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D ock e t 98-7335

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. e du/thir dc ir c uit_1999/91Filed 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 Uni ted States Court of Appeals for the Eleventh Circuit, sitting by design ation.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 co unts of bank robbery. On June 4, 1998, the district cour t 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 g round that a Pennsylvania simple assault is not a "crime of violence" for purposes of the career offender guide line.

Whether a particular crime constitutes a crime of violence is a question of law and the Court's revie w is plenary. U.S. v. McQuilkin, 97 F.3d 723, 727 (3d Ci r. 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 off ense 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. Wats on, 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 (1 st Cir. 1990) (simple assault constituted career offender p redicate).

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

2or a controlled substance offense; and 3) the defen dant has

at least two prior felony convictions of either a c rime of
violence or a controlled substance offense. As to t he first two elements, bank robbery is a crime of violence a nd 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 o f the predicate offenses. McQuilkin, 97 F.3d at 728. Ther efore, the question is whether one of defendant's two conv ictions for simple assault constitutes the second predicate offense.

Section 4B1.1 states that the predicate offense mus t be a "prior felony conviction." Application Note 3 to section 4B1.2 states that, for purposes of determining care er offender status under the guidelines, a "prior felo ny conviction" is one that is "a prior adult federal o r state conviction for an offense punishable by death or imprisonment for a term exceeding one year, regardl ess 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 a ssault 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 felo ny 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 presen ts a serious potential risk of physical injury to anothe r." U.S.S.G. S 4B1.2(a). In Pennsylvania, a person is g uilty of "simple assault" if he "1) attempts to cause or int entionally, knowingly or recklessly causes bodily injury to ano ther; 2) negligently causes bodily injury to another with a deadly weapon; or 3) attempts by physical menace to put an other 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"co nduct 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.

3Defendant argues his conviction for simple assault

cannot constitute a predicate offense because he co uld have been convicted if he recklessly caused bodily injury and a conviction for reckless injury does not fit w ithin the definition of "crime of violence." That simple assa ult 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 reckl essly with respect to a material element of an offense wh en he consciously disregards a substantial and unjustifia ble risk
that the material element exists or will result fro m his conduct." 18 Pa. C.S.A. S 302 (1998). Second, purel y reckless crimes may count as predicate offenses for purposes of career offender guideline. McQuilkin, 9 7 F.3d at 729; U.S. v. Parson, 955 F.2d 858, 874 (3d Cir. 199 2).

Defendant also argues the sentence should be vacate d
because the court did not consider the facts contai ned in the charging documents. However, sentencing judges are not required to examine the actual underlying behav ior 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 u nfairness 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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