Appeal from Judgments of Conviction and Sentence in Criminal Nos. 06-00063-1 and 06-00063-2 in the United States District Court for the Eastern District of Pennsylvania.
The opinion of the court was delivered by: Mckee, Circuit Judge
Submitted Under Third Circuit LAR 34.1(a) March 24, 2008
Before: McKEE, RENDELL and TASHIMA,*fn1 Circuit Judges.
Terrell Berry and Shawn Mack pled guilty to an indictment charging them both with one count of robbery affecting interstate commerce, and one count of carrying and using a firearm in furtherance of a crime of violence. They now appeal their sentences arguing, inter alia, that the district court denied them due process of law by relying upon unsupported speculation in determining their sentences. For the reasons that follow, we agree. We will therefore remand for resentencing.
On October 5, 2004, Berry and Mack were apprehended by police in Upper Darby, Pennsylvania, in connection with the armed robbery of an area restaurant. A subsequent search of the car they were riding in disclosed a handgun as well as cash that had been stolen from the restaurant during the robbery.
Following their arrest, Berry and Mack were charged by local authorities. However, their prosecution was transferred to federal authorities, and they were subsequently indicted by a federal grand jury. Following indictment, they both pled guilty to one count of robbery affecting interstate commerce, in violation of 18 U.S.C. § 1951(a) ("Count One"), and one count of carrying and using a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c)(1) ("Count Two").
The Presentence Investigation Report ("PSR") that was prepared for Berry calculated an offense level of 19 and a criminal history category of I for Count One. That resulted in a Sentencing Guidelines range of 30 to 37 months imprisonment. However, a mandatory consecutive sentence of seven years imprisonment applied on Count Two. The PSR noted that Berry, who was 22 at the time of this offense, had no prior adult convictions, but he did have four prior arrests. He was assigned one criminal history point for an arrest for a theft offense when he was 17 that resulted in an adjudication of delinquency. Since this was his only criminal history point, he remained in criminal history category I. According to the PSR, a second juvenile petition had been filed against Berry for unauthorized use of an automobile. That petition was dismissed without adjudication of delinquency after Berry, then 16, admitted the charge and performed community service. Berry's PSR also stated that he had been arrested twice as an adult -once for marijuana possession and once for armed robbery. According to the PSR, the marijuana charge had been "discharged due to lack of prosecution," and the robbery charge had been "nol prossed." The PSR contained no information about the facts underlying those charges. Critically, as we shall explain, the PSR noted that the "nol prossed" robbery charge "forms the basis of the instant offense."
The PSR prepared for Mack calculated a Guideline offense level for the robbery of 20 and a criminal history category of I for Count One. The resulting Guideline range was 33 to 41 months. Mack was also subject to a mandatory consecutive seven-year sentence of imprisonment on Count Two. Mack had no prior criminal convictions, but the PSR listed four "other arrests." According to the PSR, Mack was arrested once for retail theft and once for possessing a weapon on school property when he was 17. The retail theft had been "discharged for lack of prosecution," and the weapons charge had been resolved when Mack entered a Consent Decree without an adjudication of delinquency.*fn2 As an adult, Mack had been charged with knowing possession of a controlled substance, but the charge had been "withdrawn by the District Attorney." Like Berry, his PSR listed a 2004 arrest for armed robbery that was "nol prossed." Except for the weapons charge arising from the possession of a box cutter, the PSR contained no information about the underlying facts or circumstances of any arrests.
Surprisingly, although no one present at sentencing apparently realized it, close examination of the PSRs reveals that the nol prossed robbery charges against Berry and Mack arose from the same robbery for which the defendants were being sentenced. The local authorities did not pursue those charges after Berry and Mack were indicted by the federal grand jury and they therefore moved to nol prosse the robbery charges in favor of the federal charges which are the subject of these appeals.
During the joint sentencing hearing, neither Berry nor Mack challenged the Guideline calculations in the PSR. However, attorneys for both emphasized that Berry and Mack were relatively young and without prior convictions. Defense counsel argued that, in light of the applicable mandatory seven-year consecutive sentence that applied on Count Two, Berry and Mack should receive only a minimal additional sentence of one month on Count One.
The government countered by emphasizing the violent nature of the armed robbery to which they had pled guilty, as well as the mental and emotional trauma inflicted on the victim. The government also challenged the defendants' assertions regarding the relevance of the absence of prior convictions. The Assistant United States Attorney responded to Berry's arguments as follows:
AUSA: In any event, your Honor, . . . Mr. Berry does come to this Court with a criminal record in his past. He's been arrested four times as a juvenile. He's a young man, so he has already accumulated quite a past before he gets to your Honor.
THE COURT: He has a record, but no adult convictions, but on the other hand, the - - reading between the lines - - this seems rather obvious that the reason he doesn't have any actual adult convictions is because of the breakdowns in the court - - in the state court system -- and not because of innocence.
AUSA: That's correct, your Honor. . . . [T]hat's entirely correct.
And also he['s] of such a young age, he didn't have time to amass the adult convictions. He did, however, have time to go through and create the four juvenile offenses that he was arrested for.
One of which - - I would point out to this Court - - was a robbery, which is exactly what he is here before this Court facing. The other offense was for a theft offense and - - in which he admitted his guilt, as well.
So, for all intents and purposes, although it does not factor in to his criminal history sentencing guideline range, he is here on this third conviction ...