United States of America v. Anthony Broomer

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-3138
UNITED STATES OF AMERICA
v.
ANTHONY BROOMER,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Criminal No. 02-cr-00129
(Honorable Berle M. Schiller)
Argued May 21, 2003
Before: SCIRICA, Chief Judge, SLOVITER and NYGAARD, Circuit Judges
(Filed August 12, 2003)
WILLIAM J. HONIG, ESQUIRE (ARGUED)
538 Church Street
Norristown, Pennsylvania 19401
Attorney for Appellant
LOUIS D. LAPPEN, ESQUIRE (ARGUED)
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, Pennsylvania 19106
Attorney for Appellee

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1On the morning of April 11, 2001, Broomer forced a cleaning person at the Abington
Bank to open the bank’s doors by pointing at her an object covered by a bandana that
appeared to be a gun. Broomer restrained her and waited for a bank employee to arrive so
that he could gain access to the bank’s safe. But Broomer left before anyone arrived,
stealing the cleaning person’s car that contained $700 in cash.
Later that day, Broomer entered a First Union Bank, approached the counter
carrying a large envelope that appeared to conceal a gun and ordered a teller to give him
money. The teller threw $1,025 in cash across the counter and onto the floor. Broomer
snatched up $874 before fleeing.
On May 30, 2001, Broomer and two others, Corey Ford and Oshea Jenkins, robbed
the Progress Bank. Broomer pointed an object that appeared to be a gun at the bank
tellers, while he and Ford stole $3,542. The getaway car was operated by Jenkins.
Finally, on June 1, 2001, Broomer, Ford and Jenkins robbed another First Union
Bank. This time Ford used a fake gun, while he and Broomer stole $14,372. Again
Jenkins drove the getaway car.
2Broomer pleaded guilty to two counts of armed bank robbery, 18 U.S.C. § 2113(d),
and two counts of armed bank robbery and aiding and abetting, 18 U.S.C. §§ 2113(d), 2.
2
OPINION OF THE COURT
SCIRICA, Chief Judge.
The defendant has appealed the upward departure of his sentence. We will affirm.
I.
In the spring of 2001, defendant Anthony Broomer committed a series of armed
bank robberies.1 On March 20, 2002, Broomer pleaded guilty to four counts of armed
bank robbery.2 The Presentence Investigation Report initially calculated Broomer’s
offense level at 31, reduced to 28 by application of a three-level reduction for acceptance

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3The Presentence Investigation Report applied the November 1, 2001 edition of the
Guidelines Manual, as this was the edition in effect at Broomer’s July 24, 2002
sentencing. See U.S.S.G. § 1B1.11, policy statement (“The court shall use the Guidelines
Manual in effect on the date that the defendant is sentenced.”). Unless otherwise
indicated, discussion of the guidelines refers to those in effect in the November 1, 2001
edition.
4As discussed in greater detail, the career offender guideline applies when a defendant
has at least three qualifying convictions, including that for the current offense. See
U.S.S.G. § 4B1.1. When a defendant is sentenced under the career offender guideline, his
offense level is the greater of the offense level for the current offense or an offense level
calculated specifically under the career offender guideline. See id. The offense level
calculated under the career offender guideline is based upon the statutory maximum for
the current offense. See id. A career offender’s criminal history category is always VI.
See id.
5The Presentence Investigation Report states that Broomer was arrested in November
1990 for robbery. He was sentenced in April 1991 to nine to twenty-three months
imprisonment with three years consecutive probation. Broomer was then arrested in
(continued...)
3
of responsibility, and a criminal history category of III, resulting in a sentencing guideline
range of 97 to 121 months imprisonment.3
But the Presentence Investigation Report recommended that Broomer be sentenced
under the career offender guideline, meaning his offense level would rise to 34, before the
three-level adjustment for acceptance of responsibility, and his criminal history category
would be VI. See U.S.S.G. § 4B1.1.4 The Presentence Investigation Report
recommended the career offender guideline because, in addition to the current offenses,
Broomer had been convicted and sentenced for a prior robbery and had pleaded guilty to a
controlled substance offense for which he had not yet been sentenced because of his
intervening arrest for the current offenses.5 Under the career offender guideline, an

