1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-7-1999

USA v. Dorsey

Precedential or Non-Precedential:

Docket 98-7335

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Recommended Citation

"USA v. Dorsey" (1999). 1999 Decisions. Paper 91.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/91
Filed April 6, 1999 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 98-7335 

UNITED STATES OF AMERICA 

v. 

WILLIAM M. DORSEY, 

 Appellant. 

On Appeal from the United States District Court 

for the Middle District of Pennsylvania 

(D.C. Crim. No. 97-283) 

District Court Judge: Honorable Sylvia H. Rambo 

Argued November 19, 1998 

BEFORE: GREENBERG, ALITO, and 

GODBOLD,* Circuit Judges 

(Filed: April 6, 1999) 

 James V. Wade 

 Federal Public Defender 

 Daniel I. Siegel (argued) 

 Assistant Federal Public Defender 

 Middle District of Pennsylvania 

 100 Chestnut Street, Suite 306 

 Harrisburg, PA 17101 

 Attorneys for Appellant 

 William M. Dorsey 

_________________________________________________________________ 

*Honorable John C. Godbold, Senior Judge of the United States Court of 

Appeals for the Eleventh Circuit, sitting by designation. 
 David M. Barasch 

 United States Attorney 

 Middle District of Pennsylvania 

 Kim Douglas Daniel (argued) 

 Assistant U.S. Attorney 

 P.O. Box 11754 

 Harrisburg, PA 17108 

 Attorneys for Appellee 

 United States of America 

OPINION OF THE COURT 

GODBOLD, Circuit Judge: 

Defendant William M. Dorsey pled guilty to three counts 

of bank robbery. On June 4, 1998, the district court 

sentenced him as a career offender under U.S.S.G. S 4B1.1 

because of his prior convictions of aggravated and simple 

assault. Defendant challenges the sentence on the ground 

that a Pennsylvania simple assault is not a "crime of 

violence" for purposes of the career offender guideline. 

Whether a particular crime constitutes a crime of 

violence is a question of law and the Court's review is 

plenary. U.S. v. McQuilkin, 97 F.3d 723, 727 (3d Cir. 1996), 

cert. denied, 117 S. Ct. 2413 (1997). The burden is on the 

government to prove guideline enhancements by a 

preponderance of the evidence. U.S. v. Miele, 989 F.2d 659, 

663 (3d Cir. 1993). 

Whether simple assault qualifies as a predicate offense 

for purposes of the career offender guideline is an issue of 

first impression for the Third Circuit. The Eastern District 

of Pennsylvania has held that it does. U.S. v. Watson, No. 

CRIM. 92-672, 1993 WL 287621, at *4 (E.D. Pa. July 23, 

1993). See also U.S. v. Pratt, 913 F.2d 982, 993 (1st Cir. 

1990) (simple assault constituted career offender predicate). 

Under U.S.S.G. S 4B1.1, a defendant is a career offender 

if 1) the defendant was at least 18 years of age at the time 

he committed the instant offense of conviction; 2) the 

instant offense is a felony that is either a crime of violence 

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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. As to the first 

two elements, bank robbery is a crime of violence and the 

defendant was over 18 when he committed the instant

offense. As to the third element, defendant's prior

conviction for aggravated assault constitutes one of the 

predicate offenses. McQuilkin, 97 F.3d at 728. Therefore, 

the question is whether one of defendant's two convictions 

for simple assault constitutes the second predicate offense. 

Section 4B1.1 states that the predicate offense must be 

a "prior felony conviction." Application Note 3 to section 

4B1.2 states that, for purposes of determining career 

offender status under the guidelines, a "prior felony 

conviction" is one that is "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." As a 

second degree misdemeanor, the defendant's simple assault 

is punishable by a term of imprisonment for a term of more 

than one year. See 18 Pa. C.S.A. S 1104. Therefore, the 

defendant's conviction for simple assault is a felony for 

purposes of section 4B1.1. 

The sole remaining issue is whether simple assault is a 

"crime of violence." A "crime of violence" includes an offense 

that (1) "has as an element the use, attempted use, or 

threatened use of physical force against the person of 

another" or (2) ". . . involves conduct that presents a 

serious potential risk of physical injury to another." 

U.S.S.G. S 4B1.2(a). In Pennsylvania, a person is guilty of 

"simple assault" if he "1) attempts to cause or intentionally, 

knowingly or recklessly causes bodily injury to another; 2) 

negligently causes bodily injury to another with a deadly 

weapon; or 3) attempts by physical menace to put another 

in fear of imminent serious bodily injury." 18 Pa. C.S.A. 

S 2701(a). Because all three parts of Pennsylvania's 

definition of simple assault necessarily involve"conduct 

that presents a serious potential risk of physical injury," a 

conviction under the statute is one for a "crime of violence." 

See Pratt, 913 F.2d at 993. 

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Defendant argues his conviction for simple assault 

cannot constitute a predicate offense because he could 

have been convicted if he recklessly caused bodily injury 

and a conviction for reckless injury does not fit within the 

definition of "crime of violence." That simple assault can be 

committed recklessly does not mean the conduct does not 

present a serious potential risk of physical injury. First, the 

Pennsylvania penal code states "a person acts recklessly 

with respect to a material element of an offense when he 

consciously disregards a substantial and unjustifiable risk 

that the material element exists or will result from his 

conduct." 18 Pa. C.S.A. S 302 (1998). Second, purely 

reckless crimes may count as predicate offenses for

purposes of career offender guideline. McQuilkin, 97 F.3d at 

729; U.S. v. Parson, 955 F.2d 858, 874 (3d Cir. 1992). 

Defendant also argues the sentence should be vacated 

because the court did not consider the facts contained in 

the charging documents. However, sentencing judges are 

not required to examine the actual underlying behavior 

when conducting career offender analysis. McQuilkin, 97 

F.3d at 727. See also Taylor v. U.S., 495 U.S. 575, 601 

(1990) ("the practical difficulties and potential unfairness of 

a factual approach are daunting"). 

The sentence entered June 4, 1998 will be affirmed.

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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