2007 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-29-2007

USA v. Leekins

Precedential or Non-Precedential: Precedential

Docket No. 05-1658

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Recommended Citation

"USA v. Leekins" (2007). 2007 Decisions. Paper 826.

http://digitalcommons.law.villanova.edu/thirdcircuit_2007/826
Hon. Anne E. Thompson, United States District Judge for *

the District of New Jersey, sitting by designation.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT

 

No. 05-1658

 

UNITED STATES OF AMERICA

v.

WILLIAM THOMAS LEEKINS,

 Appellant

 

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 03-cr-00353)

District Judge: Honorable Sylvia H. Rambo

 

Submitted Under Third Circuit LAR 34.1(a)

October 24, 2005 

Before: SLOVITER, FISHER, Circuit Judges,

and THOMPSON, District Judge*

(Filed June 29, 2007)

 

Dennis E. Boyle

Camp Hill, PA 17011
We have jurisdiction to hear this appeal pursuant to 28 1

U.S.C § 1291 and 18 U.S.C. § 3742(a). This court reviews “factual

findings relevant to the Guidelines for clear error” and exercises

“plenary review over a district court’s interpretation of the

Guidelines.” United States v. Grier, 475 F.3d 556, 570 (3d Cir.

2007) (en banc).

2

Attorney for Appellant

Thomas A. Marino

United States Attorney

Theodore B. Smith, III

Eric Pfisterer

Assistant United States Attorneys

Harrisburg, PA 17108

Attorneys for Appellee

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Appellant William Thomas Leekins appeals from the

judgment of the District Court sentencing him to imprisonment

for a term of 262 months. First, Leekins asserts that his sentence

was imposed in violation of United States v. Booker, 543 U.S.

220 (2005), and that it denied him his Sixth Amendment right to

a jury trial because it was based upon facts found by a judge at

his sentencing hearing that he had not admitted in his plea

colloquy. Second, Leekins argues the District Court erred in

admitting a police report into evidence at the sentencing hearing

because it bore no “indicia of reliability.” U.S.S.G. § 6A1.3. 

We will affirm.1

I.

Leekins was charged in a two-count indictment with
3

possession of a firearm by a convicted felon in violation of 18

U.S.C. § 922(g)(1) (Count I), and possession of a firearm by a

person subject to a domestic abuse restraining order in violation

of 18 U.S.C. § 922(g)(8) (Count II). He entered into a written

negotiated plea agreement with the Government in which he

agreed to plead guilty to Count I and to admit prior convictions

of violent felonies (in his case, burglaries) which made him

subject to the armed career criminal sentencing enhancement

under 18 U.S.C. § 924(e). The Government agreed to

recommend imposition of the mandatory minimum sentence of

fifteen years under 18 U.S.C. § 922(g)(1).

Pursuant to that agreement, Leekins pled guilty and the

Government dropped Count II of the indictment and

recommended imposition of only the fifteen-year mandatory

minimum sentence on Count I of the indictment. Nonetheless,

the District Court did not follow the Government’s

recommendation. After a hearing, the Court, following its

consideration of the testimony presented at the hearing and the

police report introduced at the sentencing hearing, adopted the

presentence report (“PSR”).

The PSR contained the following uncontested facts:

On November 15, 2003, officers responded to . . .

a 9-1-1 hang-up call . . . . Officer Swank was the first to

arrive at the residence. He approached the side door of

the residence and observed that there was a dead-bolt lock

lying on the kitchen floor and the door frame was

splintered. He cautiously entered the residence and

observed the defendant and an infant in a walker in the

dining room area. Mr. Leekins told Officer Swank that

he and his wife were just having an argument, but

everything was alright.

At this time, Officer Bloss arrived at the residence

and encountered Nancy Leekins, the defendant’s

estranged wife, in front of the residence. She told the

officer that Mr. Leekins had threatened to kill her with a

gun and that she had an active Protection From Abuse
4

order against him. She also noted that her ten-month-old

granddaughter was still in the residence. Officer Bloss

proceeded into the residence and advised Officer Swank

that Mr. Leekins was armed. The defendant, who had his

hands in his pockets, was instructed to show the officers

his hands.

. . . Shortly thereafter, the defendant surrendered to the

officers. He had a pair of eyeglasses in one hand and a

towel held to his throat. Mr. Leekins was taken to the

hospital, where doctors reported that a bullet was lodged

in his head, but had not penetrated his brain.

