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United States v. Oliveri

argued: November 4, 1986.

UNITED STATES OF AMERICA
v.
HARRY T. OLIVERI, A/K/A KEETH CLAUD LEWIS, APPELLANT



On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Crim. No. 85-00317-01.

Author: Sloviter

Before: SLOVITER and STAPLETON, Circuit Judges, and FARNAN,*fn* District Judge

Opinion OF THE COURT

SLOVITER, Circuit Judge

Harry T. Oliveri appeals from the district court's imposition of an eight-year prison sentence under the dangerous special offender statute, 18 U.S.C. § 3575. Oliveri contends that the district court erred in concluding that the government had succeeded in establishing that Oliveri was dangerous within the meaning of 18 U.S.C. § 3575(f).

Oliveri pled guilty to a one-count indictment charging him with possession of a firearm as a convicted felon in violation of 18 U.S.C. Appendix I § 1202(a)(1) (now codified at 18 U.S.C. Appendix II, § 1202(a)(1)), which carried a maximum penalty available of two years' imprisonment and a $10,000 fine. Prior to entering into a plea agreement with Oliveri, the government had filed a notice of request for dangerous special offender status, seeking enhanced sentencing of Oliveri as a dangerous special offender under 18 U.S.C. § 3575. Pursuant to Oliveri's plea agreement, the government and Oliveri agreed to a maximum sentence of eight years' imprisonment. Oliveri retained the right to challenge the government's petition for dangerous special offender classification and argue for a lesser sentence.

At the hearing, Oliveri conceded that he was a "special offender" within the definition of 18 U.S.C. § 3573(e)(1) in that he had two or more prior convictions punishable by a sentence of one year or more, he had been incarcerated for one of those prior convictions, and less than five years had elapsed between the commission of the charged felony and the commission of the last such prior offense.

In finding that Oliveri was dangerous, the court reviewed the extent and nature of Oliveri's prior record and concluded that Oliveri was "dangerous because the evidence that I've looked at shows that you have no regard for the law and the rights of the public." App. at 62. For that reason, the court found "that a period of confinement longer than that provided for the commission of the felony which is charged here in this Indictment is required for the protection of the public from further criminal conduct by you . . ." App. at 60. The court then sentenced Oliveri pursuant to 18 U.S.C. § 3575 to the eight-year maximum provided for by the plea agreement.

The standard for this court's review of a finding of dangerous special offender status is specified by statute:

Review of the sentence shall include review of whether the procedure employed was lawful, the findings made were clearly erroneous, or the sentencing court's discretion was abused.

18 U.S.C. § 3576; see also United States v. Felder, 744 F.2d 18, 20 (3d Cir. 1984). Oliveri argues only that the district court abused its discretion in concluding that he was dangerous within the meaning of 18 U.S.C. § 3575(f).

He argues that unlike the appellants in numerous other cases applying the dangerous special offender statute, his prior record "reflects neither a pattern of violence nor drug trafficking." Appellant's Brief at 14. However, nothing in the statute requires a finding of physical violence or drug trafficking as part of a determination of dangerousness under section 3575(f). Instead, the statute focuses on the probability that the defendant will engage in future criminal conduct:

A defendant is dangerous for purposes of this section if a period of confinement longer than that provided for such [the underlying] felony is required for the protection of the public from further criminal conduct by the defendant.

18 U.S.C. § 3575(f). We have stated that this definition of dangerousness does not require the court to find a possibility of physical violence. United States v. Davis, 710 F.2d 104, 108 (3d Cir.), cert. denied, 4 ...


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