2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-19-2010

USA v. Heriberto Santiago

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-2716

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Recommended Citation

"USA v. Heriberto Santiago" (2010). 2010 Decisions. Paper 947.

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 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 09-2716

 

UNITED STATES OF AMERICA

v.

HERIBERTO SANTIAGO,

 

 Appellant.

 

On Appeal from the United States District court

for the Eastern District of Pennsylvania

(D. C. No. 5-08-cr-00353-001)

District Judge: Hon. Eduardo C. Robreno

 

Submitted under Third Circuit LAR 34.1(a)

 on May 10, 2010

Before: BARRY and ROTH, Circuit Judges

 and HILLMAN*, District Judge

(Opinion filed July 19, 2010)

 

O P I N I O N

 

 

*Honorable Noel L. Hillman, United States District Judge for the District of New

Jersey, sitting by designation.
2

ROTH, Circuit Judge:

Appellant Heriberto Santiago pled guilty to a four-count indictment charging him

with (1) possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1);

(2) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18

U.S.C. § 924(c); and (3-4) being a felon in possession of a firearm and of ammunition,

both in violation of 18 U.S.C. § 922(g)(1). On appeal, he argues that the District Court

committed three errors. First, he contends that the court erred in denying his motion to

suppress evidence obtained pursuant to an allegedly defective warrant. Second, he urges

that the court improperly classified his prior Pennsylvania conviction for reckless

endangerment as a “crime of violence” under the Sentencing Guidelines. And third, he

argues that the court erred by entering separate convictions for the possession both of a

firearm and of ammunition. We will affirm the District Court’s order denying Santiago’s

motion to suppress and its judgment entering separate convictions for possession of the

firearm and ammunition, but we will vacate his sentence and remand the case for resentencing.

I. Background

On November 1, 2007, the Allentown police obtained a warrant to search

Santiago’s home and vehicle for a cellular telephone, based on two affidavits of probable

cause submitted by police detectives. In those affidavits, the detectives indicated that a

witness to an Allentown homicide had been been in contact with that telephone multiple
3

times on the day of the crime, including a call just nine minutes prior to the homicide. 

The witness admitted that he had been at the scene of the crime in order to buy illegal

drugs, but he lied about who owned the cellular telephone in question. The detectives

determined that the cellular telephone belonged to Santiago, and they obtained cell site

location records that revealed that the cellular telephone had been in the approximate area

of the homicide around the time of the crime. 

The police executed the warrant on November 2. They detained Santiago outside

his home while he was getting into his car and found a .40 caliber semiautomatic handgun

on his person. The police then searched his house and, based on their plain view

observations of drug trafficking evidence, obtained a warrant to search the residence for

drugs and ammunition. That search revealed a full box of 39mm ammunition. 

Santiago was charged in a four-count indictment, as described above. He moved

to suppress the evidence seized during the execution of the warrant, alleging that the

initial warrant failed to establish probable cause. The District Court denied that motion,

and Santiago subsequently pled guilty to all charges, conditioned on his being able to

appeal the suppression denial after his conviction. At sentencing, the District Court

calculated Santiago’s base offense level for possession of the firearm and ammunition to

be 20 under § 2K2.1(a)(4)(A) of the Sentencing Guidelines, determining that Santiago’s

prior conviction for reckless endangerment of another person qualified as a “crime of
 The District Court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction 1

under 28 U.S.C. § 1291.

4

violence.” The court sentenced Santiago to a total of 120 months imprisonment, and

Santiago appealed.1

II. Discussion

A. Motion to Suppress

Santiago first argues that the District Court erred in denying his motion to suppress

the evidence obtained pursuant to the initial search warrant for the cellular telephone. He

contends that “the search warrant was devoid of probable cause to believe that the cellular

telephone sought was or contained evidence relating to the homicide being investigated.” 

The District Court denied the suppression motion based on the facts set forth in the

affidavit. In reviewing this denial, we “sit[] like a district court and must, like the district

court, give great deference to the magistrate judge’s probable cause determination.” 

United States v. Hodge, 246 F.3d 301, 305 (3d Cir. 2001). Our role “is not to decide

probable cause de novo, but to determine whether ‘the magistrate had a substantial basis

for concluding that probable cause existed.’” United States v. Stearn, 597 F.3d 540, 554

(3d Cir. 2010) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). 

We agree with the District Court that the affidavits “contain ample indicia of

probable cause that Defendant’s cellular telephone was evidence of a crime.” The

affidavits contained information indicating that Santiago owned the cellular telephone in
5

question, that he had been in contact with a witness immediately before the homicide, and

that he had been in the vicinity of the homicide. We, therefore, hold that the District

Court had a substantial basis to conclude that there was probable cause that Santiago’s

cellular telephone would contain evidence pertaining to the homicide.

