NOT PRECEDENTIAL


                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________
                                    No. 09-1893
                                   _____________

                          UNITED STATES OF AMERICA,
                                          v.
                            ODELL ROBERT JOHNSON,
                                          Appellant
                                ______________
            APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                   (D.C. Crim. Action No. 02-cr-00656-001)
                   District Judge: Honorable Cynthia M. Rufe
                                ______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 28, 2011
                                  ______________


         Before: SLOVITER, GREENAWAY, JR., and ROTH, Circuit Judges


                            (Opinion Filed: July 27, 2011)
                                   ______________
                                      OPINION
                                   ______________

GREENAWAY, JR., Circuit Judge

      Appellant Odell Johnson (“Johnson”) was resentenced, after United States v.

Booker, 

(2005), to 222 months of imprisonment after his conviction on
multiple counts of a federal indictment. The District Court for the Eastern District of

Pennsylvania determined, after applying the career offender enhancement (U.S.S.G. §

4B1.1(a)), that Johnson was a career offender. 1 Johnson has two prior convictions for

controlled substance offenses and one conviction for reckless endangerment. Johnson

claims that the District Court erred in determining that two of his prior convictions

satisfied the prerequisite for career offender status. We granted a certificate of

appealability on the issue of Johnson’s sentencing. For the reasons explained below, we

find no error in the imposition of the § 4B1.1 enhancement and will affirm the District

Court’s judgment of conviction.

                                     I. BACKGROUND

       We write primarily for the parties and recount only the essential facts.

       On October 8, 2002, a federal grand jury returned an indictment charging Johnson

with one count of conspiracy to possess with intent to distribute 500 grams or more of

cocaine, in violation of 21 U.S.C. § 846; six counts of distribution of cocaine, in violation

of 21 U.S.C. § 841(a)(1); one count of use of a telephone to facilitate drug distribution, in

violation of 21 U.S.C. § 843(b); and two counts of interference with interstate commerce

by robbery, in violation of 18 U.S.C § 1951. On July 2, 2003, a jury convicted Johnson

of all counts except the two Hobbs Act counts.

1
  A defendant qualifies as a career offender if: “(1) [he] was at least eighteen years old at
the time [he] committed the instant offense of conviction; (2) the instant offense of
conviction is a felony that is either a crime of violence or a controlled substance offense;
and (3) [he] has at least two prior felony convictions of either a crime of violence or a
controlled substance offense.” U.S.S.G. § 4B1.1(a).
                                              2
       On February 3, 2004, the District Court sentenced Johnson to 360 months of

imprisonment, a term of eight years of supervised release, a fine of $2,500, and a special

assessment of $800.2 We denied Johnson’s appeal of his conviction on January 21, 2005,

and the Supreme Court denied his petition for certiorari on November 28, 2005. On

November 13, 2006, Johnson filed a counseled 28 U.S.C. § 2255 petition seeking to

vacate, set aside, and correct his sentence. On June 29, 2007, the District Court held an

evidentiary hearing and subsequently denied the motion; however, the Court vacated

Johnson’s sentence and granted him a resentencing in light of Booker.

       At resentencing, Johnson objected to his career offender classification. The

convictions at issue were two 1991 convictions, stemming from 1986 and 1988 drug

offenses, 3 as well as a reckless endangerment conviction in 2001. Johnson claimed, for

the first time, that he did not remember whether he was present in 1991 when his section

17 probation was revoked and sentence was imposed for the 1986 drug offense. 4 He




2
 At the time of his initial sentencing, Johnson did not object to the predicate convictions
qualifying him as a career offender.
3
  For his 1986 drug offense arrest, Johnson was sentenced to section 17 probation without
a verdict. His probation was revoked on September 4, 1991, and a judgment entered with
a resentence of 6 to 23 months. (Presentence Rep. at 6.)
4
 Section 17 probation entitles a person to probation without a verdict under certain
conditions. It provides, in part,
              (1) . . . The court may, without entering a judgment, and with
              the consent of such person, defer further proceedings and
              place him on probation for a specific time period . . .
                                             3
claimed that the Government failed to produce documents refuting his claim and showing

that he was present. If absent, Johnson asserted that his due process rights would have

been violated when the Court sentenced him in absentia. Johnson also argued that his

conviction for reckless endangerment should not qualify as a crime of violence, pursuant

to § 4B1.1.

