2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-10-2012

USA v. Arthur Jackson

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-3523

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Recommended Citation

"USA v. Arthur Jackson" (2012). 2012 Decisions. Paper 458.

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NOT PRECEDENTIAL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 Court

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

(Filed: September 10, 2012)

__________

OPINION OF THE COURT

__________

NYGAARD, Circuit Judge
2

Arthur Homer Jackson appeals the 110-month sentence imposed by the District 

Court. This sentence followed our remand, after we vacated his original 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 remand, we by no means prohibit the District Court from exercising its 

discretion to allow it where fairness is served and prejudice to the convicted party is 

minimal. At 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 of Jackson’s vehicular flight convictions as an 

unnecessary exercise. 

The precise implications of the Supreme Court’s ruling in Begay v. United States,

553 U.S. 137 (2008), as to reckless conduct were unclear at the time of sentencing. It 

was only after Jackson’s sentencing that we signaled 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 change, the District Court was well within its 

discretion to reopen proceedings and allow the government to present evidence 

concerning vehicular flight, particularly since Jackson had ample opportunity to respond 

to the Government’s argument. The District Court did not err.
3

Next, we reject Jackson’s contention that a vehicular flight conviction cannot be 

regarded as a crime of violence. United States Sentencing Guidelines Section 4B1.2(a) 

defines a crime of violence as one 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.” 

Under the Pennsylvania statute, vehicular flight involves refusing to bring a vehicle to a 

stop after being instructed to do so by police, or otherwise fleeing or attempting to elude

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 

giving “chase” and in “pursuit.” In fact, at one plea hearing, his counsel acknowledged 

that Jackson was resolving to no longer be involved in “high speed 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 number on the gun. Jackson argues that the District Court was procedurally 

 

 1 We note that by 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 explanation 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 intact 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 examination of the weapon. Therefore, in applying the enhancement, the 

District Court reasonably viewed Jackson’s argument as lacking merit. At resentencing, 

having already questioned Jackson on this issue, there was no need for the District Court 

to revisit 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 

explicitly raised the topic on resentencing. Jackson raised nothing 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 criminal 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.