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U.S. v. Bennett

November 19, 1996

UNITED STATES OF AMERICA

v.

ROY TERRY BENNETT, AKA TERRY KING ROY TERRY BENNETT, APPELLANT



On Appeal From the United States District Court For the Eastern District of Pennsylvania (D.C. Crim. Action No. 95-cr-00353)

BEFORE: STAPLETON and NYGAARD, Circuit Judges, and MAZZONE, District Judge *fn*

STAPLETON, Circuit Judge

Argued October 24, 1996

Filed November 19, 1996

OPINION OF THE COURT

Roy Terry Bennett appeals from a sentence imposed by the district court. He contends that the district court erred in sentencing him as an armed career criminal under 18 U.S.C. Section(s) 924(e) and in assuming that the cocaine base involved in his offense was crack cocaine. Bennett also claims that the district court improperly delegated to the probation officer matters concerning payment of the fine imposed as part of his sentence. We conclude that the record is sufficient to confirm Bennett's eligibility for sentencing as an armed career criminal but we remand to the district court for further proceedings to determine whether the cocaine base involved here was crack and to establish the fine repayment schedule.

I.

Bennett pled guilty to three federal firearms charges and one federal drug charge in September 1995. The three firearms violations were for making false statements in connection with acquisition of a firearm, 18 U.S.C. Section(s) 922(a)(6), possession of a firearm by a convicted felon, 18 U.S.C. Section(s) 922(g)(1), and possession of a firearm with an obliterated serial number, 18 U.S.C. Section(s) 922(k). Bennett also pled guilty to distributing cocaine, a violation of 21 U.S.C. Section(s) 841(a)(1).

The government moved to have Bennett sentenced for his 922(g) firearms violation under the Armed Career Criminal Act. 18 U.S.C. Section(s) 924(e) [hereinafter "ACCA" or "Section(s) 924(e)"]. Under the ACCA, a person who violates Section(s) 922(g) and has been previously convicted of three "violent felonies" or "serious drug offenses" must be sentenced to a mandatory minimum of fifteen years imprisonment and fined up to $25,000. Id. Prior to his present federal convictions, Bennett had been convicted three times of burglary in Pennsylvania.

In determining Bennett's sentence for the distribution of cocaine conviction, the court adopted the Presentence Report's application of the sentencing guideline for distribution of crack cocaine. U.S.S.G. Section(s) 2D1.1. Applying the relevant guidelines for grouping offenses and for determining the offense level when there are multiple counts, and factoring in Bennett's acceptance of responsibility for his criminal acts, the court found that the applicable guideline range in the absence of the ACCA would have been 135 to 168 months. Because this was less than the mandatory minimum required by the ACCA, and because it determined that the ACCA was applicable, the district court concluded that the effective guideline range was 180 months. As a result of Bennett's cooperation with the government in other criminal investigations, the government requested a moderate downward departure from the applicable guideline range. The court granted this request and sentenced Bennett to 130 months imprisonment, followed by sixty months of supervised release, and imposed a fine of $2,500.

Bennett presents four issues for review. We will address each of them in turn. *fn1

II.

Bennett's first argument on appeal is that the district court erred in treating his three Pennsylvania burglary convictions as predicate offenses within the scope of Section(s) 924(e). Specifically, Bennett contends that Pennsylvania's burglary statute is broader than the generic definition of burglary Congress incorporated into Section(s) 924(e). If Pennsylvania's burglary statute is broader than generic burglary, the government had the burden of proving that, for each of Bennett's three burglary convictions, the trier of fact necessarily found all of the elements of generic burglary. See United States v. Taylor, 495 U.S. 575, 602 (1990). Bennett contends that the government failed to meet this burden.

The government responds that Pennsylvania's burglary statute is generic, as a previous panel of this court has stated. See United States v. Watkins, 54 F.3d 163, 168 n.2 (3d Cir. 1995). Therefore, the government continues, the government satisfied its burden of proving Bennett's eligibility for ACCA sentence enhancement merely by showing that Bennett had been convicted of Pennsylvania burglary on three prior occasions. Alternatively, the government argues that the record is sufficient to show that the ...


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