B. “Crime of Violence”

We exercise plenary review over the District Court’s determination that Santiago’s

prior Pennsylvania conviction for reckless endangerment of another person was a “crime

of violence.” United States v. Johnson, 587 F.3d 203, 207 (3d Cir. 2009). Under the

Sentencing Guidelines, a firearm offense in violation of 18 U.S.C. § 922(g)(1) carries a

base offense level of 20 if the offender had previously committed a “crime of violence” or

a “controlled substance offense.” U.S.S.G. § 2K2.1(a)(4)(A). A “crime of violence” is

defined as

“any offense under federal or state law, punishable by imprisonment for a term

exceeding one year, that– 

(1) has as an element the use, attempted use, or threatened use of physical force

against the person of another, or

(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or

otherwise involves conduct that presents a serious potential risk of physical injury

to another.” 

Id. § 4B1.2(a). 

The question presented in this appeal is whether the Pennsylvania reckless

endangerment offense is of the type that would justify its inclusion within § 4B1.2(a)(2),
 In the District Court, the government argued that Parson was controlling. On appeal, 2

however, the government concedes that, post-Begay, reckless endangerment is not a

crime of violence. Even though the government concedes this point, “a government

concession of law is not binding on this court.” United States v. Marino, 682 F.2d 449,

455 (3d Cir. 1982) (internal quotation marks omitted).

6

known as the “residual provision.” See Johnson, 587 F.3d at 208. Santiago had

previously been convicted and sentenced to 23 months’ imprisonment for reckless

endangerment under 18 Pa. Cons. Stat. § 2705. That statute provides that “[a] person

commits a misdemeanor of the second degree if he recklessly engages in conduct which

places or may place another person in danger of death or serious bodily injury.”

The District Court determined that reckless endangerment fell within the residual

provision, based on our decision in United States v. Parson, 955 F.2d 858 (3d Cir. 1992),

in which we held that a Delaware conviction for reckless endangerment was a crime of

violence. Santiago argues that, following Begay v. United States, 553 U.S. 137 (2008),

Parson’s holding must be reevaluated. He urges that reckless endangerment should no

longer be considered a crime of violence because it lacks the requisite “purposeful” mens

rea to fall within the residual provision.2

In Begay, the Supreme Court interpreted a virtually identical residual provision in

the definition of “violent felony” under the Armed Career Criminal Act, 18 U.S.C. §

924(e)(2)(B)(ii). The Court found that the list of examples in the residual provision –

burglary, arson, extortion, use of explosives – indicated that “the statute covers only

similar crimes, rather than every crime that ‘presents a serious risk of physical injury to
7

another.’” 553 U.S. at 142 (citing 18 U.S.C. § 924(e)(2)(B)(ii)). And the Court concluded

that crimes are similar to the enumerated examples if they involve “purposeful, violent,

and aggressive conduct.” Id. at 144-45 (internal quotation marks omitted).

We have applied Begay’s analysis to the definition of “crime of violence” and held

that a prior conviction falls within § 4B1.2(a)’s residual provision “if it ‘typically

involve[s] purposeful, violent, and aggressive conduct.’” United States v. Stinson, 592

F.3d 460, 465 (3d Cir. 2010) (citing Begay, 553 U.S. at 144-45); Johnson, 587 F.3d at

208.

To determine whether a crime involves “purposeful, violent, and aggressive

conduct,” we apply “a categorical approach to classify a prior conviction,” asking

“whether the elements of the offense are of the type that would justify its inclusion within

the residual provision, without inquiring into the specific conduct of this particular

offender.” Johnson, 587 F.3d at 208 (internal quotation marks omitted).

Johnson involved an intentional crime, but in dictum we questioned “whether

reckless conduct may amount to a crime of violence post-Begay.” Id. at 210 n.8. We

further noted that “nearly every court of appeals that has considered the issue has held

that reckless conduct does not qualify as a crime of violence post-Begay.” Id. (citing

United States v. Baker, 559 F.3d 443, 453 (6th Cir. 2009); United States v. Roseboro, 551

F.3d 226, 242-43 (4th Cir. 2009); United States v. Smith, 544 F.3d 781, 786-87 (7th Cir.

2008); United States v. Gray, 535 F.3d 128, 131-32 (2d Cir. 2008)).
 Even though Lee’s holding parted with our precedent in Parson, “a panel of our 3

Court may decline to follow a prior decision of our Court without the necessity of an en

banc decision when the prior decision conflicts with a Supreme Court decision.” 

