filed: June 13, 1991; As Corrected June 26, 1991.
On Appeal From the District Court of the Virgin Islands (Division of St. Croix); D.C. Crim. No. 90-00023.
Becker, Scirica and Alito, Circuit Judges.
Under the United States Sentencing Guidelines ("Guidelines"), a defendant over the age of 18, who is convicted of a felony that is either a crime of violence or a controlled substance offense, will be subject to sentencing as a career offender if he has at least two prior felony convictions of either a crime of violence or a controlled substance offense. Guidelines § 4B1.1 et seq. Defendant Keithroy John, who was convicted of a controlled substance offense in the District Court of the Virgin Islands, had prior convictions for assault in the third degree, which John concedes to be a crime of violence, and grand larceny under a Virgin Islands statute, which he does not. The statutory elements of grand larceny do not implicate violence but the underlying facts of the offense do. This appeal from the judgment of sentence therefore presents the question whether, in determining the existence vel non of a crime of violence as a predicate to career offender status, the sentencing court properly considered the actual facts underlying the predicate conviction, or whether it should have been constrained by the statutory elements of the offense.
We conclude that the district court properly considered the underlying facts, and that it did not err in determining that John was a career offender and in sentencing him accordingly. We therefore will affirm.
On March 1, 1990, at approximately 8:30 p.m., while John was standing across the street from his home in Estate Mon Bijou, St. Croix, he was observed by Narcotics Strike Force agents engaged in a hand-to-hand drug sale. When the agents approached, John dropped a plastic sandwich bag, some portion of the contents of which he apparently was about to hand to a Mr. Didier in exchange for a twenty-dollar bill. The bag was retrieved and, upon examination, was found to contain seventeen rock-like pieces which ultimately tested positive for the presence of crack cocaine. John entered a plea of not guilty but was convicted by a jury of possession of crack with intent to distribute in violation of 21 U.S.C.A. § 841(a)(1) (West 1981).*fn1
The critical issue at the sentencing hearing was John's career offender status, which turned on whether his prior grand larceny conviction qualified as a crime of violence. If he were not a career offender, absent a departure from the Guidelines, John would have been sentenced within a Guidelines range of 63 to 78 months based upon an offense level of 22 and a criminal history category of IV. See Guidelines Chapter 5, Part A. However, career offender status required elevation of John's offense level to 32 and his criminal history category to VI, which combination yields a Guidelines sentencing range of 210 to 262 months. Id.
The Virgin Islands Code defines grand larceny as "the unlawful taking, . . . [of] the personal property of another . . . of $100.00 or more in value." See V.I. Code Ann. tit. 14, §§ 1081, 1083 (1964). On its face, this definition does not indicate that violence is a necessary element of the offense. However, the presentence investigation report ("PSI") made available to the district court described the underlying conduct for which John had been convicted as follows:
The defendant, in concert with two codefendants, entered a home and threatened the occupants with guns. Cash and other personal property was [sic] taken. He entered a guilty plea and was paroled on May 14, 1979. Parole was revoked on October 10, 1980, following his conviction in Cr. No. 80/21.
John agreed at the sentencing hearing that the PSI was accurate in every respect, including presumably in its description of the circumstances surrounding his grand larceny conviction.
Following the sentencing hearing, at which the career offender issue was the primary focus, the district court concluded that the grand larceny conviction, like the assault conviction, constituted a crime of violence because: (1) larceny is included among those crimes defined as a "crime of violence" under the Control, Firearms, and Ammunition Chapter of Title 23 of the Virgin Islands Code, see 23 V.I. Code Ann. tit. 23, § 451(d) (Supp. 1990); and (2) the description set forth in the PSI of John's conduct clearly indicated that the grand larceny conviction qualified as a crime of violence. The district court therefore sentenced John as a career offender to a term of 210 months, the bottom of the applicable Guidelines range. This appeal followed, in which the only contention of substance relates to the career offender issue.*fn2
John argues, as he must, that the district court erred both in relying on the Virgin Islands Code's definition of grand larceny as a "crime of violence" and in looking through to the actual conduct underlying John's grand larceny conviction, instead of limiting its inquiry to the statutory elements of the offense, to determine whether the crime involved violence. We consider only John's latter claim in detail here, as the former is clearly correct. See infra n.4.
The term "crime of violence," which is the essential element of career offender status at issue, is defined ...