United States of America v. Raymond Shelton

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-1198
UNITED STATES OF AMERICA
v.
RAYMOND SHELTON,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Action No. 1-02-cr-00189-001)
District Judge: Honorable Paul S. Diamond
Submitted Under Third Circuit LAR 34.1(a)
November 16, 2009
Before: AMBRO, ALDISERT, and ROTH, Circuit Judges
(Opinion filed February 8, 2010)
OPINION
AMBRO, Circuit Judge
The sentencing of Raymond Shelton is before us on appeal for a third time. We
have twice vacated and remanded for resentencing after the Government twice breached

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The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction1
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
2
the plea agreement. Shelton now appeals the sentence imposed by the District Court on
the second remand. We affirm.1
I.
In 2002, Shelton pled guilty to five firearms charges and conspiracy to distribute
ecstacy. He was sentenced to 188 months’ imprisonment. However, at the sentencing
hearing, the Government breached its plea agreement with Shelton by asking for a base
offense level higher than the level stipulated in the agreement. Therefore, on appeal we
vacated and remanded for resentencing before another District Judge. United States v.
Shelton, 91 F. App’x 247, 248 (3d Cir. 2004) (not precedential) (“Shelton I”). On
remand, Shelton was sentenced to 168 months’ imprisonment. On appeal from that
sentencing, we also vacated and remanded the case for resentencing before another
District Judge, holding that the Government again violated the plea agreement by asking
for a sentence “within the sentencing guideline range,” which was higher than the range
contemplated by the plea agreement. United States v. Shelton, 179 F. App’x 809, 812 (3d
Cir. 2006) (not precedential) (“Shelton II”).
On the second remand, prior to sentencing, the Government filed a written
sentencing memorandum that it withdrew at the beginning of the sentencing hearing after

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While the Government failed to include this sentencing memorandum in its2
Supplemental Appendix, the District Court described it as requesting a sentence between
151 and 188 months.
Shelton contends that the 2001 Sentencing Guidelines Manual was used instead of the3
2000 Manual, creating ex post facto issues. However, the United States Probation Office
did use the 2000 Manual. See PSR ¶ 32 (“The 2000 edition of the Guidelines Manual has
been used in this case.”); Supp’l App. 77 (District Court Mem.) (“Probation applied the
2000 version of the Guidelines to Defendant.”).
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the District Court warned the Government that its position was in violation of Shelton II.2
After the Court stated that it would completely disregard the stricken memorandum, it
asked if Shelton wanted another Judge to continue the sentencing. Shelton declined. He
raised several objections to the Presentence Report (“PSR”), and the Court continued the
sentencing until a later date to consider the objections.
When the hearing resumed some months later, the Court agreed with the PSR that
the base offense level for the firearms charges was 26 because the offense involved “a
firearm described in 26 U.S.C. § 5845(a) or 18 U.S.C. § 921(a)(30),” and Shelton had two
qualifying convictions for crimes of violence. See U.S. Sentencing Guidelines Manual
§ 2K2.1(a)(1) (2000). Shelton received a two-level enhancement for possessing a3
firearm with an obliterated serial number, see U.S.S.G. § 2K2.1(b)(4), and a two-level
enhancement for the number of firearms, see U.S.S.G. § 2K2.1(b)(1)(B), as contemplated
by the plea agreement. Because U.S.S.G. § 2K2.1(b) states that “the cumulative offense
level determined [up to this point] shall not exceed level 29,” it was decreased from 30 to
29. Shelton was then subject to a four-level specific offense characteristic enhancement

