On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 06-cr-00064) District Judge: Honorable Christopher C. Conner.
The opinion of the court was delivered by: Stapleton, Circuit Judge
Submitted Under Third Circuit LAR 34.1(a) February 11, 2008 Not Precedential Opinion Filed February 13, 2008.
Before: SLOVITER, SMITH, and STAPLETON, Circuit Judges.
On Remand from the Supreme Court of the United States January 21, 2009.
In Chambers v. United States, --- U.S. ----, 129 S.Ct. 687 (2009), the Supreme Court held that the crime of failure to report for incarceration, as distinguished from escape from custody, should not be classified a violent felony for purposes of the Armed Career Criminal Act, 18 U.S.C. § 924(e). Following that decision, the Supreme Court vacated our judgment affirming the conviction in this case and remanded it to us for further consideration in light of Chambers.
On February 15, 2006, George Hopkins was indicted on two counts. Count I charged Hopkins with possession with the intent to distribute five grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1), and Count II charged him with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Hopkins pled guilty to Count I pursuant to a plea agreement in which the government agreed to recommend a three-level reduction for acceptance of responsibility, if warranted, and to move to dismiss Count II after the sentencing.
Using the 2005 Sentencing Guidelines Manual, the probation officer determined that Hopkins' base offense level was 26 pursuant to U.S.S.G. § 2D1.1(c). He added two points pursuant to U.S.S.G. § 2D1.1(b)(1) because Hopkins possessed a dangerous weapon during the commission of the offense, and six points as a victim enhancement adjustment pursuant to U.S.S.G. § 3A1.2(c)(1). Three points were deducted for acceptance of responsibility. The result was a total offense level of 31.
The probation officer then calculated an alternative offense level assuming Hopkins was determined to be a career offender, in which case the base level would be 34 pursuant to U.S.S.G. § 4B1.1. Applying the three point deduction for acceptance of responsibility, Hopkins' total offense level was 31. Hopkins therefore received the same total offense level whether applying the victim enhancement adjustment, U.S.S.G. § 3A1.2, or the career offender adjustment, U.S.S.G. § 4B1.1.
The probation officer determined that Hopkins had accumulated eighteen criminal history points based on prior crimes, plus two points pursuant to U.S.S.G. § 4A1.1(d) because Hopkins was "on escape status" when the instant offense was committed, PSR at ¶ 32, and an additional point pursuant to U.S.S.G. § 4A1.1(e) because the instant offense was committed less than two years after his release from custody. This gave Hopkins a total of 21 criminal history points, resulting in a Criminal History Category of VI. Alternatively, if Hopkins were determined to be a career offender, his Criminal History Category would automatically be Category VI. With a total offense level of 31 and a Criminal History Category of VI, Hopkins' Guidelines range was 188-235 months of incarceration.
Hopkins objected to both the career offender enhancement and the official victim enhancement, but the District Court denied both objections, found him to be a career offender, and sentenced him to 188 months. Hopkins appealed. First, he argued that the career offender enhancement did not apply because one of the predicate offenses for the career offender classification, denominated in the PSR as an "Escape," was a 2001 non-violent "walk away" misdemeanor that did not qualify as a crime of violence. Second, he argued that the official victim enhancement did not apply because the offense of conviction was the drug charge, not the firearms charge, and there are no "victims" of drug crimes for purposes of the Sentencing Guidelines.
On Hopkins' first appeal to this Court, we affirmed the conviction and sentence imposed by the District Court. We rejected Hopkins' objection to the career offender classification calculation, relying on our earlier opinion in United States v. Luster, 305 F.3d 199, 202 (3d Cir. 2002), for the proposition that all escape crimes are crimes of violence. We also held that, in any event, the official victim enhancement provision applied. United States v. Hopkins, 264 F. App'x 173, 176 (3d Cir. 2008). Hopkins sought relief from the Supreme Court, which granted certiorari, vacated the judgment and, as we noted above, remanded the case for reconsideration in light of its decision in Chambers, 129 S.Ct. 687. Hopkins v. United States, 129 S.Ct. 995 (2009).
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). "Whether a particular crime constitutes a crime of violence is a question of law and the Court's review is plenary." United States v. Dorsey, 174 F.3d 331, 332 (3d Cir. 1999) (citation omitted).
We first address a threshold issue -- mootness. As we have explained, at sentencing Hopkins' designation as a career offender did not affect his offense level or his criminal history category. Even without that designation, the Guidelines would have called for the same 188 to 235 months sentencing range. The alternative basis for that range was affirmed by this Court, and our judgment in that respect remains effective as of the current date. It follows that a decision in Hopkins' favor on the career offender issue would not call for resentencing.
Nevertheless, as the government candidly acknowledges, such a decision would materially benefit Hopkins.
Since Hopkins' sentencing, the crack cocaine sentencing guidelines have been amended. U.S.S.G. §§ 1B1.10(a)(1) and (a)(2)(A) (amended December 11, 2007). That amendment would authorize Hopkins to file a motion pursuant to 18 U.S.C. § 3582(c) for a reduction of the sentence he is currently serving if he has not been properly sentenced as a career offender. If he has been effectively designated a career offender under U.S.S.G. § 4B1.1, however, he may not seek such a reduction. United States v. Mateo, 560 F.3d 152, 155-56 (3d Cir. 2009). Accordingly, we conclude that a justiciable controversy exists.
III. The Relevant Career Offender Law
Under the Sentencing Guidelines, Hopkins is a career offender if he: (1) was at least eighteen years old when the instant offense occurred; (2) the instant offense of conviction is a violent felony or a controlled substance offense; and (3) he "has at least two prior felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1(a) (2005). The first two requirements are satisfied and are not at issue here. The instant offense is a controlled substance one, and Hopkins was more than eighteen at the time of its commission. We focus therefore on the third requirement: "two prior felony convictions of . . . a crime of violence." Id. A "prior felony conviction" is any "adult federal or state conviction for an offense punishable by death or ...