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


6-29-2007

USA v. Leekins
Precedential or Non-Precedential: Precedential

Docket No. 05-1658




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                                          PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                           No. 05-1658




                UNITED STATES OF AMERICA

                                v.

                 WILLIAM THOMAS LEEKINS,
                                   Appellant




          On Appeal from the United States District Court
              for the Middle District of Pennsylvania
                       (D.C. No. 03-cr-00353)
            District Judge: Honorable Sylvia H. Rambo




            Submitted Under Third Circuit LAR 34.1(a)
                       October 24, 2005

           Before: SLOVITER, FISHER, Circuit Judges,
                and THOMPSON, District Judge *

                       (Filed June 29, 2007)


Dennis E. Boyle
Camp Hill, PA 17011



      *
        Hon. Anne E. Thompson, United States District Judge for
the District of New Jersey, sitting by designation.
       Attorney for Appellant

Thomas A. Marino
       United States Attorney
Theodore B. Smith, III
Eric Pfisterer
       Assistant United States Attorneys
Harrisburg, PA 17108

       Attorneys for Appellee


                  OPINION OF THE COURT


SLOVITER, Circuit Judge.

        Appellant William Thomas Leekins appeals from the
judgment of the District Court sentencing him to imprisonment
for a term of 262 months. First, Leekins asserts that his sentence
was imposed in violation of United States v. Booker, 543 U.S.
220 (2005), and that it denied him his Sixth Amendment right to
a jury trial because it was based upon facts found by a judge at
his sentencing hearing that he had not admitted in his plea
colloquy. Second, Leekins argues the District Court erred in
admitting a police report into evidence at the sentencing hearing
because it bore no “indicia of reliability.” U.S.S.G. § 6A1.3.
We will affirm.1

                                I.

       Leekins was charged in a two-count indictment with



       1
        We have jurisdiction to hear this appeal pursuant to 28
U.S.C § 1291 and 18 U.S.C. § 3742(a). This court reviews “factual
findings relevant to the Guidelines for clear error” and exercises
“plenary review over a district court’s interpretation of the
Guidelines.” United States v. Grier, 475 F.3d 556, 570 (3d Cir.
2007) (en banc).

                                2
possession of a firearm by a convicted felon in violation of 18
U.S.C. § 922(g)(1) (Count I), and possession of a firearm by a
person subject to a domestic abuse restraining order in violation
of 18 U.S.C. § 922(g)(8) (Count II). He entered into a written
negotiated plea agreement with the Government in which he
agreed to plead guilty to Count I and to admit prior convictions
of violent felonies (in his case, burglaries) which made him
subject to the armed career criminal sentencing enhancement
under 18 U.S.C. § 924(e). The Government agreed to
recommend imposition of the mandatory minimum sentence of
fifteen years under 18 U.S.C. § 922(g)(1).

       Pursuant to that agreement, Leekins pled guilty and the
Government dropped Count II of the indictment and
recommended imposition of only the fifteen-year mandatory
minimum sentence on Count I of the indictment. Nonetheless,
the District Court did not follow the Government’s
recommendation. After a hearing, the Court, following its
consideration of the testimony presented at the hearing and the
police report introduced at the sentencing hearing, adopted the
presentence report (“PSR”).

       The PSR contained the following uncontested facts:

               On November 15, 2003, officers responded to . . .
       a 9-1-1 hang-up call . . . . Officer Swank was the first to
       arrive at the residence. He approached the side door of
       the residence and observed that there was a dead-bolt lock
       lying on the kitchen floor and the door frame was
       splintered. He cautiously entered the residence and
       observed the defendant and an infant in a walker in the
       dining room area. Mr. Leekins told Officer Swank that
       he and his wife were just having an argument, but
       everything was alright.

              At this time, Officer Bloss arrived at the residence
       and encountered Nancy Leekins, the defendant’s
       estranged wife, in front of the residence. She told the
       officer that Mr. Leekins had threatened to kill her with a
       gun and that she had an active Protection From Abuse

                                3
      order against him. She also noted that her ten-month-old
      granddaughter was still in the residence. Officer Bloss
      proceeded into the residence and advised Officer Swank
      that Mr. Leekins was armed. The defendant, who had his
      hands in his pockets, was instructed to show the officers
      his hands.

      . . . Shortly thereafter, the defendant surrendered to the
      officers. He had a pair of eyeglasses in one hand and a
      towel held to his throat. Mr. Leekins was taken to the
      hospital, where doctors reported that a bullet was lodged
      in his head, but had not penetrated his brain.

