United States v. Corle

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
4-11-2007
USA v. Corle
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-5363
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-5363
UNITED STATES OF AMERICA
v.
TERRY LEE CORLE,
Appellant
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
D.C. Crim. No. 04-cr-00030J
District Judge: The Honorable Kim R. Gibson
Submitted Under Third Circuit LAR 34.1(a)
March 27, 2007
Before: RENDELL, BARRY, and CHAGARES, Circuit Judges
(Opinion Filed: April 11, 2007)
OPINION
BARRY, Circuit Judge
Appellant, Terry Lee Corle, argues that the District Court incorrectly ruled that his
1981 conviction for theft by receiving stolen property, in violation of section 3925 of the
Pennsylvania Crimes Code, is a predicate conviction under 18 U.S.C. § 922(g)(1). For
the following reasons, we will affirm the judgment of the District Court.
I.
On October 5, 2004, a federal grand jury returned a one-count indictment charging
Corle with being a felon in possession of firearms in violation of 18 U.S.C. § 922(g)(1).
According to the indictment, the felony underlying the charge was a 1981 Pennsylvania
conviction for theft by receiving stolen property.
On January 28, 1981, Corle was indicted in the Court of Common Pleas of
Bedford County for violating section 3925(a) of the Pennsylvania Crimes Code. That
indictment charged that Corle “intentionally receive[d], retain[ed], or dispose[d] of
movable property of another knowing that it had been stolen, or believing it had probably
been stolen, and did so without the intent to restore the property to the owner.” (App. at
13.) A criminal complaint filed that day explained that the property at issue was a 1980
Dodge Omni and listed the offense as a felony of the third degree. The Commonwealth, at
the request of Corle, filed a bill of particulars which contained additional information
regarding the stolen vehicle.
Subsequently, Corle and the Commonwealth entered into a plea agreement.
Pursuant to that agreement, Corle agreed to plead guilty to “Theft by receiving property,
Section 3925(a) of the Crimes Code of Pennsylvania; a felony of the third degree,” and
the Commonwealth agreed to recommend a non-incarceratory sentence. (App. at 62.)
Corle pleaded guilty and, on June 1, 1981, was sentenced to a term of six months
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probation and a $25 fine.
Believing that this conviction was not a predicate conviction for purposes of 18
U.S.C. § 922(g)(1), Corle filed a motion to dismiss the 2004 federal indictment. By
Memorandum Opinion and Order dated July 29, 2005, the District Court denied the
motion. On September 9, 2005, Corle entered a conditional plea of guilty pursuant to
Rule 11(a)(2) of the Federal Rules of Criminal Procedure, the terms of which allowed him
to appeal the conclusion of the District Court that his 1981 conviction was a predicate
conviction under § 922(g)(1).
We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review is plenary. See
United States v. Leuschen, 395 F.3d 155, 157 (3d Cir. 2005).
II.
Among the elements the government must prove beyond a reasonable doubt to
secure a conviction under § 922(g)(1) is that the defendant “had previously been
convicted of a crime punishable by imprisonment for a term exceeding one year,” United
States v. Dodd, 225 F.3d 340, 344 (3d Cir. 2000), a term which excludes misdemeanors
under state law that are “punishable by a term of imprisonment of two years or less,” 18
U.S.C. § 921(a)(20). In order to determine if a conviction under state law meets this
definition, a court must follow “the law of the jurisdiction in which the proceedings were
held,” § 921(a)(20), but it may not inquire into the validity of or collaterally review that
conviction. See Leuschen, 395 F.3d at 157–58.