During a search of the residence, officers

recovered a loaded .38 caliber Charter Arms revolver in

the front bedroom, where a pool of blood was observed

on the bed. They also found one spent shell casing in the

bedroom. Officers also learned that Mr. Leekins was on

work release at the time of the instant offense and had

possession of a 1999 Chevrolet Malibu. Police located

the vehicle parked one-half block away from the

residence and recovered a black nylon holster.

PSR at ¶¶ 5-8.

Leekins contested the following portion of the PSR:

[After being asked to show his hands], Mr. Leekins

turned and walked away from the officers. Officers

continued to command Mr. Leekins to stop and show his

hands. Mr. Leekins walked past the infant and headed

toward the stairs. As the defendant reached the stairs, he

turned and fired one shot in the officers’ and infant’s

direction. Officers returned fire and Mr. Leekins fled up

the stairs. Officer Swank removed the infant from the

walker and took her outside.

PSR at ¶ 6.

The PSR concluded that Leekins had committed
Ms. Leekins gave testimony from her seat in the audience.

2

There was no request by either party that she be sworn, and she

wasn’t. We discourage that practice but neither party raises that

issue. It is apparent that the District Court accepted Ms. Leekins’

version of the contested facts.

5

attempted murder because he had fired a gun at police officers. 

Leekins related a materially different version of the facts to the

probation officer. He maintains that he went to his wife’s home

with the intention of killing himself and kicked in the door,

announcing, “This is my house, and this is where I want to die.” 

PSR at ¶ 11. He contends that when the police entered Ms.

Leekins’s residence and they told him to drop his gun, he put his

hands in the air because he had no gun to drop. He states that

the police responded by shooting him in the left hand, and that

he then ran upstairs, retrieved his wife’s gun from her dresser

drawer, and shot himself in the head.

At the sentencing hearing, Leekins’ counsel repeated

Leekins’ denial that he had ever fired on police officers and

counsel noted that at the state preliminary hearing there was

testimony to the effect that police investigators had found no

bullets in any piece of furniture that was behind the officers

when Leekins had allegedly shot at them.

Leekins’ estranged wife also presented testimony at the

sentencing hearing and stated that she was sitting in the dining 2

room of her home with her ten-month-old granddaughter when

she saw Leekins walk by and look into her dining room window. 

She called 911 on a wall-mounted phone, at which point Leekins

“kicked the door in and ripped the phone out of the wall.” App.

at 49. He pushed her onto the floor next to her granddaughter,

held a gun (which Ms. Leekins had never seen before) to her

head, and yelled accusations that she had turned his family

against him and “was going to let him sit in jail and rot.” App.

at 49.

According to Ms. Leekins, Leekins then demanded that

she again call 911 and tell them not to send anyone. Backing
In response to his wife’s testimony, he also asserted that he 3

had unplugged rather than “ripped” the phone from the wall.

The District Court denied Leekins’ request for a downward 4

adjustment for acceptance of responsibility because the Court

concluded that Leekins had not truthfully admitted conduct

constituting the offense of conviction. We see no error.

6

away, Ms. Leekins used the phone in the living room to call 911. 

The dispatcher informed her that a police officer was already en

route. When the police arrived, Ms. Leekins walked outside and

told an officer (Officer Bloss) that her husband was inside the

house and had a gun.

Following Ms. Leekins’ testimony, Leekins testified

under oath, again denying having shot at the officers. Leekins

admitted on cross-examination that the holster found in his car

was the holster for the revolver he claimed to have obtained

upstairs in the house. During and since his plea colloquy, 3

Leekins has repeatedly denied that he fired a gun at police

officers.

In his written comments to the PSR and his argument at

the sentencing hearing, Leekins objected to: (1) the use of the

attempted murder guideline to determine his base offense level,

(2) all upward adjustments based upon the allegation that he had

fired at police officers, or otherwise committed a crime of

violence, and (3) the District Court’s refusal to grant him a

downward departure under the Guidelines for acceptance of

responsibility. The District Court accepted the PSR’s sentence

calculation without ruling on Leekins’ objections to the PSR.