             During a search of the residence, officers
      recovered a loaded .38 caliber Charter Arms revolver in
      the front bedroom, where a pool of blood was observed
      on the bed. They also found one spent shell casing in the
      bedroom. Officers also learned that Mr. Leekins was on
      work release at the time of the instant offense and had
      possession of a 1999 Chevrolet Malibu. Police located
      the vehicle parked one-half block away from the
      residence and recovered a black nylon holster.

PSR at ¶¶ 5-8.

      Leekins contested the following portion of the PSR:

      [After being asked to show his hands], Mr. Leekins
      turned and walked away from the officers. Officers
      continued to command Mr. Leekins to stop and show his
      hands. Mr. Leekins walked past the infant and headed
      toward the stairs. As the defendant reached the stairs, he
      turned and fired one shot in the officers’ and infant’s
      direction. Officers returned fire and Mr. Leekins fled up
      the stairs. Officer Swank removed the infant from the
      walker and took her outside.

PSR at ¶ 6.

      The PSR concluded that Leekins had committed

                               4
attempted murder because he had fired a gun at police officers.
Leekins related a materially different version of the facts to the
probation officer. He maintains that he went to his wife’s home
with the intention of killing himself and kicked in the door,
announcing, “This is my house, and this is where I want to die.”
PSR at ¶ 11. He contends that when the police entered Ms.
Leekins’s residence and they told him to drop his gun, he put his
hands in the air because he had no gun to drop. He states that
the police responded by shooting him in the left hand, and that
he then ran upstairs, retrieved his wife’s gun from her dresser
drawer, and shot himself in the head.

       At the sentencing hearing, Leekins’ counsel repeated
Leekins’ denial that he had ever fired on police officers and
counsel noted that at the state preliminary hearing there was
testimony to the effect that police investigators had found no
bullets in any piece of furniture that was behind the officers
when Leekins had allegedly shot at them.

       Leekins’ estranged wife also presented testimony at the
sentencing hearing 2 and stated that she was sitting in the dining
room of her home with her ten-month-old granddaughter when
she saw Leekins walk by and look into her dining room window.
She called 911 on a wall-mounted phone, at which point Leekins
“kicked the door in and ripped the phone out of the wall.” App.
at 49. He pushed her onto the floor next to her granddaughter,
held a gun (which Ms. Leekins had never seen before) to her
head, and yelled accusations that she had turned his family
against him and “was going to let him sit in jail and rot.” App.
at 49.

       According to Ms. Leekins, Leekins then demanded that
she again call 911 and tell them not to send anyone. Backing



       2
        Ms. Leekins gave testimony from her seat in the audience.
There was no request by either party that she be sworn, and she
wasn’t. We discourage that practice but neither party raises that
issue. It is apparent that the District Court accepted Ms. Leekins’
version of the contested facts.

                                5
away, Ms. Leekins used the phone in the living room to call 911.
The dispatcher informed her that a police officer was already en
route. When the police arrived, Ms. Leekins walked outside and
told an officer (Officer Bloss) that her husband was inside the
house and had a gun.

       Following Ms. Leekins’ testimony, Leekins testified
under oath, again denying having shot at the officers. Leekins
admitted on cross-examination that the holster found in his car
was the holster for the revolver he claimed to have obtained
upstairs in the house.3 During and since his plea colloquy,
Leekins has repeatedly denied that he fired a gun at police
officers.

        In his written comments to the PSR and his argument at
the sentencing hearing, Leekins objected to: (1) the use of the
attempted murder guideline to determine his base offense level,
(2) all upward adjustments based upon the allegation that he had
fired at police officers, or otherwise committed a crime of
violence, and (3) the District Court’s refusal to grant him a
downward departure under the Guidelines for acceptance of
responsibility. The District Court accepted the PSR’s sentence
calculation without ruling on Leekins’ objections to the PSR.

       Leekins admitted in his plea agreement to being an armed
career criminal subject to enhanced penalties under 18 U.S.C. §
924(e). The PSR concluded that Leekins possessed or used a
firearm in connection with a crime of violence and therefore set
his offense level at thirty-four pursuant to U.S.S.G. §
4B1.4(b)(3)(A), and his criminal history category at VI pursuant
to U.S.S.G. § 4B1.4(c)(2).4 Leekins’ total offense level of thirty-
four and criminal history category yielded a guideline


       3
       In response to his wife’s testimony, he also asserted that he
had unplugged rather than “ripped” the phone from the wall.
       4
        The District Court denied Leekins’ request for a downward
adjustment for acceptance of responsibility because the Court
concluded that Leekins had not truthfully admitted conduct
constituting the offense of conviction. We see no error.

