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


7-8-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3222




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                                                         NOT PRECEDENTIAL



                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT

                                   _____________

                                    No. 07-3222
                                   _____________

                       UNITED STATES OF AMERICA

                                            v.

                              GERALD L. SMITH,

                                          Appellant

                                      ________

                 On Appeal from the United States District Court
                     for the Eastern District of Pennsylvania
                              (D.C. No. 07-cr-00201)
                    District Judge: Honorable James T. Giles
                                  ____________

                              Argued June 6, 2008


         Before: AMBRO, CHAGARES, and COWEN, Circuit Judges.

                                  (Filed July 8, 2008)

Robert Epstein (Argued)
Sarah S. Gannett, Esq.
Federal Community Defender Office for the Eastern District of Pennsylvania
Suite 540 West – Curtis Center
601 Walnut Street
Philadelphia, PA 19106
Counsel for Appellant

James R. Pavlock (Argued)
United States Attorney’s Office
615 Chester Street, Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
                                   ____________

                            OPINION OF THE COURT
                                 ____________

CHAGARES, Circuit Judge.

       Gerald Smith appeals the District Court’s order revoking his supervised

release and imposing a sentence of five years’ incarceration. Smith argues that the

District Court erred in ruling that his conviction of unlawful restraint/involuntary

servitude in violation of 18 Pa.C.S. § 2902(a)(2) constituted a “crime of violence”

under U.S.S.G. § 4B1.2 and imposed an unreasonable sentence. We disagree and

will affirm the order of the District Court.


                                           I.


       As we write only for the parties, we do not set out the facts in great detail.

On May 24, 2007, Gerald Smith’s probation officer filed a petition for Violation of

Supervised Release. The District Court held a hearing on the matter, at which the

Government presented evidence that Smith pled guilty in state court to multiple

new offenses, including: (1) two counts of unlawful restraint/involuntary servitude

in violation of 18 Pa.C.S. § 2902(a)(2); (2) two counts of recklessly endangering

another person in violation of 18 Pa.C.S. § 2705; (3) various drug possession

offenses; and (4) various traffic offenses. The Government also presented




                                           2
evidence that Smith had failed to report to his probation officer in June, July, and

August of 2006.


       The District Court revoked Smith’s supervised release based on his

admissions that he committed a crime and failed to report to his probation officer

while on supervised release. The District Court concluded that Smith’s conviction

for unlawful restraint/involuntary servitude constituted a “crime of violence,” and

was therefore a Grade A violation. The court imposed the maximum sentence of

five years imprisonment to be served consecutively with his state sentence.


                                          II.


       We have appellate jurisdiction over the final decision of the District Court

under 28 U.S.C. § 1291 and over the sentence imposed under 18 U.S.C. § 3742(a).

We review de novo whether a particular crime constitutes a “crime of violence.”

United States v. Siegel, 477 F.3d 87, 90 n.1 (3d Cir. 2007). We review sentences

imposed for violations of supervised release for reasonableness. United States v.

Bungar, 478 F.3d 540, 542 (3d Cir. 2007). We must determine whether the

District Court “reasonably applied” the sentencing factors in 18 U.S.C. § 3553(a)

to this case. United States v. Cooper, 437 F.3d 324, 330 (3d Cir. 2006). Our

review of the District Court’s consideration of the § 3553(a) factors is deferential,

“[b]ecause the trial court is in the best position to determine the appropriate




                                           3
sentence in light of the particular circumstances of the case.” United States v.

Parker, 462 F.3d 273, 276 (3d Cir. 2006) (quotation marks omitted).


                                         III.

       Smith argues that the District Court erred in its conclusion that his

conviction for unlawful restraint/involuntary servitude constituted a crime of

violence. We disagree.


       The Sentencing Guidelines define the term “crime of violence” as

          [A]ny offense under federal or state law, punishable by imprisonment
          for a term exceeding one year, that-
          (1) has as an element the use, attempted use, or threatened use of
          physical force against the person of another, or
          (2) . . . or otherwise involves conduct that presents a serious potential
          risk of physical injury to another.


