filed: January 31, 1992; As Corrected February 27, 1992.
On Appeal From The United States District Court For The District of Delaware. (D.C. Crim. No. 90-00002)
Before: Becker and Alito, Circuit Judges, and Huyett, District Judge*fn*
The defendant-appellant, Steven Parson, pled guilty to a charge of possession with intent to distribute cocaine base, 21 USC §§ 841(a)(1) and 841(b)(1)(C) (1988). The district court determined that Parson was a career offender under United States Sentencing Guidelines ("USSG") §§ 4B1.1 and 4B1.2(1), which substantially increased his sentence. The court based its determination of career offender status on Parson's separate Delaware convictions for second degree conspiracy and first degree reckless endangering. Parson admits that the second degree conspiracy charge was a proper predicate for career offender status. He vigorously contends, however, that the 1984 reckless endangering conviction under 11 Del Code Ann § 604 (Michie 1987) (subsequently amended) was not a proper predicate because it was not a "crime of violence" under USSG §§ 4B1.1 and 4B1.2(1).
The district court concluded that the reckless endangering conviction was a "crime of violence" under both parts of the definition in USSG § 4B1.2(1). Parson claims that the district court plainly erred in finding his conduct a "crime of violence" under the first part of the Guideline definition, USSG § 4B1.2(1)(i), because use of force is not an element of first degree reckless endangering under Delaware law. He further submits that the district court erred under the second part of the definition, USSG § 4B1.2(1)(ii), either by considering first degree reckless endangering categorically a "crime of violence" or by deeming his actual conduct a "crime of violence" without allowing him to introduce evidence controverting the facts in his Presentence Investigation ("PSI") Report. More specifically, based on the legislative history of the term "crime of violence," beginning with the original definition of that term in 18 USC § 16 (1988), Parson argues that only (1) crimes involving specific intent to use force or (2) crimes that entail a substantial risk of intentional use of force may qualify as "crimes of violence." In his view, convictions such as his for "pure" recklessness crimes (ones that risk harm but involve no intent to cause harm) are insufficient to qualify as predicate offenses for career offender status and enhanced penalties.
For the reasons that follow, we will affirm. We do so despite our grave doubts about the wisdom of the Commission's extremely broad definition of "crime of violence," which is significantly more expansive than the original, congressional definition of "crime of violence" that excluded crimes not actually or potentially involving intentional use of force. Under the current definition, crimes such as reckless driving and child endangerment, because they involve the serious risk of physical injury to another person, qualify as predicate offenses for career offender status. Accepting the Sentencing Commission's longstanding invitation to comment on the Guidelines, we note our view that career offender status should be reserved for more serious offenders, those who repeatedly intend to inflict harm. While no inJustice is done on these particular facts, we urge the Commission to reconsider the career offender Guidelines insofar as they sometimes make a crime whose mens rea is no worse than recklessness into a predicate offense.
I. FACTS AND PROCEDURAL HISTORY
Delaware police arrested Parson on November 30, 1989, after a high-speed car chase. He was held on a number of state charges, some arising from the car chase, the others relating to possession and distribution of crack cocaine. Delaware prosecuted Parson for the charges related to the car chase but referred the drug-related charges for federal prosecution pursuant to an unwritten understanding between the U.S. Attorney's Office and the Delaware Attorney General's Office that the federal authorities have the right of first refusal on investigations involving five or more grams of crack.
A federal grand jury indicted Parson on January 3, 1990, charging him with five counts of distributing crack cocaine in violation of 21 USC § 841(a)(1). A superseding indictment was returned on February 23, 1990, charging six counts, but, pursuant to a plea agreement, on October 29, 1990, Parson pled guilty to one count of possession with intent to distribute cocaine base, and the government agreed, with the approval of the district court, to drop the five remaining counts charging distribution and conspiracy to distribute cocaine.
After Parson's guilty plea, the United States Probation Office prepared a PSI Report recommending that Parson be sentenced as a career offender under USSG § 4B1.1 because of his earlier Delaware convictions for second degree conspiracy and first degree reckless endangering.*fn1 Parson filed objections which conceded that his conspiracy conviction was properly a predicate offense under the Guidelines but claimed that his 1984 reckless endangering conviction should not be considered a predicate "crime of violence."
The PSI Report was the district court's only record of the facts underlying the earlier reckless endangering conviction, and that report was based on a Delaware PSI Report prepared after Parson's 1984 guilty plea. Both the federal and underlying Delaware PSI reports recite that on February 14, 1984, Parson and three codefendants were confronted while shoplifting meat from a store, and that Parson "pushed and slapped" a store clerk as the four fled. The reports do not mention where the clerk was hit, the severity of the contact or the presence of weapons.
