United States of America v. George Hopkins

PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-5091
UNITED STATES OF AMERICA
v.
GEORGE HOPKINS,
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 06-cr-00064)
District Judge: Honorable Christopher C. Conner
Submitted Under Third Circuit LAR 34.1(a)
February 11, 2008
Not Precedential Opinion Filed February 13, 2008
Before: SLOVITER, SMITH, and STAPLETON, Circuit
Judges

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2
On Remand from the Supreme Court of the United States
January 21, 2009
(Filed : August 21, 2009)
__________
Frederick W. Ulrich, Esq.
Office of Federal Public Defender
Harrisburg, PA l7101
Attorney for Appellant
Michael A. Consiglio, Esq.
Office of United States Attorney
Harrisburg, PA l7l08
Attorney for Appellee
OPINION OF THE COURT
STAPLETON, Circuit Judge:
In Chambers v. United States, --- U.S. ----, 129 S. Ct. 687
(2009), the Supreme Court held that the crime of failure to
report for incarceration, as distinguished from escape from
custody, should not be classified a violent felony for purposes of
the Armed Career Criminal Act, 18 U.S.C. § 924(e). Following
that decision, the Supreme Court vacated our judgment

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affirming the conviction in this case and remanded it to us for
further consideration in light of Chambers.
I. Background
On February 15, 2006, George Hopkins was indicted on
two counts. Count I charged Hopkins with possession with the
intent to distribute five grams or more of cocaine base, in
violation of 21 U.S.C. § 841(a)(1), and Count II charged him
with being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g)(1). Hopkins pled guilty to Count I pursuant to
a plea agreement in which the government agreed to recommend
a three-level reduction for acceptance of responsibility, if
warranted, and to move to dismiss Count II after the sentencing.
Using the 2005 Sentencing Guidelines Manual, the
probation officer determined that Hopkins’ base offense level
was 26 pursuant to U.S.S.G. § 2D1.1(c). He added two points
pursuant to U.S.S.G. § 2D1.1(b)(1) because Hopkins possessed
a dangerous weapon during the commission of the offense, and
six points as a victim enhancement adjustment pursuant to
U.S.S.G. § 3A1.2(c)(1). Three points were deducted for
acceptance of responsibility. The result was a total offense level
of 31.
The probation officer then calculated an alternative
offense level assuming Hopkins was determined to be a career
offender, in which case the base level would be 34 pursuant to
U.S.S.G. § 4B1.1. Applying the three point deduction for
acceptance of responsibility, Hopkins’ total offense level was
31. Hopkins therefore received the same total offense level

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whether applying the victim enhancement adjustment, U.S.S.G.
§ 3A1.2, or the career offender adjustment, U.S.S.G. § 4B1.1.
The probation officer determined that Hopkins had
accumulated eighteen criminal history points based on prior
crimes, plus two points pursuant to U.S.S.G. § 4A1.1(d) because
Hopkins was “on escape status” when the instant offense was
committed, PSR at ¶ 32, and an additional point pursuant to
U.S.S.G. § 4A1.1(e) because the instant offense was committed
less than two years after his release from custody. This gave
Hopkins a total of 21 criminal history points, resulting in a
Criminal History Category of VI. Alternatively, if Hopkins
were determined to be a career offender, his Criminal History
Category would automatically be Category VI. With a total
offense level of 31 and a Criminal History Category of VI,
Hopkins’ Guidelines range was 188-235 months of
incarceration.
Hopkins objected to both the career offender
enhancement and the official victim enhancement, but the
District Court denied both objections, found him to be a career
offender, and sentenced him to 188 months. Hopkins appealed.
First, he argued that the career offender enhancement did not
apply because one of the predicate offenses for the career
offender classification, denominated in the PSR as an “Escape,”
was a 2001 non-violent “walk away” misdemeanor that did not
qualify as a crime of violence. Second, he argued that the
official victim enhancement did not apply because the offense
of conviction was the drug charge, not the firearms charge, and
there are no “victims” of drug crimes for purposes of the
Sentencing Guidelines.

