UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
argued: February 27, 1990.
UNITED STATES OF AMERICA, APPELLEE
DALE M. PRESTON, A/K/A JAMI MANSOUR SHABAZZ, APPELLANT
Appeal from the United States District Court for the Middle District of Pennsylvania; D.C. Criminal Action No. 89-00085.
Higginbotham, Chief Judge, Hutchinson and Cowen, Circuit Judges.
HUTCHINSON, Circuit Judge.
Opinion OF THE COURT
Dale M. Preston (Preston) appeals from an enhanced sentence imposed under the Career Criminals Amendment Act of 1986 (Act), Subtitle I of the Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, § 1402, 100 Stat. 3207-39 to -40 (1986), 18 U.S.C.A. § 924(e) (West Supp. 1990). The Career Criminals Amendment Act -- which amended the Armed Career Criminal Act of 1984, Pub. L. No. 98-473, ch. 18, 98 Stat. 2185 (1984), 18 U.S.C.A. § 1202, as recodified at 18 U.S.C.A. § 924(e) by the Firearm Owners' Protection Act of 1986, Pub. L. No. 99-308, § 104, 100 Stat. 458 (1986) -- requires an enhanced sentence in convictions for possession of firearms when the defendant has three prior convictions for violent felonies. After convicting Preston for illegal possession of firearms by a felon, the government produced evidence of three prior felony convictions on his record.
On appeal, Preston contends that two of the three prior convictions introduced by the government cannot properly be used to enhance his sentence under the Career Criminals Amendment Act. He argues that one of the prior convictions, for criminal conspiracy to commit robbery, is not a "violent felony" under the Act. He argues that another of the prior convictions should not be considered because a potential conflict of interest in the 1971 proceedings that led to the conviction casts doubt upon whether he received effective assistance of counsel. Preston also argues that some, or all, of his prior convictions are now too stale to be considered during sentencing. Finally, Preston challenges the fine imposed by the district court after conviction.
We find no merit in any of Preston's arguments. Criminal conspiracy to commit robbery is a "violent felony" that can properly be counted for purposes of sentencing under the Career Criminals Amendment Act. Evidence of a potential conflict of interest is insufficient to support a claim of ineffective assistance of counsel made in collateral proceedings, and hence Preston's 1971 conviction can be considered in the absence of a showing of an actual conflict of interest in the earlier proceedings. The sentence enhancement language of the Career Criminals Amendment Act does not support Preston's staleness argument, and the fine that the district court imposed was reasonable and supported by the evidence. Therefore, we will affirm the district court's judgment of conviction and sentence.
While conducting surveillance of Preston's house in York, Pennsylvania, in early 1988 after receiving a tip that he was dealing in stolen goods, city police discovered that Preston was in possession of several firearms. Police confiscated five rifles after obtaining a search warrant for Preston's house. He was indicted for possessing the rifles in violation of 18 U.S.C.A. § 922(g) (West Supp. 1990), which prohibits the possession of firearms by a convicted felon. After a jury trial, Preston was found guilty.
The United States government sought to have Preston's sentence enhanced under the Career Criminals Amendment Act, 18 U.S.C.A. § 924(e). Section 924(e) (1) provides:
In the case of a person who violates section 922(g) of this title and has three previous convictions by any court . . . for a violent felony or serious drug offense, or both, committed on occasions different from one another, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years. . . .
Id. § 924(e)(1). The government filed an information listing three previous convictions Preston had received in Pennsylvania state courts in the 1970's: (1) a 1971 conviction in the York County Court of Common Pleas for robbery with an accomplice; (2) a 1977 conviction in the same court for resisting arrest, disorderly conduct and aggravated assault on a police officer; and (3) a 1977 conviction in the Cumberland County Court of Common Pleas for criminal conspiracy to rob the Embers Motel and Restaurant.
During the 1971 criminal proceedings for robbery with an accomplice, Preston and his accomplice were not given separate representation. Instead, they both were represented by the same public defender. There was no written waiver of individual representation by the two defendants, nor is there any evidence in the court transcripts that this possible conflict of interest was discussed with them. After a jury trial, both defendants were found guilty.