                                 6
imprisonment range of 262 to 327 months. The Court imposed a
sentence of 262 months imprisonment, five years supervised
release, a $2000 fine, and a $100 special assessment. Leekins
filed a timely appeal.

                               II.

       We turn first to Leekins’ contention that the District
Court failed to apply Booker correctly and that it denied him his
Sixth Amendment right to jury trial. In Booker, the Supreme
Court held that “[a]ny fact (other than a prior conviction) which
is necessary to support a sentence exceeding the maximum
authorized by the facts established by a plea of guilty or a jury
verdict must be admitted by the defendant or proved to a jury
beyond a reasonable doubt.” Booker, 543 U.S. at 244 (extending
the court’s holding in Apprendi v. New Jersey, 530 U.S. 466
(2000)). However, as we have explained, in the second of
Booker’s two opinions,

       [t]he Court held that 18 U.S.C. § 3553(b)(1) [and 18
       U.S.C. § 3742(e)], the provision[s] of the Sentencing
       Reform Act of 1984 that [made and relied on the
       Guidelines being mandatory, were] incompatible with the
       Court’s constitutional ruling and that [those sections]
       must be severed and excised . . . . The net result was to
       delete the mandatory nature of the Guidelines and
       transform them to advisory guidelines for the information
       and use of the district courts in whom discretion has now
       been reinstated.

United States v. Ordaz, 398 F.3d 236, 239 (3d Cir. 2005).

       Leekins does not argue that the District Court mistakenly
treated the Guidelines as mandatory, and nothing in the record
suggests any such error. In fact, the District Court explicitly
acknowledged at the sentencing hearing that “the guidelines are
now only advisory[.]” App. at 45.

      We recognize that Leekins pled guilty with the
expectation that he would be sentenced to fifteen years of

                                7
imprisonment, i.e. 180 months, and that the District Court’s
sentence of 262 months greatly exceeded that expectation. As
counsel explained to the District Court, Leekins was fifty-two
years old at the time of sentencing and hoped to be released by
age sixty-seven, presuming parole at the earliest date on the
sentence he faced on a plea in state court on charges stemming
from the same incident. Obviously, that situation changed when
the District Court sentenced him to 262 months. However, the
plea agreement explicitly advised Leekins that the “maximum
penalty for the offense is imprisonment for a period of life” and
that “the appropriate sentence within the statutory maximums
provided for by law . . . will be determined by the court at a
sentencing hearing[.]” App. at 68. The District Court reiterated
that advice during the colloquy on the change of plea: The
Court: “You understand that the maximum penalty for the
offense could be a mandatory minimum of 15 and a maximum of
life?” The Defendant: “Life.” App. at 31. Again the Court
stated: “If anyone has estimated what your guideline would be,
and should I find your guideline to be different from what they
have estimated, you can’t withdraw your guilty plea. Do you
understand?” The Defendant: “Yes, I do.” App. at 32.

        At the conclusion of the hearing, the District Court
concluded that “there are sufficient facts to sustain the findings
in the pre-sentence report[,]” App. at 62, which concluded that
he had “used or possessed the firearm . . . in connection with a
crime of violence.” PSR at ¶ 22. This finding resulted in the
increased offense level and the consequential increase in his
sentence.

       Leekins’ challenge to his sentence focuses on the fact that
he was sentenced based on the District Court’s factual finding
that he was responsible for attempted murder and assault on a
police officer, facts that he did not admit and that were not found
by a jury. However, as Leekins’ counsel recognizes in his
supplemental memorandum, the situation presented is similar to
that presented in United States v. Grier, 475 F.3d 556 (3d Cir.
2006) (en banc). In that case, the en banc majority rejected
Grier’s argument that the district court could not constitutionally
sentence him on the basis of facts that he did not admit, that no

                                 8
jury had found, and that the sentencing court had found by the
preponderance of the evidence. In view of this court’s Grier
decision, to which we are bound, we reject Leekins’ argument
that the District Court violated his Sixth Amendment right to
trial by jury and Fifth Amendment right to due process.