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On Hopkins’ first appeal to this Court, we affirmed the
conviction and sentence imposed by the District Court. We
rejected Hopkins’ objection to the career offender classification
calculation, relying on our earlier opinion in United States v.
Luster, 305 F.3d 199, 202 (3d Cir. 2002), for the proposition
that all escape crimes are crimes of violence. We also held that,
in any event, the official victim enhancement provision applied.
United States v. Hopkins, 264 F. App’x 173, 176 (3d Cir. 2008).
Hopkins sought relief from the Supreme Court, which granted
certiorari, vacated the judgment and, as we noted above,
remanded the case for reconsideration in light of its decision in
Chambers, 129 S. Ct. 687. Hopkins v. United States, 129 S. Ct.
995 (2009).
We have appellate jurisdiction pursuant to 28 U.S.C. §
1291 and 18 U.S.C. § 3742(a). “Whether a particular crime
constitutes a crime of violence is a question of law and the
Court’s review is plenary.” United States v. Dorsey, 174 F.3d
331, 332 (3d Cir. 1999) (citation omitted).
II. Mootness
We first address a threshold issue – mootness. As we
have explained, at sentencing Hopkins’ designation as a career
offender did not affect his offense level or his criminal history
category. Even without that designation, the Guidelines would
have called for the same 188 to 235 months sentencing range.
The alternative basis for that range was affirmed by this Court,
and our judgment in that respect remains effective as of the
current date. It follows that a decision in Hopkins’ favor on the
career offender issue would not call for resentencing.

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Nevertheless, as the government candidly acknowledges, such
a decision would materially benefit Hopkins.
Since Hopkins’ sentencing, the crack cocaine sentencing
guidelines have been amended. U.S.S.G. §§ 1B1.10(a)(1) and
(a)(2)(A) (amended December 11, 2007). That amendment
would authorize Hopkins to file a motion pursuant to 18 U.S.C.
§ 3582(c) for a reduction of the sentence he is currently serving
if he has not been properly sentenced as a career offender. If he
has been effectively designated a career offender under U.S.S.G.
§ 4B1.1, however, he may not seek such a reduction. United
States v. Mateo, 560 F.3d 152, 155-56 (3d Cir. 2009).
Accordingly, we conclude that a justiciable controversy exists.
III. The Relevant Career Offender Law
Under the Sentencing Guidelines, Hopkins is a career
offender if he: (1) was at least eighteen years old when the
instant offense occurred; (2) the instant offense of conviction is
a violent felony or a controlled substance offense; and (3) he
“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) (2005). The first two requirements are satisfied and
are not at issue here. The instant offense is a controlled
substance one, and Hopkins was more than eighteen at the time
of its commission. We focus therefore on the third requirement:
“two prior felony convictions of . . . a crime of violence.” Id.
A “prior felony conviction” is any “adult federal or state
conviction for an offense punishable by death or imprisonment
for a term exceeding one year, regardless of whether such
offense is specifically designated as a felony and regardless of

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the actual sentence imposed.” U.S.S.G. § 4B1.2 cmt. n.1
(2005).
Hopkins concedes that a 2002 assault conviction qualifies
as “a prior felony conviction” of a “crime of violence.”
Accordingly, the only “career offender” issue presented by this
appeal is whether Hopkins’ 2001 conviction for second degree
misdemeanor “escape” pursuant to 18 Pa. Cons. Stat. Ann. §
5121 qualifies as a “crime of violence.” If it does, then Hopkins
was properly characterized as a career offender.
Under U.S.S.G. § 4B1.2(a), the term “crime of violence”
means any crime punishable by imprisonment for a term
exceeding one year, that:
(i) has as an element the use, attempted use, or
threatened use of physical force against the person
of another, or
(ii) is burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of
physical injury to another.
The parties agree that Hopkins cannot be found to have
been convicted of a “crime of violence” unless it can be said that
his § 5121 conviction comes within the “residual clause” of
U.S.S.G. § 4B1.2(a)(ii): “otherwise involves conduct that
presents a serious potential risk of physical injury to another.”
The Supreme Court has cautioned that this clause must be
applied with due regard for its context. It is not implicated
unless the “ordinary case” falling within the crime of conviction

