CRIMINAL LAW

Sentencing Guidelines • “Career Offender”

U.S. v. Marrero, PICS Case No. 14-0308 (3d Cir. Feb. 19, 2014) Hardiman, J. (24 pages).

The U.S. Court of Appeals for the Third Circuit affirmed the decision of the district court that defendant qualified as a “career of-fender” for purposes of the sentencing guidelines.

Marrero appealed his judgment of sentence after pleading guilty to two counts of bank robbery. He claimed the district court erred in classifying him as a career offender under the U.S. Sentencing Guidelines. Marrero had previously been convicted of simple assault and third-degree murder.

After Marrero pleaded guilty to two counts of bank robbery, the probation office prepared a presentence investigation report which recommended that Marrero be sentenced as a career offender because he now had three convictions for crimes of violence.

The third-degree murder conviction occurred after Marrero ran up and hit a man from behind, knocking him to the ground. Marrero then proceeded to kick the man numerous times. The man was hospitalized and later died from complications of a ruptured spleen. Marrero pleaded guilty to murder in the third degree in that case. He also pleaded guilty to simple assault following an attack on his wife.

Classifying Marrero as a career offender increased his offence level. This resulted in a final guideline range of 151 to 188 months’ imprisonment. If he had not been considered a career offender, Marrero’s guideline range would have been 57 to 71 months.

Marrero objected to the career offender classification, arguing that under Pennsylvania law neither third-degree murder nor simple assault qualified as a crime of violence because a conviction for mere recklessness cannot constitute a crime of violence. The district court disagreed and found the career offender designation was appropriate. A substantial downward variance was granted by the district court, which sentenced Marrero to 96 months of imprisonment and three years of supervised release.

Marrero filed a timely appeal based solely on his classification as a career offender. The circuit court concluded the conviction for simple assault qualified as a crime of violence for purpose of the career offender provision of the sentencing guidelines. The Pennsylvania statute allowed a person to be convicted of simple assault based on intentional, knowing or reckless behavior. Marrero had admitted placing his hands around his wife’s neck and attempting to pull her up a flight of stairs. The court held this constituted intent to cause bodily injury which qualified as a crime of violence.

With regard to the third-degree murder conviction, Pennsylvania law defined that crime as “an unlawful killing with malice but without specific intent to kill.” Marrero argued malice might entail reckless only, and therefore, it did not qualify as a crime of violence under the sentencing guidelines. The circuit court held that murder is generically defined as causing the death of another person either intentionally, during the commission of a dangerous felony, or through conduct evincing reckless and depraved indifference to serious dangers posed to human life. Third-degree murder under Pennsylvania law qualified as a crime of violence under the sentencing guidelines.