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


4-11-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5363




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"USA v. Corle" (2007). 2007 Decisions. Paper 1327.
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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 05-5363


                            UNITED STATES OF AMERICA

                                             v.

                                  TERRY LEE CORLE,
                                              Appellant


             APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE WESTERN DISTRICT OF PENNSYLVANIA
                            D.C. Crim. No. 04-cr-00030J
                  District Judge: The Honorable Kim R. Gibson


                       Submitted Under Third Circuit LAR 34.1(a)
                                   March 27, 2007


             Before: RENDELL, BARRY, and CHAGARES, Circuit Judges

                              (Opinion Filed: April 11, 2007)


                                        OPINION



BARRY, Circuit Judge

       Appellant, Terry Lee Corle, argues that the District Court incorrectly ruled that his

1981 conviction for theft by receiving stolen property, in violation of section 3925 of the
Pennsylvania Crimes Code, is a predicate conviction under 18 U.S.C. § 922(g)(1). For

the following reasons, we will affirm the judgment of the District Court.

                                             I.

       On October 5, 2004, a federal grand jury returned a one-count indictment charging

Corle with being a felon in possession of firearms in violation of 18 U.S.C. § 922(g)(1).

According to the indictment, the felony underlying the charge was a 1981 Pennsylvania

conviction for theft by receiving stolen property.

       On January 28, 1981, Corle was indicted in the Court of Common Pleas of

Bedford County for violating section 3925(a) of the Pennsylvania Crimes Code. That

indictment charged that Corle “intentionally receive[d], retain[ed], or dispose[d] of

movable property of another knowing that it had been stolen, or believing it had probably

been stolen, and did so without the intent to restore the property to the owner.” (App. at

13.) A criminal complaint filed that day explained that the property at issue was a 1980

Dodge Omni and listed the offense as a felony of the third degree. The Commonwealth, at

the request of Corle, filed a bill of particulars which contained additional information

regarding the stolen vehicle.

       Subsequently, Corle and the Commonwealth entered into a plea agreement.

Pursuant to that agreement, Corle agreed to plead guilty to “Theft by receiving property,

Section 3925(a) of the Crimes Code of Pennsylvania; a felony of the third degree,” and

the Commonwealth agreed to recommend a non-incarceratory sentence. (App. at 62.)

Corle pleaded guilty and, on June 1, 1981, was sentenced to a term of six months

                                             2
probation and a $25 fine.

       Believing that this conviction was not a predicate conviction for purposes of 18

U.S.C. § 922(g)(1), Corle filed a motion to dismiss the 2004 federal indictment. By

Memorandum Opinion and Order dated July 29, 2005, the District Court denied the

motion. On September 9, 2005, Corle entered a conditional plea of guilty pursuant to

Rule 11(a)(2) of the Federal Rules of Criminal Procedure, the terms of which allowed him

to appeal the conclusion of the District Court that his 1981 conviction was a predicate

conviction under § 922(g)(1).

       We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review is plenary. See

United States v. Leuschen, 395 F.3d 155, 157 (3d Cir. 2005).

                                              II.

       Among the elements the government must prove beyond a reasonable doubt to

secure a conviction under § 922(g)(1) is that the defendant “had previously been

convicted of a crime punishable by imprisonment for a term exceeding one year,” United

States v. Dodd, 225 F.3d 340, 344 (3d Cir. 2000), a term which excludes misdemeanors

under state law that are “punishable by a term of imprisonment of two years or less,” 18

U.S.C. § 921(a)(20). In order to determine if a conviction under state law meets this

definition, a court must follow “the law of the jurisdiction in which the proceedings were

held,” § 921(a)(20), but it may not inquire into the validity of or collaterally review that

conviction. See Leuschen, 395 F.3d at 157–58.