The 1977 criminal conviction in the Cumberland County Court of Common Pleas resulted from a criminal conspiracy between Preston and another man to rob the Embers Motel and Restaurant. Shots were fired during the crime. Although Preston was not the armed robber, he was parked in a stolen car outside the Embers and was unlawfully carrying a firearm when the robbery took place. He was later arrested when he entered the Embers. A jury convicted Preston under Pennsylvania's conspiracy statute, 18 Pa. Cons. Stat. Ann. § 903 (Purdon 1983).
On October 2, 1989, the district court enhanced Preston's sentence under the Career Criminals Amendment Act because of the three prior convictions. It imposed a fifteen year sentence and fined Preston $2000. Preston then appealed his conviction and sentence to this Court.*fn1
We have jurisdiction to hear Preston's appeal pursuant to 28 U.S.C.A. § 1291 (West Supp. 1990) and 18 U.S.C.A. § 3742(a) (West 1985 & Supp. 1990). The legal questions raised by Preston are subject to plenary review. See Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98, 102 (3d Cir. 1981). We review the fine imposed by the district court for reasonableness, while the court's associated factual findings are reviewed for clear error. See 18 U.S.C.A. § 3742(e) (West Supp. 1990).
We first consider Preston's argument that his 1977 conviction in the Cumberland County Court of Common Pleas for criminal conspiracy to commit robbery should not be considered a "violent felony" under the Career Criminals Amendment Act. Preston urges us to adopt a categorical approach for determining what constitutes a "violent felony" under § 924(e). Under such an approach, he argues that his conspiracy conviction cannot be categorized as a violent felony since the use or threat of physical force is not invariably involved in this crime. He refers to the language of 18 Pa. Cons. Stat. Ann. § 903, Pennsylvania's criminal conspiracy statute,*fn2 and asserts that the use or threat of physical force is not specifically mentioned as an element of the crime of conspiracy. Nor, he argues, does criminal conspiracy necessarily involve conduct that presents a serious potential risk of physical injury to others. Thus, if we use his categorical approach for determining what crimes are "violent felonies" under § 924(e), he argues that conspiracies should be excluded from consideration and his sentence should not be enhanced.
The government does not deny that a categorical approach should be used to determine what offenses may be considered "violent felonies" within the meaning of § 924(e). It does argue, however, that criminal conspiracy to commit robbery is a violent felony under § 924(e) and may be considered for the purpose of enhancing Preston's sentence under the Career Criminals Amendment Act. The government urges us to rely on the plain language of § 924(e), which defines "violent felony" as
any crime 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, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious risk of physical injury to another.
18 U.S.C.A. § 924(e)(2)(B).
We agree that a categorical approach must be used to determine which prior convictions may be considered by a sentencing court under the Career Criminals Amendment Act. All other federal appeals courts that have examined this issue have concluded that § 924(e) mandates looking at the fact of conviction and the statutory definitions of the prior offenses for which the defendant has been convicted, but not to the particular facts underlying those convictions. See United States v. Taylor, 882 F.2d 1018, 1023 (6th Cir. 1989), cert. denied, 496 U.S. 907, 110 S. Ct. 2592, 110 L. Ed. 2d 273 (1990); United States v. Dombrowski, 877 F.2d 520, 527-28 (7th Cir. 1989), cert. denied, 496 U.S. 907, 110 S. Ct. 2592, 110 L. Ed. 2d 272 (1990); United States v. Leonard, 868 F.2d 1393, 1395-97 (5th Cir. 1989), cert. denied, 496 U.S. 904, 110 S. Ct. 2585, 110 L. Ed. 2d 266 (1990); United States v. Sherbondy, 865 F.2d 996, 1005-10 (9th Cir. 1988); United States v. Headspeth, 852 F.2d 753, 758-59 (4th Cir. 1988). When necessary, a sentencing court may refer to the relevant indictment or information papers and the jury instructions in the prior conviction along with the certified record of conviction, see Taylor, 882 F.2d at 1030 (using indictment to clear up uncertainty on record of conviction and to help determine the defendant's prior offense), but the inquiry should not extend beyond these documents.