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(1) poses a “degree of risk” “roughly similar” to that posed by
burglary and the other offenses enumerated in subsection (ii)
and (2) is “roughly similar . . . in kind” to those offenses. Begay
v. United States, ____ U.S. ____, 128 S. Ct. 1581, 1585 (2008).
In order to determine whether the residual clause of
U.S.S.G. § 4B1.2(a) is applicable, we must first determine the
crime of which Hopkins was convicted. See United States v.
Harrison, 558 F.3d 1280, 1284 (11th Cir. 2009). In making this
determination, the classifications we adopt must be fashioned
from lines drawn by the applicable state law. See Chambers,
129 S. Ct. at 691 (breaking down Illinois statute into seven
separate elements for the purpose of identifying the relevant
conduct); Begay, 128 S. Ct. at 1584 (quoting New Mexico’s
DUI statute for the purpose of identifying the relevant crime);
James v. United States, 550 U.S. 192, 197 (2007) (“The question
before the Court, then, is whether attempted burglary, as defined
by Florida law, falls within ACCA’s residual provision.”). In
other words, in residual clause cases, such as this, we pay
attention to the way that the state statutory scheme identifies the
relevant crime.
Once we have determined the crime of conviction, the
Court must, of course, address whether that crime was a “crime
of violence.” Under the Supreme Court’s modified categorical
approach, we must resolve this issue without delving into the
“particular facts disclosed by the record of conviction.”
Shepard v. United States, 544 U.S. 13, 17 (1990). Rather,
having determined the crime of which Hopkins was convicted,
we look to the elements of that offense to identify the way in
which that crime is “generally committed.” Chambers, 129 S.

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9
Ct. at 690. “[T]he proper inquiry is whether the conduct
encompassed by the elements of the offense, in the ordinary
case, presents a serious potential risk of injury to another”
comparable to the offenses specifically enumerated in U.S.S.G.
§ 4B1.2(a)(2). James, 550 U.S. at 208.
IV. Chambers and our Prior Decision
In Luster, 305 F.3d at 201, the defendant had been
convicted of “simply absent[ing] himself from [his] place of
confinement” without the use of force or violence. Despite the
absence of any use of force or violence in effecting his departure
from custody, we concluded that the defendant’s crime of
conviction “present[ed] a serious risk of physical injury to
another.” Id. at 202. We reasoned that any crime involving a
refusal to submit to lawful state detention was a continuing
crime involving a continuing effort on the part of the defendant
to “evade police and avoid capture.” Id. We concluded that
“‘every escape scenario is a powder keg, which may or may not
explode into violence and result in physical injury to someone
at any given time, but which always has the serious potential to
do so.’” Id. (quoting United States v. Gosling, 39 F.3d 1140,
1142 (10th Cir. 1994)).
Based on Luster, our original decision in this case held
that the crime of escape, even escape effected without force or
violence, “by its very nature ‘presents a serious potential risk of
physical injury to another.’” Hopkins, 264 Fed. App’x at 176 (3d
Cir. 2008) (quoting Luster, 305 F.3d at 202).
In Chambers, the Supreme Court analyzed an Illinois

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Under the ACCA:1
[T]he term “violent felony” means any crime
punishable by imprisonment for a term exceeding
one year, or any act of juvenile delinquency
involving the use or carrying of a firearm, knife, or
destructive device that would be punishable by
imprisonment for such term if committed by an
adult, that–
(i) has as an element the use, attempted use, or
threatened use of physical force against the
person of another; or
(ii) is burglary, arson, or extortion, involves use
of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury
to another;
18 U.S.C. § 924(e)(2)(B). For comparison, under the United
10
statute to determine whether the petitioner, who had been
convicted of failing to report to a penal institution as required by
his sentence, had committed a “violent felony” under the Armed
Career Criminal Act (the “ACCA”), 18 U.S.C. § 924(e)(2)(B).
Chambers, 129 S. Ct. at 690. While the Court was not called
upon to construe the career offender provision of the Sentencing
Guidelines, the definition of a violent felony under the ACCA
is sufficiently similar to the definition of a crime of violence
under the Sentencing Guidelines that authority interpreting one1

