Submitted Under Third Circuit LAR 34.1(a) June 13, 2013
Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal Action Nos. 2-06-cr-00342-001 / 2-07-cr-00370-001) District Judge: Honorable Anita B. Brody
Thomas A. Dreyer, Esquire Counsel for Appellant.
Zane David Memeger United States Attorney Robert A. Zauzmer Assistant United States Attorney, Chief of Appeals Sarah L. Grieb Assistant United States Attorney Office of the United States Attorney Counsel for Appellee.
Before: McKEE, Chief Judge, AMBRO, and GREENBERG, Circuit Judges
AMBRO, Circuit Judge
Appellant Khalil Carter was sentenced to 37 months' imprisonment for violating his supervised release after he pled guilty to two separate offenses in state court. In imposing its sentence, the District Court looked to Carter's actual conduct to determine whether he had committed a "crime of violence." Carter contends that the Court should be limited to the offenses charged, none of which constitutes a "crime of violence." We conclude there was no error. Even where no crime is actually charged, a district court may consider a defendant's actual conduct in concluding that he has violated the terms of his supervised release through the commission of a subsequent offense. That particular offense, moreover, may be a "crime of violence." Here, however, the District Court should have set out Carter's specific crime of violence. Yet because it provided an alternate basis for Carter's sentence, any error was harmless, and we affirm the sentence imposed.
In May 2008, Appellant Khalil Carter pled guilty to federal charges for conspiracy to use and produce counterfeit credit cards and armed robbery of a pharmacy. These convictions resulted in a United States Sentencing Guidelines ("U.S.S.G.") range of 121 to 130 months' imprisonment. Nonetheless, the District Court exercised its discretion to sentence Carter to only 45 months' imprisonment followed by three years' supervised release. Carter began supervised release in November 2009.
The United States Probation Office filed a petition for revocation of supervised release in November 2011 based on two incidents. In June 2010, the thirteen-year-old daughter of Carter's girlfriend complained that Carter had sexually assaulted her. Carter pled guilty in state court to misdemeanors for endangering the welfare of a child and corruption of a minor. 18 Pa. Cons. Stat. Ann. §§ 4304, 6301. He was sentenced to five years' probation. Second, in October 2011 Carter was arrested for attempting to use stolen credit cards. He pled guilty to access device fraud and was sentenced to 9 to 23 months' imprisonment. Id. § 4106.
In revoking Carter's supervised release, the District Court calculated the applicable range of imprisonment. See U.S.S.G. § 7B1.4 (2011). To do so, it needed to determine whether Carter had committed a Grade A or Grade B violation of his release—a significant distinction, as a Grade B violation would result in a Guidelines range of 6 to 12 months', while a Grade A violation would raise the range to 27 to 33 months' imprisonment. Both parties agreed that the credit card fraud constituted a Grade B violation of Carter's supervised release. The Government, however, argued that the June 2010 sexual assault was a more serious Grade A violation because it was a "crime of violence" as a "forcible sex offense, " pointing to evidence of Carter's actual conduct. Carter, however, testified that he never touched the girl and that he never pled to doing so.
After an initial revocation hearing, the Court held a subsequent hearing in September 2012 to consider the nature of Carter's plea and the underlying facts of the case. Evidence included the victim's statement, Carter's guilty plea transcript, a toxicology report, testimony by the victim's mother, and an oral statement by Carter. The Court credited the mother's testimony, which indicated that Carter had taken the girl out to dinner, provided her with alcohol, made inappropriate comments, and touched her genitals while she pretended to be asleep.
On that evidence, the District Court concluded that Carter's conduct amounted to a forcible sexual offense, classifying it as a "crime of violence" under the Guidelines and a Grade A violation of supervised release. It further explained that it was "outrageous" that Carter gave the underage victim alcohol, and was similarly disappointed that Carter had committed credit card fraud while on supervised release for that same offense. App. at 104. Observing that Carter had abused the "break" he had been given on his initial sentence, the Court sentenced him to 37 months' imprisonment—four months above the Guidelines range for a Grade A offense—to run consecutively to any state sentence, and explained that it would have imposed the same sentence regardless whether the sexual assault was a Grade A or B violation.
In this appeal, Carter contests the determination that his assault offense was a Grade A violation because he was not charged with or convicted of such an offense. He argues that this determination caused an incorrect Guidelines range and therefore a procedurally unreasonable sentence.
A. Standard of Review
In scrutinizing a sentence imposed, "we review a district court's legal conclusions regarding the Guidelines de novo, its application of the Guidelines to the facts for abuse of discretion, and its factual findings for clear error." United States v. Blackmon, 557 F.3d 113, 118 (3d Cir. 2009) (internal citations omitted). Procedural errors are reviewed for abuse of discretion with varying degrees of deference depending on the nature of the particular error asserted. United States v. Wise, 515 F.3d 207, 217 (3d Cir. 2008). As such, "if the asserted procedural error is purely factual, our review is highly deferential and we will conclude there has been an abuse of discretion only if the district court's findings are clearly erroneous." Id. On the other hand, we give no deference to purely legal errors, such as "when a party claims that the district court misinterpreted the Guidelines." Id.
Facts relevant to the application of the Guidelines are established by a preponderance of evidence. See United States v. Grier, 475 F.3d 556, 568 (3d Cir. 2007) (en banc); see also 18 U.S.C. § 3583(e)(3) (revocation appropriate if the court "finds by a preponderance of the evidence ...