Leekins admitted in his plea agreement to being an armed

career criminal subject to enhanced penalties under 18 U.S.C. §

924(e). The PSR concluded that Leekins possessed or used a

firearm in connection with a crime of violence and therefore set

his offense level at thirty-four pursuant to U.S.S.G. §

4B1.4(b)(3)(A), and his criminal history category at VI pursuant

to U.S.S.G. § 4B1.4(c)(2). Leekins’ total offense level of thirty- 4

four and criminal history category yielded a guideline
7

imprisonment range of 262 to 327 months. The Court imposed a

sentence of 262 months imprisonment, five years supervised

release, a $2000 fine, and a $100 special assessment. Leekins

filed a timely appeal.

II.

We turn first to Leekins’ contention that the District

Court failed to apply Booker correctly and that it denied him his

Sixth Amendment right to jury trial. In Booker, the Supreme

Court held that “[a]ny fact (other than a prior conviction) which

is necessary to support a sentence exceeding the maximum

authorized by the facts established by a plea of guilty or a jury

verdict must be admitted by the defendant or proved to a jury

beyond a reasonable doubt.” Booker, 543 U.S. at 244 (extending

the court’s holding in Apprendi v. New Jersey, 530 U.S. 466

(2000)). However, as we have explained, in the second of

Booker’s two opinions,

[t]he Court held that 18 U.S.C. § 3553(b)(1) [and 18

U.S.C. § 3742(e)], the provision[s] of the Sentencing

Reform Act of 1984 that [made and relied on the

Guidelines being mandatory, were] incompatible with the

Court’s constitutional ruling and that [those sections]

must be severed and excised . . . . The net result was to

delete the mandatory nature of the Guidelines and

transform them to advisory guidelines for the information

and use of the district courts in whom discretion has now

been reinstated.

United States v. Ordaz, 398 F.3d 236, 239 (3d Cir. 2005).

Leekins does not argue that the District Court mistakenly

treated the Guidelines as mandatory, and nothing in the record

suggests any such error. In fact, the District Court explicitly

acknowledged at the sentencing hearing that “the guidelines are

now only advisory[.]” App. at 45.

We recognize that Leekins pled guilty with the

expectation that he would be sentenced to fifteen years of
8

imprisonment, i.e. 180 months, and that the District Court’s

sentence of 262 months greatly exceeded that expectation. As

counsel explained to the District Court, Leekins was fifty-two

years old at the time of sentencing and hoped to be released by

age sixty-seven, presuming parole at the earliest date on the

sentence he faced on a plea in state court on charges stemming

from the same incident. Obviously, that situation changed when

the District Court sentenced him to 262 months. However, the

plea agreement explicitly advised Leekins that the “maximum

penalty for the offense is imprisonment for a period of life” and

that “the appropriate sentence within the statutory maximums

provided for by law . . . will be determined by the court at a

sentencing hearing[.]” App. at 68. The District Court reiterated

that advice during the colloquy on the change of plea: The

Court: “You understand that the maximum penalty for the

offense could be a mandatory minimum of 15 and a maximum of

life?” The Defendant: “Life.” App. at 31. Again the Court

stated: “If anyone has estimated what your guideline would be,

and should I find your guideline to be different from what they

have estimated, you can’t withdraw your guilty plea. Do you

understand?” The Defendant: “Yes, I do.” App. at 32.

At the conclusion of the hearing, the District Court

concluded that “there are sufficient facts to sustain the findings

in the pre-sentence report[,]” App. at 62, which concluded that

he had “used or possessed the firearm . . . in connection with a

crime of violence.” PSR at ¶ 22. This finding resulted in the

increased offense level and the consequential increase in his

sentence.

Leekins’ challenge to his sentence focuses on the fact that

he was sentenced based on the District Court’s factual finding

that he was responsible for attempted murder and assault on a

police officer, facts that he did not admit and that were not found

by a jury. However, as Leekins’ counsel recognizes in his

supplemental memorandum, the situation presented is similar to

that presented in United States v. Grier, 475 F.3d 556 (3d Cir.

2006) (en banc). In that case, the en banc majority rejected

Grier’s argument that the district court could not constitutionally

sentence him on the basis of facts that he did not admit, that no
9

jury had found, and that the sentencing court had found by the

preponderance of the evidence. In view of this court’s Grier

decision, to which we are bound, we reject Leekins’ argument

that the District Court violated his Sixth Amendment right to

trial by jury and Fifth Amendment right to due process.