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States Sentencing Guidelines:
The term “crime of violence” means any offense under
federal or state law, punishable by imprisonment for a
term exceeding one year, that–
(1) has as an element the use, attempted use, or
threatened use of physical force against the person
of another, or
(2) is burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of
physical injury to another.
U.S.S.G. § 4B1.2(a).
11
is generally applied to the other, as demonstrated by the
Supreme Court’s remand order in this case. Hopkins, 129 S. Ct.
995 (2009); see also United States v. Seay, 553 F.3d 732, 738
(4th Cir. 2009); United States v. Herrick, 545 F.3d 53, 58 (1st
Cir. 2008).
The Illinois statute involved in Chambers encompassed
seven different criminal activities including “escape from a
penal institution” and “failing to report for periodic
imprisonment.” Chambers, 129 S. Ct. at 691 (citing 720 Ill.
Comp. Stat., ch. 720, § 5/31-6(a)). The Court noted that the
statute criminalized distinct kinds of behaviors involving
varying degrees of social risks and carrying different

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punishments. It determined that, when ascertaining the offense
of conviction in such a case, it is appropriate to treat the statute
as creating a number of categories of offenses and to group
together those offenses involving similar forms of behavior and
similar degrees of seriousness. Based on the fact that the statute
treated an escape from custody as a more serious offense than
failure to report for imprisonment and the Court’s perception
that the latter involved less risk of physical harm than the
former, failure to report was held to constitute an offense
distinct from the offense of escape from a penal institution.
Using the information in the state court record, the Court found
that Chambers had pled guilty to knowingly failing to report to
the county jail.
The Court then determined that the crime of failing to
report was unlike the crimes of violence specifically designated
as such in the concluding sentence of the definition:
Conceptually speaking, the crime amounts
to a form of inaction, a far cry from the
“purposeful, ‘violent,’ and ‘aggressive’ conduct”
potentially at issue when an offender uses
explosives against property, commits arson,
burgles a dwelling or residence, or engages in
certain forms of extortion. Cf. id., 553 U.S. at —,
128 S. Ct., at 1586. While an offender who fails
to report must of course be doing something at the
relevant time, there is no reason to believe that the
something poses a serious potential risk of
physical injury. Cf. James, 550 U.S., at 203-204,
127 S. Ct. 1586. To the contrary, an individual

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The Court relied on available statistics showing that no2
failure to report crimes from the Fiscal Years 2006 and 2007
involved violence during the commission of the offense or
during the eventual capture of the offender. See United States
Sentencing Commission, Report on Federal Escape Offenses in
Fiscal Years 2006 and 2007 (2008).
13
who fails to report would seem unlikely, not
likely, to call attention to his whereabouts by
simultaneously engaging in additional violent and
unlawful conduct.
Chambers, 129 S. Ct. at 692.
In response to the question whether an offender who has
failed to report “is significantly more likely than others to attack,
or physically to resist, an apprehender,” the Court provided a
negative response based in part upon a study of the Sentencing
Commission which “strongly support[ed] the intuitive belief that
failure to report does not involve a serious potential risk of
physical injury.” Id.2
Chambers’ holding that the crime of “failure to report”
does not by its nature present a serious potential risk of physical
injury to another is in conflict with our previous view that any
crime involving a refusal to submit to lawful state detention
does present such a risk. Accordingly, accepting the lessons
taught by Chambers, we will undertake to determine anew what
Hopkins’ crime of conviction was and whether that crime, by its
nature, “presents a serious potential element of risk of injury to

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another.”
V. Reconsideration
A. The Crime of Conviction
Section 5121 of Title 18, Pa. Cons. Stat. Ann., provides
in relevant part:
(a) Escape. – A person commits an
offense if he unlawfully removes himself from
official detention or fails to return to official
detention following temporary leave granted for
a specific purpose or limited period.
* * *
(d) Grading. –
(1) An offense under this section is a
felony of the third degree where:
(i) the actor was under arrest
for or detained on a charge of
felony or following conviction of
crime;
(ii) the actor employs force,
threat, deadly weapon or other
dangerous instrumentality to effect
the escape; or
(iii)a p u b lic se rvan t
concerned in detention of persons