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under U.S.S.G. § 2K2.1(b)(5), followed by a three-level downward adjustment for
acceptance of responsibility, see U.S.S.G. § 3E1.1, bringing his total offense level to 30.
Shelton would have been in Criminal History Category V but for his status as a career
offender, which placed him in Category VI. Shelton’s Guideline range was 168 to 210
months’ imprisonment. The Government requested a sentence of 77 to 96 months.
After reiterating that it did not consider the Government’s stricken sentencing
memorandum in imposing sentence, the Court sentenced Shelton to 168 months’
imprisonment. It imposed a fine of $750 and a special assessment of $600. The Court
later filed a written memorandum setting out in more detail the bases for its sentencing
determination. Shelton timely appealed.
II.
A.
Shelton argues that the Government’s written memorandum filed prior to his
sentencing breached the plea agreement, and because the District Court read the
memorandum, either the sentencing should have been conducted by a different Judge or
the Court should have allowed Shelton to withdraw his plea.
However, after the Government withdrew the memorandum and the District Court
struck it from the record, Shelton declined the Court’s offer to have the sentencing

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THE COURT: I will state for the record that the government’s request for a4
hundred and fifty-one to a hundred and eighty-eight month sentence in my view is
illegal. I will completely disregard it, and it will form no part in my decision as to
what sentence will be imposed in this case. Mr. Ingram [Shelton’s counsel], does
that satisfy you and your client as to whether or not I can continue to preside in this
sentencing?
MR. INGRAM: Yes, Judge, it does.
Supp’l App. 14–15.
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proceed before another District Judge. Therefore, Shelton voluntarily waived his right to4
a remedy for any breach of the plea agreement by the Government involving the stricken
memorandum.
Shelton also argues that the Government breached the plea agreement by not
moving for a downward departure under U.S.S.G. § 5K1.1 for substantial assistance to
the Government. Because the Government retained in the plea agreement “sole
discretion” whether to make a § 5K1.1 motion, see Supp’l App. 142, it could breach the
agreement only by declining to make the motion in bad faith. See United States v. Isaac,
141 F.3d 477, 483–84 (3d Cir. 1998).
The only evidence presented by Shelton regarding his cooperation consisted of the
testimony of his former attorney, Christopher Warren, at the first sentencing hearing.
Warren discussed the history of Shelton’s cooperation and repeatedly stated that he did
not believe the Government had acted in bad faith. Shelton presented no other relevant
evidence or argument on the issue. Therefore, Shelton failed to meet his burden of

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demonstrating that the Government breached the plea agreement. See United States v.
Swint, 223 F.3d 249, 254 (3d Cir. 2000).
B.
Shelton next argues that his simple assault conviction did not constitute a “crime
of violence” under the Guidelines. The criminal information filed against Shelton
charged that he “unlawfully attempt[ed] to cause or intentionally, knowingly or recklessly
cause[d] bodily injury to another, or attempt[ed] by physical menace to put another in fear
of imminent serious bodily injury,” in violation of the Pennsylvania simple assault statute
(“PSAS”), 18 Pa. Cons. Stat. § 2701. We recently held that an intentional or knowing
violation of subsection (a)(1) of the PSAS qualifies as a crime of violence under U.S.S.G.
§ 4B1.2(a)(2). United States v. Johnson, 587 F.3d 203, 212 (3d Cir. 2009).
To determine the specific part of § 2701 to which Shelton pled guilty, we may
consider only “the terms of the charging document, the terms of a plea agreement or
transcript of colloquy between judge and defendant in which the factual basis for the plea
was confirmed by the defendant, or . . . some comparable judicial record of this
information.” Shepard v. United States, 544 U.S. 13, 26 (2005); see also Johnson, 587
F.3d at 209. Here, the state of mind to which Shelton pled guilty can be determined from
the plea colloquy at Shelton’s guilty plea on the simple assault charge:
Q: Do you understand the element[s] of the offense of simple assault?
A: Yes, I do.
Q: Well, I’m going to tell you what they are. The Commonwealth would have

