1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-28-1995

United States v Watkins

Precedential or Non-Precedential:

Docket 94-7258

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Recommended Citation

"United States v Watkins" (1995). 1995 Decisions. Paper 114.

http://digitalcommons.law.villanova.edu/thirdcircuit_1995/114
 

 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 N0. 94-7258 

 

 UNITED STATES OF AMERICA 

v. 

 GARY WATKINS, a/k/a Raheem Okbar 

 Gary Watkins, 

 Appellant 

 

 On Appeal From the United States District Court 

 For the Middle District of Pennsylvania 

 (D.C. Crim. Action No. 93-cr-00243) 

 

 Argued October 28, 1994 

 BEFORE: STAPLETON, HUTCHINSON and ROSENN, Circuit Judges

 (Opinion Filed April 28, 1995) 

 

 

James V. Wade 

Federal Public Defender 

Daniel I. Siegel (Argued) 

Assistant Federal Public Defender 

100 Chestnut Street 

Harrisburg, PA 17101 

 Attorneys for Appellant 

David M. Barasch 

U.S. Attorney 

Martin C. Carlson (Argued) 

Assistant U.S. Attorney 

Federal Building 

228 Walnut Street 
P.O. Box 11754 

Harrisburg, PA 17101 

 Attorneys for Appellee 

 

 OPINION OF THE COURT

 

STAPLETON, Circuit Judge: 

 Gary Watkins appeals from the sentence enhancement he 

received under the Armed Career Criminal Act (ACCA), 18 U.S.C. 

§ 924(e). In the district court, Watkins challenged the 

assertion in the presentence report that he had previously been 

convicted of five violent felonies. He argues that, as a result, 

the court should not have imposed an ACCA enhancement without 

requiring the government to produce a certified copy of each 

prior judgment of conviction. We will affirm his sentence. 

I. 

 One week after a federal grand jury charged Watkins 

with a number of firearms violations, the government filed an 

information putting him on notice that it would seek an enhanced 

sentence based upon four prior violent felony convictions. The 

information identified one prior conviction for burglary and 

three prior convictions for robbery, all in the Court of Common 

Pleas of Dauphin County, Pennsylvania. Watkins pled guilty to 

one count of the indictment. 
 The presentence report identified five prior felony 

convictions by the court of conviction, the case file number, the 

date of arrest, the date of sentencing, the offense charged 

(e.g., "Burglary," "Robbery") and the sentence imposed. In 

addition, the presentence report described the conduct leading to 

each conviction. Watkins' 1982 burglary conviction was reported 

to have been based on his entering a barber shop after hours and 

stealing two television sets, a hair dryer, a prism box, and $90 

in cash. The robbery convictions were reported to have been 

based on the following incidents, each of which involved Watkins 

and two other confederates: On July 26, 1983, Watkins, armed 

with a sawed-off shotgun, robbed a grocery store; two days later, 

Watkins entered a cafe, threatened to shoot the person tending 

the cash register, and took $772 from the register while his 

companions robbed two store patrons of $363; on August 4, 1983, 

Watkins, armed with a sawed-off .22 caliber rifle, robbed a man 

of $182 as he left a bar; and on August 22, 1992, Watkins robbed 

a man in a car of $5 while he held a sawed-off shotgun to the 

victim's head. 

 Prior to the sentencing hearing, Watkins filed 

"Objections to Enhanced Sentencing" in which he refers to the 

convictions reported in the presentence report and states, 

without further elaboration, that he "denies that he has at least 

three prior convictions for violent felonies." At the sentencing 

hearing, the ambiguity inherent in this conclusory statement was 

clarified in the following colloquy: 
 The Court: All right. Do you wish to pursue 

your request concerning the application of 

the enhancement for the armed career criminal 

[act]? 

 Mr. Siegel: [Watkins' counsel] Yes, we do, 

Your Honor. Your Honor, I think the 

objections state--the written objections 

state [Watkins'] objection, which is that we 

do not consider him to be an armed career 

criminal, and specifically, we challenge the 

assertion that these prior convictions 

constitute violent felonies under the act. 

