Filed: Nov. 18, 2011
Latest Update: Feb. 22, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ Nos. 10-2441 and 10-3402 _ UNITED STATES OF AMERICA v. DEMETRIUS COPE, Appellant _ Appeal from the United States District Court For the District of New Jersey (D.C. Number 08-cr-0048601) District Judge: Honorable Joseph H. Rodriguez _ Submitted October 3, 2011 Before: McKEE, Chief Judge, FUENTES and GREENBERG, Circuit Judges (Opinion Filed: November 18, 2011) _ OPINION _ MCKEE, Chief Judge. Demetrius Cope appeals the distric
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ Nos. 10-2441 and 10-3402 _ UNITED STATES OF AMERICA v. DEMETRIUS COPE, Appellant _ Appeal from the United States District Court For the District of New Jersey (D.C. Number 08-cr-0048601) District Judge: Honorable Joseph H. Rodriguez _ Submitted October 3, 2011 Before: McKEE, Chief Judge, FUENTES and GREENBERG, Circuit Judges (Opinion Filed: November 18, 2011) _ OPINION _ MCKEE, Chief Judge. Demetrius Cope appeals the district..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
Nos. 10-2441 and 10-3402
______________
UNITED STATES OF AMERICA
v.
DEMETRIUS COPE,
Appellant
_______________
Appeal from the United States District Court
For the District of New Jersey
(D.C. Number 08-cr-0048601)
District Judge: Honorable Joseph H. Rodriguez
______________
Submitted October 3, 2011
Before: McKEE, Chief Judge, FUENTES and GREENBERG, Circuit Judges
(Opinion Filed: November 18, 2011)
______________
OPINION
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MCKEE, Chief Judge.
Demetrius Cope appeals the district court’s judgment of sentence. For the reasons
that follow, we will affirm.
I.
As we write primarily for the parties who are familiar with the facts and
procedural history of this case, we will set forth only those facts necessary to our brief
discussion. On July 15, 2008 Demetrius Cope was charged in a one-count indictment
with unlawful possession by a convicted felon of three seized firearms, in violation of 18
U.S.C. § 922(g)(1) and 18 U.S.C. § 2. After extensive pretrial proceedings, the district
court denied Cope’s suppression motion and he thereafter pled guilty persuant to a
agreement that contained the following appellate waiver:
Demetrius Cope knows that he has and, except as noted below in this
paragraph, voluntarily waives, the right to file any appeal, any collateral
attack, or any other writ or motion, including but not limited to an appeal
under 18 U.S.C. § 3742 or a motion under 28 U.S.C. § 2255, which
challenges the sentence below the Guidelines range that results from the
total Guidelines offense level of 21. . . . [P]arties reserve any right they may
have under 18 U.S.C. § 3742 to appeal the sentencing court’s determination
of the criminal history category.
During the sentencing hearing Cope argued that two offenses in the Presentence
Report (“PSR”) were part of a single continuing course of conduct and therefore should
not have resulted in separate criminal history points. He also argued his sentence should
be mitigated pursuant to 18 U.S.C. § 3553(a) because one of his previous parole
violations resulted from a clerical error and his possession of the gun in question resulted
from his efforts to keep it out of the hands of unsupervised minors.
The district court concluded the Guideline range was 77 to 96 months, but granted
a variance based on the §3553(a) factors and imposed a sentence of 70 months.
In a subsequent motion to amend or correct his sentence, Cope presented new
information that challenged statements in the PSR that he had twice violated the
2
conditions of his state parole sentences. At a resentencing hearing, the district court
further reduced Cope’s sentence and imposed a sentence of 60 months incarceration,
required Cope to undergo mental health treatment and imposed a special condition to
supervised release. This appeal followed.1
II.
Cope argues the court should not have imposed mental health treatment as a
condition of supervisory release, and that the court procedurally erred in presuming that
the potential for violence increases when convicted felons possess guns. He also argues
that two charges that are separated by an intervening arrest should only count as one
charge when calculating criminal history points.
According to the Government, only his third argument falls outside the scope of
his appellate waiver. We agree that Cope’s first argument is clearly barred by the
appellate waiver. Although, his second argument may also be barred, we will
nevertheless address it. His third argument is clearly not barred.
III.
We do not address issues on appeal that are clearly covered by a knowing and
voluntary waiver unless enforcing the waiver would result in a miscarriage of justice.
United States v. Jackson, 523 F.3d 234, 243-44 (3d Cir. 2008). The scope of “plea
agreements although arising in the criminal context is analyzed under contract law
standards.” United States v. Williams,
510 F.3d 416, 422 (3d Cir. 2007). The waiver will
therefore be construed against the Government when it drafts the agreement.