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convicted of crime intentionally
facilitates or permits an escape
from a detention facility.
(2) Otherwise an offense under this
section is a misdemeanor of the second degree.
(e) Definition. – As used in this section
the phrase “official detention” means arrest,
detention in any facility for custody of persons
under charge or conviction of crime or alleged or
found to be delinquent, detention for extradition
or deportation, or any other detention for law
enforcement purposes; but the phrase does not
include supervision of probation or parole, or
constraint incidental to release on bail.
18 Pa. Cons. Stat. Ann. § 5121. A misdemeanor of the second
degree is punishable by incarceration for a maximum term of
two years. 18 Pa. Cons. Stat. Ann. § 1104(2).
The information to which Hopkins pled guilty charged
him with a misdemeanor of the second degree under § 5121.
Specifically, it charged that he “did unlawfully remove himself
from official detention or fail to return to official detention
following temporary leave granted for a specific purpose or
limited period.” App. at 71.
The record of the plea hearing, which we are entitled to

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See Chambers, 129 S. Ct. at 691.3
16
consider for this purpose, establishes that his conviction is3
based on the following admission:
This occurred on June 8th, 2001, when Steelton
Highspire Police were doing a warrant service on
an outstanding warrant in Steelton Borough.
[Hopkins] was wanted on failure to appear on a
traffic violation out of Semic’s office on a parole
violation capias.
They did go out to the residence, and the
defendant’s mother was asking questions.
[Hopkins] started to go into the kitchen and
attempted to take out the trash throughout the
back door. [Hopkins] then ran out down the back
steps. When Officer Weber did pursue him,
[Hopkins] jumped over the back fence, and the
officer was able to grab a hold of him at that time.
Mr. Hopkins, for this reason you are charged with
escape. Do you understand that charge?
Hopkins: Yes.
The Prosecutor: How do you plead?
Hopkins: Guilty.

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The plea colloquy was not originally transcribed but Judge4
Scott Evans of the Dauphin County Court of Common Pleas, in
response to our request, directed its transcription. We express
our appreciation.
Under Pennsylvania law, as soon as a subject is confronted5
by law enforcement personnel and informed of the existence of
a warrant for his arrest, he or she is in “official detention” for
the purposes of § 5121(a). Commonwealth v. Santana, 959 A.2d
450, 453 (Pa. Super. Ct. 2008) (citation omitted) (“It is the
warrant which extends the power of the state over the defendant
. . . and completes the required element of official detention . .
. .”); Commonwealth v. Colon, 719 A.2d 1099, 1101 (Pa. Super.
Ct. 1998) (“At the point [Colon] had been informed the officers
had a warrant for his arrest and that he was under arrest, [he]
was detained by a show of authority whereby he could not
reasonably believe that he was free to leave.”). While Hopkins
did not expressly acknowledge at his plea hearing that he had
been advised of the warrant for his arrest, the fair implication
17
Transcript of Proceedings at 3, Commonwealth v. Hopkins, No.
2191 CD 2001 (Sept. 13, 2001).4
Based on this admission and the fact that he was
convicted of only a misdemeanor of the second degree, we can
conclude that Hopkins was convicted of the crime of
“unlawfully remov[ing] himself from . . . arrest” on a
misdemeanor charge without “employ[ing] force, threat, deadly
weapon or other dangerous instrumentality.” 18 Pa. Cons. Stat.
Ann. § 5121(a), (d), (e).5

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from his flight and his plea is that he was so advised.
18
B. Crime of Violence
In determining whether Hopkins’ escape crime is a crime
of violence, we initially inquire whether the ordinary case of the
crime of conviction poses a degree of risk of physical injury to
another similar to that posed by burglary, arson, extortion, or the
other offenses enumerated in U.S.S.G. § 4B1.2(a). We conclude
that it does not. The typical commission of this crime does,
indeed, present some potential risk of physical injury to another
because it requires the arresting officer to use some degree of
force to overcome the offender’s behavior. Nevertheless, given
that the detention relates to an unadjudicated misdemeanor, we
would expect that the force which the officer would be willing
and/or required to employ would present materially less of a
potential for physical injury to the officer than the potential for
physical injury presented by the enumerated offenses.
We would also conclude that an ordinary case falling
within the crime of conviction is not “similar in kind” to the
enumerated offenses. As the Supreme Court stressed in Begay,
“[t]he listed crimes all typically involve purposeful, violent, and
aggressive conduct.” 128 S. Ct. at 1586 (internal quotation
marks and citation omitted). If the crime of conviction is
materially different in terms of these characteristics, it does not
come within the “residuary clause.” To be sure, escape from
detention is purposeful conduct. Nevertheless, because the
escape involved in the crime of conviction is unaccompanied by
“force, threat, deadly weapon or other dangerous