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5(...continued)
January 1999 for possession of a controlled substance with intent to distribute. He
pleaded guilty to this offense in January 2001. Broomer was arrested for the current
offenses in June 2001 before he was sentenced for the drug offense. The government
stated at oral argument that Broomer was eventually sentenced for the drug offense in
January 2003.
6Broomer also contended that his earlier robbery conviction could not be considered a
qualifying predicate conviction for career offender purposes. The Addendum to the
Presentence Investigation Report explained that this objection was without merit.
Broomer has not contested this point further.
4
offense level of 31 with a criminal history category of VI called for a guideline range of
188 to 235 months imprisonment.
Broomer objected to the recommendation, contending application of the career
offender guideline required a sentence on all prior convictions. Because he had not been
sentenced on the controlled substance offense, Broomer maintained he could not be a
career offender.6
The Addendum to the Presentence Investigation Report responded to Broomer’s
objection, arguing that the career offender guideline was applicable. Nevertheless, the
government proffered a different argument at sentencing. In its Sentencing
Memorandum, the government asked the District Court to assume without deciding that
the guidelines were ambiguous on whether an unsentenced conviction could be counted
as a qualifying conviction for career offender purposes, thus rendering the career offender
guideline inapplicable. But the government then asked the District Court to depart
upward to sentence Broomer as if he were a career offender.

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7Apparently, Broomer filed a motion seeking a downward departure if the District
Court held that he was a career offender. At the conclusion of the sentencing hearing, the
District Court denied the motion as moot. Broomer does not challenge the denial on
appeal and we see no error.
8We have jurisdiction under 18 U.S.C. § 3742. We note that 18 U.S.C. § 3742 was
amended on April 30, 2003 to provide that certain district court decisions to depart
upward are reviewed de novo. See 18 U.S.C. § 3742(e). The government concedes that
this standard, rather than the more deferential abuse of discretion standard, applies in this
case.
Broomer suggests the facts here must be established by clear and convincing
evidence, rather than under a preponderance standard. See United States v. Kikumura,
918 F.2d 1084 (3d Cir. 1990). Because there is no dispute over the facts in this case, the
government has met its burden under either standard.
5
The District Court followed the government’s recommendation, stating that,
“[u]nder U.S.S.G. § 4B1.1, the defendant would be considered a career offender but for
the fact that he has not yet been sentenced on his conviction for possessing with intent to
distribute a controlled substance.” The court “assume[d] without deciding that under
U.S.S.G. § 4B1.1, the defendant cannot be considered a career offender because he has
not yet been sentenced on this otherwise qualifying predicate conviction for a controlled
substance offense.” Under U.S.S.G. §§ 5K2.0, policy statement and 4A1.3, policy
statement, the court then “depart[ed] upward to the applicable guideline range for a career
offender.” With a guideline range between 188 and 235 months imprisonment, stemming
from an offense level of 31 and a criminal history category of VI, the District Court
sentenced Broomer to 204 months imprisonment.7
Broomer now appeals, contending the upward departure was improper.8

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6
II.
A.
Section 4B1.1 of the Sentencing Guidelines provides:
A defendant is a career offender if (1) the defendant was at least eighteen
years old at the time the defendant committed the instant offense of
conviction, (2) the instant offense of conviction is a felony that is either a
crime of violence or a controlled substance offense, and (3) the defendant
has at least two prior felony convictions of either a crime of violence or a
controlled substance offense.
The government points out that the definition of “two prior felony convictions” may be
ambiguous. The Sentencing Guidelines explain:
The term “two prior felony convictions” means (1) the defendant committed
the instant offense of conviction subsequent to sustaining at least two felony
convictions of either a crime of violence or a controlled substance offense .
. . and (2) the sentences for at least two of the aforementioned felony
convictions are counted separately under the provisions of §4A1.1(a), (b),
or (c).
U.S.S.G. § 4B1.2. The government states that the possible ambiguity arises because the
second part of this definition refers to “sentences,” rather than “convictions.”
At sentencing, the government cited to United States v. Jones, 908 F.2d 365 (8th
Cir. 1990), where the United States Court of Appeals for the Eighth Circuit found the
career offender guideline was ambiguous and could not directly apply when there were
unsentenced, but otherwise qualifying prior convictions. The Eighth Circuit, however,
concluded it was appropriate to depart upward to sentence the defendant with
unsentenced convictions as if he were a career offender. See also United States v. Bassil,

