                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-28-1995

United States v Watkins
Precedential or Non-Precedential:

Docket 94-7258




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              UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT


                       N0. 94-7258


                 UNITED STATES OF AMERICA

                            v.

             GARY WATKINS, a/k/a Raheem Okbar

                                     Gary Watkins,
                                     Appellant



     On Appeal From the United States District Court
         For the Middle District of Pennsylvania
           (D.C. Crim. Action No. 93-cr-00243)


                 Argued October 28, 1994

BEFORE:   STAPLETON, HUTCHINSON and ROSENN, Circuit Judges

              (Opinion Filed April 28, 1995)




                     James V. Wade
                     Federal Public Defender
                     Daniel I. Siegel (Argued)
                     Assistant Federal Public Defender
                     100 Chestnut Street
                     Harrisburg, PA 17101

                            Attorneys for Appellant


                     David M. Barasch
                     U.S. Attorney
                     Martin C. Carlson (Argued)
                     Assistant U.S. Attorney
                     Federal Building
                     228 Walnut Street
                           P.O. Box 11754
                           Harrisburg, PA    17101

                                 Attorneys for Appellee



                        OPINION OF THE COURT




STAPLETON, Circuit Judge:


            Gary Watkins appeals from the sentence enhancement he

received under the Armed Career Criminal Act (ACCA), 18 U.S.C.

§ 924(e).    In the district court, Watkins challenged the

assertion in the presentence report that he had previously been

convicted of five violent felonies.    He argues that, as a result,

the court should not have imposed an ACCA enhancement without

requiring the government to produce a certified copy of each

prior judgment of conviction.    We will affirm his sentence.



                                 I.

            One week after a federal grand jury charged Watkins

with a number of firearms violations, the government filed an

information putting him on notice that it would seek an enhanced

sentence based upon four prior violent felony convictions.      The

information identified one prior conviction for burglary and

three prior convictions for robbery, all in the Court of Common

Pleas of Dauphin County, Pennsylvania.      Watkins pled guilty to

one count of the indictment.
           The presentence report identified five prior felony

convictions by the court of conviction, the case file number, the

date of arrest, the date of sentencing, the offense charged

(e.g., "Burglary," "Robbery") and the sentence imposed.     In

addition, the presentence report described the conduct leading to

each conviction.   Watkins' 1982 burglary conviction was reported

to have been based on his entering a barber shop after hours and

stealing two television sets, a hair dryer, a prism box, and $90

in cash.   The robbery convictions were reported to have been

based on the following incidents, each of which involved Watkins

and two other confederates:   On July 26, 1983, Watkins, armed

with a sawed-off shotgun, robbed a grocery store; two days later,

Watkins entered a cafe, threatened to shoot the person tending

the cash register, and took $772 from the register while his

companions robbed two store patrons of $363; on August 4, 1983,

Watkins, armed with a sawed-off .22 caliber rifle, robbed a man

of $182 as he left a bar; and on August 22, 1992, Watkins robbed

a man in a car of $5 while he held a sawed-off shotgun to the

victim's head.

           Prior to the sentencing hearing, Watkins filed

"Objections to Enhanced Sentencing" in which he refers to the

convictions reported in the presentence report and states,

without further elaboration, that he "denies that he has at least

three prior convictions for violent felonies."   At the sentencing

hearing, the ambiguity inherent in this conclusory statement was

clarified in the following colloquy:
         The Court: All right. Do you wish to pursue
         your request concerning the application of
         the enhancement for the armed career criminal
         [act]?

         Mr. Siegel: [Watkins' counsel] Yes, we do,
         Your Honor. Your Honor, I think the
         objections state--the written objections
         state [Watkins'] objection, which is that we
         do not consider him to be an armed career
         criminal, and specifically, we challenge the
         assertion that these prior convictions
         constitute violent felonies under the act.
         Thank you, Your Honor.

         The Court:   Mr. Carlson.

         Mr. Carlson: [the prosecutor] Your Honor, I
         think it's quite clear that the defendant's
         prior criminal record does involve what would
         be violent felonies that would count under
         the armed career criminal statute, and his
         simple denial that he views them as violent
         crimes doesn't create any sort of factual
         issue that would merit the Court not pursuing
         the armed career criminal penalty.
              This man has a prior criminal record
         that involves burglary and robbery
         convictions, and those offenses are, by any
         definition, and by the definition in the
         statute, violent felonies which trigger the
         mandatory minimum 15-year sentence.

         The Court: Yes. Well, from my review of the
         presentence report, I believe, too, that the
         conviction in 1982 for burglary, in 1984 for
         robbery, two counts, which is not counted as
         a separate offense for these purposes, and
         then the incident in 1992 of robbery1 all


1
 .   The court treated the 1984 convictions for the 1983
robberies as a single conviction for purposes of enhancement
because they were consolidated for sentencing in the Court of
Common Pleas of Dauphin County, Pennsylvania. We express no view
on whether these convictions could each serve as a prior robbery
conviction. Even if they are counted as a single conviction,
Watkins still has two prior robbery convictions and one burglary
conviction, providing the three convictions needed for
enhancement under the ACCA. Watkins does not challenge the
          constitute crimes of violence that are three,
          at a minimum, and I think enhancement must be
          applied under the law. How about acceptance
          of responsibility?


