Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-13-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2024




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 06-2024


                           UNITED STATES OF AMERICA

                                            v.

                                KELIN MANIGAULT,
                                            Appellant


             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                             D.C. Crim. No. 05-cr-00187
                  District Judge: The Honorable Sylvia H. Rambo


                      Submitted Under Third Circuit LAR 34.1(a)
                                  March 27, 2007


            Before: RENDELL, BARRY, and CHAGARES, Circuit Judges

                                 ( Filed: April 13, 2007)


                                       OPINION




BARRY, Circuit Judge

      Kelin Manigault appeals from the judgment of the District Court sentencing him to

235 months of imprisonment on his plea of guilty to two counts of violating 21 U.S.C. §
841(a)(1) (distribution and possession with intent to distribute crack cocaine). We will

affirm.

          The event at issue here began on December 9, 2004, when a tow truck operator

towing an illegally parked car spotted a gun on the front seat of the car. When the police

arrived, the tow truck operator opened the door of the car and the police recovered the

gun, some marijuana, and 32 grams of crack cocaine. The registered owner, Richena

Stanley, called the Harrisburg Bureau of Police to report that her car had been stolen.

When the police contacted her, she told them that Manigault bought and used the car, but

registered it in her name. She also told them that she had falsely reported the car as stolen

on Manigault’s instructions. She cooperated with the police, who recorded a phone call

in which Manigault again instructed her to report the car as stolen.

          An arrest warrant had been issued for Manigault when he failed to appear at

sentencing on an unrelated drug offense. On March 29, 2005, police officers approached

him as he was sitting in a parked car. Police recovered the 41 grams of crack cocaine he

discarded as he unsuccessfully attempted to flee.

          Manigault was charged in a five-count indictment, and ultimately pled guilty to

two counts. He objected to two two-level enhancements relating to the December 9

event: obstruction of justice (U.S.S.G. § 3C1.1) and possession of a deadly weapon

(U.S.S.G. § 2D1.1). He also objected to his classification as a career offender (U.S.S.G.

§ 4B1.1). The District Court rejected the objections and imposed sentence. He now



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appeals.

                                             I.

       The District Court had jurisdiction under 18 U.S.C. § 3231, and we exercise

appellate jurisdiction under 18 U.S.C. § 3742(a). Our review of the District Court’s

interpretation and application of the advisory sentencing guidelines is plenary, while

factual determinations are reviewed for clear error. United States v. Grier, 

,

569-70 (3d Cir. 2007) (en banc).

       Although the sentencing guidelines are merely advisory, a district court is required

to perform a complete analysis “in every case.” 

. The facts

relevant to the various guidelines factors need only be proved by a preponderance of the

evidence. 

       Manigault’s first objection is that the application of § 3C1.1, allowing a sentencing

enhancement for obstruction of justice, was not warranted for his instructions to Stanley

to falsely report the car as stolen. He argues that Application Note 4(g) of U.S.S.G. §

3C1.1, one example in a non-exhaustive list of conduct warranting the enhancement,

requires that a false statement have “significantly obstructed or impeded” the

investigation. In his view, the facts in the Pre-Sentence Report do not reflect that the

investigation was “significantly obstructed or impeded.” He also directs our attention to

Application Note 5(b), which states that “making false statements, not under oath, to law

enforcement officers” does not warrant the enhancement unless Application Note 4(g)



                                             3
applies.

       The conduct addressed in Application Note 5 references ordinary, and less

culpable, evasive conduct than that attributed to Manigault. Manigault twice requested

that Stanley lie in an effort to interfere with the police investigation. A false record was

produced (the stolen car report made by Stanley at Manigault’s behest) during the

investigation, and Stanley was directed to conceal evidence material to an investigation.

U.S.S.G. § 3C1.1 Application Note 4(c) and (d). The § 3C1.1 enhancement was properly

applied.

       Manigault also objected to the application of an enhancement under U.S.S.G. §

2D1.1(b)(1) for possession of a deadly weapon during a drug trafficking offense. He

argues that the District Court relied upon “hearsay” and not an admission by him or a

finding by the jury that he possessed the gun found on the front seat of the car, in

violation of United States v. Booker, 

(2005). Moreover, because the gun

possession count was dropped as a result of the plea agreement, he argues that his

sentence was enhanced for “acquitted conduct” in violation of the Sixth Amendment,

again citing Booker.

       We disagree. Booker’s teachings regarding the requirements of jury factfinding or

admissions by a defendant were only applicable when the Sentencing Guidelines were

mandatory. See 

(“If the Guidelines as currently written could be

read as merely advisory provisions that recommended, rather than required, the selection



                                              4
of particular sentences in response to differing sets of facts, their use would not implicate

the Sixth Amendment.”). Judges have broad discretion to impose a sentence within a

statutory range. 

Indeed, unindicted conduct rising to the level of a crime can

be found, by a preponderance of the evidence, to be a factor for enhancement so long as

the sentence lies within the statutory maximum. See 

.

       It was undisputed, moreover, that a gun was recovered from the car along with the

drugs Manigault admitted to possessing. Given the proximity of the gun to the recovered

drugs–both in the front seat of the car–it is not “clearly improbable that the weapon was

connected with the offense.” U.S.S.G. § 2D1.1, Application Note 3. And even assuming

Manigault was “acquitted” of the gun possession charge when it was dismissed as part of

the plea agreement, no relief was in order prior to Booker and no relief is in order after

Booker. See United States v. Watts, 

, 156-57 (1997) (allowing sentencing

enhancements for acquitted conduct); see also 

(Ambro, J.,

concurring in judgment) (“[E]very court of appeals to have spoken on the question so far

has held that Watts remains good law.”).

       Finally, Manigault disputes the District Court’s finding that he was a “career

offender” under U.S.S.G. § 4B1.1. Conceding the other elements required to find an

enhancement under § 4B1.1, he contends that he was not guilty of “two prior felony

convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. §

4B1.1(a)(3). While not disputing one such conviction, he argues that his conviction under



                                              5
18 Pa.C.S.A. § 2705 (Recklessly Endangering Another Person), was not a crime of

violence as defined in U.S.S.G. § 4B1.2(a).

       Application Note 1 defines a crime of violence as including conduct which “by its

nature, presented a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2

Application Note 1. We look only to the elements of the charge and not to underlying

facts in determining whether a particular conviction qualifies as a crime of violence. 

guilty to 18 Pa.C.S.A. § 2705, which criminalizes “recklessly engag[ing]

in conduct which places or may place another person in danger of death or serious bodily

injury.” The two elements of the crime are 1) recklessness and 2) placing another in

danger of death or serious bodily injury. Recklessly placing another in danger of “death

or serious bodily harm” is clearly conduct presenting a “serious potential risk of physical

injury to another.” U.S.S.G. § 4B1.2 Application Note 1. Therefore, a violation of 18

Pa.C.S.A. § 2705 is a crime of violence and Manigault is a career offender under § 4B1.2.

       For these reasons, we affirm the sentence imposed by the District Court.




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