Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-15-1996

United States v. McQuilkin
Precedential or Non-Precedential:

Docket 95-2092




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                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT

                           ___________

                           No. 95-2092
                           ___________


                     UNITED STATES OF AMERICA

                               v.

                         ROBERT McQUILKIN

                                         Robert McQuilken,
                                                      Appellant

         _______________________________________________

         On Appeal from the United States District Court
             for the Eastern District of Pennsylvania
                (D.C. Criminal No. 94-cr-00356-1)
                       ___________________


                       Argued June 11, 1996

            Before: SCIRICA and ROTH, Circuit Judges
        and RESTANI, Judge, Court of International Trade*

                     (Filed October 15, 1996)


                        ROBERT J. DONATONI, ESQUIRE (ARGUED)
                        Goldberg, Evans, Malcolm,
                          Donatoni & Rohlfs
                        135-137 West Market Street
                        West Chester, Pennsylvania 19382

                          Attorney for Appellant


                        EMILY McKILLIP, ESQUIRE (ARGUED)
                        Office of the United States Attorney
                        615 Chestnut Street, Suite 1250
                        Philadelphia, Pennsylvania 19106

                          Attorney for Appellee



*The Honorable Jane A. Restani, Judge, United States Court of
International Trade, sitting by designation.
                          __________________

                          OPINION OF THE COURT
                           __________________


SCIRICA, Circuit Judge.

         In this appeal Robert McQuilkin challenges his
sentence. We will affirm.
                               I.
         Between March 1994 and July 1994, Robert McQuilkin sold
methamphetamine. All sales took place within 1,000 feet of St.
Francis Xavier, a parochial elementary school in Philadelphia.
         A jury found McQuilkin guilty of conspiracy to distribute
methamphetamine (21 U.S.C. § 846); distribution of methamphetamine
(21 U.S.C. § 841(a)); distribution of methamphetamine within 1,000
feet of a school (21 U.S.C. § 860); and use of a communication
facility in furtherance of a drug trafficking crime (21 U.S.C. §
843(b)).
         The district court determined that McQuilkin was a
"career offender" under U.S.S.G. § 4B1.1, which raised his criminal
history from Category III to Category IV and his offense level to
thirty-seven. The applicable guideline range was 360 months to
life. The district court sentenced McQuilkin to 360 months
imprisonment on §§ 846, 841(a) and 860 and 48 months on § 843(b),
to run concurrently.
         On appeal, McQuilkin contends he did not qualify as a
"career offender." Alternatively, he argues a downward departure
was warranted because the "career offender" designation overstated
his criminal history and he suffered from a "severe medical
impairment."
                              II.
                               A.
         To qualify as a "career offender" under § 4B1.1 of the
Sentencing Guidelines, a defendant must have at least two prior
felony convictions of either "crimes of violence" or controlled
substance offenses. McQuilkin does not challenge the propriety of
counting his 1987 drug trafficking conviction as a predicate
offense. What is in dispute is whether McQuilkin's 1988 conviction
for aggravated assault is a "crime of violence," and thereby
constitutes the second predicate offense required for "career
offender" status. While under the influence of alcohol and drugs,
McQuilkin crashed a motorcycle, severely injuring himself and his
passenger. As a result, he was convicted of aggravated assault (18
Pa. Cons. Stat. Ann. § 2702 (1995)) for injuring his passenger.
The district court considered the aggravated assault conviction a
"crime of violence" and counted it as the second predicate offense.
But McQuilkin contends that "mere recklessness" should not
constitute a "crime of violence" under § 4B1.1.
         "Crime of violence" is defined in § 4B1.2 of the
guidelines:
    The term `crime of violence' means any offense under
    federal or state law 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 of a dwelling, arson, or
        extortion, involves use of explosives, or
        otherwise involves conduct that presents a
        serious risk of physical injury to another