The Supreme Court examined the language and legislative history of § 924(e) recently in Taylor v. United States, 495 U.S. 575, 110 S. Ct. 2143, 109 L. Ed. 2d 607 (1990), and agreed with the reasoning of these earlier pro-categorical cases. See id. at 2160 ("We think the only plausible interpretation of § 924(e)(2)(B)(ii) is that, like the rest of the enhancement statute, it generally requires the trial court to look only to the fact of conviction and the statutory definition of the prior offense."). As the Court noted, "there was considerable debate over what kinds of offenses to include [in the language of the Career Criminals Amendment Act] and how to define them, but no one suggested that a particular crime might sometimes count towards enhancement and sometimes not, depending on the facts of the case." Id. at 2159. Since Congress made no mention of a more elaborate case-by-case, fact-specific approach, and since the Court recognized the practical difficulties and potential unfairness of such an approach,*fn3 the Court concluded that a categorical approach was appropriate when sentencing under § 924(e).*fn4
Thus, we must determine whether Preston's conviction for criminal conspiracy to commit robbery fits within a category of crimes that are included within the Career Criminals Amendment Act. After examining this issue, we hold that Preston's conviction for criminal conspiracy to commit robbery is a "violent felony" within the meaning of § 924(e)(2)(B)(i).
For criminal conspiracy convictions in Pennsylvania, the prosecution must show that a specific crime was the object of the conspiracy. See, e.g., Commonwealth v. Smith, 289 Pa. Super. 356, 433 A.2d 489, 494 (1981) ("The heart of the offense of conspiracy is an agreement to do an unlawful act."); Commonwealth v. Anderson, 265 Pa. Super. 494, 402 A.2d 546, 549 (1979) (essence of criminal conspiracy is a common understanding that a particular criminal objective be accomplished). Based on these authorities, we believe Pennsylvania law requires that the crime that was the object of the conspiracy be defined for the jury.*fn5 Thus, the elements of criminal conspiracy to commit robbery, of which Preston was convicted, subsume the elements of robbery, which is a violent felony for purposes of § 924(e). See United States v. Palmer, 871 F.2d 1202, 1204 (3d Cir.) (defendant's federal conviction for attempted bank robbery "clearly" was a violent felony for purposes of § 924(e)), cert. denied, 493 U.S. 890, 110 S. Ct. 233, 107 L. Ed. 2d 185 (1989); United States v. Dickerson, 901 F.2d 579, 584 (7th Cir. 1990) (violation of state robbery statute per se constitutes a violent felony for purposes of § 924(e)).*fn6
Although Pennsylvania's conspiracy statute does not explicitly include as an element "the use, attempted use, or threatened use of physical force against the person of another," that element necessarily must be proven to support a conviction for conspiracy to commit a violent felony. Since the Supreme Court in Taylor has determined that a sentencing court can go beyond the fact of conviction and the defined elements of a non-generic burglary statute "in a narrow range of cases where a jury was actually required to find all the elements of a generic burglary," 110 S. Ct. at 2160, we think that a sentencing court can go beyond the general elements of criminal conspiracy in situations such as this where the jury was required to find that a violent felony was the object of the conspiracy. When presented with a prior conviction for conspiracy, a sentencing court can determine the object of the conspiracy from the certified record of conviction, the charging papers and any relevant jury instructions. This narrowly circumscribed examination of the record will allow the court to categorize the prior conspiracy conviction for purposes of sentencing under § 924(e).*fn7
Here, it is undisputed that Preston's 1977 conviction in the Cumberland County Court of Common Pleas was for criminal conspiracy to commit robbery. The information papers filed in the trial court plainly show this charge. See Joint Appendix (App.) at 191. Since Preston was convicted of conspiracy to commit a violent felony, the use or threat of physical force was a part of his prior conviction for this crime. Accordingly, that conviction was a conviction for a "violent felony" within the meaning of § 924(e)(2)(B)(i).*fn8 As such, the prior conviction for conspiracy to commit robbery could be used to enhance Preston's sentence under the Career Criminals Amendment Act.