At the district court's sentencing hearing on January 4, 1991, Parson attempted to controvert the findings in the PSI Report. Specifically, he offered to testify that he was not the one who slapped the store clerk and that there was little likelihood of serious injury to the victim.*fn2 The district court refused to hear his testimony and proceeded to rule that the 1984 reckless endangering offense was a proper predicate for career offender status. Thus finding that Parson had two qualifying predicate crimes, the court classified Parson as a career offender. Because the parties disagree over what the district court relied upon in making this determination, we set out the court's oral ruling in full:
It is my determination then that the defendant, Steven Parson, is a career offender pursuant to Guideline Section 4B1.1. He is over 18 years old. The present offense is a controlled substance offense, and he does have two prior felony convictions for what I find qualify as a crime of violence under 4B1.1 and 4B1.2.
In making that determination . . . I am not going to hold a mini-trial as to what occurred in that conviction involving reckless endangering, first degree. I am going to take the elements of that offense as they exist in the Delaware Code, namely, recklessly engaging in conduct which creates a substantial risk of death to another person, and I find that that offense fits within the definition of crime of violence both in sub-section (1) and sub-section (2) of Section 1 of 4B1.2.
I note also in making that determination that the Delaware Sentencing Accountability Commission has classified reckless endangering first degree as a violent felony.
For those reasons I will classify the defendant as a career offender.
Concerning the pre-sentence report, to the extent that it is taken into consideration, and I believe it is the type of hearsay that can be taken into consideration in a sentencing hearing, that does support my Conclusion . . . There was [a] conviction of the defendant for that offense, [and] he was represented by an attorney at that time.
During the hearing, Parson requested a downward departure from the otherwise applicable Sentencing Guidelines on the theory that the manner by which his case was referred for federal prosecution violated his due process rights. Parson claimed that the charges against him were selectively referred for federal prosecution in a manipulation of the federal and state courts. The district court disagreed and declined Parson's request, noting as an aside that Parson's federal sentence might have been higher anyway had there been no separate state proceedings. The court then proceeded to impose a sentence of 210 months in prison, at the top of the range it found applicable.*fn3 This appeal followed.
II. HISTORY AND VALIDITY OF THE CAREER OFFENDER GUIDELINE'S DEFINITION OF "CRIME OF VIOLENCE"
A. The Career Offender Guideline
The district court sentenced Steven Parson as a career offender under USSG § 4B1.1, which reads, in relevant part:
A defendant is a career offender if (1) the defendant was at least eighteen years old at the time of the instant offense, (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. If the offense level for a career criminal from the table below is greater than the offense level otherwise applicable, the offense level from the table below shall apply. A career offender's criminal history category in every case shall be Category VI.
Offense Statutory Maximum Offense Level*fn*
(C) 20 years or more, but 32 less than 25 years
Parson concedes that he meets all the qualifications for career offender status except one; he claims only that the government has shown but a single prior felony conviction for a "crime of violence." The primary issue we must decide, then, is whether Parson's 1984 Delaware conviction for first degree reckless endangering was a conviction for a "crime of violence" and hence a proper predicate for career offender status. Because the proper construction of "crime of violence" under the Guidelines is a question of law, our review is plenary. United States v McAllister, 927 F.2d 136, 137 (3d Cir), cert. denied, 116 L. Ed. 2d 80, 112 S. Ct. 111 (1991).
For purposes of the career offender Guideline, USSG § 4B1.1, USSG § 4B1.2(1) defines "crime of violence" as:
any offense under federal or state law 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 of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
The conviction at issue was for reckless endangering in the first degree, which, according to 11 Del Code Ann § 604, occurs when a person "recklessly engages in conduct which creates a substantial risk of death to another person." The government would have us affirm on the following theory: (1) because Parson pled guilty to first degree reckless endangering, he concededly "engaged in conduct which creates a substantial risk of death to another person," as the Delaware statute provides; (2) his conduct therefore necessarily "presented a serious potential risk of physical injury to another" under USSG § 4B1.2(1)(ii) (death being the most severe physical injury); hence (3) Parson's conviction was, by definition, for a "crime of violence." As we develop below, that logic is indeed sound, but it assumes that the Guideline definition of "crime of violence" is consistent with the underlying career offender statute and that the second prong of ...