U.S.S.G., § 4B1.2. Application Note 2 to § 4B1.2 states that the
term "`[c]rime of violence' includes . . . aggravated assault."
The government maintains Application Note 2 definitively
establishes that McQuilkin's conviction for aggravated assault
qualifies as a "crime of violence" under § 4B1.2, and a predicate
offense under the "career offender" provision.
         McQuilkin contends the conduct underlying his conviction
was not the type contemplated by Congress when it enacted 28 U.S.C.
§ 994, or by the Sentencing Commission when it promulgated Section
4B1.2. He asserts his conviction for aggravated assault from the
motorcycle accident was based on a finding of "mere recklessness,"
and notwithstanding Application Note 2's reference to "aggravated
assaults" as a class or generic category, should not qualify as a
"crime of violence."
         To support his argument, McQuilkin invokes the last
sentence of Application Note 2's first paragraph which provides:
"[u]nder this section, the conduct of which the defendant was
convicted is the focus of the inquiry." U.S.S.G., § 4B1.2,
comment. (n.2). This sentence was added to Application Note 2 as
Amendment 433 to the Sentencing Guidelines, and became effective
November 1, 1991. Amendment 433, U.S.S.G. App. C, at 312 (1995).
McQuilkin maintains this directive requires a court to look beyond
the offense categories listed in the Application Note and evaluate
the underlying conduct to determine whether the defendant committed
a "crime of violence."
                               B.
         Construction of the guidelines is subject to plenary
review, while factual determinations underlying guideline
application are reviewed under a clearly erroneous standard. SeeUnited
States v. Sokolow, 

, 411 (3d Cir. 1996). The
proper construction of the term "crime of violence" is a question
of law, and our review is plenary. United States v. Parson, 

, 863 (3d Cir. 1992).
         As we have previously noted, the relevant Pennsylvania
statute defines aggravated assault as one who "attempts to cause
serious bodily injury to another, or causes such injury
intentionally, knowingly or recklessly under circumstances
manifesting extreme indifference to the value of human life . . .
." 18 Pa. Cons. Stat. Ann. § 2702 (1995). McQuilkin contends his
aggravated assault conviction was predicated upon a determination
that his conduct was reckless. The government has not contradicted
McQuilkin's characterization of his offense. Although the record
of the aggravated assault conviction is inconclusive, it does
appear that McQuilkin's conviction was based on a finding of
recklessness.
         Our jurisprudence, however, does not permit us to examine
the actual conduct underlying the offense, notwithstanding the
Sentencing Commission's instruction that "the conduct of which the
defendant was convicted is the focus of the inquiry." U.S.S.G. §
4B1.2, Comment. (n.2). To demonstrate why this is so, we will
undertake a brief review of our case law and Amendment 433.
         Before Amendment 433 was adopted, we held that when
considering crimes specifically enumerated in the guidelines or
application notes, the sentencing judge may not consider the
underlying conduct. See 

; United States v.
John, 

, 767-78 (3d Cir. 1991); United States v.
McAllister, 

, 139 (3d Cir.), cert. denied, 

(1991). As for crimes not specifically enumerated, the Courts of
Appeals disagreed over whether the "crime of violence" designation
turned on the facts of the underlying behavior, or on the statutory
definition of the offense. Compare 

(courts
may look to defendant's actual conduct); United States v. Goodman,

, 699 (5th Cir. 1990) ("When the instant offense is not
one of those enumerated, . . . [the] court is permitted to look
beyond the face of the indictment and consider all facts disclosed
by the record"); United States v. Alvarez, 

, 918 (7th
Cir. 1990) (the court must look to the specific conduct of the
defendant as well as the elements of the offense charged), cert.
denied, 

(1991); with United States v. Gonzalez-Lopez,

, 547 (11th Cir. 1990) (a court may only review the
statutory definition of the crime or the generic category of the
offense, and not the defendant's actual conduct), cert. denied, 

(1991); United States v. Becker, 

, 570 (9th
Cir. 1990) (courts may only look to statutory definition of
offense), cert. denied, 

(1991).
         Through Amendment 433, the Sentencing Commission sought
to clarify the "crime of violence" designation to include only the
"conduct of which the defendant was convicted." Sentencing judges
were directed not to examine the actual underlying behavior when
conducting the "career offender" analysis. Amendment 433, U.S.S.G.
App. C, at 312 (1995); 

("[A] sentencing
court should look solely to the conduct alleged in the count of the
indictment charging the offense of conviction in order to determine
whether the offense is a crime of violence . . ."); United States
v. Fitzhugh, 

, 255 (5th Cir. 1992) ("[t]he sentencing
court should consider conduct expressly charged in the count of
which the defendant was convicted, but not any other conduct that
might be associated with the offense").
         Nevertheless, this clarification is inconsequential to
our analysis for specifically enumerated crimes. In a recent
decision, which post-dates the adoption of Amendment 433, we held
that no inquiry into the facts of the predicate offense is
permitted when a predicate conviction is enumerated as a "crime of
violence" in Application Note 2 to § 4B1.2. United States v.
McClenton, 

(3d Cir.), cert. denied, ___ U.S. ___, 

, 

(1995). The fact of conviction remains
dispositive for such crimes.
         In McClenton we were asked to decide whether a hotel
guest room constituted a "dwelling," thereby making burglary of a
hotel room a "crime of violence" under § 4B1.2. The hotel room was
unoccupied at the time of the burglary and the defendant argued
that his crime was against property, not habitation, and therefore
should not be considered a "crime of violence." We found
otherwise, concluding the guidelines did not support a distinction
between inhabited and uninhabited dwellings. In explaining our
decision we wrote, "the only issue we must decide is whether the
prior convictions for burglary involved a dwelling. Because
burglary of a dwelling is specifically enumerated in the
Guidelines, no further inquiry is warranted." 