Nor can we categorize the District Court’s sentence as

unreasonable, the standard for appellate review of a sentence

after Booker. See Booker, 543 U.S. at 261-62. The District

Court credited the testimony of Leekins’ estranged wife that

Leekins held a gun to her head and threatened her. The District

Court recognized that the Guidelines were advisory, and

nonetheless sentenced Leekins to imprisonment for 262 months,

a sentence that was at the bottom of the Guidelines range. We

see no basis to hold that to be an unreasonable sentence.

III.

Leekins next argues that the District Court erred in

admitting the police report into evidence because (1) it was not

verified or sworn, and (2) the police officers who prepared the

report were not present and did not testify as witnesses. Leekins

notes that this report was considered by the District Court over

his objection, Appellant’s Br. at 4 n.1, but that it was not made

part of the record before us. The description of the offense

conduct contained in the PSR was based in part on “investigative

reports.” PSR at ¶ 4. At the sentencing hearing, the District

Court asked the probation officer whether the officer had seen “a

police report in this.” App. at 58. When the officer responded

in the affirmative, the Court asked to see the report. The

Assistant United States Attorney (“AUSA”) responded that there

was a “report from Penbrook Police Department, the officers

who responded to the scene” and a “report from Dauphin County

Criminal Investigation Division. They interviewed the officers

who reported to the scene.” App. at 59. The District Court

asked to have the report of “just the officers who were at the

scene” but the AUSA explained that “the report I’m handing

over is an interview with the officers who responded to the

scene.” Id.
10

In response to this Court’s request, the U.S. Attorney’s

office forwarded the Dauphin County Criminal Investigation

report written by Dauphin County Detective Thomas E.

Yurchison, which contains verbatim transcripts of Yurchison’s

interviews with Officers Swank and Bloss, who both recounted

Leekins’ firing a shot at them. The extent to which the District

Court relied on the facts contained in the police report when it

adopted the PSR is unclear, and we will therefore consider

Leekins’ argument as to the unreliability of the officers’

statements in the police report.

In Shepard v. United States, 544 U.S. 13 (2005), the

Supreme Court held that a sentencing court could not look to a

police report to determine whether an earlier guilty plea qualified

as a predicate conviction for purposes of the Armed Career

Criminal Act. The plurality opinion in that case held that the

sentencing court could look only to the charging documents, the

written plea agreement, the transcript of the plea colloquy, and

any explicit factual findings by the trial court to which the

defendant assented. Because the opinion was limited to the

narrow statutory issue before it, the opinion did not state that

police reports were inadmissible as a general matter in

sentencing hearings, and it has not been so interpreted.

Counsel for Leekins argues that “a mere police report is

not inherently reliable,” Apr. 10, 2007 ltr. at 5, and we do not

disagree. On the other hand, a police report also is not

inherently unreliable. Instead, we revert to the general principle

that the facts upon which a judge bases a sentence must have

“‘sufficient indicia of reliability to support [their] probable

accuracy.’” United States v. Miele, 989 F.2d 659, 663 (3d Cir.

1993) (quoting U.S.S.G. § 6A.1.3(a)). Such indicia may be

sufficient even if they do not meet trial standards; the Federal

Rules of Evidence do not apply. See U.S.S.G. § 6A1.3(a) (“In

resolving any dispute concerning a factor important to the

sentencing determination, the court may consider relevant

information without regard to its admissibility under the rules of

evidence applicable at trial, provided that the information has

sufficient indicia of reliability[.]” (emphasis added)); United

States v. Brothers, 75 F.3d 845, 848 (3d Cir. 1996). For
The PSR states that “one spent shell casing” was found in 5

the bedroom, PSR at ¶ 8, while the police report states that the

bedroom revolver had “two spent shell casings in the five shot

11

example, a District Court may “credit hearsay evidence over

sworn testimony, especially where there is other evidence to

corroborate the inconsistent hearsay statement.” Miele, 989 F.2d

at 664.

Here, there is sufficient evidence that Leekins had a

weapon when he entered the house, notwithstanding his

statement to the contrary. First, Ms. Leekins testified at the

sentencing hearing that Leekins had engaged in aggressive

behavior with a gun just before the police arrived, including: (1)

kicking down the door to her house, (2) “ripp[ing] the phone out

of the wall” to disconnect her 911 call, App. at 49, (3) pushing

her down on the floor, (4) placing a gun to her head, and (5)

accusing her of turning his family against him and wanting him

to “sit in jail and rot.” Id.

