Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-20-2004

USA v. Hartman
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1956




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 03-1956


                           UNITED STATES OF AMERICA

                                              v.

                       CHRISTOPHER WENDELL HARTMAN
                                 a/k/a Chris


                                CHRISTOPHER HARTMAN,

                                                           Appellant




                     Appeal from the United States District Court
                       for the Western District of Pennsylvania
                     (D.C. Criminal Action No. 02-cr-000015-4E)
                      District Judge: Hon. Maurice B. Cohill, Jr.


                             Argued on December 19, 2003

                   Before: ROTH and M CKEE, Circuit Judges and
                            CUDAHY*, Circuit Judge

                          (Opinion filed: December 20, 2004)




        *Honorable Richard D. Cudahy, Circuit Court Judge for the Seventh Circuit,
sitting by designation.
                                       OPINION




ROTH, Circuit Judge:

       Christopher Wendell Hartman was sentenced as a career offender pursuant to

section 4B1.1 of the United States Sentencing Guidelines by the United States District

Court for the Western District of Pennsylvania following his March 2003 guilty plea to

conspiracy to distribute cocaine. Hartman appeals his sentence, arguing that one of the

predicate convictions relied on by the District Court to establish his status as a career

offender should not count because, although he was charged and convicted as an adult, he

was sentenced as a youthful offender. A separate panel of this circuit rejected an

identical argument in United States v. Moorer, 

(3d Cir., 2004).

Accordingly, we will affirm Hartman’s judgment of sentence.

       Section 4B1.1 of the Sentencing Guidelines provides that a defendant must have at

least two prior qualifying felony convictions to be sentenced as a career offender. 1

Hartman concedes that his drug trafficking conviction from 1996 counts as a predicate


   1
      “A defendant is a career offender if (1) the defendant was at least eighteen years old
at the time the defendant 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) the defendant 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
conviction. However, Hartman contends that his 1991 conviction on kidnaping and

related charges should not count because he was sentenced as a youthful offender.

Hartman committed the relevant offense conduct in July 1990 at age sixteen. He was

charged as an adult in Dade County Circuit Court in Miami, Florida, and pled no contest

to the charges. Hartman was sentenced as a youthful offender pursuant to Florida Stat.

Ann. § 958.04. The court placed Hartman on community control for a term of six years

with the special condition that he be committed to the Department of Corrections and

imprisoned for a term of four years.

       The Guidelines define “prior felony conviction” to mean “a prior adult federal or

state conviction for an offense punishable by death or imprisonment for a term exceeding

one year, . . . regardless of the actual sentence imposed.” U.S.S.G. § 4B1.2, cmt. n.1.

The Guidelines further provide that “[a] conviction for an offense committed prior to age

eighteen is an adult conviction if it classified as an adult conviction under the laws of the

jurisdiction in which the defendant was convicted.” 

no question that

Hartman’s 1991 conviction was classified as an adult conviction and punishable by a term

of imprisonment exceeding one year.

       However, Hartman points to U.S.S.G. § 4B1.2, cmt. n.3, which explains that the

provisions of § 4A1.2 “are applicable to the counting of convictions under § 4B1.1.”

Section 4A1.2(d)(1) provides, in turn, that an offense committed prior to age eighteen

counts toward a defendant’s criminal history if “the defendant was convicted as an adult



                                              3
and received a sentence of imprisonment exceeding one year and one month.” On its face

this seems unavailing, as Hartman was convicted as an adult and did receive a four-year

term of imprisonment as a condition of his six-year term of community control.

However, note 7 of the Guidelines commentary to this section provides that “for offenses

committed prior to age eighteen, only those that resulted in adult sentences of

imprisonment exceeding one year and one month . . . are counted.” U.S.S.G. § 4A1.2,

cmt. n.7 (emphasis added). Following the lead of the Fourth Circuit in United States v.

Mason, 

, 559 (4 th Cir. 2002), Hartman contends that this reference to “adult

sentences” means that a conviction prior to age eighteen “counts only if [the defendant]

was both convicted and sentenced as an adult.” Hartman argues that his youthful

offender sentence was more like a juvenile sentence than an adult sentence and therefore

cannot be counted as a predicate conviction under § 4B1.1.

       We need not decide whether Hartman received an “adult sentence” because a

separate panel of this Court recently rejected the Fourth Circuit Court of Appeals’

interpretation of § 4A1.2 and application Note 7 in Moorer, 

. The court in

Moorer agreed with the Ninth Circuit Court of Appeals in United States v. Carillo, 

, 593-94 (9 th Cir. 1993), that the phrase “adult sentences of imprisonment” in

Note 7 is simply a “shorthand reference” to the phrase “convicted as an adult and received

a sentence of imprisonment” in § 4A1.2(d)(1). 

(quoting 

). The court in Moorer noted that the Fourth Circuit’s interpretation of



                                             4
Note 7 to require an “adult sentence” in addition to an “adult conviction” would impose

“a significant new element to criminal history calculations that is unstated in the actual

text of the Guidelines.” 

991 F.2d at 594). The court further observed

that the Fourth Circuit’s interpretation would conflict with application Note 1 to section

4B1.1, which specifically directs courts to examine only the maximum sentence that may

be lawfully imposed for a given offense while ignoring the actual sentence imposed. 

court in Moorer held that “an adult conviction qualifies as a ‘prior

felony conviction’ for purposes of career offender status whether the conviction results in

an ‘adult’ or ‘juvenile’ sentence.” 

is conceded that Hartman’s 1991

conviction was an adult conviction, we hold that the District Court properly relied on that

conviction in its determination that Hartman should be sentenced as a career offender. 2




   2
     Hartman also argues that his sentence violates Blakely v. Washington, 

(2004). However, Blakely simply applied the rule expressed in Apprendi v. New
Jersey, 

, 490 (2000), which states that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime . . . must be submitted to a jury.”
(Emphasis added). The determination of Hartman’s status as a career offender rests on
the application of the Guidelines to the “fact of [Hartman’s] prior conviction[s].”
Accordingly, even if Blakely applies retroactively, it has no effect on this case.

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