.
         Because the Sentencing Commission has adopted a
categorical approach to the determination of whether an underlying
offense is a "crime of violence," we reaffirmed in McClenton our
earlier judgment that "where the predicate offense is expressly
listed as a crime of violence, a more detailed inquiry into the
underlying facts is inappropriate". 

.
         Arguably, one can read the Commission's instruction that
the "conduct of which the defendant was convicted is the focus of
inquiry" as referring only to § 4B1.2(1)(ii) -- to "conduct that
presents a serious risk of physical injury to another." But we
need not reach this question, for whatever uncertainty lingers over
the meaning and scope of Amendment 433 (when, and to what extent,
a court can look to the offense of conviction's facts in assessing
"crime of violence" status), we have determined that no inquiry
into the facts is permitted when a predicate offense is enumerated
as a "crime of violence" in Application Note 2 to § 4B1.2. 

.
         In the past we have expressed misgivings about including
"pure recklessness" offenses within the "crime of violence"
category. In Parson, a pre-Amendment 433 case, we "urge[d] that
the Commission reconsider its career offender Guidelines to the
extent that they cover . . . `pure recklessness' crimes." 

(noting displeasure with the Commission's broad
definition of "crime of violence" which included possible
unintentional uses of force when the original congressional
definition excluded such crimes). Since there has been no change
in the "crime of violence" definition, "purely reckless" crimes
continue to count as predicate offenses for purposes of "career
offender" consideration. Nevertheless, we renew our request to the
Sentencing Commission to reexamine its position on the inclusion of
"purely reckless" crimes as predicate offenses under the "career
offender" sentencing provisions. As currently written, a defendant
could be considered a "career offender" and subjected to enhanced
penalties on the basis of two prior convictions for reckless
conduct.
                              III.
                               A.
         Having concluded McQuilkin was appropriately sentenced as
a "career offender," we will address his contention the district
court erred in failing to depart below the applicable guidelines
range.
         McQuilkin contends that his designation as a "career
offender" overstates his criminal history, and the district court
should have departed downward. To support his view, he cites
United States v. Shoupe ("Shoupe III"), 

, 836 (3d Cir.
1994), where we held a sentencing court may depart downward on both
a defendant's offense level and criminal history designation if the
defendant's "criminal offender" status overstates his criminal
history and likelihood of recidivism. The Shoupe decision was
grounded in U.S.S.G. § 4A1.3, a policy statement which provides:
"[i]f reliable information indicates that the criminal history
category does not adequately reflect the seriousness of the
defendant's past criminal conduct or the likelihood that the
defendant will commit other crimes, the court may consider imposing
a sentence departing from the otherwise applicable guidelines
range." Although McQuilkin does not rely directly on § 4A1.3, he
generally argues for a departure on the same basis as that set
forth in § 4A1.3's policy statement.
         We lack jurisdiction to review a refusal to depart
downward when the district court, knowing it may do so, nonetheless
determines that departure is not warranted. See United States v.
Denardi, 

, 272 (3d Cir. 1989) ("To the extent this
appeal attacks the district court's exercise of discretion in
refusing to reduce the sentences below the sentencing guidelines,
it will be dismissed for lack of subject matter jurisdiction.");
United States v. Georgiadis, 

, 1222 (3d Cir. 1991)
("we have jurisdiction to decide whether a sentencing court erred
legally when not making a requested departure, but we cannot hear
a challenge to the merits of a sentencing court's discretionary
decision not to depart downward from the Guidelines"); United
States v. Evans, 