Johnson, 587 F.3d at 207 n.4 (internal quotation marks omitted).

8

After this appeal was filed, our Court issued its decision in United States v. Lee,

___ F.3d ___, 2010 WL 2757340, at *17 (3d Cir. July 14, 2010), in which we joined our

sister circuits in holding that “following Begay, a conviction for mere recklessness cannot

constitute a crime of violence.” Accordingly, the District Court erred in determining that 3

Santiago’s prior reckless endangerment conviction was a crime of violence under

U.S.S.G. § 2K2.1(a)(4)(A).

This conclusion, however, does not end our analysis of this Sentencing Guidelines

provision. The government argues that § 2K2.1(a)(4)(A) was nonetheless applicable

because the presentence investigation report (PSR) also noted that Santiago had a prior

controlled substance offense that would alternatively justify this sentencing enhancement. 

Even though this prior offense would qualify as a “controlled substance offense,” we find

the government’s argument unavailing. 

In order to increase Santiago’s sentence based on a prior crime of violence or

controlled substance offense, the sentencing court can “use only those felony convictions

that receive criminal history points under § 4A1.1(a), (b), or (c).” U.S.S.G. §

2K2.1(a)(4)(A) cmt. n.10. Under § 4A1.1(a)-(c), a prior offense can receive a maximum

of 3 criminal history points if it resulted in a “sentence of imprisonment exceeding one
 On remand, if the District Court determines that the outcome of treating these two 4

sentences as a single sentence underrepresents Santiago’s criminal history, it may decide

that an upward sentencing departure is warranted. U.S.S.G. § 4A1.2 cmt. n.3

9

year and one month.” Id. § 4A1.1(a). Here, the PSR did not assign any criminal history

points to Santiago’s controlled substance offense because he was simultaneously

sentenced for both this crime and a prior escape offense. The Sentencing Guidelines

direct that when an offender is sentenced on the same day for two crimes committed

without an intervening arrest, the two sentences are to be considered a single sentence for

criminal history purposes. Id. § 4A1.2(a)(2). Santiago’s escape and controlled substance

offense sentences were, accordingly, combined as a single sentence. The PSR assigned 3

points to the escape crime, which is the same number of points that the escape offense

would have received on its own. Because the addition of the controlled substance offense

did not increase the criminal history points for the escape offense, the controlled

substance offense did not receive any criminal history points under § 4A1.1(a), (b), or (c). 

See id. § 4A1.1(f), cmt. n.6. Therefore, this prior conviction cannot serve as an

alternative justification for the District Court’s application of § 2K2.1(a)(4)(A).4

Because Santiago’s prior reckless endangerment offense was not a “crime of

violence” and his controlled substance offense received no criminal history points, the

District Court erred in applying § 2K2.1(a)(4)(A) to increase his sentence.

C. Felon in Possession of Handgun and Ammunition

Santiago’s third and final argument is that the District Court erroneously entered
10

separate counts of conviction for possession both of a handgun and of ammunition under

18 U.S.C. § 922(g)(1). Because this issue was not preserved in the District Court, we will

reverse only if the District Court committed a plain error that affected Santiago’s

substantial rights. Fed. R. Crim. P. 52(b); United States v. Tann, 577 F.3d 533, 535 (3d

Cir. 2009). In Tann, we held that “possession of both a firearm and ammunition, seized

at the same time in the same location, supports only one conviction and sentence under §

922(g)(1).” 577 F.3d at 537. Santiago asserts that Tann dictates that his simultaneous

possession of both a firearm and ammunition should count as one conviction, even though

the gun was found outside the home and the ammunition was discovered inside. Our

holding in Tann, however, left open the possibility that multiple convictions for

possession of a firearm and ammunition might be proper if they were seized in different

locations or if they were acquired in separate transactions. Id. at 536-37. Therefore,

Tann does not make it per se improper to impose separate convictions and sentences for

the simultaneous possession of both a firearm and ammunition.

To meet his burden of establishing plain error, Santiago argues that, had the police

executed the warrant moments earlier while he was still in his home, he could not have

been charged with multiple offenses because the gun and the ammunition would have

both been in the same location. We are not persuaded by this argument because multiple

convictions would still have been appropriate if the gun and the ammunition had been

purchased separately. But, because Santiago pled guilty to the separate counts and did not
11

object to the separate convictions, the record is devoid of any evidence concerning how

and when these items were acquired. Accordingly, we cannot find that the District Court

committed plain error in entering separate convictions pursuant to § 922(g)(1) for gun and

ammunition possession.

III. Conclusion

For the reasons discussed above, we will affirm Santiago’s conviction, but we will

vacate his sentence and remand for re-sentencing.