United States v. Ricardo Marrero
2014 U.S. App. LEXIS 2964
| 3rd Cir. | 2014Background
- Ricardo Marrero pleaded guilty to two counts of bank robbery in 2010; a PSR classified him as a career offender under USSG § 4B1.1 based on three convictions: third-degree murder (1997), simple assault (2004), and the instant bank robberies.
- The third-degree murder stemmed from Marrero striking and repeatedly kicking a man who later died of a ruptured spleen; Marrero pleaded guilty to third-degree murder in 2002.
- The simple-assault plea colloquy records Marrero admitting to two incidents of placing hands on his wife’s neck, threatening serious bodily injury, and attempting to drag her upstairs while ripping a phone cord when she tried to call 911.
- Probation treated both prior convictions as "crimes of violence," raising Marrero’s guideline offense level and criminal-history category and producing a Guidelines range of 151–188 months (vs. 57–71 months otherwise).
- The District Court sustained the career-offender designation but imposed a below-Guidelines variance sentence of 96 months. Marrero appealed, the Third Circuit affirmed, the Supreme Court vacated and remanded in light of Descamps, and the Third Circuit reconsidered.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Pennsylvania simple assault (§ 2701) counts as a "crime of violence" under USSG § 4B1.2 | Government: plea colloquy shows intent/knowledge; intentional/knowing assault qualifies under residual clause (Begay framework) | Marrero: statute is indivisible; conviction could be based on recklessness, which cannot qualify under Begay | Court: statute is divisible; Shepard documents (plea colloquy) show Marrero admitted intentional/knowing assault; qualifies as a crime of violence |
| Whether Pennsylvania third-degree murder qualifies as an enumerated "murder" crime of violence under Application Note 1 to USSG § 4B1.2 | Government: "murder" is enumerated; Application Note 1 makes murder a crime of violence; apply Taylor to compare state offense to generic murder | Marrero: malice in third-degree murder may be mere recklessness; Begay bars counting reckless offenses as crimes of violence under residual clause | Court: Application Note 1 enumerates murder; must apply Taylor’s generic-definition analysis for enumerated offenses; generic murder includes intentional, felony-murder, or depraved-indifference killings; Pennsylvania third-degree murder (malice = depraved/extreme indifference) substantially corresponds and thus qualifies |
| Whether Descamps bars the modified categorical approach for Marrero’s simple-assault conviction | Marrero: Descamps forbids the modified categorical approach for indivisible statutes | Government: Pennsylvania statute is divisible because it lists alternative mens rea elements; Shepard documents may be used to identify which alternative applied | Court: Descamps allows modified categorical approach for divisible statutes; § 2701 is divisible; using Shepard materials was proper |
| Whether career-offender designation was proper and Guidelines calculation correct | Government: both priors are crimes of violence, so career-offender designation and Guidelines range were correct | Marrero: at least one prior (simple assault or third-degree murder) should not qualify, invalidating the career-offender enhancement | Court: both prior convictions qualify as crimes of violence; career-offender designation and Guidelines calculation affirmed |
Key Cases Cited
- United States v. Johnson, 587 F.3d 203 (3d Cir. 2009) (holding intentional/knowing simple assault under PA law is a crime of violence under the Guidelines)
- Begay v. United States, 553 U.S. 137 (2008) (residual clause covers only crimes similar in kind to enumerated examples; reckless crimes generally do not qualify)
- Descamps v. United States, 133 S. Ct. 2276 (2013) (modified categorical approach is unavailable for indivisible statutes; applies only to divisible statutes)
- Taylor v. United States, 495 U.S. 575 (1990) (establishing categorical approach and requiring comparison to a generic definition for enumerated offenses)
- Shepard v. United States, 544 U.S. 13 (2005) (limits documents a sentencing court may consult to charging papers, plea colloquies, plea agreements, and comparable records when applying the modified categorical approach)
- United States v. McQuilkin, 97 F.3d 723 (3d Cir. 1996) (treating offenses listed in the Guidelines commentary as enumerated predicates and applying categorical analysis)