       The certified minutes from the September 4, 1991 revocation hearing reflect that a

violation of probation hearing took place. Specifically, the minutes noted that “defendant

[was] found to be in direct violation of his section 17 probation. Sentence: not less than

six months, nor more than twenty-three months in Philadelphia County Prison with credit

for time served.” (App. at 143.) As the District Court noted, there was “[n]o mention

that defendant [wa]s absent, defendant [wa]s absconded because [he] [was] in custody.”

(App. at 64.) Additionally, Johnson acknowledged that he was in custody at the time of

the violation hearing. (Id.)




              (2) Upon violation of a term or condition of probation, the
              court may enter a judgment and proceed as in any criminal
              case, or may continue the probation without verdict.
              (3) Upon fulfillment of the terms and conditions of probation,
              the court shall discharge such person and dismiss the
              proceedings against him. Discharge and dismissal shall be
              without adjudication of guilt and shall not constitute a
              conviction for any purpose whatever, including the penalties
              imposed for second or subsequent convictions . . .
35 P.S. § 780-117 (1972).
                                             4
       The District Court rejected both of Johnson’s arguments. 5 To his first point, it

found that his “hazy memory d[idn’t] fulfill [his] burden of proof,” and that “[t]he

documentation of certified court sheets, minute sheets, and corroborating documents in

this record all confirm that [he was] present in Judge Carolyn [Temin’s] courtroom when

[Judge Temin’s] violation of probation finding was made and the sentence pronounced.”

(App. at 66.)

       Subsequently, pursuant to U.S.S.G. § 4B1.1, the District Court found that

Johnson’s offense level was 37 with a criminal history category of VI, producing a

Sentencing Guidelines range of 360 months to life imprisonment. 6 On March 26, 2009,

upon a Booker resentencing, the Court granted Johnson a downward variance and

resentenced him to a reduced sentence of 222 months of imprisonment, eight years of

supervised release, a $2,500 fine, and a special assessment of $800.

       Johnson appealed his resentence to this Court. On August 18, 2010, we granted

his request for issuance of a certificate of appealability regarding the District Court’s

resentencing.

                II. JURISDICTION AND STANDARD OF REVIEW

       The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. We

have jurisdiction, pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. “When reviewing
5
 Without the enhancement, Johnson’s total offense level would have been 26, making his
Guidelines range 110-137 months of imprisonment.
6
  Johnson’s counsel requested the file pertaining to the 1991 probation revocation, and
though a transcript of a preliminary hearing was in the file, no other transcripts were
found. (App. at 60.)
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the sentencing decisions of the district courts, we exercise plenary review over legal

questions about the meaning of the sentencing guidelines.” United States v. Collado, 

, 990 (3d Cir. 1992) (internal quotation marks omitted) (citing United States v.

Fuentes, 

, 152-53 (3d Cir. 1992)). The question of which party bears the

burden of proof is a matter of law and subject to plenary review, while the question of

whether a party has met its burden of proof involves the district court’s application of the

evidence, reviewed for abuse of discretion. See United States v. Gilbert, 

, 98

(3d Cir. 1994). We exercise plenary review over the district court’s determination of

whether a prior offense is a “crime of violence” under the U.S.S.G. § 4B1.2(a). United

States v. Johnson, 

, 207 (3d Cir. 2009).

                                     III. ANALYSIS

       Johnson’s principal argument is that he did not have the requisite two prior felony

convictions to qualify as a career offender.

       The Government concedes that Johnson’s 2001 Pennsylvania conviction for

reckless endangerment does not qualify as a crime of violence, subsequent to the

Supreme Court’s decision in Begay v. United States, 

(2008). 7 Although “a

government concession of law is not binding on this court,” United States v. Marino, 

, 455 (3d Cir. 1982), exercising plenary review, we agree.



