdiction over this case

pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. For the reasons stated below, we

will affirm the sentence imposed by the District Court.

                                      II. Discussion

       Harvey argues on appeal that the District Court impermissibly relied upon the

preliminary hearing transcripts to determine that he is an armed career criminal pursuant

to 18 U.S.C.A. § 924(e), in violation of Taylor v. United States, 495 U.S. 575, 599 (1990)

and, as applied to prior convictions resulting from guilty pleas, Shepard v. United States,

544 U.S. 13 (2005). This Court exercises plenary review over whether the District Court

complied with the requirements of Taylor. United States v. Richardson, 313 F.3d 121,

124-25 (3d Cir. 2002).

       To qualify for the enhancement, the Government must prove that Harvey was

convicted of three prior “violent crimes.” Therefore, in Harvey’s case, the Government

must establish that Harvey’s two burglary convictions were of buildings or enclosed

spaces, or what the Supreme Court refers to as “generic burglary.” 2 See Shepard, 544

U.S. 13, 16-17 (2005) (citing Taylor, 495 U.S. 575, 599 (1990)). The Government also


  2
   “Occupied structure,” as defined in Pennsylvania’s burglary statute, punishes unlawful
entry into “any structure, vehicle or place adapted for overnight accommodation of
persons, or for carrying on business therein, whether or not a person is actually present.”
18 Pa. C.S.A. § 3501. Therefore, the statute criminalizes conduct beyond generic
burglary. See United States v. Bennett, 100 F.3d 1105, 1109 (3d Cir. 1996).

                                             5
must demonstrate that Harvey’s attempted burglary conviction presented a serious

potential risk of physical injury to another. See James v. United States, 550 U.S. 192, 127

S. Ct. 1586, 1591 (2007) (courts must determine whether the elements of attempted

burglary under the relevant state law justify including attempted burglary as a violent

felony under the residual provision of the ACCA, 18 U.S.C. § 924(e)(2)(B)(ii)). Harvey

argues on appeal that his two prior convictions for burglary did not satisfy the standard

for generic burglary, as the Government did not prove sufficiently that the prior

convictions involved buildings, and that the one prior conviction for attempted burglary

did not present a serious potential risk of physical injury to another.

       A.     The sentencing court’s use of preliminary hearing transcripts does not
              offend Shepard.

              In Shepard, 544 U.S. 13, 26 (2005), the Court held that:
              under the ACCA to determine whether a plea of guilty to
              burglary defined by a nongeneric statute necessarily admitted
              elements of the generic offense is limited to the terms of the
              charging document, the terms of a plea agreement or
              transcript of colloquy between judge and defendant in which
              the factual basis for the plea was confirmed by the defendant,
              or to some comparable judicial record of this information.

       The Government argues that preliminary hearing transcripts fall within the scope

of the Shepard definition, stating:

              Under the rules of criminal procedure, a preliminary hearing
              is conducted by a magistrate following the filing of a criminal
              complaint but before a defendant can be held for court. At
              that hearing, the Commonwealth bears the burden of putting
              forward a prima facie case of the defendant’s guilt, i.e., it
              must establish that there is some evidence as to each element

                                              6
              of the offense that would be sufficient to establish the crime
              as a matter of law. See Pa. R. Crim. P. 543. . . . If the
              Commonwealth cannot carry its burden, then the complaint
              must be discharged. Pa. R. Crim. P. 543(B). ***

              After the filing of a complaint charging Harvey with burglary,
              a preliminary hearing was held at which the Commonwealth
              was required to put forward a prima facie case that Harvey
              had committed burglary . . . In each case, the Commonwealth
              satisfied [the element that the property burglarized was an
              “occupied structure”] by putting forth evidence establishing
              that the “occupied structure” in question was a building.

(Gov’t Br. 27-28). At the preliminary hearings, Harvey did not contest the fact that the

property in any of the cases was any other type of “occupied structure.” 3 As the charges

survived the preliminary hearing, argues the Government, the magistrate must have

concluded that the Government sufficiently established a prima facie case of all the

elements of burglary. Since that necessarily includes the element of “occupied structure,”

and the only evidence put forth as to that element was that each of the occupied structures

in question was a building, then the crimes for which Harvey pleaded guilty were generic

burglary.

       Harvey argues that the preliminary hearing transcripts are akin to the

impermissible documents evaluated in Shepard, a police report and complaint application.

Under Harvey’s interpretation of Shepard, the only documents that the District Court was




  3
   Nor does Harvey now dispute that any of the burglaries involved a building; instead,
he argues that the Shepard-permissible documents (namely, the informations and
the one plea colloquy) do not state that he burglarized a building.

                                             7
permitted to use to determine whether Harvey had pleaded guilty to generic burglary were

the informations and the one written plea colloquy. As these documents do not explicate

that Harvey burglarized and attempted to burglarize the dwellings of the owners listed on

the informations, he argues that he did not adopt that fact when he pled guilty.

       Not only is Harvey reading Shepard too narrowly, he is ignoring his own guilty

plea. The sentencing court must ascertain “whether the plea had ‘necessarily’ rested on

the fact identifying the burglary as generic . . ..” Shepard, 544 U.S. at 21 (quoting Taylor,

495 U.S. at 602). It must do so based on a “judicial record.” A police report is nothing

but one version of the facts. The guilty plea to the information, taken together with the

preliminary hearing transcript, is a reliable indicator of the nature of the crime. As the

Government argues, Harvey’s argument is tantamount to his urging that he committed a

crime different from that to which he pleaded guilty. We are satisfied that the

Government met its burden and that the documents reviewed by the sentencing court did

establish that Harvey pleaded guilty to generic burglary.

