2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-13-2011

USA v. Roland Sherman

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-2030

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Recommended Citation

"USA v. Roland Sherman" (2011). 2011 Decisions. Paper 1449.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 10-2030

____________

UNITED STATES OF AMERICA

v.

ROLAND SHERMAN,

 Appellant

____________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 2-09-cr-00511-001)

District Judge: Honorable Peter G. Sheridan

____________

Submitted Pursuant to Third Circuit LAR 34.1(a)

April 11, 2011

Before: FISHER, JORDAN and COWEN, Circuit Judges.

(Filed: April 13, 2011 )

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OPINION OF THE COURT

____________

FISHER, Circuit Judge.

Roland Sherman pled guilty to one count of assaulting a person with intent to 

commit theft of property belonging to the United States, in violation of 18 U.S.C. 

§ 2114(a), and one count of interference with commerce by threat or violence, in 
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violation of 18 U.S.C. § 1951(a). The District Court sentenced him to 188 months‟ 

imprisonment on each count to be served concurrently. On appeal, Sherman challenges 

the District Court‟s application of the career offender enhancement under U.S.S.G. 

§ 4B1.1 and the reasonableness of his sentence. For the reasons set forth below, we will 

affirm.

I.

We write exclusively for the parties, who are familiar with the factual context and 

legal history of the case. Therefore, we will set forth only those facts necessary to our 

analysis.

On May 19, 2009, Sherman approached a postal clerk outside of the Ampere 

Station Post Office in East Orange, New Jersey. Sherman pointed a handgun at her head 

and demanded money. After forcing the clerk into the post office, he took approximately 

$7,500 in cash, checks, and money orders from the post office safe and $190 from the 

cash drawer. Before leaving the premises, Sherman ordered the clerk to get on the floor 

and duct taped her wrists behind her back.

Sixteen days later, Sherman robbed a Papa John‟s restaurant in Irvington, New 

Jersey. He walked into the restaurant, pointed a handgun at restaurant employees, and 

demanded money. He received approximately $150 from the cash register and fled.

A grand jury returned a two-count indictment charging Sherman with robbery of a 

federal employee, in violation of 18 U.S.C. § 2114(a), and obstructing commerce by 
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robbery, in violation of 18 U.S.C. § 1951. He pled guilty to the indictment pursuant to a 

plea agreement.

The Presentence Investigation Report (“PSR”) calculated Sherman‟s initial base 

offense level at 27. He was placed in a criminal history category of VI, based on his 

significant criminal history dating back to 1979. Because Sherman qualified as a career 

offender under U.S.S.G. § 4B1.1, the offense level was adjusted to 34. Specifically, 

Sherman had prior convictions for armed robbery, conspiracy to commit robbery, 

unlawful possession of a weapon, attempted murder, aggravated assault, terroristic 

threats, and possession of a controlled dangerous substance with intent to distribute 

(“Possession with Intent”). Sherman then received a three-level decrease, in accordance 

with the plea agreement stipulation regarding acceptance of responsibility and 

cooperation. The PSR‟s final recommended offense level was 31.

At the sentencing hearing, Sherman objected to consideration of his alleged prior 

conviction for Possession with Intent. He argued that the conviction in question was for 

possession of a controlled dangerous substance rather than Possession with Intent. This 

fact, if true, would render him ineligible for a career offender enhancement under 

U.S.S.G. § 4B1.1. The Probation Officer did not provide a judgment of conviction for 

the offense, but instead provided a PSR and a parole discharge form indicating that 

Sherman‟s conviction was for Possession with Intent. Sherman argued that these 

documents did not suffice to prove the offense by a preponderance of the evidence.
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The District Court overruled Sherman‟s objection and found that the two 

documents provided by the Probation Officer met the preponderance of the evidence 

standard. It stated:

So, those are the two reports that were presented by the probation officer. 

And I don‟t disagree with [Sherman] that it would be best to have the 

judgment. But we have two state reports, they‟re official records, they both 

indicate that he was charged with intent to possess and distribute I guess. 

And as such, I think that[] meets the preponderance of the evidence. . . . So 

with regard to the career offender status, we‟ll include paragraph 101 

because it‟s a crime of possession with intent to distribute.

(App. at 60.) Accordingly, the District Court calculated a Guidelines range of 188 to 235 

months, and sentenced Sherman to a period of 188 months‟ imprisonment on each of the 

counts, to be served concurrently. Sherman timely appealed.

II.

The District Court had jurisdiction under 18 U.S.C. § 3231, and we have 

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We apply an abuse-ofdiscretion standard and review a sentence for reasonableness, which requires that the 

sentence be both procedurally sound and substantively reasonable. United States v. Wise, 

515 F.3d 207, 217-18 (3d Cir. 2008). “The question of what documents a district court 

may rely on to determine the nature of a prior conviction and the scope of a district 

court‟s authority to make factual findings are questions of law, which we review de 

novo.” United States v. Howard, 599 F.3d 269, 271 (3d Cir. 2010) (internal citations 

omitted).
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III.