Corle argues that, pursuant to section 3903 of the Crimes Code, his 1981
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conviction must be considered a misdemeanor of the third degree, which, being
punishable by imprisonment of not more than one year, see 18 Pa. Cons. Stat. § 106(b),
cannot serve as a predicate conviction under § 922(g)(1). According to Corle, because
the indictment did not list the grade of the offense or facts sufficient to calculate the
grade, the fact that the criminal complaint, bill of particulars, and plea agreement all
included the grade of the offense, or facts sufficient to definitively determine its grade,1 is
“of no consequence or import” because he could not “plead guilty to an offense to which
he ha[d] not been charged by indictment irrespective of what information [he] may [have]
possess[ed] or have been appraised of during a plea colloquy.” Appellant’s Br. at 18. We
disagree.
Corle’s argument is, for the most part, foreclosed by our decision in Leuschen, in
which we applied the Supreme Court’s ruling in Lewis v. United States, 445 U.S. 55(1980), and held that § 922(g)(1) is triggered by the fact of a “predicate conviction [that]
carr[ies] a potential sentence of greater than one year of imprisonment” regardless of
whether that conviction is “valid” or “susceptible to a collateral attack.” Leuschen, 395
F.3d at 158. We explained that, pursuant to the statute, an individual who has a predicate
conviction must challenge that conviction before possessing a firearm, as he “cannot
collaterally attack his predicate conviction in defense of his prosecution under §
1
Pursuant to section 3903 of the Crimes Code, when the property involved is an
automobile the theft is deemed a felony of the third degree. Although the bill of
particulars did not list the grade of the offense, it did indicate that the property at issue
was a 1980 Dodge Omni.
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922(g)(1).” Id. at 159. We are thus precluded from reviewing, twenty-six years after the
fact, the validity of Corle’s 1981 conviction and our review is limited to determining
whether, under Pennsylvania law, that conviction satisfies the definition of “crime
punishable by imprisonment for a term exceeding one year.” 18 U.S.C. § 921(a)(20). We
hold that it does.
Pursuant to his plea agreement with the Commonwealth, Corle agreed to plead
guilty to “Theft by receiving property, Section 3925(a) of the Crimes Code of
Pennsylvania; a felony of the third degree.” (App. at 62.) Being punishable by up to
seven years in prison, that conviction satisfies the definition provided for in § 921(a)(20).
See 18 Pa. Cons. Stat. § 106(b).
Corle’s argument that we should look only to the indictment, which contains no
grade or facts sufficient to compute the grade, is misplaced. First, to the extent that such
an examination is aimed at undermining his conviction, it is, as discussed above,
foreclosed by Leuschen.2 Second, given the process of grading theft offenses provided
for by the Crimes Code, it is contrary to Pennsylvania law. As the Pennsylvania Superior
Court has explained on numerous occasions, the grading of theft offenses and the facts
necessary to support that grading pursuant to section 3903 are not elements of the crime
2
We therefore need not discuss Corle’s reliance on Commonwealth v. Nixon, 476
A.2d 1313 (Pa. Super. Ct. 1984), Commonwealth v. McNeill, 439 A.2d 131 (Pa. Super.
Ct. 1981), and Commonwealth v. Longo, 410 A.2d 368 (Pa. Super. Ct. 1979). We note,
however, that aside from involving different provisions of the Crimes Code, these cases
explore the validity of the convictions at issue.
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which must be included in the indictment or information, but, rather, are used for
purposes of sentencing only. See Commonwealth v. Shamberger, 788 A.2d 408, 418–20
(Pa. Super Ct. 2001) (en banc); Commonwealth v. Sparks, 492 A.2d 720, 725 (Pa. Super.
Ct. 1985); Commonwealth v. McKennion, 340 A.2d 889, 891–92 (Pa. Super. Ct. 1975);
see also Commonwealth v. Robichow, 487 A.2d 1000, 1002–05 (Pa. Super. Ct. 1985).
As such, in determining the grading of Corle’s conviction, we need not consider his
indictment. His plea agreement, as well as the criminal complaint and bill of particulars,
clearly establish that he was convicted of a felony of the third degree.
III.
For the foregoing reasons, we will affirm the judgment of the District Court.
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