                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-7-1999

USA v. Dorsey
Precedential or Non-Precedential:

Docket 98-7335




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Recommended Citation
"USA v. Dorsey" (1999). 1999 Decisions. Paper 91.
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Filed April 6, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-7335

UNITED STATES OF AMERICA

v.

WILLIAM M. DORSEY,

       Appellant.

On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Crim. No. 97-283)
District Court Judge: Honorable Sylvia H. Rambo

Argued November 19, 1998

BEFORE: GREENBERG, ALITO, and
GODBOLD,* Circuit Judges

(Filed: April 6, 1999)

       James V. Wade
       Federal Public Defender
       Daniel I. Siegel (argued)
       Assistant Federal Public Defender
       Middle District of Pennsylvania
       100 Chestnut Street, Suite 306
       Harrisburg, PA 17101

        Attorneys for Appellant
        William M. Dorsey
_________________________________________________________________

*Honorable John C. Godbold, Senior Judge of the United States Court of
Appeals for the Eleventh Circuit, sitting by designation.
       David M. Barasch
       United States Attorney
       Middle District of Pennsylvania
       Kim Douglas Daniel (argued)
       Assistant U.S. Attorney
       P.O. Box 11754
       Harrisburg, PA 17108

        Attorneys for Appellee
        United States of America

OPINION OF THE COURT

GODBOLD, Circuit Judge:

Defendant William M. Dorsey pled guilty to three counts
of bank robbery. On June 4, 1998, the district court
sentenced him as a career offender under U.S.S.G. S 4B1.1
because of his prior convictions of aggravated and simple
assault. Defendant challenges the sentence on the ground
that a Pennsylvania simple assault is not a "crime of
violence" for purposes of the career offender guideline.

Whether a particular crime constitutes a crime of
violence is a question of law and the Court's review is
plenary. U.S. v. McQuilkin, 97 F.3d 723, 727 (3d Cir. 1996),
cert. denied, 117 S. Ct. 2413 (1997). The burden is on the
government to prove guideline enhancements by a
preponderance of the evidence. U.S. v. Miele, 989 F.2d 659,
663 (3d Cir. 1993).

Whether simple assault qualifies as a predicate offense
for purposes of the career offender guideline is an issue of
first impression for the Third Circuit. The Eastern District
of Pennsylvania has held that it does. U.S. v. Watson, No.
CRIM. 92-672, 1993 WL 287621, at *4 (E.D. Pa. July 23,
1993). See also U.S. v. Pratt, 913 F.2d 982, 993 (1st Cir.
1990) (simple assault constituted career offender predicate).

Under U.S.S.G. S 4B1.1, a defendant   is a career offender
if 1) the defendant was at least 18   years of age at the time
he committed the instant offense of   conviction; 2) the
instant offense is a felony that is   either a crime of violence

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or a controlled substance offense; and 3) the defendant has
at least two prior felony convictions of either a crime of
violence or a controlled substance offense. As to the first
two elements, bank robbery is a crime of violence and the
defendant was over 18 when he committed the instant
offense. As to the third element, defendant's prior
conviction for aggravated assault constitutes one of the
predicate offenses. McQuilkin, 97 F.3d at 728. Therefore,
the question is whether one of defendant's two convictions
for simple assault constitutes the second predicate offense.

Section 4B1.1 states that the predicate offense must be
a "prior felony conviction." Application Note 3 to section
4B1.2 states that, for purposes of determining career
offender status under the guidelines, a "prior felony
conviction" is one that is "a prior adult federal or state
conviction for an offense punishable by death or
imprisonment for a term exceeding one year, regardless of
whether such offense is specifically designated as a felony
and regardless of the actual sentence imposed." As a
second degree misdemeanor, the defendant's simple assault
is punishable by a term of imprisonment for a term of more
than one year. See 18 Pa. C.S.A. S 1104. Therefore, the
defendant's conviction for simple assault is a felony for
purposes of section 4B1.1.

The sole remaining issue is whether simple assault is a
"crime of violence." A "crime of violence" includes an offense
that (1) "has as an element the use, attempted use, or
threatened use of physical force against the person of
another" or (2) ". . . involves conduct that presents a
serious potential risk of physical injury to another."
U.S.S.G. S 4B1.2(a). In Pennsylvania, a person is guilty of
"simple assault" if he "1) attempts to cause or intentionally,
knowingly or recklessly causes bodily injury to another; 2)
negligently causes bodily injury to another with a deadly
weapon; or 3) attempts by physical menace to put another
in fear of imminent serious bodily injury." 18 Pa. C.S.A.
S 2701(a). Because all three parts of Pennsylvania's
definition of simple assault necessarily involve"conduct
that presents a serious potential risk of physical injury," a
conviction under the statute is one for a "crime of violence."
See Pratt, 913 F.2d at 993.

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Defendant argues his conviction for simple assault
cannot constitute a predicate offense because he could
have been convicted if he recklessly caused bodily injury
and a conviction for reckless injury does not fit within the
definition of "crime of violence." That simple assault can be
committed recklessly does not mean the conduct does not
present a serious potential risk of physical injury. First, the
Pennsylvania penal code states "a person acts recklessly
with respect to a material element of an offense when he
consciously disregards a substantial and unjustifiable risk
that the material element exists or will result from his
conduct." 18 Pa. C.S.A. S 302 (1998). Second, purely
reckless crimes may count as predicate offenses for
purposes of career offender guideline. McQuilkin, 97 F.3d at
729; U.S. v. Parson, 955 F.2d 858, 874 (3d Cir. 1992).

Defendant also argues the sentence should be vacated
because the court did not consider the facts contained in
the charging documents. However, sentencing judges are
not required to examine the actual underlying behavior
when conducting career offender analysis. McQuilkin, 97
F.3d at 727. See also Taylor v. U.S., 495 U.S. 575, 601
(1990) ("the practical difficulties and potential unfairness of
a factual approach are daunting").

The sentence entered June 4, 1998 will be affirmed.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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