       B.     Harvey’s prior conviction for attempted burglary qualifies as a violent
              felony under the ACCA.

       Under Pennsylvania law, a person is guilty of attempt if, “with intent to commit a

specific crime, he does any act which constitutes a substantial step toward the

commission of that crime.” 18 Pa.C.S.A. § 901(a). An attempted burglary offense

qualifies as an ACCA predicate “violent felony” if the state punishes behavior that

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

                                              8
18 U.S.C.A. § 924(e)(2)(B)(ii); see also James, 550 U.S. 192, 127 S. Ct. at 1595

(evaluating the Florida attempt statute and finding that attempted burglary may be a

violent felony under 18 U.S.C. § 924(e)(2)(B)(ii), as “[i]nterrupting an intruder at the

doorstep while the would-be burglar is attempting a break-in creates a risk of violent

confrontation comparable to that posed by finding him inside the structure itself”.

       Accordingly, the elements of the offense of attempted burglary under Pennsylvania

law must equate to “conduct that presents a serious potential risk of physical injury to

another.” 4 In James, 550 U.S. 192, 127 S. Ct. at 1594, the Supreme Court held that the

Florida attempt law requiring an “overt act directed toward unlawfully entering or

remaining in” building qualified as a violent felony because it presented a serious

potential risk of physical injury to another. Similarly, in United States v. O’Brien, 972

F.2d 47, 51 (3d Cir. 1992), we held that the Massachusetts attempt statute criminalizing

“any act” toward commission of breaking and entering satisfied ACCA’s requirements.

In O’Brien, we relied upon United States v. Payne, 966 F.2d 4, 8 (1st Cir. 1992), in which

the First Circuit Court of Appeals stated that:

                    So far as the risk of injury is concerned, we see little
                    distinction between an attempted breaking and entering
                    ... and a completed breaking and entering ... In all of
                    these cases the risk of injury arises, not from the
                    completion of the break-in, but rather from the


  4
    Pursuant to Taylor, a court must consider the elements of the offense as defined by the
relevant state law without inquiring into the particular offender’s actual conduct. See
James, 550 U.S. 192, 127 S. Ct. at 1594.

                                                  9
                    possibility that some innocent party may appear on the
                    scene while the break-in is occurring. This is just as
                    likely to happen before the defendant succeeds in
                    breaking in as after. Indeed, the possibility may be at its
                    peak while the defendant is still outside trying to break
                    in, as that is when he is likely to be making noise and
                    exposed to the public view.

972 F.2d at 51.

       Harvey argues that Pennsylvania law is different from the laws of Florida and

Massachusetts as it does not require any act directed toward the commission of burglary,

but criminalizes mere preparatory conduct. To the contrary, the Pennsylvania statute

requires an “act” that is a “substantial step” toward commission of the offense, which is

similar to the requirements of the Florida and Massachusetts attempt statutes. Several

statutes that define attempted burglary in similar terms have been found to categorically

describe “violent felonies.” See, e.g., United States v. Lane, 909 F.2d 895, 903 (6th Cir.

1990) (Ohio); United States. v. Custis, 988 F.2d 1355, 1363-64 (4th Cir. 1993)

(Maryland); United States v. Thomas, 2 F.3d 79, 80 (4th Cir. 1993) (New Jersey). In

Commonwealth v. Melnyczenko, 619 A.2d 719, 720 (Pa. Super. Ct. 1992), the

Pennsylvania Superior Court reasoned that a defendant’s walking through backyards at

night “dressed in dark clothing and carrying a heavy gauge screwdriver, a ten-inch pry

bar, two flashlights, a knit cap, and a pair of gloves” posed a risk of confrontation

comparable to an intruder found at the doorstep. See James, 550 U.S. 192, 127 S. Ct. at

1600. The proximity to entry does not diminish the threat to third parties. Thus, we find



                                             10
that Harvey’s prior conviction for attempted burglary is a “violent felony” for purposes of

the ACCA, as it involved conduct that presented a serious potential risk of physical injury

to another.

       Harvey’s final two arguments can be disposed of summarily. As he did not object

in the District Court, we review for plain error. We find that Harvey has two qualifying

felony convictions under the career offender guideline, regardless of whether his

conviction for attempted burglary was stale. We also find that the District Court did not

plainly err in finding that Harvey had possessed a firearm in connection with his drug

offenses as Harvey sold a handgun and cocaine to an undercover detective in his home,

and, during the same transaction, showed him other firearms. Furthermore, the detectives

uncovered an additional firearm and ammunition in Harvey’s home where he twice sold

cocaine to the undercover detective. It was not plain error to conclude that his access to

guns and ammunition had the potential to facilitate his drug offense. See United States v.

Loney, 219 F.3d 281, 288 (3d Cir. 2000) (“[t]he immediate availability of the gun while

the defendant commits such a crime – that is . . . the gun's ‘potential of facilitating’ such

an in-person felony offense – is sufficient to establish a relationship between the gun

possession and the other offense”) (quoting Smith v. United States, 508 U.S. 223, 238

(1993)); see also United States v. Navarro, 476 F.3d 188, 197 (3d Cir. 2007) (defendant

who sold drugs for guns qualified for enhancement because “the possession of a firearm

facilitates a drug transaction when that firearm serves as an item of trade”).


                                              11
For the reasons set forth above, we will AFFIRM the District Court’s Judgment and

Commitment Order on all grounds.




                                          12
