2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-6-2011

USA v. Steven Wallace

Precedential or Non-Precedential: Precedential

Docket No. 11-1969

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1

 

PRECEDENTIAL 

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-1969

_____________

UNITED STATES OF AMERICA

v.

STEVEN I. WALLACE,

 Appellant

______

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Criminal No. 1:10-cr-182-02)

District Judge: Honorable Yvette Kane

______

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

December 5, 2011

Before: HARDIMAN, BARRY, and VAN ANTWERPEN, 

Circuit Judges

(Filed: December 06, 2011)
2

James V. Wade, Esq.

Ronald A. Krauss, Esq.

Asst. Federal Public Defender — Appeals

100 Chestnut Street, Suite 306

Harrisburg, Pennsylvania 17101

Counsel for Appellant

Peter J. Smith, Esq.

Stephen R. Cerutti II, Esq.

United States Attorney‟s Office

Middle District of Pennsylvania

Ronald Reagan Federal Building

Suite 220

228 Walnut Street

Harrisburg, Pennsylvania 17108

Counsel for Appellee 

______

OPINION OF THE COURT

______

 

VAN ANTWERPEN, Circuit Judge.

I. Background

Steven Wallace pleaded guilty to criminal conspiracy 

to distribute and possess with intent to distribute marijuana in 

violation of 21 U.S.C. § 846. The District Court sentenced 

him to 70 months of imprisonment. Wallace appeals his 

sentence, arguing that the District Court committed 

procedural error by classifying a crime he committed at the 

age of sixteen as a “prior felony conviction” under § 4B1.2 of 

the U.S. Sentencing Guidelines Manual (hereinafter 
3

“Guidelines”). For the reasons set forth below, we will affirm 

the District Court‟s sentence.

The factual and procedural history of this case may be 

summarized as follows. On June 9, 2010, a grand jury 

returned a single-count indictment charging Wallace, along 

with three others, with engaging in a conspiracy to distribute 

and possess with intent to distribute in excess of 50 kilograms 

of marijuana. Later, Wallace reached an agreement with the 

Government whereby the Government filed an information 

charging him with conspiring to distribute and possess with 

intent to distribute an unspecified amount of marijuana. 

Wallace pleaded guilty to this charge on November 23, 2010.

The United States Probation Office submitted a presentence report (“PSR”) calculating Wallace‟s guideline 

range as 77 to 96 months of incarceration. Both the offense 

level and criminal history calculation was based on Wallace‟s 

designation as a career offender under § 4B1.1 of the

Guidelines. The PSR included a New York State conviction

for first degree robbery (“New York State conviction”). 

Wallace was sixteen years old at the time of his arrest for this 

offense, seventeen years old at the time of the conviction, and 

was granted a “youthful offender” adjudication by the New 

York State court.1 The District Court concluded that the 

 

1

 Under New York law, an individual between the ages of 

sixteen and nineteen may be deemed an “eligible youth” if he 

is charged with a criminal offense and fulfills other specified 

conditions. N.Y. CRIM. PROC. LAW § 720.10(1)-(2). If 

classified as an eligible youth, the court will vacate and 

replace the conviction with a youthful offender finding. Id. at 

§ 720.20(3).
4

conviction should be considered for the career offender 

designation. The New York State conviction, and Wallace‟s 

2002 conviction in the United States District Court for the 

Eastern District of New York for conspiring to import 

cocaine, provided the requisite convictions to find Wallace 

was a career offender under § 4B1.2. This in turn increased 

Wallace‟s Guidelines Sentencing range.

Wallace filed a number of objections to the PSR, 

including a challenge to the use of the New York State 

conviction as a basis for his classification as a career 

offender. Wallace asserted that the Government had failed to 

demonstrate that the New York State conviction should be 

considered an adult conviction for the purposes of the career 

offender enhancement. The District Court disagreed with 

Wallace, classified the offense as such, and included the 

career offender enhancement in the sentencing calculation.

Ultimately the District Court granted Wallace a onelevel downward departure regarding his criminal history, and 

sentenced him to 70 months of incarceration and 4 years of 

supervised release. Wallace timely appealed his sentence and 

claims error in the District Court‟s career offender 

enhancement.

II. Jurisdiction

The District Court had jurisdiction pursuant to 18 

U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 

1291 and 18 U.S.C. § 3742. 