Sherman raises two issues on appeal. First, he argues that the evidence presented 

by the government at sentencing was insufficient to establish that he was a career 

offender. Second, he argues that the District Court abused its discretion by failing to give 

adequate consideration to the plea agreement. We will address each contention in turn.

A.

Sherman argues that the evidence presented by the government at sentencing was 

insufficient to establish that he was a career offender within the meaning of U.S.S.G. 

§ 4B1.1. Specifically, he denies that his prior conviction was for Possession with Intent, 

but instead argues that it was only for possession of a controlled dangerous substance. If 

Sherman is correct, the conviction would not qualify as a career offender predicate 

offense.

The Federal Rules of Evidence do not apply in sentencing proceedings. Fed. R. 

Evid. 1101(d)(3). Instead, the evidence must only bear “„sufficient indicia of reliability 

to support its probable accuracy.‟” United States v. Miele, 989 F.2d 659, 663 (3d Cir. 

1993) (quoting U.S.S.G. § 6A1.3(a)). The government bears the burden to establish, by a 

preponderance of the evidence, proof of a defendant‟s prior convictions and his eligibility 

for career offender status. Mitchell v. United States, 526 U.S. 314, 330 (1999). The 

government may meet this burden by establishing “sufficient indicia of reliability [of 

submitted documents] to support their probable accuracy such that the documents can be 
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used as evidence of [a defendant‟s] prior conviction.” United States v. Neri-Hernandes, 

504 F.3d 587, 591 (5th Cir. 2007).

In Howard, we considered what forms of evidence the government may use to 

establish eligibility for career offender status. We held that the government had met its 

burden by submitting proof of conviction in the form of an incomplete certified 

conviction record and docket entries. More generally, we concluded:

In satisfying its evidentiary burden to prove career offender status, the 

government may rely on certified copies of convictions. However, a court 

may also confirm a defendant‟s previous convictions by relying on the 

terms of the plea agreement, the charging document, the transcript of 

colloquy between judge and defendant, or other comparable judicial records 

of sufficient reliability.

599 F.3d at 272 (citing Shepard v. United States, 544 U.S. 13, 16 (2005)).

In determining that Sherman‟s prior conviction was for Possession with Intent, the 

District Court relied on two pieces of evidence: (1) a PSR for the conviction and (2) a 

parole discharge form. Both pieces of evidence indicated that Sherman‟s conviction was 

for Possession with Intent. Undoubtedly, “it would be best to have the judgment” (App. 

at 60), but these mutually corroborating documents “are the type of judicial records that 

are permissible for sentencing courts to use to establish past convictions for sentencing 

purposes.” Howard, 599 F.3d at 273. Thus, we reject Sherman‟s first contention.

B.

Sherman next argues that the District Court abused its discretion in failing to give 

due consideration to the plea agreement. Specifically, Sherman argues that the plea 
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agreement stipulated to a total offense level of 27, and did not contemplate an 

enhancement under the career offender provision. This argument fails.

The plea agreement stated that “the parties agree that the total Guidelines offense 

level applicable to Roland Sherman is 27” (App. at 26), but it also stated simply and 

clearly:

The sentence to be imposed upon Roland Sherman is within the sole 

discretion of the sentencing judge, subject to the provisions of the 

Sentencing Reform Act [] and the sentencing judge‟s consideration of the 

United States Sentencing Guidelines. The United States Sentencing 

Guidelines are advisory, not mandatory. The sentencing judge may impose 

any reasonable sentence up to and including the statutory maximum term of 

imprisonment and the maximum statutory fine. This Office cannot and 

does not make any representation or promise as to what guideline range 

may be found by the sentencing judge, or as to what sentence Roland 

Sherman ultimately will receive.

(Id. at 21) (emphasis added). Moreover, the District Court confirmed Sherman‟s 

understanding of the plea agreement at the plea hearing:

So what you must understand now is that at this point in time it is 

impossible for either the Court or for your attorney to know precisely what 

the sentencing range will be prescribed by the guidelines.

(Id. at 47.) It continued:

Once again, you understand that at the present time it is unlikely that your 

attorney can be specific as to the guidelines which will apply in your case 

because [your attorney] does not have all the necessary information; that is, 

he hasn‟t seen the presentence report.

(Id. at 48.)

Accordingly, Sherman expressly acknowledged that he understood his sentence 

could not be determined until after completion of the PSR. (Id. at 43-48.) The District 
8

Court did not abuse its discretion in adopting the PSR recommendation, and we will 

affirm the District Court.

IV.

For the foregoing reasons, we will affirm the sentence of the District Court.