NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

________________ No. 1 5

- 2589

________________ UNITED STATES OF AMERICA

v. SHAMARR J. PITTS a/k/a Shamaar J. Pitts

Shamaar J. Pitts,

Appellant

________________ On Appeal from the United Sta tes District Court for the Eastern District of Pennsylvania ( E.D. Pa. No. 2

- 13

- cr - 00403

- 001) District Judge: Honorable Joel H. Slomsky

________________ Submitted under Third Circuit LAR 34.1(a)

on April 29, 2016 Before: MCKEE, Chief Judge, JORDAN and ROTH, Circuit Judges

( F iled : July 13, 2016 )

________________ OPINION *

________________ RO TH , Circuit Judge

* This dispositi on is not an opinion of the full C ourt and pursuant to I.O.P. 5.7 does not constitute binding precedent.2

Shamarr Pitts appeals his conviction and sentencing for the three criminal counts, assault on a fede ral agent, 1 using and carrying and brandishing a firearm during a crime of violence, 2 and being a convicted felon in possession of a firearm. 3 For the reasons set forth below, we will affirm the judgments of conviction and sentence.
I. Since we write pri marily for the benefit of the parties, the facts of this matter are discussed only in an abbreviated fashion. In May 2013, Pitts was wanted on two arrest warrants in connection with a shooting at a nightclub in West Philadelphia. A car believed to have b een used to escape after the shooting, a silver Pontiac Bonneville, was registered to Pitts’ s girlfriend. After police searched the girl friend’s residence and interviewed her , they learned that Pitts had been driving the Pontiac for at least two weeks pr ior to the shooting and was still in possession of the car

. An alert to “be on the lookout” for the Pontiac was issued to Philadelphia area law enforcement. On June 4, 2013, Officer Mark Hudson of the Darby Police Department located
the Pontiac outside a home in Lansdowne Borough, Pennsylvania. Following consultation with Detective Patrick Smith, a Philadelphia Police Officer assigned to the FBI’s Violent Crimes Task Force, offic ers from several jurisdictions forced entry into the home to execute the arr est warrants . As the officers were conducting a protective sweep of the home , Detective Smith and two other officers ascended a set of stairs and pushed

1 18 U.S.C. § 111(a)(1), (b)(1). 2 18 U.S.C. § 924(c)(1). 3 18 U.S.C. § 922(g)(1).3

open a bedroom door. Upon doing so, Smith saw Pitts standing in the bedroom, holding
a gun . Pitts at tempted to shoot Smith, but the gun failed to fire. Smith and the other officers retreated to the bottom of the stairs. After approximately two minutes of discussi on, Pitts surrendered. Subsequent to Pitts’ s surrender, Lansdowne Police obtained a search warrant for the house . The ensuing search turned up, in the bedroom in which Pitts had been located, a handgun, several rounds of ammunition, including an expended round at the base of the bedroom door, a loaded high

- capacity magazine for an AK

- 47 assaul t rifle, and Pitts’ s wallet. After his indictment, Pitts moved to suppress t he fruits of the search warrant, claiming that officers did not have a reasonable basis to believe Pitts was in the residence. Although the search warrant for the Lansdowne resid ence did not mention a confidential informant, prosecutors revealed in their opposition to the motion to suppress that Detective Smith had received information from a relative of Pitts’ s girlfriend that Pitts often frequented the home in which he was found . Pitts moved to compel the disclosure of th is informant’s identity.
The District Court de nied the motion to disclose and the motion to suppress and Pitts was convicted at trial on all counts. Pitts was sentenced to 180 months in prison, an upward dep arture from the guidelines range of 135

- 147 months, based on an offense level of 20 pursuant to U.S. Sentencing Guidelines § 2K2.1(a)(4). The offense level was determined based on Pitts’ 2007 conviction for aggravated assault under Pennsylvania law , which the probation office considered a “crime of violence” for guidelines purposes.4 II. 4 Pitts alleges two errors by the District Court: (1) the District Court should have compelled disclosure of the identity of the confidential informant and (2) his aggravat ed assault conviction was not a “crime of violence” for the purposes of the Sentencing
Guidelines. Neither argument is persuasive. Police may generally keep a confidential informant’s ide ntity secret from a defendant unless “the disclosure of an informer ’s identity . . . is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause.” 5 The criminal defendant bears the burden of demonstrating the need for the disclosure. 6 An informant need not be disclosed for pu rposes of a probable cause determination if “there was sufficient evidence apart from” the informant’s “confidential communication” to justify a warrantless search. 7 Pitts argues that the informant’s identity should have been disclosed because if, as
Pitt s believes, this confidential informant did not exist, the revelation of this information (1) would have cast doubt on whether police had probable cause to enter the Lansdowne