Thank you, Your Honor. 

 The Court: Mr. Carlson. 

 Mr. Carlson: [the prosecutor] Your Honor, I 

think it's quite clear that the defendant's 

prior criminal record does involve what would 

be violent felonies that would count under 

the armed career criminal statute, and his 

simple denial that he views them as violent 

crimes doesn't create any sort of factual 

issue that would merit the Court not pursuing 

the armed career criminal penalty.

 This man has a prior criminal record 

that involves burglary and robbery 

convictions, and those offenses are, by any 

definition, and by the definition in the 

statute, violent felonies which trigger the 

mandatory minimum 15-year sentence.

 The Court: Yes. Well, from my review of the 

presentence report, I believe, too, that the 

conviction in 1982 for burglary, in 1984 for 

robbery, two counts, which is not counted as 

a separate offense for these purposes, and 

then the incident in 1992 of robbery1 all 

 

1. The court treated the 1984 convictions for the 1983 

robberies as a single conviction for purposes of enhancement 

because they were consolidated for sentencing in the Court of 

Common Pleas of Dauphin County, Pennsylvania. We express no view 

on whether these convictions could each serve as a prior robbery 

conviction. Even if they are counted as a single conviction, 

Watkins still has two prior robbery convictions and one burglary 

conviction, providing the three convictions needed for 

enhancement under the ACCA. Watkins does not challenge the 
constitute crimes of violence that are three, 

at a minimum, and I think enhancement must be 

applied under the law. How about acceptance 

of responsibility? 

App. 23-24 (emphasis added). Thereafter, Mr. Siegel did not 

speak further about his client's objection to an enhancement 

under the ACCA but went on to address the acceptance of 

responsibility issue. Thus, the only enhancement issue presented 

in the district court was whether the five felony convictions 

identified in detail in the presentence report were "violent 

felonies" within the meaning of the ACCA. 

 Without the enhancement, the appropriate sentencing 

range under the guidelines would have been between 100 and 125 

months, based on a total offense level of 24 and a criminal 

history category of VI. With the enhancement and the 2 point 

reduction awarded by the court for acceptance of responsibility, 

Watkins' sentencing range was between 188 and 235 months. The 

court imposed a sentence at the low end of the range, 188 months 

(15 years and 8 months). 

 

II. 

 The Armed Career Criminal Act, 18 U.S.C. § 924(e), 

requires the district court to impose a minimum 15 year term of 

imprisonment on defendants who are convicted under 18 U.S.C. 

(..continued) 

reliance of the district court on a felony conviction not 

identified in the information. 
§ 922(g)(1) of possessing a firearm and who have three prior 

convictions for "violent felonies." A "violent felony" is 

defined in 18 U.S.C. § 924(e): 

 (2) As used in this subsection-- 

 . . . . 

 (B) The term "violent felony" means any crime 

punishable by imprisonment for a term 

exceeding one year . . . that-- 

 (i) has as an element the use, attempted 

use, or threatened use of physical force 

against the person of another; or 

 (ii) is burglary, arson, or extortion, 

involves use of explosives, or otherwise 

involves conduct that presents a serious 

potential risk of physical injury to another. 

 In United States v. Taylor, 495 U.S. 575 (1990), the 

Supreme Court held that § 924(e)(2)(B)(ii)'s reference to 

"burglary" was not intended to include all crimes denominated 

"burglaries" under state law. Rather, "'burglary' in § 924(e) 

must have some uniform definition independent of the labels 

employed by the various States' criminal codes." Id. at 592. 

The uniform definition chosen by the Court was expressed as 

follows: 

 We conclude that a person has been 

convicted of burglary for purposes of a 

 § 924(e) enhancement if he is convicted of 

any crime, regardless of its exact definition 

or label, having the basic elements of 

unlawful or unprivileged entry into, or 

remaining in, a building or structure, with 

intent to commit a crime. 