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instrumentality,” we would conclude that it is conduct materially
less violent and aggressive than the enumerated offenses.
We find support for our analysis and this conclusion in
Harrison, 558 F.3d at 1293. Based on the distinctions drawn in
Florida’s “Willful Fleeing Statute,” the Court determined that
the “behavior ordinarily underlying the crime [of conviction]
involve[d] only this conduct: (1) a law enforcement vehicle,
with its siren and lights activated, signals the motorist to stop
and (2) the motorist willfully refuses or fails to stop the
vehicle.” Id. It did not involve flight at high speed or wanton
disregard for persons or property which would constitute a more
serious crime prohibited by the same section. The Court noted
that the government had the burden of proof and expressed
doubt that the crime of conviction as ordinarily committed posed
a risk of physical injury to another comparable to that of the
enumerated offenses. It held, however, that the crime of
conviction was materially different “in kind” from the
enumerated offenses:
Even assuming a serious potential risk of
physical injury exists in a § 316.1935(2) violation,
Begay requires courts to further address whether
the crime is similar “in kind” to burglary, arson,
extortion, and the use of explosives. Begay, 128
S. Ct. at 1585. For § 316.1935(2) to be “similar
in kind” to those enumerated offenses, the
conduct underlying the crime must be
“purposeful, violent, and aggressive.” Chambers,
129 S. Ct. at 692; Begay, 128 S. Ct. at 1586.

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* * *
We have no trouble concluding that the
willful decision not to follow a police officer’s
signal is “purposeful.” And it cannot, under
Chambers, be characterized as either “passive” or
a crime of “inaction.” 129 S. Ct. at 691-92. The
motorist makes a deliberate choice to disobey a
police officer’s signal. Disobedience by
continuing to drive at any speed is not passive.
The conduct is purposeful and intentional.
However, disobeying a police officer’s
signal and continuing to drive on, without high
speed or reckless conduct, is not sufficiently
aggressive and violent enough to be like the
enumerated ACCA crimes.
* * *
A person who refuses to stop and drives on,
without anything more, is, under Florida law, a
felon. But that kind of person is not, in our mind,
cut from the same cloth as burglars, arsonists,
extortionists, or those that criminally detonate
explosives. The fleeing crime in § 316.1935(2)
seems more appropriately characterized as the
crime of a fleeing coward – not an armed career
criminal bent on inflicting physical injury.
Harrison, 558 F.3d at 1295-96. With respect to violence and

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aggression, we find the crime of conviction before us
comparable to that before the Court in Harrison. See also
United States v. Collier, 493 F.3d 731, 736-37 (6th Cir. 2007)
(holding that defendant’s conviction under a state statute that
defines escape to include leaving custody without having been
discharged is not categorically a violent felony); United States
v. Lowery, 599 F. Supp. 2d 1299 (M.D. Ala. 2009) (determining
that the Alabama statute for third degree escape, which applies
when the escapee employed no physical force, does not create
a serious potential risk of physical injury, and does not address
conduct that is similar in kind to the enumerated offenses);
United States v. Nichols, 563 F. Supp. 2d 631, 636 (S.D.W.V.
2008) (holding that the offense of escape under West Virginia
law is not “‘roughly similar’ to burglary of a dwelling, arson,
extortion, or crimes involving explosives”).
We therefore conclude that Hopkins’ 2001 conviction for
violating 18 Pa. Cons. Stat. Ann. § 5121 was not a conviction
for a “crime of violence” within the meaning of U.S.S.G. §
4B1.1 and, accordingly, that he was not properly determined to
be a “career offender” under that section.
VI. Conclusion
This conclusion does not require any change in Hopkins’
sentence for the offense at issue here because, as we previously
held, Hopkins was properly subject to the official victim
enhancement. Hopkins, 264 F. App’x at 176. We will therefore
again affirm the sentence imposed by the District Court.
However, that Court’s designation of Hopkins as a career
offender under U.S.S.G. § 4B1.1 shall henceforth be without

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effect. Judge Sloviter concurs in the judgment.

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