2012 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al
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w . v i l l a no v a . e du/thir dc ir c uit_2012/168NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 11

- 1181

_____________ UNITED STATES OF AMERICA

v. DONALD A. SCOTT, a/k/a DC Donald A. Scott,

Appellant

_______________ On Appea l from the United States District Court for the Middle District of Pennsylvania (D.C. No. 09

- cr - 00 072

- 001 ) District Judge: Hon orable Christopher C. Conner

_______________ Submitted Under Third Circuit LAR 34.1(a)

November 15, 2012 Before: SCIRICA, FISHER, and J ORDAN , Circuit Judges

.

(Filed : November 15, 2012 )

_______________ OPINION OF THE COURT

_______________ JORDAN, Circuit Judge

. Donald Scott was convicte d of multiple counts of conspiracy, H obbs Act Robbery, carjacking, and possession of a firearm in furtherance of a crime of violence , in
connection with a series of armed robberies . T he United States District Court for the2

Middle District of Pennsylvania sentenced Scott to 1,276 months ’ imprisonment and five
years of supervised release

. Scott appe als that sentence, arguing that the Distric t Court
erred when it found that one of the robbery victims had suffered a “permanent or lif e threatening injury” and hence that a six

- level enhancement pursua nt to § 2B3.1 (b)(3)(C)
of the United States Sentencin g Guidel ines was in appropriate

. Scott also contends that he
received in effective assistance of counsel in connection with his unsuccessful motion to suppress evidence

. For the reasons that follow, we will affir m the judgment of the
District Court

. I. Backgr ound
Fro m January to April 2008, Sco tt and his co - conspirators planned and carried out a series of robberies of drug traffickers in central Pennsylvania

. Scott and his co

conspirators would identify a target, threaten him or her with violence , and take dr ugs,
money , and valuables

. Victims were variously held at gunpoint, bound, pistol

- whipped,
and beaten. If victims did not have drugs or money in their possession, they were forced
to dr ive to other locations where contraband and cash could be found.
Du ring one such r obbery , one of the victims , Michael Pearson, was beaten, bound,
and stabbed in the neck with a screwdriver. 1 Pearson remained conscious long enough to loose himself and his wife , but then passed out. According to Pearson’ s wife , who was

se xually assaulted in t he attack, he was lying in a pool of blood from the stab wound.
Pearson had to be air

- lifted to a medical center for emergency treatment.

1 It is not clear from the record whether Scott or one of his co

- c onspirators stabbed Pearson.3

In May 2008, a confidential informant and former co

- conspirator of Scott ’s told
Police D etecti ve Jeffrey Kurtz about an apartment where Scott was storing stolen property from the robberies. The apartment belonged to Samantha Jackson , a friend of
Scott ’s

. Kurtz swore out an affidavit of probable cause that listed a number of items
believed to be i n the apartment , and , on the basis of the affidavit, he applied for and
received a warrant to search the apartment. Po lice officers then searched Jackson ’s apartment and r ecovered stole n property , as well as a computer that belonged to Scott

. On Februar y 25, 2009, a federal grand jury issued a 15

- count indictment charging Scott and others with a variety of offense s. Scott filed a timely motion to suppress the
evidence found at Jackson ’s apartment

. He argu ed that the affidavit of probable cause
containe d a material misstatement of fact, that the officers seized materials beyond those listed in the warrant, and that , though not authorized by the warrant, the officers had
conducted searches of electronic mate rial stored on his computer

. The District Court held a suppression hearing and denied the motion , except as to the material found on the computer. Scott was tried by a jury and convicted on one count of conspiracy, 18 U.S.C. § 371, four counts of Hobbs Act robbery, 18 U.S.C. § 1951, two counts of carjacking, 18 U.S.C. § 2119, and four counts of possession of a firearm in furtherance of a crime of
violence , 18 U.S.C. § 924 (c) . A presentence investigation report (“PSR”) demonstrated that, because of the multiple § 924(c) convictions, Scott was r equired to serve 984
months ’ imprisonment consecutive to any other term of imprisonment he might receive

. ( PSR ¶ 83.) The PSR also stated that a six

- level enhancement was applicable because4

one of his victims, Pearson , had suffered a life

- threatening inj ury. (PSR ¶ 62.) T he
District Court , observing that Scott’s age and extensive his tory of violence rendere d him
“an incorrigible c onvicted felon who, if released