U.S.S.G. § 4B1.2(a) (emphasis added). In order to determine whether a conviction

constitutes a “crime of violence” under the Sentencing Guidelines, we apply the

“formal categorical approach,” under which we “‘must look only to the statutory

definitions of the prior offenses’ and may not ‘consider other evidence concerning

the defendant’s prior crimes,’ including, the ‘particular facts underlying [a]

conviction[].’” Singh v. Ashcroft, 383 F.3d 144, 147-48 (3d Cir. 2004) (quoting

Taylor v. United States, 495 U.S. 575, 600 (1990)); see also United States v.

Otero, 502 F.3d 331, 335 (3d Cir. 2007).




                                           4
       The categorical approach “requires three steps. First, we must establish for

which specific crimes [Smith] was convicted. Second, we must interpret the

necessary elements of those crimes. Third, we must determine whether those

elements necessarily bring the state crime within one of the definitions of [crime of

violence], as we construe them.” United States v. Remoi, 404 F.3d 789, 792-

93 (3d Cir. 2005).

       At the revocation hearing, the Government presented evidence that Smith

was convicted and sentenced under Pennsylvania law of “knowingly . . . hold[ing]

another in a condition of involuntary servitude.” 18 Pa.C.S. § 2902(a)(2). The

Government argued, and the District Court agreed, that the plain language of

Pennsylvania’s unlawful restraint/involuntary servitude statute “connotes . . . the

use of force or some kind of imprisonment that was accomplished by force or

threatened force.” Appendix (App.) 35.

       We conclude that the conviction satisfies the definition set forth in the

second prong of U.S.S.G. § 4B1.2(a). “Knowingly” “hold[ing]” a person

“involuntarily” involves an inherent risk of physical injury. Even if the person is

not held by force, there is a strong likelihood that a person would use force to

resist being held, and physical injury would ensue. See, e.g., United States v.

Luster, 305 F.3d 199, 201-02 (3d Cir. 2002) (determining that the crime of escape

under Pennsylvania law, “by its nature, present[s] a serious potential risk of

physical injury to another”); United States v. Riva, 440 F.3d 722, 723-25 (5th Cir.


                                          5
2006) (explaining that under Texas law, unlawful restraint – “whether

accomplished by force, intimidation, or deception” – creates a serious potential

risk of injury and is therefore a crime of violence under U.S.S.G. § 4B1.2(a)(2)).

       Moreover, Smith’s reliance on Begay v. United States, 128 S. Ct. 1581

(2008), in which the Supreme Court considered the definition of “violent felony”

under the Armed Career Criminal Act, is unavailing. Contrary to Smith’s

contention, his conviction for unlawful restraint/involuntary servitude is not akin

to a conviction for the strict liability offense of driving under the influence of

alcohol.

       Accordingly, we conclude that Smith’s conviction for unlawful restraint/

involuntary servitude constitutes a Grade A violation of supervised release for

sentencing purposes. Given our determination that this conviction constitutes a

crime of violence, we need not consider whether his conviction for reckless

endangerment also constitutes a Grade A violation of supervised release.

                                          IV.


       Smith argues that the District Court’s imposition of a consecutive sentence

of five years was unreasonable in light of his need for rehabilitative and

transitional services and the length of his state sentence. According to Smith, the

District Court failed to give meaningful consideration to the 18 U.S.C. § 3553(a)

factors. We disagree.




                                           6
        To satisfy the reasonableness requirement, the “record must demonstrate

the trial court gave meaningful consideration to the § 3553(a) factors. A district

court need not [however] discuss and make findings as to each of the § 3553(a)

factors.” Parker, 462 F.3d at 276 (citations and quotation marks omitted). The

District Court heard from defense counsel about Smith’s medical condition as well

as his difficulty with the transition back into society after nearly 20 years of

incarceration. Smith also testified as to his need for treatment and asserted that he

was remorseful for his actions. The court, however, rejected Smith’s request for

leniency on the ground that Smith could have sought help from his probation

officer, but instead failed even to report to him.

       The District Court sufficiently stated its reasons for the sentence it imposed

and meaningfully considered the § 3553(a) factors in fashioning a sentence

appropriate to the circumstances of Smith’s case. The sentence was within the

upper end of the advisory guidelines range for a Grade A violation. We conclude

therefore that the sentence was both procedurally and substantively reasonable.

                                          V.

       For all of the foregoing reasons, we will affirm the District Court’s

revocation of supervised release and the sentence imposed.




                                           7