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7
932 F.2d 342, 347 (4th Cir. 1991) (holding that the career offender guideline could not
directly apply when there was an unsentenced conviction, but allowing the district court
on remand “to consider departing from the Guidelines in order to sentence a defendant,
whose conduct delayed his convictions, as if the career offender provision applied”). In
its judgment here, the District Court relied on Jones in assuming that the career offender
guideline was not directly applicable, but then departing upward.
Because the matter was not presented or argued before the District Court or our
court, we will not address whether the career offender guideline is in fact ambiguous and
whether it should nonetheless directly apply when there is an unsentenced conviction.
But we note that other courts have recently held that the career offender guideline is
directly applicable when there is an unsentenced, but otherwise qualifying prior
conviction. See United States v. French, 312 F.3d 1286, 1287 (9th Cir. 2002) (“[T]he
plain language in § 4B1.1 provides that for the purposes of the sentence enhancement, a
conviction shall be counted from the date that a guilty plea is entered and not from the
date of sentencing.”) (quotations omitted); United States v. Riley, No. 97-4186, 1998 U.S.
App. LEXIS 24137, at *3 (6th Cir. Sept. 17, 1998) (“Although [the defendant] had not
been sentenced on his state court convictions, they were properly counted under §
4B1.1.”). Furthermore, the Eighth Circuit now has modified its view and directly applied
the career offender guideline with an unsentenced conviction. See United States v.
Gonzales, 220 F.3d 922, 926 (8th Cir. 2000) (“We believe . . . that an unsentenced guilty

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9Amendments to the Sentencing Guidelines made over time may explain why more
recent decisions no longer find the guidelines ambiguous. In 1991, Amendment 381
added language to § 4A1.2 providing that “[w]here a defendant has been convicted of an
offense, but not yet sentenced, such conviction shall be counted as if it constituted a prior
sentence under § 4A1.1(c) if a sentence resulting from that conviction otherwise would be
countable.” The Sentencing Commission has explained that “[t]he provisions of § 4A1.2
. . . are applicable to the counting of convictions under § 4B1.1.” U.S.S.G. § 4B1.2 cmt.
n.4.
Prior Sentencing Guidelines had stated that, with respect to the two prior felonies
requirement, “[t]he date that a defendant sustained a conviction shall be the date the
judgment of conviction was entered.” U.S.S.G. § 4B1.2 (1991). In 1992, Amendment
461 changed this provision, which now provides that “[t]he date that a defendant
sustained a conviction shall be the date that the guilt of the defendant has been
established, whether by guilty plea, trial, or plea of nolo contendere.” U.S.S.G. § 4B1.2.
In Gonzales, the Eighth Circuit emphasized the amended language to conclude that
“an unsentenced guilty plea is a ‘prior conviction’ for purposes of § 4B1.1.” 220 F.3d at
926; see also French, 312 F.3d at 1287 (citing to the amended language in concluding
that “a conviction [is] considered a qualifying predicate offense effective from the date
that a guilty plea is entered, regardless of whether a sentence has been imposed”).
8
plea is a ‘prior conviction’ for purposes of § 4B1.1.”). Thus, when an otherwise
qualifying prior conviction is unsentenced, courts considering the issue have held that it is
proper to sentence a defendant as a career offender, whether under direct application of
the career offender guideline or through an upward departure to the applicable sentencing
guideline range.9
B.
In departing upward, the District Court relied on U.S.S.G. §§ 5K2.0, policy
statement and 4A1.3, policy statement. Section 5K2.0 addresses departures in general,
providing:

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9
the sentencing court may impose a sentence outside the range established by
the applicable guidelines, if the court finds “that there exists an aggravating
or mitigating circumstance of a kind, or to a degree, not adequately taken
into consideration by the Sentencing Commission in formulating the
guidelines that should result in a sentence different from that described.”
U.S.S.G. § 5K2.0, policy statement (quoting 18 U.S.C. § 3553(b)). Section 4A1.3
focuses on departures when a defendant’s criminal history category does not accurately
reflect the defendant’s past criminal conduct and likelihood of recidivism. The section
provides:
If reliable information indicates that the criminal history category does not
adequately reflect the seriousness of the defendant’s past criminal conduct
or the likelihood that the defendant will commit other crimes, the court may
consider imposing a sentence departing from the otherwise applicable
guideline range. Such information may include, but is not limited to,
information concerning . . . whether the defendant was pending . . .
sentencing on another charge at the time of the instant offense.
U.S.S.G. § 4A1.3, policy statement. Upward departures under § 4A1.3, policy statement
usually involve “stepping up [a defendant’s] criminal history category” in order to
sentence the defendant under a more appropriate guideline range. United States v.
Harvey, 2 F.3d 1318, 1325 (3d Cir. 1993). But, § 4A1.3, policy statement also provides
that, on the limited occasions when criminal history category VI, the highest category, “is
not adequate to reflect the seriousness of the defendant’s criminal history,” a court may
depart upward “by moving incrementally . . . to the next higher offense level in criminal
history category VI until it finds a guideline range appropriate to the case.” In the context
of a downward departure from a career offender guideline range, we held that a court may