       Nor can we categorize the District Court’s sentence as
unreasonable, the standard for appellate review of a sentence
after Booker. See Booker, 543 U.S. at 261-62. The District
Court credited the testimony of Leekins’ estranged wife that
Leekins held a gun to her head and threatened her. The District
Court recognized that the Guidelines were advisory, and
nonetheless sentenced Leekins to imprisonment for 262 months,
a sentence that was at the bottom of the Guidelines range. We
see no basis to hold that to be an unreasonable sentence.

                              III.

        Leekins next argues that the District Court erred in
admitting the police report into evidence because (1) it was not
verified or sworn, and (2) the police officers who prepared the
report were not present and did not testify as witnesses. Leekins
notes that this report was considered by the District Court over
his objection, Appellant’s Br. at 4 n.1, but that it was not made
part of the record before us. The description of the offense
conduct contained in the PSR was based in part on “investigative
reports.” PSR at ¶ 4. At the sentencing hearing, the District
Court asked the probation officer whether the officer had seen “a
police report in this.” App. at 58. When the officer responded
in the affirmative, the Court asked to see the report. The
Assistant United States Attorney (“AUSA”) responded that there
was a “report from Penbrook Police Department, the officers
who responded to the scene” and a “report from Dauphin County
Criminal Investigation Division. They interviewed the officers
who reported to the scene.” App. at 59. The District Court
asked to have the report of “just the officers who were at the
scene” but the AUSA explained that “the report I’m handing
over is an interview with the officers who responded to the
scene.” Id.



                                9
        In response to this Court’s request, the U.S. Attorney’s
office forwarded the Dauphin County Criminal Investigation
report written by Dauphin County Detective Thomas E.
Yurchison, which contains verbatim transcripts of Yurchison’s
interviews with Officers Swank and Bloss, who both recounted
Leekins’ firing a shot at them. The extent to which the District
Court relied on the facts contained in the police report when it
adopted the PSR is unclear, and we will therefore consider
Leekins’ argument as to the unreliability of the officers’
statements in the police report.

       In Shepard v. United States, 544 U.S. 13 (2005), the
Supreme Court held that a sentencing court could not look to a
police report to determine whether an earlier guilty plea qualified
as a predicate conviction for purposes of the Armed Career
Criminal Act. The plurality opinion in that case held that the
sentencing court could look only to the charging documents, the
written plea agreement, the transcript of the plea colloquy, and
any explicit factual findings by the trial court to which the
defendant assented. Because the opinion was limited to the
narrow statutory issue before it, the opinion did not state that
police reports were inadmissible as a general matter in
sentencing hearings, and it has not been so interpreted.

        Counsel for Leekins argues that “a mere police report is
not inherently reliable,” Apr. 10, 2007 ltr. at 5, and we do not
disagree. On the other hand, a police report also is not
inherently unreliable. Instead, we revert to the general principle
that the facts upon which a judge bases a sentence must have
“‘sufficient indicia of reliability to support [their] probable
accuracy.’” United States v. Miele, 989 F.2d 659, 663 (3d Cir.
1993) (quoting U.S.S.G. § 6A.1.3(a)). Such indicia may be
sufficient even if they do not meet trial standards; the Federal
Rules of Evidence do not apply. See U.S.S.G. § 6A1.3(a) (“In
resolving any dispute concerning a factor important to the
sentencing determination, the court may consider relevant
information without regard to its admissibility under the rules of
evidence applicable at trial, provided that the information has
sufficient indicia of reliability[.]” (emphasis added)); United
States v. Brothers, 75 F.3d 845, 848 (3d Cir. 1996). For

                                10
example, a District Court may “credit hearsay evidence over
sworn testimony, especially where there is other evidence to
corroborate the inconsistent hearsay statement.” Miele, 989 F.2d
at 664.

        Here, there is sufficient evidence that Leekins had a
weapon when he entered the house, notwithstanding his
statement to the contrary. First, Ms. Leekins testified at the
sentencing hearing that Leekins had engaged in aggressive
behavior with a gun just before the police arrived, including: (1)
kicking down the door to her house, (2) “ripp[ing] the phone out
of the wall” to disconnect her 911 call, App. at 49, (3) pushing
her down on the floor, (4) placing a gun to her head, and (5)
accusing her of turning his family against him and wanting him
to “sit in jail and rot.” Id.