, 111 (3d Cir. 1995) ("[a]
discretionary decision by the trial judge that a departure is not
justified is not reviewable").
         Here, the district court neither misunderstood nor
misapplied the law in evaluating McQuilkin's downward departure
request for "overstatement of criminal history." While the
district court did not explain its rationale for declining to
exercise its discretion to depart under § 4A1.3, the court
explicitly stated "I am satisfied in my mind, among other reasons,
that the guidelines are necessary because I believe that really you
need to be institutionalized because I believe not only you are a
danger to yourself, but in fact you have proven to be a danger to
other people." This statement reinforces what the court's actions
conveyed; its view that McQuilkin's criminal history designation
did not overstate his past criminal conduct or the likelihood he
would commit future crimes. Because there is no allegation the
district court misapprehended the law in reviewing McQuilkin's
request for departure, we have no authority to review its valid
exercise of discretion.
                               B.
         McQuilkin also argues for departure based on his physical
condition. As a result of his motorcycle accident, McQuilkin
suffered injuries to his left arm. He also has a congenital defect
in his left eye, affecting the eye muscle. McQuilkin contends
these "handicaps" constitute a "severe medical impairment," and the
district court should have departed downward in light of his
condition.
         Section 5H1.4 of the sentencing guidelines provides that
although physical condition or appearance is not ordinarily
relevant in sentencing, "an extraordinary physical impairment may
be reason to impose a sentence below the applicable guideline
range." McQuilkin seizes on this language, claiming he suffers
from an "extraordinary physical impairment," which would place him
at risk for improper medical treatment in prison and make him a
target of other prison inmates.
         At sentencing, the district court found McQuilkin's
condition was "not that type of an impairment so severe and
complete that the downward departure [was] . . . warranted." The
court's determination that McQuilkin did not have the kind of
impairment described in §5H1.4 which "warrants" a departure could
have meant one of two things: that McQuilkin's impairment was not
extraordinary enough to allow the court to depart under the
authority of § 5H1.4; or that the nature of the impairment was
sufficiently extraordinary to allow the court to depart, but that
the court elected not to depart on this occasion. We believe the
court meant the former, in which case, we review this finding for
clear error. There is no clear error here. If the court meant the
latter, it would be unreviewable as a refusal to exercise
discretion. See Denardi, 

. Either way, McQuilkin's
contention the court erred in refusing to depart on the basis of
his physical condition lacks merit.
                              IV.
                                A.
         The final issue is whether the district court used the
correct "offense statutory maximum" to calculate McQuilkin's
offense level under § 4B1.1. Section 4B1.1 contains a table which
determines a defendant's offense level based on the maximum
sentence authorized by statute for an offense. "If the offense
level for a career criminal offender from the table . . . is
greater than the offense level otherwise applicable, the offense
level from the table . . . shall apply." U.S.S.G. § 4B1.1. The
table offense level is combined with the criminal history status of
a "career offender" (always Category VI) to arrive at the sentence
for that "career offender."
         The offense level for a "career offender" depends on the
statutory maximum term of imprisonment, which in the case of drug
offenses depends on the type and quantity of drugs involved. The
district court found McQuilkin was responsible for more than 100
grams of methamphetamine. Because McQuilkin had a prior
conviction for a felony drug offense, the maximum statutory penalty
he faced was life imprisonment; if he had not previously been
convicted of a drug felony, the maximum penalty for his offense
would have been forty years.
         The district court used life imprisonment as the maximum
statutory penalty to determine McQuilkin's offense level under §
4B1.1's table for career offenders, and concluded his offense level
was 37. But Application Note 2 to § 4B1.1 directs the sentencing
court to ignore any increases in the offense statutory maximum
based on the defendant's prior criminal record. McQuilkin
contends that by using life rather than 40 years to determine the
appropriate offense level under § 4B1.1, the district court erred
and imposed a longer sentence than the law permits. He suggests
his offense level under § 4B1.1 should have been 34, resulting in
a sentencing range of 262-327 months.
         The government contends Application Note 2's instruction
to ignore any increases in the offense statutory maximum based on
the defendant's prior criminal record is invalid, because it is
inconsistent with a federal statute, 28 U.S.C. § 994(h). McQuilkin
argues the Application Note does not conflict with § 994(h).
                               B.
         The validity of U.S.S.G. § 4B1.1's Application Note 2 is
a matter that has vexed several sister Courts of Appeals, yielding
opposing views. United States v. Fountain, 

(8th Cir.
1996) (finding Note invalid); United States v. Hernandez, 

(7th Cir. 1996) (same), petition for cert. filed, 

(U.S. June 17, 1996) (No. 95-9335); United States v. Novey, 

(10th Cir. 1996) (same), petition for cert. filed, 

(U.S. April 29, 1996) (No. 95-8791); but see United
States v. Dunn, 

(9th Cir. 1996) (finding Note valid);
United States v. LaBonte, 

(1st Cir. 1995) (same),
cert. granted, 

(1996). Even though the Supreme
Court has decided to review the conflict, pending appeal, we
nonetheless align ourselves with the Courts of Appeals for the
Seventh, Eighth and Tenth Circuits, which have found Application
Note 2 and § 994(h) irreconcilable.
                               C.
         Commentary in the guidelines is binding unless it runs
afoul of the Constitution or a federal statute, or is plainly
erroneous or inconsistent with the section of the guidelines it
purports to interpret. 