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10At the sentencing hearing, the District Court stated:
[B]ut for the fact that [Broomer] didn’t quite make it in for the sentencing
[on the prior drug offense], he would have been a career offender. There
wouldn’t have been any debate about it, would there?
Broomer’s attorney responded:
If he had been sentenced, no, there wouldn’t have been.
10
depart in both criminal history and offense level categories under § 4A1.3, policy
statement. See United States v. Shoupe, 35 F.3d 835, 838 (3d Cir. 1994) (“We believe
[the] express reference to offense level departures indicates the Sentencing Commission
intended § 4A1.3 to govern more than just departures in the criminal history category.”).
In this case, the District Court did not err in departing upward to sentence Broomer
as if he were a career offender. Assuming an ambiguity in the career offender guideline,
the Sentencing Commission has not adequately taken into consideration the situation
where a defendant has an unsentenced, but otherwise qualifying prior conviction. As
even Broomer admits that he has been convicted of the predicate and instant offenses that
would otherwise render him a career offender,10 it is appropriate to address this
circumstance by departing upward under § 5K2.0, policy statement to sentence him as if
he were a career offender. Moreover, because Broomer has been convicted of all the
requisite crimes for a career offender, a sentence below the career offender guideline
range would not adequately reflect the seriousness of his criminal history. See Shoupe, 35
F.3d at 838 (“Career offender status is a function of past crimes committed . . . and,

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11
therefore, is a function of a defendant’s criminal history.”). Thus, departing upward
under § 4A1.3, policy statement is also proper. Because the Sentencing Guidelines and
our jurisprudence have contemplated departures under § 4A1.3, policy statement that
affect both the criminal history and offense level categories, we believe it was appropriate
here to depart upward in both categories to sentence Broomer as if he were a career
offender.
Broomer argues that even if some type of upward departure is warranted, the court
should not jump from his initial offense level 28 and criminal history category III to the
offense level 31 and criminal history category VI mandated by the career offender
guideline. Generally, upward departures should be considered in incremental steps. In
particular, when departing upward under § 4A1.3, policy statement, a court should
determine which higher criminal history category “best represents the defendant’s prior
criminal history [by] . . . proceed[ing] sequentially through the categories and . . . not
mov[ing] to the next category until it has found that a prior category still fails adequately
to reflect the seriousness of the defendant’s history.” United States v. Cicirello, 301 F.3d
135, 145 (3d Cir. 2002). This “ratcheting procedure” ensures that a court carefully
considers each criminal history category when formulating the appropriate departure.
United States v. Hickman, 991 F.2d 1110, 1114 (3d Cir. 1993). At the same time, the
ratcheting procedure “does not require the district court to go through a ritualistic exercise
in which it mechanically discusses each criminal history category it rejects en route to the

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11In affirming an upward departure to the career offender guideline range under other
circumstances, the United States Court of Appeals for the Fourth Circuit similarly held
that strict adherence to the ratcheting procedure was not necessary. The court stated:
Once the district court determines that a departure under U.S.S.G. § 4A1.3,
p.s. is warranted and that the defendant’s prior criminal conduct is of
sufficient seriousness to conclude that he should be treated as a career
offender, the district court may depart directly to the guideline range
applicable to career offenders similar to the defendant. . . .
[A]nalogizing to the career offender guideline provides a reasoned
basis for the extent of the departure. When a district court properly employs
this approach, this determination includes an implicit finding that each
successive Criminal History Category that would not produce a career
offender sentence inadequately represents the seriousness of the defendant’s
criminal conduct. Therefore, we conclude that level by level consideration
is unnecessary under these circumstances.
(continued...)
12
category that it selects.” United States v. Harris, 44 F.3d 1206, 1212 (3d Cir. 1995)
(quotations omitted). The key is that “the sentencing court’s reasons for rejecting each
lesser category be clear from the record as a whole.” Id.
Here, there was no error in departing straight to offense level 31 and criminal
history category VI mandated by the career offender guideline. It is clear from the record
that Broomer’s past and current criminal conduct is that of a career offender and, as such,
he can be sentenced as dictated by the career offender guideline. Any offense level below
31 or criminal history category below VI may fail to account adequately for the
seriousness of Broomer’s past and current criminal conduct. Thus, it was not necessary
for the District Court to mechanically reject each lower offense level and criminal history
category when it is clear why offense level 31 and criminal history category VI apply.11

