United States of America v. CHRISTOPHER WENDELL HARTMAN a/k/a Chris CHRISTOPHER HARTMAN

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-1956
UNITED STATES OF AMERICA
v.
CHRISTOPHER WENDELL HARTMAN
a/k/a Chris
CHRISTOPHER HARTMAN,
Appellant
Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal Action No. 02-cr-000015-4E)
District Judge: Hon. Maurice B. Cohill, Jr.
Argued on December 19, 2003
Before: ROTH and M CKEE, Circuit Judges and
CUDAHY*, Circuit Judge
(Opinion filed: December 20, 2004)
*Honorable Richard D. Cudahy, Circuit Court Judge for the Seventh Circuit,
sitting by designation.

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1 “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.” U.S.S.G. § 4B1.1(a).
2
O P I N I O N
ROTH, Circuit Judge:
Christopher Wendell Hartman was sentenced as a career offender pursuant to
section 4B1.1 of the United States Sentencing Guidelines by the United States District
Court for the Western District of Pennsylvania following his March 2003 guilty plea to
conspiracy to distribute cocaine. Hartman appeals his sentence, arguing that one of the
predicate convictions relied on by the District Court to establish his status as a career
offender should not count because, although he was charged and convicted as an adult, he
was sentenced as a youthful offender. A separate panel of this circuit rejected an
identical argument in United States v. Moorer, 383 F.3d 164 (3d Cir., 2004).
Accordingly, we will affirm Hartman’s judgment of sentence.
Section 4B1.1 of the Sentencing Guidelines provides that a defendant must have at
least two prior qualifying felony convictions to be sentenced as a career offender.1
Hartman concedes that his drug trafficking conviction from 1996 counts as a predicate

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3
conviction. However, Hartman contends that his 1991 conviction on kidnaping and
related charges should not count because he was sentenced as a youthful offender.
Hartman committed the relevant offense conduct in July 1990 at age sixteen. He was
charged as an adult in Dade County Circuit Court in Miami, Florida, and pled no contest
to the charges. Hartman was sentenced as a youthful offender pursuant to Florida Stat.
Ann. § 958.04. The court placed Hartman on community control for a term of six years
with the special condition that he be committed to the Department of Corrections and
imprisoned for a term of four years.
The Guidelines define “prior felony conviction” to mean “a prior adult federal or
state conviction for an offense punishable by death or imprisonment for a term exceeding
one year, . . . regardless of the actual sentence imposed.” U.S.S.G. § 4B1.2, cmt. n.1.
The Guidelines further provide that “[a] conviction for an offense committed prior to age
eighteen is an adult conviction if it classified as an adult conviction under the laws of the
jurisdiction in which the defendant was convicted.” Id. There is no question that
Hartman’s 1991 conviction was classified as an adult conviction and punishable by a term
of imprisonment exceeding one year.
However, Hartman points to U.S.S.G. § 4B1.2, cmt. n.3, which explains that the
provisions of § 4A1.2 “are applicable to the counting of convictions under § 4B1.1.”
Section 4A1.2(d)(1) provides, in turn, that an offense committed prior to age eighteen
counts toward a defendant’s criminal history if “the defendant was convicted as an adult

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4
and received a sentence of imprisonment exceeding one year and one month.” On its face
this seems unavailing, as Hartman was convicted as an adult and did receive a four-year
term of imprisonment as a condition of his six-year term of community control.
However, note 7 of the Guidelines commentary to this section provides that “for offenses
committed prior to age eighteen, only those that resulted in adult sentences of
imprisonment exceeding one year and one month . . . are counted.” U.S.S.G. § 4A1.2,
cmt. n.7 (emphasis added). Following the lead of the Fourth Circuit in United States v.
Mason, 284 F.3d 555, 559 (4th Cir. 2002), Hartman contends that this reference to “adult
sentences” means that a conviction prior to age eighteen “counts only if [the defendant]
was both convicted and sentenced as an adult.” Hartman argues that his youthful
offender sentence was more like a juvenile sentence than an adult sentence and therefore
cannot be counted as a predicate conviction under § 4B1.1.
We need not decide whether Hartman received an “adult sentence” because a
separate panel of this Court recently rejected the Fourth Circuit Court of Appeals’
interpretation of § 4A1.2 and application Note 7 in Moorer, 383 F.3d 164. The court in
Moorer agreed with the Ninth Circuit Court of Appeals in United States v. Carillo, 991
F.2d 590, 593-94 (9th Cir. 1993), that the phrase “adult sentences of imprisonment” in
Note 7 is simply a “shorthand reference” to the phrase “convicted as an adult and received
a sentence of imprisonment” in § 4A1.2(d)(1). Moorer, 383 F.3d at 168 (quoting Carillo,
991 F.2d at 593-94). The court in Moorer noted that the Fourth Circuit’s interpretation of

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2 Hartman also argues that his sentence violates Blakely v. Washington, 124 S. Ct.
2531 (2004). However, Blakely simply applied the rule expressed in Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000), which states that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime . . . must be submitted to a jury.”
(Emphasis added). The determination of Hartman’s status as a career offender rests on
the application of the Guidelines to the “fact of [Hartman’s] prior conviction[s].”
Accordingly, even if Blakely applies retroactively, it has no effect on this case.
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Note 7 to require an “adult sentence” in addition to an “adult conviction” would impose
“a significant new element to criminal history calculations that is unstated in the actual
text of the Guidelines.” Id. (citing Carillo, 991 F.2d at 594). The court further observed
that the Fourth Circuit’s interpretation would conflict with application Note 1 to section
4B1.1, which specifically directs courts to examine only the maximum sentence that may
be lawfully imposed for a given offense while ignoring the actual sentence imposed. Id.
Accordingly, the court in Moorer held that “an adult conviction qualifies as a ‘prior
felony conviction’ for purposes of career offender status whether the conviction results in
an ‘adult’ or ‘juvenile’ sentence.” Id. Because it is conceded that Hartman’s 1991
conviction was an adult conviction, we hold that the District Court properly relied on that
conviction in its determination that Hartman should be sentenced as a career offender.2

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