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United States of America v. Ricardo Marrero

April 25, 2012

UNITED STATES OF AMERICA
v.
RICARDO MARRERO, APPELLANT



On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 09-cr-00208) District Judge: Honorable Gustave Diamond

The opinion of the court was delivered by: Hardiman, Circuit Judge.

PRECEDENTIAL

Argued January 26, 2012

Before: AMBRO, CHAGARES and HARDIMAN, Circuit Judges.

OPINION OF THE COURT

Ricardo Marrero appeals his judgment of sentence after pleading guilty to two counts of bank robbery. Marrero claims the District Court erred in classifying him as a "career offender" under § 4B1.1 of the United States Sentencing Guidelines. Because we agree with the District Court that Marrero's convictions for simple assault and third-degree murder qualify as "crimes of violence," we will affirm.

I

In December 2010, Marrero pleaded guilty to two counts of bank robbery in violation of 18 U.S.C. § 2113(a). Thereafter, the Probation Office prepared a Presentence Investigation Report (PSR), which recommended that Marrero be sentenced as a career offender under § 4B1.1 of the United States Sentencing Guidelines (USSG or Guidelines) because he had three convictions for crimes of violence: (1) third-degree murder under 18 Pa. Cons. Stat. Ann. § 2502(c) in 1997; (2) simple assault under 18 Pa. Cons. Stat. Ann. § 2701(a)(1) in 2004; and (3) the bank robberies in this case.

The PSR described Marrero's third-degree murder conviction as follows. In 1997, a man named Guy Prange approached Marrero and others outside a house in Coatesville, Pennsylvania, and asked for drugs. He was told they did not have any drugs. When Prange began walking away, Marrero ran up and hit him from behind, knocking him to the ground. Marrero then kicked Prange numerous times. Prange died in the hospital twenty-five days later from complications from a ruptured spleen. In September 2002, Marrero pleaded guilty to murder in the third degree.

The PSR also indicated that Marrero pleaded guilty to simple assault following two attacks on his wife in 2004. The transcript of Marrero's guilty plea colloquy states, in relevant part:

[Assistant District Attorney]: Your Honor, the defendant is charged with two separate incidents of simple assault. On Information 2804-04, the date of May 29 of 2004 . . . the defendant was seen placing his hands on the victim's neck. The victim's name is Lucy Marrero. And he did, at that time, threaten serious bodily injury. On Information 38 --

The Court: Do you admit those facts?

The Defendant: Yes, Sir.

[Assistant District Attorney]: On Information 3839-04, the date was April 27, 2004, . . . the defendant grabbed Mrs. Marrero by the neck, attempting to drag her upstairs to the second floor. When she tried to make a phone call, he ripped the phone cord out of the wall as she was attempting to call 911.

The Court: Do you admit those facts?

The Defendant: Yes, Sir.

The Probation Office concluded that Marrero's convictions for third-degree murder and simple assault constituted "crimes of violence" under the Guidelines. Accordingly, the PSR classified Marrero as a career offender, which increased his offense level from 21 to 32. After a three-point reduction for acceptance of responsibility, Marrero's total offense level was 29. The career offender enhancement also increased his criminal history category from IV to VI. See USSG § 4B1.1(b). This resulted in a final Guidelines range of 151 to 188 months' imprisonment. Had Marrero not been deemed a career offender, his Guidelines 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 qualifies as a crime of violence because "a conviction for mere recklessness cannot constitute a crime of violence." The District Court disagreed, holding that he was a career offender under USSG § 4B1.1. According to the District Court, Marrero's simple assault conviction was a crime of violence because: (1) our decision in United States v. Johnson, 587 F.3d 203 (3d Cir. 2009), 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 "indicated that he pled guilty to an intentional and knowing violation of the simple assault statute." As for Marrero's third-degree murder conviction, the District Court found that it constituted a crime of violence because "murder" is expressly enumerated as such in Application Note 1 to USSG § 4B1.2.

Having found the career offender designation appropriate in Marrero's case, the District Court agreed with the Probation Office that his applicable Guidelines range was 151 to 188 months' imprisonment. Marrero sought a below-Guidelines sentence, and the Government opposed that request. Applying the factors set forth in 18 U.S.C. ยง 3553(a), the District Court determined that a substantial downward ...


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