Id. at 422.
1
This court has jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
3
The validity of the waiver is reviewed de novo. United States v. Mabry, 536 F.3d 231,
236 (3d Cir. 2008). Absent a waiver, “we review for clear error the factual findings that
underpin a district court’s application of the Guidelines.” United States v. Hines,
628
F.3d 101, 105 (3d Cir. 2010).
Cope’s claim that the district court plainly erred by imposing a requirement of
mental health treatment is clearly covered by his waiver. He tries to avoid the reach of
the waiver by arguing that nothing in the plea agreement or the Rule 11 colloquy alerted
him to the Government’s position that he would not be able to appeal the imposition of
mandatory mental health treatment. However, he does not claim that the waiver was not
knowingly and intelligently entered into and the waiver provision set forth above clearly
extends to this aspect of his sentence. “[T]he duration as well as the conditions of
supervised release are components of a sentence.” United States v. Goodson , 544 F.3d
529, 538 (3d Cir. 2008). Thus, the term “sentence” in Cope’s appellate waiver includes
both the incarceration and special condition of his supervised release. Moreover,
enforcing this waiver does not amount to a “miscarriage of justice.”
The Government argues that the waiver bars Cope’s right to challenge the district
court’s alleged procedural error in sentencing him based on an impermissible
presumption that firearms in the hands of convicted is likely to result in violence. Cope
contends that his procedural challenge is outside the scope of the appellate waiver which
bars only substantive challenges to the imposed sentence.
A fair reading of the appellate waiver suggests that the parties intended to preclude
appeals regarding the length of the sentence but not the procedure by which it was
4
imposed. Nevertheless, even though this challenge was not waived, we believe it is
meritless because the court did not clearly err.2
Cope challenges the presumption endemic in the court’s statement that, “the
availability of [a firearm] can certainly lead to a legitimate inference that circumstances
surrounding potential violence would be indicated.”
The Government contends the district court explained Cope’s possession of a
firearm created a legitimate inference of potential violence not a presumption that
violence would occur. The Government also asserts that the inference of violence was
reasonable because of Cope’s violent criminal history. The Government claims that the
court did not impermissibly conclude that a violation of 922(g) was a “crime of violence”
because the court stated Cope’s possession of a firearm created merely an “increased
risk” of violence rather than a “substantial risk.” We agree.
The district court made the comment while evaluating the 3553(a) factors.
Specifically, the court analyzed “the nature and circumstances of the offense” and Cope’s
past criminal history. In doing so, it was certainly appropriate to consider the potential
for future acts of violence evidenced by the circumstances of the current offense, and the
defendant’s criminal record. See 18 U.S.C. § 3661.
The sentencing court did not presume Cope’s possession of a firearm was a crime
of violence. In United States v. Bowers, we explained that crimes of violence are crimes
2
The Government does not argue that the appellate waiver bars Cope’s argument
regarding the calculation of his criminal history points. The appellate waiver expressly
permits appeals under 18 U.S.C. § 3742 “to appeal the sentencing court’s determination
of the criminal history category.”
5
that involve a “substantial risk” of violence. 432 F.3d 518, 521 (3d Cir. 2005). A
substantial risk is “a direct relationship between the offense and a risk of violence.”
Id.
(quoting United States v. Singleton,
182 F.3d 7, 10 (D.C. Cir. 1999)). Mere possession of
a firearm by a convicted felon does not permit an inference s/he will use the weapon.
Id.
at 521-22. Here, Cope constructively possessed a firearm in his residence. Given Cope’s
long history of violent felonies, the sentencing court’s statement merely recognizes that
there is an “increased risk” of violence when someone with Cope’s criminal history
possesses a firearm. That is not nearly as surprising or novel a conclusion as Cope
suggests.
Finally, the court properly considered two of Cope’s prior crimes as separate
offenses in determining Cope’s criminal history points because there was an intervening
arrest. “Prior sentences always are counted separately if the sentences were imposed for
offenses that were separated by an intervening arrest.” UNITED STATES SENTENCING
GUIDELINES MANUAL § 4A1.2(a)(2) (2009). Previous offenses are not related simply
because there were consolidated at sentencing. United States v. Hallman, 23 F.3d 821,
824-25 (3d Cir. 1994). Thus, Cope’s attempt to avoid the consequences of his two arrests
by arguing that the underlying criminal acts were committed within 5 weeks of each other
and part of the same criminal investigation is meritless.
VI.
For the reasons set forth above, the judgment will be affirmed.
6