. We find
Application Note 2 to § 4B1.1 invalid because it conflicts with the
statutory mandate of § 994(h).
         Forceful arguments discussing the validity of Application
Note 2 have been advanced by the five Courts of Appeals that have
already spoken. We need not reinvent the wheel by repeating their
exhaustive analyses. It is sufficient to say we are convinced by
the approach of the Seventh, Eighth, and especially, Tenth
Circuits, and note the principal reasons for our agreement.
         In Novey, 

, the Tenth Circuit turned first to
the language in § 994(h), and found Application Note 2 inconsistent
with the statute. 

Section 994(h) provides:
    The Commission shall assure that the guidelines specify
    a sentence to a term of imprisonment at or near the
    maximum term authorized for categories of defendants in
    which the defendant is eighteen years old or older and --
         (1) had been convicted of a felony that is --
              (A) a crime of violence; or
              (B) an offense described in section
              401 of the Controlled Substances Act
              (21 U.S.C. § 841), sections 1002(a),
              1005 and 1009 of the Controlled
              Substances Import and Export Act (21
              U.S.C. §§ 952(a), 955, and 959), and
              the Maritime Drug Law Enforcement
              Act (46 U.S.C.App. § 1901 et seq.);
              and
         (2) has previously been convicted of two or
         more prior felonies, each of which is --
              (A) a crime of violence; or
              (B) an offense described in section
              401 of the Controlled Substances Act
              (21 U.S.C. § 841), sections 1002(a),
              1005 and 1009 of the Controlled
              Substances Import and Export Act (21
              U.S.C. §§ 952(a), 955, and 959), and
              the Maritime Drug Law Enforcement
              Act (46 U.S.C.App. § 1901 et seq.).
28 U.S.C. § 994(h). The court concluded the phrase "maximum term
authorized" could only be interpreted to mean "maximum enhanced
term authorized." It explained, "[b]ecause the `maximum term
authorized' for categories of defendants in which the defendant has
two prior qualifying felony convictions is necessarily the enhanced
statutory maximum, we find no ambiguity in the statute. It would
make no sense for the statute to require the `maximum term
authorized' to be considered in the context of defendants with two
or more prior qualifying felony convictions unless it was intended
that phrase mean the enhanced sentence resulting from the pattern
of recidivism." Id.; see also 

("There is
no ambiguity in the directive contained in section 994(h)."). We
find this analysis convincing.
         We also agree with the Seventh, Eighth and Tenth Circuits
that reading Application Note 2's use of the term "maximum" to
refer to unenhanced sentences "relegates the enhanced penalties
Congress provided for in [statutes like 21 U.S.C § 841] . . . to
the dust bin." 

; see also 

; 

; 

(Stahl, J., concurring in part and dissenting in part). Such an
interpretation strains credulity, and would undermine Congress'
clear intent in § 994(h) to augment rather than scale back the
sentences of qualifying recidivist offenders.
         Finally, we concur with the Tenth Circuit's overview of
the statute. "Section 994(h) does not mandate that each individual
defendant receive a sentence `at or near the maximum term
authorized.' Rather, the statute directs the Commission to assure
that the guidelines specify such a term `for categories of
defendants' in which the defendant is a recidivist violent felon or
drug offender. Sentence adjustments based on the circumstances of
an individual defendant, such as acceptance of responsibility,
substantial assistance to the investigation, or any other
mitigating factor, are not implicated." 

(footnote omitted) (emphasis in original). In light of our
understanding of § 994(h), the First Circuit's view that it is
difficult for the Commission to ensure "that career offenders will
invariably receive sentences `at or near' each individual's"
enhanced sentence maximum is not convincing. Such a rationale
cannot support the notion that Application Note 2 rests on a
permissible Commission interpretation of the statute. 

("[T]he phrase `at or near,' as employed in this
statute, suggests a continuum of sentences, each relatively further
from, or closer to, the statutory maximum"). Given the clear
language of § 994(h), and its apparent tension with a proliferating
scheme of statutory sentence enhancement provisions based on past
criminal conduct, we believe Application Note 2 is fatally
inconsistent with § 994(h).
                               V.
         For the foregoing reasons we will affirm the judgment of
sentence imposed by the district court.