Next, we consider Preston's challenge to the use of his 1971 robbery conviction in the York County Court of Common Pleas in enhancing his sentence under the Career Criminals Amendment Act. A potential conflict of interest arose in those proceedings, since both Preston and his accomplice were represented by the same public defender. It does not appear that Preston waived individual representation during the 1971 proceedings or was informed about the potential conflict of interest. Preston claims that this potential conflict of interest creates a doubt about whether he received effective assistance of counsel from his public defender during the 1971 proceedings.
Preston analogizes his case to Supreme Court decisions arising in the aftermath of Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792 (1963). See United States v. Tucker, 404 U.S. 443, 30 L. Ed. 2d 592, 92 S. Ct. 589 (1972); Burgett v. Texas, 389 U.S. 109, 19 L. Ed. 2d 319, 88 S. Ct. 258 (1967). In Tucker, the Supreme Court remanded a case to the sentencing court for reconsideration because that court, during sentencing, had explicitly considered two prior convictions that were obtained in violation of Gideon. See 404 U.S. at 447-49. Burgett held that where the record is silent as to whether certain rights to representation were waived during earlier proceedings, there is a presumption that the prior convictions are invalid. See 389 U.S. at 114-15. Preston argues that his 1971 conviction should also be presumed invalid, since there is no evidence in the certified records that he had waived individual representation. According to him, this potential conflict of interest should have prohibited the district court from considering the 1971 conviction during sentencing in the absence of a showing that the conviction was constitutionally obtained.
The government does not argue that there was no potential conflict of interest during Preston's 1971 criminal proceedings. However, it contends that the post- Gideon cases cited by Preston are inapposite, because an actual conflict must be shown before a prior conviction may not be considered under the Career Criminals Amendment Act. The government relies on Cuyler v. Sullivan, 446 U.S. 335, 64 L. Ed. 2d 333, 100 S. Ct. 1708 (1980). In that case, the Supreme Court held that a criminal defendant must show an actual conflict of interest that adversely affected his counsel's performance in order to make out a claim for ineffective assistance of counsel under the Sixth Amendment in a collateral proceeding. By analogy, the government asserts that a similar showing should be required to prohibit the use of a prior conviction under § 924(e).
In Cuyler, the Supreme Court held that a state prisoner could not obtain federal habeas corpus relief under 28 U.S.C.A. § 2254 merely by showing that his defense counsel represented potentially conflicting interests. Thus, the Supreme Court vacated our earlier judgment in the same case, where we had held that a criminal defendant was entitled to reversal of his conviction whenever he makes "'some showing of a possible conflict of interest or prejudice, however remote. . . .'" United States ex rel. Sullivan v. Cuyler, 593 F.2d 512, 519 (3d Cir. 1979) (quoting Walker v. United States, 422 F.2d 374, 375 (3d Cir.) (per curiam), cert. denied, 399 U.S. 915, 26 L. Ed. 2d 573, 90 S. Ct. 2219 (1970)).