... will immediately prey upon the community” (App. a t 179 ) , sentence d him to 1,276 months ’ im prisonment , $58,105 in restitution, and five years’ supervised release.
II. Discussion 2
A. Standard of Review We exercise plenary review of the District Court’s interpretation of the Guidelines. United States v. Kennedy , 5 54 F.3d 415, 418 (3d Cir. 2009). We review factual findings
that su pport a sentencing enhancement for clear error. Id. We typically do not consider on direct appeal any claim of ineffective assistance of counsel but, instead, take such claims up on collateral review

. United States v.
Ha nkerson , 496 F.3d 303 , 310 (3d Cir. 2007 ). However, “[w]here the record is sufficient to allow a determination of ineffective assistance of counsel, an evidentiary hearing to develop the facts is not needed, and the issue can be resolved on direct appeal. ” Id. (citing United States v. Headley , 923 F.2d 1029, 1083 (3d Cir. 1991) ) (internal quotation marks omitted). If there is a sufficient basis for review, we review the district court’s findings of fact for clear error and make an independent judgment as to whether the facts establish constitutionally ineffective assistance of counsel. Gov’t of the Virgin Islands v.
Weatherwax , 77 F.3d 1425, 1430

- 31 (3d Cir. 1996).

2 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291.5

B. The Sentencing Enhancement
Scott argues that th e District Court erred when it imposed a six

- level sentencing
enhancement , because Pearson ’s injuries did not rise to the level of “permanent or life

threatening” as defined in § 1B1.1 of the Guidelines , so tha t the enhancement under § 2B3.1(b)(3)(C) is inapplicable. Scott argues that Pearson ’s injury was, at most, a “serious bodily injury” as defined in the Guidelines. The Guidelines define “[p] ermanent or life

- threatenin g bodily injury,” in relevant part, as “injury involving a substantial r isk of death ... .” U.S .S.G. § 1B1.1 cmt. n.1(J).
B y contrast, the Guidelines define “[s]erious bodily injury” as “injury involving extreme physical pain ... or requiring medical intervention such as surgery , hospitalizatio n, or physical rehabilitation .” Id. cmt. n.1(L). A stab wound may be seen as involvi ng a substantial risk of death when it is traumatic enough to require emergency surgery
. See
United States v. Jacobs , 167 F.3d 792 , 797

- 98 (3d Cir. 1999) ( finding that stab wound necessitating emergency surgery to remove intestinal obstruction wa s life

- th reatening ). By contrast, injuries that are “serious” but not typically “life

- threatening” include fractured bones, United States v. Reese , 2 F.3d 870 , 897 (9th Cir. 1993), unconsciousness as a result of a blow, United States v. Thompson , 60 F.3d 514 , 518 (8th Cir. 1995), and injuries that may be treated with outpatient procedures, United States v. Woodlee , 136
F.3d 1399 , 1408

- 09 (10th Cir. 1998).
The record here clearly demonstrate s that Pearson’s in jury went beyond serious
and was life

- threatening

. Pears on’s wife testified that, after her husband lost consciousness, he was surrounded by a pool of his own bl ood

. He was airlifted to the6

nearest hospital and, on c e there, required imm ediate surgery to save his life

. He had to
be in intensive care for some t ime after the surgery. The District Court properly
concluded that , “[i] f it wasn’t for that medical interven tion it is quite likely that Mr.
Pearson would have died

. ” (App. at 159

- 60 )

. Given these fact s , w e see no error in the District Court’s impositio n , under Guidelines § 2B3.1(b)(3)(C), of the six

- level
enhancement for the infliction of a life

- threatening injury

. 3
C. Ineffective Assistance of Counsel
Scott claims ineffective assistance of counsel based on the failure of his lawyer to present evidenc e at the suppression hearing. Specifically, Scott argues that counsel could have, and should have, presented evidence that Scott had a reasonable expectation of privacy in Jackson’s apartment. The District Court held that Scott had no such reasonable exp ectation and therefore lacked standing under the Fourth Amendment to challenge the search and seizure

. 4

3 The District Court recognized that “no t all of [Pearson’s] injuries were directly attributable to [ ] Scott’s hand ... .” (App. at 160.) However, “the Sentencing Guidelines permit a defendant’s sentence to be enhanced based not only upon his own conduct[ ] but also upon the conduct of his cri minal confederates.” United States v. Cespedes , 663 F.3d 685, 689 (3d Cir. 2011); see also U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 1B1.3(a) (providing that sentence adjustment may be based on “all reasonably foreseeable acts and omissions of othe rs in furtherance of the jointly undertaken criminal activity, that occurred during the commission of the offense of conviction ... .”). The District Court properly found that the injury to Pearson was reasonably foreseeable by Scott due to the overall brut ality of the robberies.

