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


7-21-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2067




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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                       No: 07-2067

                           UNITED STATES OF AMERICA,

                                             v.

                                  JAMES LIPSCOMB,

                                              Appellant

                    On Appeal from the United States District Court
                             for the District of New Jersey
                                 (Criminal No. 04-198)
                     District Judge: Honorable Faith S. Hochberg

                       Submitted under Third Circuit LAR 34.1(a)
                                  on March 28, 2008

              Before: McKEE, RENDELL and TASHIMA,* Circuit Judges

                                  (Filed: July 21, 2008)
                                       __________

                              OPINION OF THE COURT
                                    __________

TASHIMA, Circuit Judge.

      Appellant James Lipscomb pleaded guilty to armed robbery in violation of 18

U.S.C. § 1951. He appeals his sentence, arguing that the District Court erred in



      *
      Honorable A. Wallace Tashima, Senior Judge of the United States Court of
Appeals for the Ninth Circuit, sitting by designation.
categorizing him as a career offender under United States Sentencing Guideline

(“U.S.S.G.” or “Guidelines”) § 4B1.1 and in imposing the consequent sentence

enhancement. We consider two issues on appeal: first, whether Lipscomb’s 1995 New

Jersey state conviction for eluding an officer in the second-degree constitutes a “crime of

violence,” as required to satisfy the Guidelines’ career offender provision; and second,

whether the 159-month sentence imposed by the District Court was reasonable. For the

reasons that follow, we will affirm the sentence.

                                             I.

       Because we write primarily for the benefit of the parties, we discuss the facts and

procedural history of Lipscomb’s case only as necessary to inform the present discussion.

On October 29, 2003, Lipscomb participated in an armed robbery of a jewelry store. He

was arrested in November 2003 after FBI agents searched his residence and recovered

incriminating evidence, including four contraband bulletproof vests. In a February 2004

plea agreement, Lipscomb agreed to plead guilty to the armed robbery charge in exchange

for the government’s dismissal of the criminal complaint arising from his possession of

the bulletproof vests.

       The plea agreement reflected a base offense level of 20 for armed robbery and

acknowledged a 5-level increase for brandishing a firearm during the robbery. The

Presentence Investigation Report (“PSR”) recommended a 2-level enhancement for

victim losses, as well as a 3-level reduction for acceptance of responsibility. Lipscomb’s



                                             2
11 undisputed criminal history points placed him in Criminal History Category V. Thus,

absent the career offender enhancement, Lipscomb’s total offense level was 24, which,

combined with a Criminal History Category of V, resulted in a sentence between 92 and

115 months.

       Under U.S.S.G. § 4B1.1, an individual is a career offender if: (1) he was at least

eighteen years old at the time of the instant offense; (2) the instant offense is a crime of

violence or a controlled substance offense; and (3) he has been convicted of at least two

prior felony crimes of violence or controlled substance offenses. The PSR suggested that

Lipscomb was properly classified a career offender under § 4B1.1 because the charged

armed robbery offense satisfied the first two elements and Lipscomb’s 1993 conviction

for second-degree robbery and 1995 conviction for second-degree eluding constituted

“crimes of violence,” in satisfaction of the third element.

       The career offender determination increased Lipscomb’s total offense level to 32

and a Criminal History Category of VI under U.S.S.G. § 4B1.1(b)(C). After the reduction

for acceptance of responsibility, the recommended Guidelines sentencing range was 151-

188 months’ imprisonment.

       In its March 26, 2007 order, the District Court followed the probation officer’s

recommendation and applied the career offender sentencing enhancement. At the

sentencing hearing, the Court considered and rejected Lipscomb’s arguments against the




                                              3
PSR’s career offender recommendation,1 and discussed its rationale for imposing a

sentence of 159 months.

