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Media Alerts - USA v. Ricardo Marrero - Third Circuit
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February 20, 2014
  USA v. Ricardo Marrero - Third Circuit
Headline: Third Circuit Affirms District Court Classification of Criminal as "Career Offender"

Area of Law: Sentencing Guidelines, Classification as a Career Offender, Criminal Law

Issue(s) Presented: Whether Marrero's classification as a career offender under the sentencing guidelines was proper?

Brief Summary:
Ricardo Marrero appeals his judgment of sentence after pleading guilty to two counts of bank robbery, claiming that the District Court erred in classifying him as a "career offender" under § 4B1.1 of the United States Sentencing Guidelines. The Third Circuit Court of Appeals affirmed the District Court, agreeing that Because Marrero's convictions for simple assault and third-degree murder qualify as "crimes of violence."

Significance (if any): Murder and simple assault were considered violent crimes under the Sentencing Guidelines in order to qualify a criminal as a "career offender."

Extended Summary (if applicable):
Ricardo Marrero appeals his judgment of sentence after pleading guilty to two counts of bank robbery, claiming that the District Court erred in classifying him as a "career offender" under § 4B1.1 of the United States Sentencing Guidelines. The Third Circuit Court of Appeals affirmed the District Court, agreeing that Because Marrero's convictions for simple assault and third-degree murder qualify as "crimes of violence."
In December 2010, Marrero pleaded guilty to two counts of bank robbery. Thereafter, his probation officer recommended that he be sentenced as a career offender under the sentencing guidelines because he had been convicted of three violent crimes including third degree murder, simple assault, and the bank robberies. This career offender status resulted in a sentencing guideline of 151 to 188 months imprisonment. Marrero objected to his career offender classification, arguing that neither third degree murder nor simple assault qualifies as a crime of violence because a conviction for mere recklessness cannot constitute violence. The District Court disagreed and found Marrero to be a career offender. In determining that simple assault was a crime of violence, the District Court relied on: 1) United States v. Johnson, 587 F.3d 203 (3d Cir. 2009), which established that intentional or knowing simple assault under Pennsylvania law is a crime of violence; and (2) the transcript of Marrero's guilty plea colloquy, which that he pled guilty to an intentional and knowing violation of the simple assault statute. The District Court found that the third degree murder crime constituted a crime of violence because "murder" is expressly enumerated as such in Application Note 1 to USSG § 4B1.2.
Marrero has timely appealed and raised one issue, which is the issue of his classification as a career offender. The Third Circuit Court of Appeals had already affirmed this classification, and Marrero appealed again, this time getting certiorari granted by the Supreme Court. The Supreme Court remanded this case back to the Third Circuit for further consideration in light of the decision in Descamps v. United States, 133 S. Ct. 2276 (2013). Since assault is not enumerated as a violent crime in the Sentencing Guidelines, the Third Circuit determined whether it fell under the residual clause. The Court uses the "modified categorical approach," which applies to assault under Descamps because it is a divisible statute which provides three states of mind for conviction: 1) intent, 2) knowledge, or 3) recklessness. The Court we concluded that the District Court properly concluded Marrero's simple assault plea colloquy was for intentional simple assault.
The Court next considered whether Marrero's third-degree murder conviction was a violent crime. The Pennsylvania Superior Court has specified that third-degree murder is "an unlawful killing with malice but without specific intent to kill." Marrero argued that malice only implies recklessness. Application Note 1 to § 4B1.2. in the Sentencing Guidelines expressly states that the term "'[c]rime of violence' includes murder." Thus, the Court concluded that this places murder as an enumerated "crime of violence" under the Sentencing Guidelines. The Court then went on to perform the Taylor analysis, in which it compared the elements of the crime of conviction to the generic form of the offense. So long as the statutory definition of the prior conviction "substantially corresponds" to the generic definition of the offense, the defendant's prior offense qualifies as a crime of violence. The Court found that the definition of murder in Pennsylvania "substantially corresponds" to the generic definition.
The Court affirmed the District Court's determination that Marrero's third-degree murder and simple assault convictions both qualified as crimes of violence under the Sentencing Guidelines, and he was properly designated a career offender. Thus, Marrero's Guidelines range was properly calculated and that the District Court did not err.
The full opinion is available at http://www2.ca3.uscourts.gov/opinarch/112351p1.pdf

Panel (if known): Ambro, Chagares, and Hardiman, Circuit Judges

Argument (if known): January 26, 2012

Date of Issued Opinion: February 19, 2014

Docket Number: 11-2351

Decided: February 19, 2014

Case Alert Author: Alexandra Perry

Counsel (if known):
Rebecca R. Haywood
Michael L. Ivory
Office of the United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219-0000
Attorneys for Plaintiff-Appellee

Lisa B. Freeland
Karen S. Gerlach
Office of Federal Public Defender
1001 Liberty Avenue
1500 Liberty Center
Pittsburgh, PA 15222-0000
Attorneys for Defendant-Appellant

Author of Opinion: Hardiman, Circuit Judge

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 02/20/2014 03:20 PM     3rd Circuit  

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