III. Standard of Review
5

We review a district court‟s interpretation of the

Guidelines de novo, United States v. Wood, 526 F.3d 82, 85 

(3d Cir. 2008), while reviewing the sentence for abuse of 

discretion. United States v. Grober, 624 F.3d 592, 599 (3d 

Cir. 2010).

IV. Discussion

On appeal, Wallace argues that his New York State

youthful offender adjudication is not an adult conviction and 

thus not an eligible predicate offense for career offender 

status.2 Wallace contends that rather than considering the 

New York State conviction for first degree robbery, the 

District Court should have followed a four-element inquiry 

regarding the classification of a New York State youthful 

offender adjudication that Wallace fashions from a line of 

Second Circuit cases. See United States v. Driskell, 277 F.3d 

150, 154-55 (2d Cir. 2002) (“[A] court may consider a 

defendant‟s eligible past conviction, even when that 

conviction has been vacated and deemed a youthful offender

adjudication under New York law, in those situations where, 

as here, the defendant although under age eighteen was tried 

in an adult court, convicted as an adult, and received and 

served a sentence exceeding one year and one month in an 

 

2 Wallace partly relies upon the fact that when he was 

sentenced in 2002 in the United States District Court for the 

Eastern District of New York, the judge presiding over his 

sentencing did not consider his youthful offender 

adjudication. The District Court provided no explanation as 

to why the conviction was not considered, and regardless, its 

decision on how to handle the youthful offender adjudication 

is not binding in this case.
6

adult prison.”).

3 Had the District Court done so,4 Wallace‟s 

four month sentence in a non-adult facility would not have 

satisfied the requirements that the sentence exceed one year

and one month in an adult facility, and therefore the 

conviction would not have been counted for career offender 

status. 

Wallace‟s proposed adoption of this framework leads 

to his second argument: the District Court did not possess the 

information required to properly analyze the elements. 

Because the District Court did not have the information, 

Wallace argues that it could not have conducted the proper 

analysis.

We reject Wallace‟s arguments, and will affirm the 

District Court in all respects.

 

3 Wallace misconstrues the Second Circuit cases on which he 

relies. Driskell concerned §§ 4A1.1 and 4A1.2(d) of the 

Guidelines, not the career-offender provisions at issue here. 

277 F.3d at 155. Before increasing a defendant's criminal 

history by three points, § 4A1.2(d)(1) requires that the 

defendant received a sentence of greater than thirteen months 

for the predicate offense. See U.S. SENTENCING GUIDELINES 

MANUAL § 4A1.2 cmt. n.7. Because §§ 4B1.1 and 4B1.2 

have no similar requirement, we decline to apply Driskell to 

the career-offender guideline at issue in this case.

4

The District Court and counsel on appeal repeatedly refer to 

United States v. Salah, 185 F. App‟x 147 (3d Cir. 2006). 

While they may refer to that case, we note that it is not our 

policy to rely on non-precedential cases in reaching our 

decision.
7

A.

The definition of “career offender” is set forth in § 

4B1.1(a) of the Guidelines. The Guidelines clearly set three 

requirements: 

“A defendant is a career offender if (1) the 

defendant was at least eighteen years old at the 

time the defendant committed the instant 

offense of conviction; (2) the instant offense of 

conviction is a felony that is either a crime of 

violence or a controlled substance offense; and 

(3) the defendant has at least two prior felony 

convictions of either a crime of violence or a

controlled substance offense.”

U.S. SENTENCING GUIDELINES MANUAL § 4B1.1(a).

The first two requirements are satisfied here and are 

not challenged by Wallace. The third requirement, regarding 

two prior felony convictions, is the focus of his appeal. Note 

1 of the Commentary to § 4B1.2 provides the definition of 

“prior felony conviction”:

“For purposes of [the career offender]

guideline.... „Prior felony conviction‟ means a 

prior adult federal or state conviction for an 

offense punishable by death or imprisonment 

for a term exceeding one year, regardless of 

whether such offense is specifically designated 

as a felony and regardless of the actual sentence

imposed. A conviction for an offense 

committed at age eighteen or older is an adult 
8

conviction. A conviction for an offense 

committed prior to age eighteen is an adult 

conviction if it is classified as an adult 

conviction under the laws of the jurisdiction in 

which the defendant was convicted . . . .”

U.S. SENTENCING GUIDELINES MANUAL § 4B1.2, cmt. n.1.