Id. at 599. 

 The Supreme Court further held in Taylor that, in order 

to determine whether a prior crime comes within this generic 

definition of burglary, a sentencing court should look to the 
state's "statutory definition of the prior offense" of which the 

defendant was convicted. Id. at 602. Similarly, a sentencing 

court must look to the "statutory definition of the prior 

offense" to determine whether that offense comes within the scope 

of § 924(e)(2)(B)(i) or is an offense involving "conduct that 

presents a serious potential risk of physical injury to another" 

so as to qualify as a "violent felony" under § 924(e)(2)(B)(ii). 

However, when the "statutory definition of the prior offense" is 

broad enough to permit conviction based on conduct that falls 

outside of the scope of § 924(e)(2)(B), it becomes necessary to 

look beyond the statute of conviction. Only in such cases may 

the sentencing court look to the facts of the particular case in 

order to determine whether the trier of fact necessarily found 

elements that would qualify the offense as a "violent felony" 

under § 924(e)(2)(B). See United States v. Harris, 964 F.2d 

1234, 1235 (1st Cir. 1992) (court may look to facts of the crime 

to determine if conviction under an over-inclusive statute 

satisfies § 924(e)(2)(B)); United States v. Strahl, 958 F.2d 980, 

984 (10th Cir. 1992) (same); United States v. Sweeten, 933 F.2d 

765, 771-72 (9th cir. 1991) (same); United States v. Gallman, 907 

F.2d 639, 645 n.7 (7th Cir. 1990) (same), cert. denied, 499 U.S. 

908 (1991). 

III. 

 Before us, Watkins makes a single argument: 

 Given Mr. Watkins' objections, it is 

submitted that the government's failure to 

present documentary evidence of the prior 
convictions constituted a failure to meet its 

burden of proof. At a minimum, the 

prosecutor at an ACCA sentencing hearing 

should be required to introduce into the 

record copies of the relevant judgments of 

conviction. 

Appellant's Brief at 9. 

 Although we think it unlikely based on the district 

court record and the authority cited by Watkins, he may be 

arguing here that the information reported in the presentence 

report, without certified judgments of conviction, provided 

inadequate support for the district court's factual finding 

concerning his criminal history. If so, we believe Watkins is 

clearly mistaken. Watkins did not assert before the district 

court that the information provided in the presentence report was 

an inaccurate account of what had happened in the past. Rather, 

his sole argument in the district court was that the information 

reported there, as a matter of law, did not satisfy 

§ 924(e)(2)(B)'s requirement of three prior "violent felonies." 

It is well established in this circuit, and all others, that a 

sentencing court may rely on the facts set forth in the 

presentence report when their accuracy is not challenged by the 

defendant. See Fed. R. Crim. Proc. 32(b)(6)(D); United States v. 

Garcia, 544 F.2d 681, 684 (3d Cir. 1976) (failure to request 

evidentiary hearing on hearsay information in presentence report 

waives defendant's objection to sentencing court's reliance on 

such hearsay); United States v. Bregnard, 951 F.2d 457, 459 (1st 

Cir. 1991) (although assault and battery statutes included nonviolent conduct, district court did not err in concluding that 
prior assault and battery convictions were "violent felonies" 

when it relied, without objection by defendant, on the factual 

narrative of the prior convictions in the presentence report), 

cert. denied, 112 S. Ct. 2939 (1992). 

 As we have indicated, however, we think it more likely 

that Watkins is not challenging the district court's reliance on 

the presentence report as the basis for its findings of fact. 