App. 23-24 (emphasis added).    Thereafter, Mr. Siegel did not

speak further about his client's objection to an enhancement

under the ACCA but went on to address the acceptance of

responsibility issue.   Thus, the only enhancement issue presented

in the district court was whether the five felony convictions

identified in detail in the presentence report were "violent

felonies" within the meaning of the ACCA.

          Without the enhancement, the appropriate sentencing

range under the guidelines would have been between 100 and 125

months, based on a total offense level of 24 and a criminal

history category of VI.    With the enhancement and the 2 point

reduction awarded by the court for acceptance of responsibility,

Watkins' sentencing range was between 188 and 235 months.    The

court imposed a sentence at the low end of the range, 188 months

(15 years and 8 months).



                                II.

          The Armed Career Criminal Act, 18 U.S.C. § 924(e),

requires the district court to impose a minimum 15 year term of

imprisonment on defendants who are convicted under 18 U.S.C.




(..continued)
reliance of the district court on a felony conviction not
identified in the information.
§ 922(g)(1) of possessing a firearm and who have three prior

convictions for "violent felonies."   A "violent felony" is

defined in 18 U.S.C. § 924(e):
          (2) As used in this subsection--
          . . . .
          (B) The term "violent felony" means any crime
          punishable by imprisonment for a term
          exceeding one year . . . that--
               (i) has as an element the use, attempted
          use, or threatened use of physical force
          against the person of another; or
               (ii) is burglary, arson, or extortion,
          involves use of explosives, or otherwise
          involves conduct that presents a serious
          potential risk of physical injury to another.

           In United States v. Taylor, 495 U.S. 575 (1990), the

Supreme Court held that § 924(e)(2)(B)(ii)'s reference to

"burglary" was not intended to include all crimes denominated

"burglaries" under state law.   Rather, "'burglary' in § 924(e)

must have some uniform definition independent of the labels

employed by the various States' criminal codes."   Id. at 592.

The uniform definition chosen by the Court was expressed as

follows:
                We conclude that a person has been
           convicted of burglary for purposes of a
           § 924(e) enhancement if he is convicted of
           any crime, regardless of its exact definition
           or label, having the basic elements of
           unlawful or unprivileged entry into, or
           remaining in, a building or structure, with
           intent to commit a crime.


Id. at 599.

           The Supreme Court further held in Taylor that, in order

to determine whether a prior crime comes within this generic

definition of burglary, a sentencing court should look to the
state's "statutory definition of the prior offense" of which the

defendant was convicted.   Id. at 602.   Similarly, a sentencing

court must look to the "statutory definition of the prior

offense" to determine whether that offense comes within the scope

of § 924(e)(2)(B)(i) or is an offense involving "conduct that

presents a serious potential risk of physical injury to another"

so as to qualify as a "violent felony" under § 924(e)(2)(B)(ii).

However, when the "statutory definition of the prior offense" is

broad enough to permit conviction based on conduct that falls

outside of the scope of § 924(e)(2)(B), it becomes necessary to

look beyond the statute of conviction.   Only in such cases may

the sentencing court look to the facts of the particular case in

order to determine whether the trier of fact necessarily found

elements that would qualify the offense as a "violent felony"

under § 924(e)(2)(B).   See United States v. Harris, 964 F.2d

1234, 1235 (1st Cir. 1992) (court may look to facts of the crime

to determine if conviction under an   over-inclusive statute

satisfies § 924(e)(2)(B)); United States v. Strahl, 958 F.2d 980,

984 (10th Cir. 1992) (same); United States v. Sweeten, 933 F.2d

765, 771-72 (9th cir. 1991) (same); United States v. Gallman, 907
F.2d 639, 645 n.7 (7th Cir. 1990) (same), cert. denied, 499 U.S.

908 (1991).



                               III.

          Before us, Watkins makes a single argument:
               Given Mr. Watkins' objections, it is
          submitted that the government's failure to
          present documentary evidence of the prior
          convictions constituted a failure to meet its
          burden of proof. At a minimum, the
          prosecutor at an ACCA sentencing hearing
          should be required to introduce into the
          record copies of the relevant judgments of
          conviction.


Appellant's Brief at 9.

          Although we think it unlikely based on the district

court record and the authority cited by Watkins, he may be

arguing here that the information reported in the presentence

report, without certified judgments of conviction, provided

inadequate support for the district court's factual finding

concerning his criminal history.   If so, we believe Watkins is

clearly mistaken.   Watkins did not assert before the district

court that the information provided in the presentence report was

an inaccurate account of what had happened in the past.   Rather,

his sole argument in the district court was that the information

reported there, as a matter of law, did not satisfy

§ 924(e)(2)(B)'s requirement of three prior "violent felonies."