       After considering the sentencing factors in 18 U.S.C. § 3553(a), the District

Court determined that a 159-month term of imprisonment, near the low end of the

Guideline range, was appropriate. The court recognized its discretion to forego

sentencing Lipscomb as a career offender, but reasoned that the 159-month sentence

fairly took into account his substantial criminal past.

       On appeal, Lipscomb contends that the District Court’s sentence is unreasonable

and that the career offender provision was applied in error.

                                              II.

           We have jurisdiction pursuant to 28 U.S.C. § 1291. “Whether a particular crime

constitutes a crime of violence is a question of law and the Court’s review is plenary.”

United States v. Dorsey, 174 F.3d 331, 332 (3d Cir. 1999). We review the substantive

reasonableness of the sentence itself for abuse of discretion. See United States v. Wise,

515 F.3d 207, 218 (3d Cir. 2008) (citing Gall v. United States, 128 S. Ct. 586, 597

(2007)).

                              A. Career Offender Enhancement


       1
              Lipscomb presented substantially the same arguments at the sentencing
hearing as he presents on appeal; namely, that application of the career offender provision
miscategorizes Lipscomb’s 1995 eluding offense, and that the sentencing enhancement is
unreasonable in light of Lipscomb’s mitigating circumstances. These arguments are
addressed in greater detail below.

                                              4
       The Guidelines recommend that an individual who fits the definition of “career

offender” under § 4B1.1 be placed in Criminal History Category VI, and receive an

enhanced sentence. An individual who is over eighteen, and whose instant offense is a

crime of violence, may be subject to a career offender enhancement if he has two prior

convictions for felony crimes of violence or controlled substance offenses. See U.S.S.G.

§ 4B1.1. Lipscomb concedes that his instant crime satisfies the first two elements of the

career offender provision, and that his 1994 conviction for second-degree robbery

constituted a crime of violence. The only question that remains, then, is whether

Lipscomb’s 1995 offense, second-degree eluding, was a crime of violence, as the PSR

and the district court concluded that it was.

       Section 4B1.2 defines a “crime of violence” as:

       (a) . . . any 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 person of another, or
       (2) . . . involves conduct that presents a serious potential risk of physical
       injury to another.

U.S.S.G. § 4B1.2(a). “We are required to take a categorical approach when deciding

whether a conviction is for a crime of violence.” United States v. Otero, 502 F.3d 331,

335 (3d Cir. 2007); see also United States v. Siegel, 477 F.3d 87, 90 (3d Cir. 2007)

(applying the categorical approach to determinations of whether a prior crime falls under

§ 4B1.2). The categorical approach, as articulated by the Supreme Court in Taylor v.

United States, 495 U.S. 575, 602 (1990), directs the sentencing court to “look only to the

                                                5
fact of conviction and the statutory definition of the prior offense” to determine whether it

is categorically a crime of violence. Id.; accord Shepard v. United States, 544 U.S. 13, 19

(2005) (stating that the categorical approach “refers to predicate offenses in terms not of

prior conduct but of prior convictions and the elements of crimes”) (internal quotation

marks, alterations, and citations omitted).

       Lipscomb was convicted in New Jersey for second-degree eluding, which is

defined as follows:

       Any person, while operating a motor vehicle on any street or highway in
       this State, who knowingly flees or attempts to elude any police or law
       enforcement officer after having received any signal from such officer to
       bring the vehicle to a full stop commits a crime of the third degree; except
       that, a person is guilty of a crime of the second degree if the flight or
       attempt to elude creates a risk of death or injury to any person.

N.J. Stat. Ann. § 2C:29-2(b) (West 1995).

       Because creating a “risk of death or injury to any person” was an element of

Lipscomb’s second-degree eluding offense, it follows that the crime necessarily “involves

conduct that presents a serious potential risk of physical injury to another,” as required by

§ 4B1.2(a)(2). Thus, we agree with the District Court that Lipscomb’s 1995 conviction of

second-degree eluding is a crime of violence under the categorical approach.2



       2
               Because we resolve this issue under the categorical approach, we need not
analyze the judicially noticeable evidence of the offense under the modified categorical
approach. See United States v. Shabazz, 233 F.3d 730, 732 (3d Cir. 2000) (“In order to
classify a prior conviction . . . , the sentencing court should begin with the language of the
statute. If the statute of conviction is clear, the court should not look beyond that statute’s
                                                                                  (continued...)

