On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Crim. No. 2-07-cr-00170-1) District Judge: Honorable Eduardo C. Robreno.
The opinion of the court was delivered by: Sloviter, Circuit Judge.
Submitted Under Third Circuit LAR 34.1(a) July 6, 2009.
Before: SLOVITER, AMBRO, and JORDAN, Circuit Judges
Appellant Melvin Stinson, who was arrested by local police in a Philadelphia bar pursuant to an arrest warrant for failing to appear in court, was found to be in possession of 23 glass vials of cocaine base, totaling approximately 1.5 grams, and a .357 Magnum revolver. Thereafter, Stinson pled guilty to possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1), using and carrying a firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1), and possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). The matter is before us on Stinson's challenge to his sentence.
The PSR found Stinson to be a career offender under the 2006 United States Sentencing Guidelines based on his 1998 conviction for distribution of a controlled substance and a 1994 conviction for "simple assault." The PSR also noted that Stinson has been convicted of resisting arrest. The District Court agreed that Stinson was a career offender, and as a result, gave Stinson an enhanced offense level of 32. After deducting 3 points for acceptance of responsibility, Stinson's total offense level was 29. As a career offender, Stinson had a criminal history category of VI and received a Guidelines range of 262 to 327 months imprisonment. He was sentenced to 262 months, the bottom of the range.
Stinson now appeals that decision, claiming that the District Court (1) incorrectly considered his simple assault crime to be a crime of violence under the relevant sentencing provisions and (2) did not reasonably apply the 18 U.S.C. § 3553(a) factors when determining his sentence.*fn1 We will affirm.
"We exercise plenary review over questions of law, such as whether a crime is a crime of violence." United States v. Hull, 456 F.3d 133, 137 (3d Cir. 2006). Although Stinson admits that the District Court's conclusion that his simple assault conviction qualified as a crime of violence was required after our precedent in United States v. Dorsey, 174 F.3d 331 (3d Cir. 1999), and he notes in his brief that "it would seem to be difficult to distinguish Dorsey from the case at bar, factually," Appellant's Br. at 10, he argues only that the District Court "must make a specific finding as to whether the offense of conviction established a crime of violence by reference to the charged conduct." Appellant's Br. at 12. Such an approach would, of course, deviate from the categorical approach that we must apply "when analyzing how state statutes fit within the Sentencing Guidelines." United States v. Remoi, 404 F.3d 789, 792 (3d Cir. 2005).
Stinson's brief does not address the Supreme Court's opinion in Begay v. United States, 128 S.Ct. 1581 (2008), but that decision does require some discussion. Begay required that courts assess whether a crime alleged to create a "serious potential risk of physical injury to another" not only created the required "serious potential risk" but was also sufficiently similar to burglary, arson, extortion, or the use of explosives to qualify as a violent felony under the Armed Career Criminal Act (the "ACCA"), 18 U.S.C. § 924(e)(1). 128 S.Ct. at 1585. Although this case involves the Guidelines, the definition of a violent felony under the ACCA is sufficiently similar to the definition of a crime of violence under the Guidelines that authority interpreting one is generally applied to the other.*fn2
Because the issue of whether simple assault can still be considered a crime of violence after Begay is an issue that would benefit from initial briefing and exploration before a trial judge, we may decide this case on an alternative ground if we conclude that Stinson's prior conviction for resisting arrest qualifies as a crime of ...