United States v. Sturdivant , 223 F. App'x 184 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
5-3-2007
USA v. Sturdivant
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1551
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"USA v. Sturdivant" (2007). 2007 Decisions. Paper 1139.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1139
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 06-1551
____________
UNITED STATES OF AMERICA
v.
EUGENE DEWAYNE STURDIVANT,
Appellant.
____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal No. 03-cr-00039)
District Judge: Hon. Donetta W. Ambrose
Submitted Under Third Circuit LAR 34.1(a)
March 29, 2007
Before: RENDELL, BARRY, and CHAGARES, Circuit Judges.
____________
(Filed May 3, 2007)
OPINION OF THE COURT
CHAGARES, Circuit Judge.
Pursuant to a plea agreement, Eugene D. Sturdivant (Sturdivant) pled guilty to
possession with intent to distribute in excess of 50 grams of crack cocaine, and was
subsequently sentenced to 262 months incarceration. Sturdivant seeks to appeal his
sentence on the grounds (i) that the District Court improperly classified him as a career
offender based on his prior conviction for simple assault under Pennsylvania law; and (ii)
that the 100:1 ratio between powder and crack cocaine in the sentencing ranges Congress
has prescribed resulted in the imposition of a unreasonable sentence. Because
Sturdivant’s plea agreement contains an explicit waiver of his right to appeal on most
grounds, and because neither of these challenges falls within the narrow category of
appeal rights Sturdivant reserved, we will affirm the sentence imposed by the District
Court.
I.
On June 24, 2005, Sturdivant pled guilty to a one-count indictment charging him
with knowingly, intentionally, and unlawfully possessing with intent to distribute fifty
(50) grams or more of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(A)(iii). In exchange for Sturdivant’s plea of guilty, the Government agreed not
to seek an elevated sentence based on one of Sturdivant’s prior drug convictions, one
which would have triggered a mandatory minimum sentence of twenty years
2
incarceration. Additionally, the Government agreed to a three-level downward departure
for acceptance of responsibility.
At the plea hearing, the Government estimated Sturdivant’s Sentencing Guideline
range to be between 135 and 168 months, apparently not anticipating that the District
Court might determine that Sturdivant would qualify for a career offender enhancement.
However, the District Court explicitly stated that it would not be able to determine the
Guideline range that would apply to Sturdivant until after the creation of a Presentence
Report, which had yet to be completed at that time. The District Court also confirmed
Sturdivant’s desire to waive his right to appeal any sentence the District Court would
impose, subject to the reservations contained in his plea agreement. Satisfied that
Sturdivant’s plea of guilty was knowing and voluntary, the District Court accepted
Sturdivant’s plea agreement and directed the preparation of a Presentence Report.
The Presentence Report determined that Sturdivant was a career offender, pursuant
to U.S.S.G. § 4B1.1, due to his prior conviction for possession with intent to distribute
cocaine and his conviction for simple assault under 18 Pa. C. S. § 2701.1 This resulted in
an offense level of 37 which was reduced by three levels to 34 for acceptance of
responsibility. Sturdivant’s status as a career offender also caused his criminal history
category to rise from category IV to category VI. Based on this offense level and
1
It is undisputed that the drug conviction that formed the basis for the career
offender enhancement is separate and distinct from the one that the Government agreed
not to introduce pursuant to the plea agreement.
3
criminal history category, the District Court calculated Sturdivant’s Guideline range to be
262 to 327 months, and sentenced Sturdivant at the bottom of that range, to 262 months.
Sturdivant now appeals.
II.