His argument is, rather, that the information in the presentence 

report was inadequate (and certified copies of the judgments were 

required) to support the district court's legal conclusion that 

Watkins' prior convictions were for "violent felonies" within the 

meaning of § 924(e)(2)(B). This would be consistent with his 

argument to the district court and with his reliance on United 

States v. Potter, 895 F.2d 1231 (9th Cir.), cert. denied, 497 

U.S. 1008 (1990). The court there suggested that a sentencing 

court "should have copies of the judgments of conviction before 

it when determining whether a defendant has previously been 

convicted of 'violent felonies' within the meaning of § 

924(e)(1)." Id. at 1238. The court supported this suggestion 

with the following rationale: 

 [I]t is important that the sentencing court 

and the appellate court be certain of the 

specific statutory sections under which the 

defendant previously was convicted; all too 

often a popular description of a prior 

offense will not enable the court to 

determine whether the relevant statute falls 

within the coverage of § 924(e)(1). Our 

analysis in Sherbondy directs the sentencing 

court and the court of appeals to the 

statutes under which the defendant previously 

was convicted to determine whether he was 

convicted of "violent felonies" within the 
meaning of § 924(e)(1). The consequences of 

such determinations for the defendant are 

severe. Although the defendant may have done 

nothing more than be found in possession of a 

firearm, if the sentencing judge determines 

that he has been convicted of three prior 

"violent felonies," the court has no choice 

but to sentence him to prison for a minimum 

of fifteen years, with no possibility of 

parole. Given the gravity of the penalty and 

Sherbondy's emphasis on the statutory 

elements of the prior offense, we conclude 

that a court should have copies of the 

judgments of conviction before it when 

determining whether a defendant has 

previously been convicted of "violent 

felonies" within the meaning of § 924(e)(1), 

although we do not foreclose the possibility 

that a defendant's conviction under a 

specific statutory section or subsection 

might be established by some other form of 

clearly reliable evidence. A presentence 

investigation report does not meet even the 

latter requirement. 

Id. 

 Watkins, however, overlooks the context in which this 

passage was written. The Potter court was concerned with the 

"quantum of proof necessary to determine that a given prior 

conviction was for a 'violent felony' under § 924(e)(1)" where 

the statute of conviction had several subsections defining 

particular offenses, not all of which would constitute "violent 

felonies." Id. at 1237. In Potter, one of the defendant's three 

prior convictions was for rape, but the California rape statute 

categorized certain deceptive, though non-violent, conduct as 

rape. Thus, the court found that the presentence report's 

"popular description" of a prior offense could not be used to 

establish under which subsection of a multi-section statute the 
defendant previously was convicted. Id. at 1237-38. The court, 

however, affirmed the conviction, holding that the defendant 

failed to show that the district court's reliance on the 

presentence report prejudiced his rights because he had, in fact, 

conceded the application of § 924(e). Id. at 1238. 

 Watkins is forced to argue a far broader proposition 

than the one endorsed in Potter, however. Here, the information 

provided in the presentence report enabled the district court to 

ascertain with certainty the statutes of conviction and the 

statutes of conviction encompass only conduct that falls within 

the scope of § 924(e)(2)(B)(i) and (ii). Watkins cannot, and 

does not, assert otherwise.2 As a result, Watkins is forced to 

argue for a per se rule that certified copies of the judgments of 

conviction are required in every case before a sentencing court 

may determine that the defendant's prior convictions are for 

"violent felonies" within the meaning of § 924(e)(2)(B). We find 

no persuasive justification for such an inflexible rule and 

decline to adopt it. 

 

2. Watkins' burglary conviction was for violating 18 Pa.C.S.A. 

§ 3502, Pennsylvania's only burglary statute, which defines 

burglary in a manner consistent with, though somewhat more 

narrowly than, the generic "burglary" that Congress intended in § 

924(e)(2)(B)(ii). 

 Watkins' robbery convictions were for violating 18 Pa.C.S.A. 

§ 3701, Pennsylvania's only robbery statute. We have previously 

held that conviction under this statute necessarily involves the 

"use or threat of physical force" which qualifies for ACCA 

treatment as a "violent felony." United States v. Preston, 910 

F.2d 81, 86-87 (3d Cir. 1990), cert. denied 498 U.S. 1103 (1991). 
IV. 

 The judgment of the district court will be affirmed.