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11(...continued)
United States v. Cash, 983 F.2d 558, 562 (4th Cir. 1992).
12As noted, the Eighth Circuit in Jones employed similar reasoning under similar
circumstances to affirm an upward departure to the career offender guideline range. See
also Bassil, 932 F.2d at 347 (stating that an upward departure to the career offender
guideline range may be appropriate on remand). Given the amendments to the Sentencing
Guidelines that followed Jones and Bassil, these decisions may be outdated as courts have
recently held the career offender guideline is directly applicable when there is an
unsentenced conviction. But because we are assuming that the career offender guideline
cannot be directly applied here, we find Jones and Bassil helpful in concluding that if the
guideline is ambiguous, an upward departure is appropriate.
Broomer cites to United States v. Faulkner, 952 F.2d 1066 amending 934 F.2d 190
(9th Cir. 1991), to support his claim that the upward departure here is improper. In
Faulkner, the defendant pleaded guilty to five counts of bank robbery. The defendant had
already been convicted and sentenced for a prior robbery. Moreover, at the time of the
instant offenses, the defendant was “awaiting sentencing on a state charge of false
imprisonment to which he had pleaded nolo contendere.” Id. at 1068. But, by the time of
the federal sentencing hearing for the instant offenses, the state “had dismissed the [false
imprisonment] charge altogether, notwithstanding the fact that [the defendant] had
pleaded nolo contendere.” Id. at 1072; see also id. at 1073 (“The state, for reasons not
entirely clear from the record, dropped the false imprisonment charges against [the
defendant] at some time after he entered his plea.”).
(continued...)
13
C.
In affirming the upward departure, we successfully “avoid unwarranted sentence
disparities among defendants with similar records who have been found guilty of similar
conduct.” 18 U.S.C. § 3553(a) (explaining the “[f]actors to be considered in imposing a
sentence”). Here, Broomer has the convictions of a career offender, thus he receives a
sentence applicable to career offenders. In similar situations, courts have either directly
applied the career offender guideline or upwardly departed to sentence the defendant as if
he were a career offender.12 Our decision maintains a consistency in sentencing

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12(...continued)
Nevertheless, the district court departed upward in sentencing the defendant
because, among other reasons, “the defendant was awaiting sentencing after a plea of
nolo contendere” at the time of the instant offenses and “had the defendant been
sentenced on [the false imprisonment] charge . . . he would have been a career offender
within the meaning of U.S.S.G. § 4B1.1.” Id. at 1071. The United States Court of
Appeals for the Ninth Circuit held that the upward departure was improper. The court of
appeals believed that it was not “reasonable for a sentencing court to justify the degree of
its departure by analogizing to the career offender provisions of the guidelines, when the
defendant [was] not a career offender because he had not been convicted of two crimes of
violence at the time he committed the instant offense.” Id. at 1072.
Because one of the prior felony charges in Faulkner had been dismissed by the
time of the sentencing hearing, we believe the case is distinguishable. Unlike in
Faulkner, here there are two otherwise qualifying prior convictions. Because the only
issue here is that one of these convictions is unsentenced, we do not believe that Faulkner
calls into question our affirmance of the upward departure to the career offender
guideline range.
Moreover, as noted, the Ninth Circuit has recently held that, under circumstances
similar to those here, the defendant should be sentenced as a career offender. See French,
312 F.3d at 1287. In French, the defendant pleaded guilty to two counts of bank robbery.
He had already been convicted of a prior burglary and had also entered a guilty plea to a
state charge of robbery. But, although the defendant “had entered his plea at the time of
his federal sentencing hearing, he had not yet been sentenced on his state robbery
charge.” Id. In reviewing the defendant’s sentence, the court of appeals held that the
district court properly “counted [the defendant’s] plea [on the prior robbery charge] as a
predicate conviction under § 4B1.1 [even though the defendant] had not been sentenced
for the crime prior to the federal sentencing hearing.” Id.
14
defendants with the requisite convictions, but who have not been sentenced for a prior
offense.
III.
For these reasons, we will affirm the judgment of sentence.

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15
TO THE CLERK:
Please file the foregoing opinion.
/s/ Anthony J. Scirica
Chief Judge
DATED: August 12, 2003

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