        Although, as noted above, Ms. Leekins’ testimony was
not sworn, “unsworn, but reliable and probative” evidence may
be relied on for purposes of determining an appropriate sentence.
United States v. Yeaman, 194 F.3d 442, 463 (3d Cir. 1999). The
sentencing court had the benefit of observing Ms. Leekins’
testimony and it can infer reliability from a witness’s words and
actions. We give great deference to a presiding judge’s
credibility determinations in sentencing proceedings because she
is able to directly observe a testifying witness’s tone and
demeanor.

       Second, Leekins’ possession of the gun was corroborated
by the presence in Leekins’ automobile of the holster for the gun
that he used to shoot himself. The holster’s presence provides
circumstantial evidence that Leekins had the gun with him when
he arrived at Ms. Leekins’ residence, corroborates Ms. Leekins’
testimony that he had a gun with him when he kicked down her
door, and casts doubt on Leekins’ testimony that he found the
gun upstairs in Ms. Leekins’ house.5



       5
       The PSR states that “one spent shell casing” was found in
the bedroom, PSR at ¶ 8, while the police report states that the
bedroom revolver had “two spent shell casings in the five shot

                                11
        Third, the reliability of Leekins’ testimony itself at the
sentencing hearing is undermined by his counsel’s statement that
“Mr. Leekins has suffered a significant injury which has affected
his ability to remember and recall events that happened.” App.
at 45.

       Finally, we observe that the verbatim statements by the
two police officers attached to the police report that Leekins shot
at them, along with the above-noted corroborative evidence and
testimony, distinguishes this case from others where the factual
finding at sentencing was based in large part upon a sole,
inherently unreliable source. See Miele, 989 F.2d at 660-61
(concluding that a finding of drug quantity as estimated in the
PSR and adopted by district court did not meet the Guidelines’
“sufficient indicia of reliability” standard “[i]n view of the
numerous inconsistencies in the record, the fact that the source
of most of the critical evidence was an addict-informant with an
impaired memory, and the lack of any findings by the district
court other than a single conclusory finding as to drug
quantity”).

      We have observed that “a sentencing judge may consider
information that is largely unlimited as to kind or source,”



cylinder. There were also three live rounds in the cylinder.”
Report at 13. The Police Report also contains a narrative based
upon Detectives Yurchison and Woodring’s November 25, 2003
interview with Leekins at the Dauphin County Prison. This
narrative reports that Leekins stated he “took a .38 cal. handgun
with him to his wife’s house[,]” Report at 7, that he “never fired
the gun prior to the day of the incident[,]” id., and that he could not
remember firing the gun at officers, but that “[i]t could have
happened.” Report at 8. As the District Court explicitly adopted
the facts as recounted in the PSR, and not the facts set forth in the
police report, it is unclear to what extent this report was relied upon
by the Court. We will only note here that these facts are
inconsistent with Leekins’ testimony as to events that day at the
house.


                                  12
United States v. Paulino, 996 F.2d 1541, 1547 (3d Cir. 1993)
(internal citation and quotation marks omitted). In this case, the
detail and internal consistency of the transcribed interviews with
the officers regarding the fact of the shooting, together with the
other corroborating material, provide sufficient indicia of the
reliability of the officers’ version of the shooting. See Crawford
v. Jackson, 323 F.3d 123, 130 (D.C. Cir. 2003) (where police
investigative report was “quite detailed,” and provided “a fairly
full account of the circumstances surrounding” a parole
violation, such detail held to be “indicia of reliability” and
document held to be appropriately considered in parole board’s
revocation); cf. Gambino v. Morris, 134 F.3d 156, 162-63 (3d
Cir. 1998) (vague and conclusory assertion in police report that
petitioner was linked to organized crime inappropriately
considered by parole commission). We therefore conclude that
the District Court could have reasonably found that the version
of events recounted in the PSR – based in part on the police
report – was more credible than that provided by Leekins.6

                                IV.

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




       6
        The District Court noted that “even if I ignore the fact that
the officers say he shot at them, we have the fact that he [held] the
gun at the head of his wife.” App. at 46. The PSR notes that
Leekins was charged with aggravated assault and burglary under
Pennsylvania law, among other crimes, but does not specify the
facts underlying each charge. Attached to the police report is what
appears to be a draft police criminal complaint that charges Leekins
with aggravated assault upon Ms. Leekins, among other crimes.
The parties do not refer to the draft and it does not enter into our
consideration.

                                 13