4 The District Court had jurisdiction over this matter pursuant to 1 8 U.S.C. § 3231 and we have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291. We review a District Court’s decision not to compel disclosure of a confidential informant for abuse of discretion. United States v. Johnson , 677 F.3d 138, 143 (3d Cir . 2012). We review the District Court’s sentencing determination for plain error since Pitts did not object to the classification of his aggravated assault conviction as a crime of violence before the District Court. United States v. Miller , 594 F.3d 172 , 183 n.6 (3d Cir. 2010). 5 Roviaro v. United States , 353 U.S. 53, 60

– 61 (1957); Johnson , 677 F.3d at 143. 6 United States v. Jiles , 658 F.2d 194, 197 (3d Cir. 1981). 7 Roviaro , 353 U.S. at 61.5

residence and (2) would have fatally wounded Detective Smith’s credibility. We address each argument in turn. The police had probable cause to enter the Lansdown residence to search for Pitts even without any of the information provided by the confidential informant. Pitts’ s girlfriend identified the Pontiac as being driven by Pitt s. Police located the Pontiac parked in front of the Lansdown e residence. After discovering the car, law enforcement officers spent several minutes knocking on the house’s door and announcing themselves as police. O ne of the officers saw movement on the second floor, confirming that someone was inside but unwilling to admit the officers or answer their knock. When evaluating a probable cause determination for entry with an arrest warrant but without a search warrant , we employ a “common sense approach ” and evaluate the totality of the circumstances. 8 The combination of factors here was sufficient to give an officer a reasonable belief that Pitts was inside. 9 The informant’s statement specific ally identifying the Lansdown e residence as one frequented by Pitts makes the belief even more reasonable but , absent the confidential informant’s information, police would have
had sufficient reason to enter. The second portion of Pitts’ s objection, that disclosure of the informant could have brought Detective Smith’s credibility into question at trial, is similarly unpersuasive.
W hen a confidential informant’s involvement in a case merely goes to probable cause for

8 United States v. Veal , 453 F.3d 164, 168 (3d Cir. 2006). 9 S ee Veal , 453 F.3d at 168

– 69.6

a search, as is the case here, “disclosure of his identity is not required.” 10 As discussed abo ve , the confidential informant’s information here only went to the probable cause for the initial search

. The circumstances under which Pitts was charged arose after the police forced entranc e into the Lansdowne residence. Thus, the confidential informan t, by definition, w ould not have had any relevant information about the crimes with which Pitts was charged. T he relevance, if any, of any testimony the confidential informant could have offered at trial would be limited. Pitts’ s theory that Smith lied a bout the existence of th e informant is based on certain inconsistencies between Smith’s statements around the time of the arrest and those obtained during the process leading up to trial. Mere speculation is an insufficient basis upon which a District Cou rt may order disclosure of a confidential informant’s identity. 11 Moreover, Pitts’ s counsel could and did explore all of those inconsistencies with Smith and other government witnesses over the course of the trial. To the extent that defense counsel had s uspicions about the existence of the confidential informant, those suspicions were given full airing and ultimately found unpersuasive by the jury. Consequently, the District Court did not abuse its discretion in declining to order the disclosure of the i nformant’s identity prior to the suppression hearing or at trial. The District Court also did not plainly err in determining that Pitts’ s previous conviction for aggravated assault i s a crime of violence. Pitts argues that, under United

10 United States v. Bazzano , 712 F.2d 826, 839 (3d Cir. 1983) (en banc). 11 Id.7

States v. Otero , 12 this Court has held that simple assault in Pennsylvania is not a crime of violence for guidelines purposes. Pitts is correct, but Pitts was not convicted of simple assault; he was convicted of aggravated assault. Pitts contends that the only difference between a simple and aggravated assault i s the status of the victim. 13 This is incorrect.
Otero illustrates the significant difference between the two . S imple assault in Pennsylvania encompasses negligent or reckless behavior

. 14 In contrast, a conviction under Pennsylvania’s aggravated assault statute, involving assault on an officer of the
state, requires intentional conduct. 15 Pitts was convicted of “intentionally or knowingly caus[ing] bodily injury” to a state officer while that officer was performin g his duty. 16 T his fits comfortably within the Sentencing Guidelines definition of a violent crime as any crime that “has as an element the use, attempted use, or threatened use of physical force against the person of another”. 17 Thus, the District Court d id not err in holding that an aggravated assault conviction under § 2702(c) was a crime of violence for guidelines purposes.
III. For the foregoing reasons, we will affirm the judgment s of conviction and of sentence of the District Court.

12 502 F.3d 331, 335 (3d Cir. 2007). 13 Compare 18 Pa. C.S.A. § 2702( c ) (aggravated assault) with 18 Pa. C.S.A. § 270 1 (simple assault). 14 Otero , 502 F.3d at 335. 15 18 Pa. C.S.A. § 2702(c). 16 18 Pa. C.S.A. § 270 2 (c). 17 U.S.S.G. § 4B1.2.