       Corle argues that, pursuant to section 3903 of the Crimes Code, his 1981

                                              3
conviction must be considered a misdemeanor of the third degree, which, being

punishable by imprisonment of not more than one year, see 18 Pa. Cons. Stat. § 106(b),

cannot serve as a predicate conviction under § 922(g)(1). According to Corle, because

the indictment did not list the grade of the offense or facts sufficient to calculate the

grade, the fact that the criminal complaint, bill of particulars, and plea agreement all

included the grade of the offense, or facts sufficient to definitively determine its grade,1 is

“of no consequence or import” because he could not “plead guilty to an offense to which

he ha[d] not been charged by indictment irrespective of what information [he] may [have]

possess[ed] or have been appraised of during a plea colloquy.” Appellant’s Br. at 18. We

disagree.

       Corle’s argument is, for the most part, foreclosed by our decision in Leuschen, in

which we applied the Supreme Court’s ruling in Lewis v. United States, 445 U.S. 55

(1980), and held that § 922(g)(1) is triggered by the fact of a “predicate conviction [that]

carr[ies] a potential sentence of greater than one year of imprisonment” regardless of

whether that conviction is “valid” or “susceptible to a collateral attack.” Leuschen, 395

F.3d at 158. We explained that, pursuant to the statute, an individual who has a predicate

conviction must challenge that conviction before possessing a firearm, as he “cannot

collaterally attack his predicate conviction in defense of his prosecution under §


   1
     Pursuant to section 3903 of the Crimes Code, when the property involved is an
automobile the theft is deemed a felony of the third degree. Although the bill of
particulars did not list the grade of the offense, it did indicate that the property at issue
was a 1980 Dodge Omni.
                                               4
922(g)(1).” Id. at 159. We are thus precluded from reviewing, twenty-six years after the

fact, the validity of Corle’s 1981 conviction and our review is limited to determining

whether, under Pennsylvania law, that conviction satisfies the definition of “crime

punishable by imprisonment for a term exceeding one year.” 18 U.S.C. § 921(a)(20). We

hold that it does.

       Pursuant to his plea agreement with the Commonwealth, Corle agreed to plead

guilty to “Theft by receiving property, Section 3925(a) of the Crimes Code of

Pennsylvania; a felony of the third degree.” (App. at 62.) Being punishable by up to

seven years in prison, that conviction satisfies the definition provided for in § 921(a)(20).

See 18 Pa. Cons. Stat. § 106(b).

       Corle’s argument that we should look only to the indictment, which contains no

grade or facts sufficient to compute the grade, is misplaced. First, to the extent that such

an examination is aimed at undermining his conviction, it is, as discussed above,

foreclosed by Leuschen.2 Second, given the process of grading theft offenses provided

for by the Crimes Code, it is contrary to Pennsylvania law. As the Pennsylvania Superior

Court has explained on numerous occasions, the grading of theft offenses and the facts

necessary to support that grading pursuant to section 3903 are not elements of the crime



   2
     We therefore need not discuss Corle’s reliance on Commonwealth v. Nixon, 476
A.2d 1313 (Pa. Super. Ct. 1984), Commonwealth v. McNeill, 439 A.2d 131 (Pa. Super.
Ct. 1981), and Commonwealth v. Longo, 410 A.2d 368 (Pa. Super. Ct. 1979). We note,
however, that aside from involving different provisions of the Crimes Code, these cases
explore the validity of the convictions at issue.
                                              5
which must be included in the indictment or information, but, rather, are used for

purposes of sentencing only. See Commonwealth v. Shamberger, 788 A.2d 408, 418–20

(Pa. Super Ct. 2001) (en banc); Commonwealth v. Sparks, 492 A.2d 720, 725 (Pa. Super.

Ct. 1985); Commonwealth v. McKennion, 340 A.2d 889, 891–92 (Pa. Super. Ct. 1975);

see also Commonwealth v. Robichow, 487 A.2d 1000, 1002–05 (Pa. Super. Ct. 1985).

As such, in determining the grading of Corle’s conviction, we need not consider his

indictment. His plea agreement, as well as the criminal complaint and bill of particulars,

clearly establish that he was convicted of a felony of the third degree.

                                            III.

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




                                             6