4 The District Court also held, however, that Scott had a reasonable expectation of privacy with respect to his computer, taken from Jackson’s apartment, and thus the contents of the computer were ordered suppressed

.7

To secure a new trial based on an ineffective assistance claim, a d efendant must show that counsel’s representation “fell below an objective standard of reasonableness,” Strickland v. Washington , 466 U.S. 6 68, 688 (1984), and that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,” id. at 694. We note again that “i t has long been the practice of this court to defer the issue of
ineffectiveness of trial counsel to a collateral attack,” United States v. Thornton , 327 F.3d 268, 271 (3d Cir. 2003), because “the evidence introduced at trial ... will be devoted to
issues of guilt or innocence, and the resulting record in many cases will not disclose the facts necessary to decide either prong of the Strickland analysis , ” i d. at 272 (quoting
Massaro v. United States , 538 U.S. 500, 505 (2003) ) (internal quotation marks omitted)

. However, in this case, “the record is sufficient to allow a determination of ineffective assistance of counsel,” Hankerson , 496 F.3d at 310 (citation and internal quotation marks omitted) , because it plainly demonstrates that Scott was not prejudiced by the actions of
his lawyer

. Scott had two substantive bases for his motion to suppress. 5 First, he argued in the District Court that the warrant was defective because the affidavit of probable cause
misstated the date of an interview with a confidentia l informant by one day , placing that
interview on the date of the actual search

. T o successfully challenge a warrant based on

5 We say “ had” because Scott does not challenge the substantive basis of the District Court’s denial of his motion to suppress in this appeal. Scott claims ineffective assistance only in his counsel’s failure to present evidence with respect to Scott’s standing to challenge the search based on his relationship with Jackson.8

misstatements made in an affi davit, a defendant must prove both that the affiant made the

statements “knowingly or with reckless disregard for the truth ” and that the statements were “material to the finding of probable clause

. ” United States v. Yusuf , 461 F.3d 374, 383 (3d Cir. 2006) (citing Franks v. Delaware , 438 U.S. 154, 171

- 72 (1978))

. In this
case, t here is no evidence that the incorrectly recorded date was anything more than a typographical error

. Moreover, t he actual date of the interview was immaterial because the finding of probable cause was not based on any particular date but rather depended on the informant’s statem ent that he had been in Jackson ’s apartment and had observed firearms and stolen property ten days prior to the interview

. Therefore, Scott cannot successfully challenge the warrant on the basis of the incorrect date

. Second, Scott challenged the seizure of certain items not listed in the search

warrant. Th e seized evidence that was not menti oned in the warrant was , however, catalogued in the affidavit of probable cause , which was itself attached to the warrant

. Moreover, t he police officers conducting t he search had descriptions of the stolen
merchandise tha t matched the items they seized, so that the seizure was justified under the plain view exception

. See United States v. Stabile , 633 F.3d 219, 241 (3d Cir. 2011) (holding that the plain view exceptio n applies where “the incriminating character of the evidence [is] immediately apparent” to the searching officers ) (citation and internal quotation marks omitted). Therefore, Scott cannot successfully challenge the seizure9

based on the seemingly inadvert ent omission from the warrant of some of the items actually seized. 6
Because Scott’s search and seizure challenges were without merit, he cannot prove that he was prejudice d, as required under the second prong of Strickland , by the failure of
his cou nsel to establish that he had standing to bring those challenges

. 7 W e therefore reject his ineffective assistance of counsel claim. 8
III. Conclusion
For the reasons set forth above , we will affirm the judgment of the District Court

.

6 Notwithstanding its finding that Scott lacked standing to challenge the search and seizure, the District Court considered both of Scott’s arguments, and found them lacking for the reasons se t f orth above.

7 The record is, admittedly, insufficient to determine whether Scott’s lawyer ’s representation was objectively unreasonable, but failure to satisfy either Strickland prong is fatal to a claim of ineffective assistance of counsel

. Carpente r v. Vaughn , 296 F.3d 138, 149 (3d Cir. 2002).

8 It is not clear from Scott’s brief whether he appeals the District Court’s denial of his motion to suppress, which underlies his claim of ineffective assistance of counsel. However, for the rea sons set f orth in this o pinion, the District Court’s denial of that motion was entirely justified.