7
  Johnson pled guilty in Montgomery County to recklessly endangering another person,
in violation of 18 PA C.S. § 2705, and Possession/Safe/Use Display Documents in
violation of 75 PA. C.S. § 7122.
                                               6
       This Court issued a decision in United States v. Lee, 

, 196 (3d Cir.

2010) after this appeal was filed. There, we held that “following Begay, a conviction for

mere recklessness cannot constitute a crime of violence.” 

Accordingly,

Johnson’s reckless endangerment conviction no longer qualifies as a crime of violence.

       Johnson does not contest that his conviction for the 1988 drug offense qualifies as

a predicate for career offender status. This determination leaves one issue, does the 1991

conviction also qualify as an appropriate predicate for career offender status? If so, the

two predicate felonies required to satisfy § 4B1.1 are met.

       Johnson asserts that he cannot remember being present at the time his section 17

probation was revoked, a guilty plea was entered, and he was sentenced to 6 to 23 months

of imprisonment. As noted in his brief, he does not contest the conviction itself, he only

claims that the Government, not he, has the burden of proof to show all facts necessary to

increase his sentence, including proving that he was present at sentencing. The

Government is deficient in its proofs, according to Johnson, because the transcript of the

plea hearing and sentencing was not found in the case file; and “the government could

not produce official documents proving that Johnson was present in the courtroom on

September 4, 1991.” (Appellant’s Reply at 8.)

       “The government bears the burden of establishing, by a preponderance of the

evidence, prior convictions and career offender status.” United States v. Howard, 

, 271-72 (3d Cir. 2010) (citing Mitchell v. United States, 

, 330

(1999)). “Once the government submits a certified copy of the defendant’s prior

                                             7
conviction into evidence or otherwise demonstrates that the defendant has a prior

conviction, the burden shifts to the defendant to rebut the presumption of regularity

which attaches to that prior conviction.” 

.

       Defendant has failed to proffer sufficient facts or evidence to rebut the

presumption of regularity. In this case, Johnson argues that the official documentation

submitted does not indicate that he was present at the revocation hearing when the court

imposed sentence. This argument is unavailing.

       The District Court properly assigned the burden to prove invalidity of the

conviction for the 1986 offense to Johnson. As the District Court found, Johnson’s “hazy

memory doesn’t fulfill [his] burden of proof.” (App. at 66.) As noted above, the District

Court also stated that all of the evidence before the Court led it to conclude that Johnson

was present. Johnson has shown only that there was no transcript of the proceeding and

his records failed to indicate whether he was present. A silent record as to Johnson’s

presence does not automatically shift the burden to the Government to prove his

presence. See, e.g. United States v. Jones, 

, 697 (3d Cir. 2003) (a silent

record as to counsel’s presence and participation did not automatically shift the burden to

the government to prove that defendant was afforded counsel or waived that right); Parke

v. Raley, 

, 30 (1992) (“On collateral review, we think it defies logic to

presume from the mere unavailability of a transcript . . . that the defendant was not

advised of his rights.”). The District Court did not abuse its discretion in finding that

Johnson failed to meet his burden to show the invalidity of his underlying conviction.

                                              8
       Johnson also offers as evidence the fact that he is unable to recall being present at

the hearing. The District Court did not abuse its discretion in finding that Johnson had

failed to establish that his prior conviction suffered from a constitutional infirmity based

on his alleged absence at the guilty plea and sentencing. See Cuppett v. Duckworth, 

, 1139 (7th Cir. 1993) (en banc) (“self-serving statements by a defendant that

his conviction was constitutionally infirm are insufficient to overcome the presumption of

regularity accorded state convictions.”)

                                   IV. CONCLUSION

       For the reasons discussed above, we will affirm Johnson’s sentence. Although

Johnson’s reckless endangerment conviction was not a crime of violence, Johnson failed

to establish that his 1991 conviction was invalid based on his alleged absence at the

guilty plea and sentencing. In light of Johnson’s second predicate felony conviction,

therefore, we will affirm the District Court’s judgment of conviction.




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