Sturdivant challenges his sentence on two grounds. First, he argues that his prior
conviction for simple assault under Pennsylvania law should not count as a predicate
felony sufficient to invoke career offender status under the Guidelines. Noting that
simple assault is a misdemeanor, not a felony, under the laws of other jurisdictions in the
Third Circuit and elsewhere, Sturdivant maintains that the District Court’s treatment of
his Pennsylvania simple assault conviction as a predicate felony for career offender
purposes violates his Fifth Amendment Equal Protection Clause rights. Second,
Sturdivant argues that the disparity in sentencing ranges associated with offenses
involving powder cocaine and those involving crack cocaine runs afoul of Congress’
dictate that courts should fashion sentences in a manner that avoids unwarranted
disparities. See 18 U.S.C. § 3553(a)(6). In essence, then, Sturdivant challenges the
District Court’s calculation of his Guideline range, as well as the reasonableness of the
ultimate sentence it imposed.
At the outset, we note that it is undisputed that Sturdivant’s plea of guilty was
knowing and voluntary. Thus, analysis proceeds to whether Sturdivant waived his right
4
to assert either or both of these challenges pursuant to his plea agreement. The plea
agreement stated in pertinent part that:
Sturdivant waives the right to take a direct appeal from his
conviction or sentence under 28 U.S.C. § 1291 or 18 U.S.C. § 3742,
subject to the following exceptions:
(a) If the United States appeals from the sentence,
[Appellant] may take a direct appeal from the sentence.
(b) If (1) the sentence exceeds the applicable statutory
limits set forth in the United States Code, or (2) the
sentence unreasonably exceeds the guideline range
determined by the Court under the Sentencing
Guidelines, [Appellant] may take a direct appeal from
the sentence.
The foregoing reservations of the right to appeal on the basis of
specified issues do not include the right to raise issues other than
those specified.
22A.
It is undisputed that the Government has not appealed Sturdivant’s sentence, and
that Sturdivant’s sentence does not exceed the statutory maximum stated in the United
States Code. Thus, Sturdivant’s appeal is barred by the terms of his plea agreement
unless “the sentence unreasonably exceeds the guideline range determined by the Court
under the Sentencing Guidelines.” Id. It is clear that Sturdivant’s sentence does not
“exceed the guideline range determined by the Court” -- let alone unreasonably -- as he
was sentenced at the low end of the Guideline range the District Court calculated. Thus,
Sturdivant’s challenges to his sentence are barred by the terms of his plea agreement.
5
This does not end the analysis, however, as we have refused to enforce plea
agreements if doing so would work a manifest injustice even if they were knowing and
voluntary. This exception is exceedingly narrow, and operates only in “unusual
circumstance[s] where an error amounting to a miscarriage of justice may invalidate the
waiver.” United States v. Khattak, 273 F.3d 557, 562 (3d Cir. 2001). We have refused to
promulgate an exhaustive list of circumstances in which we might disregard an otherwise
valid waiver of appeal, preferring instead to adjudicate such claims on a case-by-case
basis. See id. To make this determination, we have employed a multi-factor balancing
test which takes into consideration “the clarity of the error, its gravity, its character (e.g.,
whether it concerns a fact issue, a sentencing guideline, or a statutory maximum), the
impact of the error on the defendant, the impact of correcting the error on the
government, and the extent to which the defendant acquiesced in the result.” Id. at 563.
The question, then, is whether either or both of Sturdivant’s challenges fit within the
“manifest injustice” exception.
We hold that neither one does. With respect to the District Court’s career offender
determination, we need not engage in an extended weighing of these factors here, as it is
clear that the District Court committed no error by determining that Sturdivant’s prior
conviction for simple assault under Pennsylvania law qualified as a predicate offense for
career offender status purposes. Indeed, we have previously held that it does. See United
6
States v. Dorsey, 174 F.3d 331 (3d Cir. 1999) (affirming career offender enhancement
based on Pennsylvania simple assault conviction).
The same result obtains with respect to Sturdivant’s challenge based on the
sentencing disparity between powder and crack cocaine. Put simply, Sturdivant’s attempt
to launch a broadside attack on the respective terms of incarceration that Congress has
seen fit to promulgate for powder and crack cocaine offenses is foreclosed by his broad
waiver of appeal rights.
III.
For the foregoing reasons, we will affirm the sentence imposed by the District
Court.
7