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United States v. McQuilken

October 15, 1996

UNITED STATES OF AMERICA

v.

ROBERT MCQUILKEN,

APPELLANT



On Appeal from the United States District Court for the Eastern District of Pennsylvania

(D.C. Criminal No. 94-cr-00356-1)

Before: SCIRICA and ROTH, Circuit Judges and RESTANI, Judge, Court of International Trade *fn*

SCIRICA, Circuit Judge.

Argued June 11, 1996

Filed October 15, 1996)

OPINION OF THE COURT

In this appeal Robert McQuilkin challenges his sentence. We will affirm.

I.

Between March 1994 and July 1994, Robert McQuilkin sold methamphetamine. All sales took place within 1,000 feet of St. Francis Xavier, a parochial elementary school in Philadelphia. *fn1

A jury found McQuilkin guilty of conspiracy to distribute methamphetamine (21 U.S.C. Section(s) 846); distribution of methamphetamine (21 U.S.C. Section(s) 841(a)); distribution of methamphetamine within 1,000 feet of a school (21 U.S.C. Section(s) 860); and use of a communication facility in furtherance of a drug trafficking crime (21 U.S.C. Section(s) 843(b)).

The district court determined that McQuilkin was a "career offender" under U.S.S.G. Section(s) 4B1.1, which raised his criminal history from Category III to Category IV and his offense level to thirty-seven. *fn2 The applicable guideline range was 360 months to life. The district court sentenced McQuilkin to 360 months imprisonment on Section(s) 846, 841(a) and 860 and 48 months on Section(s) 843(b), to run concurrently.

On appeal, McQuilkin contends he did not qualify as a "career offender." Alternatively, he argues a downward departure was warranted because the "career offender" designation overstated his criminal history and he suffered from a "severe medical impairment."

II.

A.

To qualify as a "career offender" under Section(s) 4B1.1 of the Sentencing Guidelines, a defendant must have at least two prior felony convictions of either "crimes of violence" or controlled substance offenses. *fn3 McQuilkin does not challenge the propriety of counting his 1987 drug trafficking conviction as a predicate offense. What is in dispute is whether McQuilkin's 1988 conviction for aggravated assault is a "crime of violence," and thereby constitutes the second predicate offense required for "career offender" status. While under the influence of alcohol and drugs, McQuilkin crashed a motorcycle, severely injuring himself and his passenger. As a result, he was convicted of aggravated assault (18 Pa. Cons. Stat. Ann. Section(s) 2702 (1995)) for injuring his passenger. *fn4 The district court considered the aggravated assault conviction a "crime of violence" and counted it as the second predicate offense. But McQuilkin contends that "mere recklessness" should not constitute a "crime of violence" under Section(s) 4B1.1.

"Crime of violence" is defined in Section(s) 4B1.2 of the guidelines: The term `crime of violence' means 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 risk of physical injury to another U.S.S.G., Section(s) 4B1.2. Application Note 2 to Section(s) 4B1.2 states that the term "`[c]rime of violence' includes . . . aggravated assault." *fn5 The government maintains Application Note 2 definitively ...


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