It is well established in this circuit, and all others, that a

sentencing court may rely on the facts set forth in the

presentence report when their accuracy is not challenged by the

defendant.   See Fed. R. Crim. Proc. 32(b)(6)(D); United States v.

Garcia, 544 F.2d 681, 684 (3d Cir. 1976) (failure to request

evidentiary hearing on hearsay information in presentence report

waives defendant's objection to sentencing court's reliance on

such hearsay); United States v. Bregnard, 951 F.2d 457, 459 (1st

Cir. 1991) (although assault and battery statutes included non-

violent conduct, district court did not err in concluding that
prior assault and battery convictions were "violent felonies"

when it relied, without objection by defendant, on the factual

narrative of the prior convictions in the presentence report),

cert. denied, 112 S. Ct. 2939 (1992).

          As we have indicated, however, we think it more likely

that Watkins is not challenging the district court's reliance on

the presentence report as the basis for its findings of fact.

His argument is, rather, that the information in the presentence

report was inadequate (and certified copies of the judgments were

required) to support the district court's legal conclusion that

Watkins' prior convictions were for "violent felonies" within the

meaning of § 924(e)(2)(B).    This would be consistent with his

argument to the district court and with his reliance on United

States v. Potter, 895 F.2d 1231 (9th Cir.), cert. denied, 497

U.S. 1008 (1990).   The court there suggested that a sentencing

court "should have copies of the judgments of conviction before

it when determining whether a defendant has previously been

convicted of 'violent felonies' within the meaning of §

924(e)(1)."   Id. at 1238.   The court supported this suggestion

with the following rationale:
          [I]t is important that the sentencing court
          and the appellate court be certain of the
          specific statutory sections under which the
          defendant previously was convicted; all too
          often a popular description of a prior
          offense will not enable the court to
          determine whether the relevant statute falls
          within the coverage of § 924(e)(1). Our
          analysis in Sherbondy directs the sentencing
          court and the court of appeals to the
          statutes under which the defendant previously
          was convicted to determine whether he was
          convicted of "violent felonies" within the
           meaning of § 924(e)(1). The consequences of
           such determinations for the defendant are
           severe. Although the defendant may have done
           nothing more than be found in possession of a
           firearm, if the sentencing judge determines
           that he has been convicted of three prior
           "violent felonies," the court has no choice
           but to sentence him to prison for a minimum
           of fifteen years, with no possibility of
           parole. Given the gravity of the penalty and
           Sherbondy's emphasis on the statutory
           elements of the prior offense, we conclude
           that a court should have copies of the
           judgments of conviction before it when
           determining whether a defendant has
           previously been convicted of "violent
           felonies" within the meaning of § 924(e)(1),
           although we do not foreclose the possibility
           that a defendant's conviction under a
           specific statutory section or subsection
           might be established by some other form of
           clearly reliable evidence. A presentence
           investigation report does not meet even the
           latter requirement.


Id.

           Watkins, however, overlooks the context in which this

passage was written.   The Potter court was concerned with the

"quantum of proof necessary to determine that a given prior

conviction was for a 'violent felony' under § 924(e)(1)" where

the statute of conviction had several subsections defining

particular offenses, not all of which would constitute "violent

felonies." Id. at 1237.   In Potter, one of the defendant's three

prior convictions was for rape, but the California rape statute

categorized certain deceptive, though non-violent, conduct as

rape.   Thus, the court found that the presentence report's

"popular description" of a prior offense could not be used to

establish under which subsection of a multi-section statute the
defendant previously was convicted.   Id. at 1237-38.   The court,

however, affirmed the conviction, holding that the defendant

failed to show that the district court's reliance on the

presentence report prejudiced his rights because he had, in fact,

conceded the application of § 924(e).   Id. at 1238.

          Watkins is forced to argue a far broader proposition

than the one endorsed in Potter, however.   Here, the information

provided in the presentence report enabled the district court to

ascertain with certainty the statutes of conviction and the

statutes of conviction encompass only conduct that falls within

the scope of § 924(e)(2)(B)(i) and (ii).    Watkins cannot, and

does not, assert otherwise.2   As a result, Watkins is forced to

argue for a per se rule that certified copies of the judgments of

conviction are required in every case before a sentencing court

may determine that the defendant's prior convictions are for

"violent felonies" within the meaning of § 924(e)(2)(B).   We find

no persuasive justification for such an inflexible rule and

decline to adopt it.



2
 . Watkins' burglary conviction was for violating 18 Pa.C.S.A.
§ 3502, Pennsylvania's only burglary statute, which defines
burglary in a manner consistent with, though somewhat more
narrowly than, the generic "burglary" that Congress intended in §
924(e)(2)(B)(ii).

    Watkins' robbery convictions were for violating 18 Pa.C.S.A.
§ 3701, Pennsylvania's only robbery statute. We have previously
held that conviction under this statute necessarily involves the
"use or threat of physical force" which qualifies for ACCA
treatment as a "violent felony." United States v. Preston, 910
F.2d 81, 86-87 (3d Cir. 1990), cert. denied 498 U.S. 1103 (1991).
                    IV.

The judgment of the district court will be affirmed.
