2012 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

9-10-2012 

# U S A v . Ar th ur J a ck son
P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ock e t N o . 10-3523

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w . v i l l a no v a . e du/thir dc ir c uit_2012

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 2012 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min
. C a rl s on@l a

w . v i l l a no v a . e du

. R e c omme nde d C it a t ion

" U SA v . Ar th ur J a ck s on " (2012). 2012 D e cisio n s . P a pe r 458. h tt p://d i g it alc ommon s .l a

w . v i l l a no v a . e du/thir dc ir c uit_2012/458NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

__________ No. 10

- 3523

__________ UNITED STATES OF AMERICA

v. ARTHUR HOMER JACKSON, Appellant

__________ On Appeal from the United States District Co urt for the Western District of Pennsylvania (D.C. Criminal No. 2

- 08

- cr - 00115

- 001 ) District Judge: The Honorable Terrence F. McVerry Submitted Under Third Circuit L.A.R. 34.1(a) April 18, 2012 BEFORE: SCIRICA , AMBRO , and NYGAARD , Circuit Judges
(Fil ed : September 10, 2012 )

__________ OPINION OF THE COURT

__________ NYGAARD, Circuit Judge2 Arthur Homer Jackson appeals the 110

- month sentence imposed by the District Court. This sentence followed our remand, after we vacated his origina l sentence because Jackson’s reckless endangerment convictions no longer were crimes of violence under the United States Sentencing Guidelines. Jackson argues that the District Court abused its discretion by reopening the sentencing proceeding and allowing the Government to argue that vehicular flight was a crime of violence. We disagree. While we are generally reticent to reopen sentencing proceedings upon reman d, we by no means prohibit the District C ourt from exercising its discretion to allow it where fairness is served and p rejudice to the convicted party is minimal. A t the original sentence hearing, the District Court relied upon prior precedent to rule that Jackson’s reckless endangerment convictions were crimes of violence. Upon this ruling it passed over consideration o f Jackson’s vehicular flight convictions as an unnecessary exercise.
T he precise implications of the Supreme Court’s ruling in Begay v. United States , 553 U.S. 137 (2008) , as to reckless conduct w ere unclear at th e time of sentencing. It was only after Jackson’s sentencing that we signal ed in United States v. Johnson , 587 F.3d 203, 210 n.8 (3d Cir. 2009) , that , post

- Begay , reckless conduct no longer qualified as a crime of violence. In light of this chan ge, the District Court was well within its discret ion to reopen proceedings and allow the government to present evidence concerning vehicular flight, particularly since Jackson had ample o pportunity to respond to the G overnment’s argument. The District Court did not err.3 Next, we reject Jackson’s conten tion that a vehicular flight conviction cannot be regarded as a crime of violence. United States Sentencing Guidelines Section 4B1.2(a) de fines a crime of violence as on e that has the threatened use of force as an element, or that “involves conduct that presents a serious potential risk of physical injury to another.” U nder the Pennsylvania statute, vehicular flight involves refusing to bring a vehicle to a stop after being instructed to do so by police , or otherwise flee ing or attempting to elud e police who are in pursuit

. 75 Pa.C.S. § 3733. We are not persuaded by Jackson’s contention that vehicular flight cannot be a crime of violence because , in a particular
case, it might occur in a manner that does not place persons at risk. Moreover, we need
not decide whether the statute is divisible between violent and non

- violent crime, because the plea colloquies reveal that Jackson did not object to the Government’s characterization of his charges on each occasion as fleeing in a vehicle , with the police giv ing “chase” and in “pursuit.” In fact, at one plea hearing , his counsel acknowledged that Jackson was resolving to no longer be involved in “high sp eed chases.” Jackson pleaded guilty to fleeing police in a vehicle

. Therefore, regardless of whether the Pennsylvania vehicular flight statute is divisible, the record supports the District Court’s conclusion that Jackson pleaded guilty to a crime of violence. 1 Finally, Jackson objected to the sentence enhancement arising from the obliterated serial numbe r on the gun. Jackson argues that the District Court was procedurally

1 We note that b y failing to stop when commanded by pursuing police , by fleeing, or by using a vehicle to elude police, the driver inherently places others at serious risk of injury by causing police to give chase. This is consistent with the definition of a crime of violence in section 4B1.2(a).4 unreasonable because it failed to provide an explanat ion for the enhancement. Yet, the record indicates that the District Court did, in the first sentencing hearing, consider Jackson’s argument for a variance. It highlighted the fact that the second in tact serial number on the gun

— on which Jackson relies in this appeal to assert procedural and substantive unreasonableness

— was not plainly visible and was only discovered by a forensic exa mination of the weapon. Therefore, in applying the enhancement, the District Court reasonably viewed Jackson’s argument as lacking merit. At resentencing, h aving already questioned Jackson on this issue, there was no need for the District Court to revisi t it

. This is particularly the case where Jackson

— in his argument on sentencing factors

— conceded that he could not cite any authority to support his objection to the enhancement ; and where Jackson failed to press his argument after the District Court expl icitly raised the topic on resentencing

. Jackson raised no thing new to support his objection. The District Court gave adequate consideration to the section 3553(a) factors

. Finally, the District Court did not give undue consideration to Jackson’s crimin al history. Jackson’s 110 month sentence, at the low end of the advisory range, is procedurally and substantively reasonable. For all of these reasons, we will affirm the sentence

.