Although, as noted above, Ms. Leekins’ testimony was 

not sworn, “unsworn, but reliable and probative” evidence may

be relied on for purposes of determining an appropriate sentence. 

United States v. Yeaman, 194 F.3d 442, 463 (3d Cir. 1999). The

sentencing court had the benefit of observing Ms. Leekins’

testimony and it can infer reliability from a witness’s words and

actions. We give great deference to a presiding judge’s

credibility determinations in sentencing proceedings because she

is able to directly observe a testifying witness’s tone and

demeanor.

Second, Leekins’ possession of the gun was corroborated

by the presence in Leekins’ automobile of the holster for the gun

that he used to shoot himself. The holster’s presence provides

circumstantial evidence that Leekins had the gun with him when

he arrived at Ms. Leekins’ residence, corroborates Ms. Leekins’

testimony that he had a gun with him when he kicked down her

door, and casts doubt on Leekins’ testimony that he found the

gun upstairs in Ms. Leekins’ house.5
cylinder. There were also three live rounds in the cylinder.”

Report at 13. The Police Report also contains a narrative based

upon Detectives Yurchison and Woodring’s November 25, 2003

interview with Leekins at the Dauphin County Prison. This

narrative reports that Leekins stated he “took a .38 cal. handgun

with him to his wife’s house[,]” Report at 7, that he “never fired

the gun prior to the day of the incident[,]” id., and that he could not

remember firing the gun at officers, but that “[i]t could have

happened.” Report at 8. As the District Court explicitly adopted

the facts as recounted in the PSR, and not the facts set forth in the

police report, it is unclear to what extent this report was relied upon

by the Court. We will only note here that these facts are

inconsistent with Leekins’ testimony as to events that day at the

house.

12

Third, the reliability of Leekins’ testimony itself at the

sentencing hearing is undermined by his counsel’s statement that

“Mr. Leekins has suffered a significant injury which has affected

his ability to remember and recall events that happened.” App.

at 45.

Finally, we observe that the verbatim statements by the

two police officers attached to the police report that Leekins shot

at them, along with the above-noted corroborative evidence and

testimony, distinguishes this case from others where the factual

finding at sentencing was based in large part upon a sole,

inherently unreliable source. See Miele, 989 F.2d at 660-61

(concluding that a finding of drug quantity as estimated in the

PSR and adopted by district court did not meet the Guidelines’

“sufficient indicia of reliability” standard “[i]n view of the

numerous inconsistencies in the record, the fact that the source

of most of the critical evidence was an addict-informant with an

impaired memory, and the lack of any findings by the district

court other than a single conclusory finding as to drug

quantity”).

We have observed that “a sentencing judge may consider

information that is largely unlimited as to kind or source,”
The District Court noted that “even if I ignore the fact that 6

the officers say he shot at them, we have the fact that he [held] the

gun at the head of his wife.” App. at 46. The PSR notes that

Leekins was charged with aggravated assault and burglary under

Pennsylvania law, among other crimes, but does not specify the

facts underlying each charge. Attached to the police report is what

appears to be a draft police criminal complaint that charges Leekins

with aggravated assault upon Ms. Leekins, among other crimes. 

The parties do not refer to the draft and it does not enter into our

consideration.

13

United States v. Paulino, 996 F.2d 1541, 1547 (3d Cir. 1993)

(internal citation and quotation marks omitted). In this case, the

detail and internal consistency of the transcribed interviews with

the officers regarding the fact of the shooting, together with the

other corroborating material, provide sufficient indicia of the

reliability of the officers’ version of the shooting. See Crawford

v. Jackson, 323 F.3d 123, 130 (D.C. Cir. 2003) (where police

investigative report was “quite detailed,” and provided “a fairly

full account of the circumstances surrounding” a parole

violation, such detail held to be “indicia of reliability” and

document held to be appropriately considered in parole board’s

revocation); cf. Gambino v. Morris, 134 F.3d 156, 162-63 (3d

Cir. 1998) (vague and conclusory assertion in police report that

petitioner was linked to organized crime inappropriately

considered by parole commission). We therefore conclude that

the District Court could have reasonably found that the version

of events recounted in the PSR – based in part on the police

report – was more credible than that provided by Leekins.6

IV.

For the foregoing reasons, we will affirm the District

Court’s judgment of sentence.