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The “attempted to cause” portion of the court’s question does not change this5
analysis, as an attempt constitutes intentional conduct. “[B]y its very nature acting
recklessly is inconsistent with the mens rea required for attempt. A person cannot intend
to commit a criminally reckless act. He or she either acts recklessly or does not.” Knapik
v. Ashcroft, 384 F.3d 84, 91 (3d Cir. 2004).
We reject Shelton’s argument that the prior conviction must be specifically designated6
as a “felony” under state law to be considered a “felony” for purposes of the career
offender provision. See U.S.S.G. § 4B1.2 cmt. n.3. We also reject as frivolous his
argument that treating this conviction as a “crime of violence” violates the Full Faith and
Credit Clause of the U.S. Constitution.
U.S.S.G. § 2K2.1(b)(5) was renumbered in November 2006 as U.S.S.G.7
§ 2K2.1(b)(6).
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to prove in order to prevail in this case that you attempted to cause or that you
intentionally or knowingly caused bodily injury to another person. Do you
understand that?
A: Yes.
Supp’l App. 174. This colloquy makes clear that Shelton pled guilty to an intentional or
knowing violation of subsection (a)(1). Therefore, the District Court properly5
determined that the conviction qualified as a crime of violence in this case.6
C.
Shelton objects to the four-level enhancement imposed by the Court under U.S.S.G.
§ 2K2.1(b)(5), which applies when a defendant “used or possessed any firearm or7
ammunition in connection with another felony offense; or possessed or transferred any
firearm or ammunition with knowledge, intent, or reason to believe that it would be used
or possessed in connection with another felony offense.” “In connection with” covers a
wide range of relationships and is construed expansively. United States v. Loney, 219 F.3d

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281, 284 (3d Cir. 2000) (simultaneous possession of a pistol and heroin satisfied U.S.S.G.
§ 2K2.1(b)(5)). The application of this enhancement was appropriate, as Shelton admitted
at his guilty plea colloquy that he sold an informant a rifle, ammunition, and magazines,
and at the same time gave the informant ecstacy tablets. Supp’l App. 99–101; see also
PSR ¶ 16. These actions constituted use or possession of a firearm and ammunition “in
connection with” distribution of ecstacy, another felony offense.
D.
Shelton also argues that the District Court failed to treat the Guidelines as advisory.
However, the Court on several occasions expressly noted the advisory nature of the
Guidelines, and nothing in the record indicates otherwise.
He contends as well that the District Court erred by failing to weigh properly the
factors set forth in 18 U.S.C. § 3553(a). We disagree. We review criminal sentences for
reasonableness, and courts’ consideration of the relevant § 3553(a) factors must be rational
and meaningful. United States v. Grier, 475 F.3d 556, 571 (3d Cir. 2007) (en banc).
Here, the Court’s oral findings at sentencing and its written memorandum opinion show
that it gave meaningful consideration to the § 3553(a) factors. It addressed, among other
things, the “extremely grave” nature of the offenses, Shelton’s significant criminal history,
limited history of legitimate employment, and substance abuse problems, and the
“extraordinary” support shown by Shelton’s family at the sentencing hearings.
Finally, Shelton asserts that the District Court impermissibly delegated to the

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In a supplemental brief, Shelton appears to argue that the Government improperly8
pursued an indictment charging a firearms violation under 18 U.S.C. § 922(g)(1), after it
had moved to dismiss firearms counts from a complaint filed prior to Shelton’s
indictment. This argument was not presented to the District Court or in Shelton’s
opening brief. Moreover, there is no basis in the record for this assertion, as Shelton pled
guilty freely and voluntarily to a charge brought under § 922(g)(1), the plea agreement
states that the parties’ agreement contains no additional promises or understandings other
than those set forth in the written agreement, and Shelton agreed during his plea colloquy
that no promises had been made other than the promises stated on the record.
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Bureau of Prisons its duty to set the manner and schedule of Shelton’s payments of his fine
and special assessment. The Court ordered the fine was due immediately, recommended
that Shelton participate in the Bureau of Prisons’ Inmate Financial Responsibility
Program, and ordered that, should the fine remain outstanding upon his release from
confinement, it would become a condition of supervised release to be paid at the rate of at
least $25 per month beginning 30 days after his release. Shelton’s objection to the Court’s
order is meritless, as it is based on 18 U.S.C. § 3664(f), a statute that does not apply to
fines and special assessments.
* * * * *
We have considered Shelton’s other arguments and conclude that no further
discussion is necessary. We affirm Shelton’s sentence.8

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