Wallace argues his youthful offender adjudication is 

not an eligible predicate offense that qualifies as a “prior 

felony conviction” under this definition. Wallace bases this 

argument on his view that this Court should adopt the fourelement inquiry5

to determine whether a juvenile conviction 

qualifies as a “prior felony conviction.” 6

 

5 Again the four elements would be where the defendant (1) 

was tried in an adult court, (2) convicted as an adult, (3) 

received and, (4) served a sentence exceeding one year and 

one month in an adult prison. See Driskell, 277 F.3d at 154-

55.

6

In his reply brief, Wallace states that he is not advocating 

for the adoption of “any rigid test,” but rather for the “Second 

Circuit law [that] requires a non-categorical approach to the 

youthful offender/adult conviction issue, which examines „the 

substance of the prior conviction‟ . . . .” Any non-categorical 

approach would run counter to United States v. Moorer, 383 

F.3d 164 (3d Cir. 2004), as well as the language of Note 1 of 

the Commentary to § 4B1.2, as discussed below. A noncategorical approach would have to include some type of 

analysis and focus on the facts of the prior conviction. We 

have considered Wallace‟s position to be that the appropriate 

non-categorical approach in this case would be to focus on 
9

This Court has made plain that Note 1 to § 4B1.2 

“dictates that the career offender inquiry examine only 

whether the convictions in question are adult convictions, 

and not what kind of sentences resulted from those 

convictions.” United States v. Moorer, 383 F.3d 164, 168 

(3d Cir. 2004). In Moorer the defendant-appellant was 

convicted of drug offenses and classified as a career 

offender because of two prior felony convictions. Id. at 166. 

Moorer argued that one of the prior convictions should not 

be counted because he was sentenced as a juvenile, not an 

adult. Id. at 167. This Court stated “the Guidelines belie 

Moorer‟s premise that an adult conviction must be 

accompanied by an adult sentence to count toward career 

offender status.” Id. This was because the language in 

Note 1 of the Commentary to § 4B1.2 specifically states that 

a “prior felony conviction” is determined by courts 

“regardless of the actual sentence imposed.” Id. “[W]here 

or for how long the defendant is actually sentenced is of no 

import.” Id. (emphasis in original).

The four-element inquiry that Wallace advocates 

would similarly contradict the Commentary to § 4B1.2. The 

fourth element of the inquiry requires the defendant to have 

served a sentence exceeding one year and one month in an 

adult prison. But as this Court held in Moorer, Note 1 of the 

Commentary to § 4B1.2 specifically states that a “prior 

felony conviction” is determined by courts “regardless of 

the actual sentence imposed.” Moorer, 383 F.3d at 167. 

Wallace‟s proposed analysis thus contravenes this Court‟s 

precedent, as well as the language of the Guidelines, 

 

the same facts that the Second Circuit has focused on in cases 

like Driskell.
10

because the length of the sentence and the type of facility 

where it is served are irrelevant.

In the case before the Court, although we deal with 

New York rather than New Jersey law, Moorer requires that 

we determine if the conviction is an adult conviction. Our 

analysis is straightforward because although New York‟s 

youthful offender statute vacates and replaces a prior 

conviction, the juvenile eligible for such an adjudication 

must first be “convicted as an adult.” Driskell, 277 F.3d at 

154-55; see also United States v. Reinoso, 350 F.3d 51, 54 

(2d Cir. 2003) (“[Y]outhful offender adjudication does not 

alter the substance of the defendant‟s adult conviction.”). 

Thus it is clear that under New York law that Wallace‟s 

conviction was an adult conviction, regardless of the 

subsequent youthful offender adjudication. For that reason 

it was proper for the District Court to consider the 

conviction in determining Wallace‟s career offender status. 

Accordingly, we will affirm the District Court‟s sentence.

B.

Wallace‟s second argument is that because the New 

York State records are sealed, the District Court lacked the 

requisite information to conduct a proper analysis of the 

substance of the state proceedings, as required by the fourelement inquiry he advocates. Because we hold that the 

four-element inquiry is not the proper method to analyze the 

issue discussed above, and because the length of the 

sentence is irrelevant according to Note 1 of the 

Commentary to § 4B1.2, this argument need not be 

addressed.
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V. Conclusion

For the foregoing reasons, we will affirm the

appellants conviction and the District Court‟s judgment of 

sentence.