The Supreme Court held that "in order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." 446 U.S. 348, 100 S. Ct. 1708, 64 L. Ed. 2d 333. Although "a defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief," id. at 349-50, the Court held that "the possibility of conflict is insufficient to impugn a criminal conviction." Id. at 350. Moreover, the Court held that unless it can be shown that the trial court knew or reasonably should have known that a particular conflict of interest existed, the Sixth Amendment imposes no affirmative duty on the court to inquire into the propriety of multiple representation. See id. at 347-48.*fn9
Thus, Cuyler makes it clear that if Preston were challenging his 1971 conviction in a habeas proceeding, he would have to show some actual conflict of interest that adversely affected his counsel's performance in order to prevail. See Sullivan v. Cuyler, 723 F.2d 1077, 1085-86 (3d Cir. 1983). Since we are also presented with a collateral challenge to an earlier conviction, we think that a similar standard should be used to judge whether a prior conviction can be used to enhance a sentence under the Career Criminals Amendment Act. See United States v. Clawson, 831 F.2d 909, 915 (9th Cir. 1987) (using Cuyler standard to resolve ineffective assistance of counsel claim concerning a prior conviction that was to be used for sentence enhancement under 18 U.S.C.A. § 1202(a), the predecessor to 18 U.S.C.A. § 924(e)), cert. denied, 488 U.S. 923, 109 S. Ct. 303, 102 L. Ed. 2d 323 (1988). Preston's analogy to the line of cases following Gideon is inapposite to his situation.
Under the standard announced in Cuyler, we hold that Preston's 1971 conviction for robbery with an accomplice can be used to enhance his sentence under the Career Criminals Amendment Act. As the Ninth Circuit recognized in Clawson, "there must be a showing that the attorney refrained from taking some appropriate action because of the conflict of interest." 831 F.2d at 915. Preston has not made such a showing here. He has not offered any evidence of an actual conflict of interest that adversely affected his counsel's performance during the 1971 proceedings, nor has he even alleged that any actual conflict of interest resulted from the joint representation. At least in the absence of a colorable claim of actual conflict, Preston's allegations of a potential conflict of interest are insufficient to prohibit his prior conviction from being considered under § 924(e).*fn10
Preston raises two additional issues that can be resolved rather quickly.
Preston argues that his prior convictions are too stale to be considered for the purpose of sentence enhancement under the Career Criminals Amendment Act. This argument lacks merit under § 924(e)'s plain language. That section places no restriction on how recent prior convictions for violent felonies must be in order to be considered for enhancing a defendant's sentence under the Act, even though Congress obviously knew how to impose such a limitation. We are controlled by the language Congress chose. That language allows all prior convictions for violent felonies to be considered without regard to the date of conviction.
Our construction of § 924(e) poses no constitutional problem in this respect. Neither the Due Process Clause of the Fifth Amendment nor any other constitutional provision prohibits such a construction for sentencing purposes. Therefore, all three of Preston's prior convictions may be considered for purposes of enhancing his sentence under § 924(e).
Preston's challenge to the fine that the district court imposed also lacks merit. Section 5E4.2 of the federal sentencing guidelines provides that a fine shall be imposed in all cases, except when the defendant establishes that he is unable to pay the fine required by the guidelines or when the fine would unduly burden the defendant's dependents. See U.S. Sentencing Guidelines §§ 5E4.2(a), (f).*fn11 The district court followed the recommendation in the presentence report and found that "the defendant has the ability to pay a fine at the lower end of the Guidelines." App. at 203. It assessed a fine of $2000, which was the minimum for this offense.
Preston says that his house in York, worth approximately $5000, is his only significant asset. He argues that he does not have the earning capacity to pay the fine and should not be forced to sell his residence to pay it.
The probation office, in its response to Preston's objections to the presentence report it had prepared for the district court, concluded that liquidating Preston's property to pay a fine is not likely to have an unduly severe impact on him or his dependents, because the dependents do not live at the home and Preston will have no need for the residence during his confinement. In addition, there is evidence that Preston had been living at least some of the time at his girlfriend's residence and that his house was primarily used for business purposes. We also note that Preston did not submit any countervailing evidence and failed to submit a financial statement to aid the court in sentencing, despite a request from the probation office. The evidence presented to the district court at sentencing supports the fine imposed.
Since Preston has not demonstrated that he is entitled to an exception under § 5E4.2, the district court committed no error in imposing a $2000 fine. On this record, we hold that the $2,000 fine imposed on Preston is supported by the evidence the district court considered and is reasonable under the guidelines.
For the foregoing reasons, we will affirm the district court's judgment of conviction and sentence.