                                               6
                                            B. Reasonableness

           Lipscomb contends that the District Court gave inadequate consideration to his

individual circumstances and characteristics, and that it imposed an unreasonable

sentence.

           Although the Guidelines are no longer mandatory, “[t]he record must demonstrate

that the trial court gave meaningful consideration to the § 3553(a) factors.” 3 United


           2
               (...continued)
text.”).
           3
                      Section 3553 provides:

                      (a) Factors to be considered in imposing a sentence.--The court
                      shall impose a sentence sufficient, but not greater than
                      necessary, to comply with the purposes set forth in paragraph
                      (2) of this subsection. The court, in determining the particular
                      sentence to be imposed, shall consider--
                        (1) the nature and circumstances of the offense and the history
                        and characteristics of the defendant;
                        (2) the need for the sentence imposed--
                          (A) to reflect the seriousness of the offense, to promote
                          respect for the law, and to provide just punishment for the
                          offense;
                          (B) to afford adequate deterrence to criminal conduct;
                          (C) to protect the public from further crimes of the
                          defendant; and
                          (D) to provide the defendant with needed educational or
                          vocational training, medical care, or other correctional
                          treatment in the most effective manner;
                        (3) the kinds of sentences available;
                        (4) the kinds of sentence and the sentencing range established
                        [the offense] . . .
                        (5) any pertinent policy statement . . .
                        (6) the need to avoid unwarranted sentence disparities among
                                                                                       (continued...)

                                                     7
States v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006). This court has held that district

courts must follow a three-step process for sentencing. Courts must correctly calculate

the defendant’s Guidelines sentence; formally rule on the parties’ motions and note any

departures on the record; and “exercise their discretion by considering the relevant . . . §

3553(a) factors in setting the sentence they impose regardless of whether it varies from

the sentence calculated under the Guidelines.” United States v. Gunter, 527 F.3d 282,

285 (3d Cir. 2008) (citation and quotation marks omitted).

       The record shows that the District Court considered the § 3553(a) factors. The

Court acknowledged Lipscomb’s request for a lighter sentence due to his 40-month pre-

trial incarceration in an undesirable jail, and praised Lipscomb’s renunciation of gang

membership. It also expressed hope that Lipscomb would follow through on his stated

desire to take up a trade after his release from prison. The Court concluded:

             I’m balancing the good against the bad. And there is some of both.
       There’s a life of crime and there’s a guy who wants to change his life. . . .

              I understand that I have discretion not to sentence him as a career
       offender. However, I believe that . . . he deserves it, but he also deserves
       recognition for the changes he’s trying to make in his life. And for that
       reason, Mr. Lipscomb, I am going to sentence you within the guideline


              3
                  (...continued)
                   defendants with similar records who have been found guilty
                   of similar conduct; and
                   (7) the need to provide restitution to any victims of the
                   offense.

         18 U.S.C. § 3553(a).

                                              8
       range, but I’m not going to sentence you at the maximum of the guideline
       range, which is what has been recommended by probation, of 188 months.
       Instead, I’m going to sentence you near the lower levels of the range.

       The record shows that the Court gave meaningful consideration to the § 3553(a)

factors, and that it imposed a 159-month sentence “for reasons that are logical and

consistent with the factors.” United States v. Severino, 454 F.3d 206, 210 (3d Cir. 2006)

(quoting Cooper, 437 F.3d at 330). We conclude that the sentence imposed by the

District Court is reasonable.

                                            III.

       For the reasons set forth above, we will AFFIRM the sentence.




                                             9
