United States of America v. Kevin Coolbaugh

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 07-4751
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UNITED STATES OF AMERICA
v.
KEVIN COOLBAUGH,
Appellant
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
(D.C. Crim. No. 05-cr-00290-11)
District Judge: Honorable James M. Munley
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Submitted Under Third Circuit LAR 34.1(a)
November 19, 2010
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Before: BARRY, CHAGARES and VANASKIE, Circuit Judges
(Opinion Filed: November 22, 2010)
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OPINION
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BARRY, Circuit Judge
Kevin Coolbaugh appeals his sentence of 110 months’ imprisonment following his
conviction for a controlled substance offense. He argues that the District Court erred in
classifying him as a career criminal offender. We will affirm.

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I.
Because we write only for the parties, we discuss only the facts relevant to our
analysis.
In November of 2005, Coolbaugh and twenty one others were indicted in
connection with a methamphetamine operation that authorities began investigating in
1999. Coolbaugh pled guilty to conspiracy to manufacture, distribute, and possess with
intent to distribute in excess of 500 grams of methamphetamine. Pursuant to the
Sentencing Guidelines, the presentence report (PSR) classified Coolbaugh as a career
offender because he had at least two prior felony convictions for a crime of violence,
having received a sentence of twelve to twenty-four months’ imprisonment for a 1991
conviction for resisting arrest, and a sentence of three-and-one-half to seven years’
imprisonment for a 1996 robbery conviction.
Coolbaugh filed objections to the PSR, arguing, inter alia, that his prior conviction
for resisting arrest did not constitute a crime of violence and, thus, did not constitute a
predicate offense for purposes of career offender classification. The District Court heard
argument at a sentencing hearing at which Coolbaugh described his resisting arrest
conviction as “a very minor offense[,]” and expressed skepticism that Congress
“inten[ded] that resisting arrest would be treated” as a crime of violence. App. at 33.
The government argued that Pennsylvania’s resisting arrest statute includes the
Guidelines’ predicate “element of the use of force[,]” noting that Coolbaugh “apparently

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kicked one of the officers and there was physical force exercised.” App. at 34.
The District Court rejected Coolbaugh’s argument, but subsequently lowered his
criminal history category, agreeing that his criminal history was over-represented.
Having addressed both sides’ arguments, and after granting a downward departure for
substantial assistance, the Court sentenced Coolbaugh to 110 months’ imprisonment and
five years’ supervised release.
II.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
Whether a particular crime constitutes a crime of violence for purposes of the
Sentencing Guidelines is a question of law subject to plenary review. See United States
v. Stinson, 592 F.3d 460, 462 n.1 (3d Cir. 2010). In the time since the parties in this
appeal filed their briefs, Stinson resolved the sole issue before us. Our discussion,
therefore, will be brief.
Under the Sentencing Guidelines, a defendant qualifies as a career offender for
sentencing enhancement purposes if, inter alia, “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). A state or federal offense punishable by more than one year in
prison qualifies as a crime of violence if it either “(1) has as an element the use,
attempted use, or threatened use of physical force against the person of another, or (2) . . .

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involves conduct that presents a serious potential risk of physical injury to another.” Id. §
4B1.2(a). Whether a specific prior conviction qualifies as a career offender predicate
offense requires the sentencing court to apply the categorical approach. See Stinson, 592
F.3d at 462 (citing Taylor v. United States, 495 U.S. 575, 600-02 (1990)). Specifically,
“a court must ask ‘whether the elements of the offense are of the type that would justify
its [classification as a crime of violence].’” Id. (quoting James v. United States, 550 U.S.
192, 202 (2007)) (brackets in original).1
Stinson conducted just such an analysis of the Pennsylvania resisting arrest statute
under which the appellant there, like Coolbaugh here, was convicted and subsequently
classified as a career offender. Under Pennsylvania law:
A person commits a misdemeanor of the second degree if, with the intent of
preventing a public servant from effecting a lawful arrest or discharging
any other duty, the person [1] creates a substantial risk of bodily injury to
the public servant or anyone else, or [2] employs means justifying or
requiring substantial force to overcome the resistance.
18 Pa. Cons. Stat. Ann. § 5104. Reading this definition in light of U.S.S.G. § 4B1.2(a),
we concluded that because its first prong “is ‘conduct that presents a serious potential risk
of physical injury to another,’ . . . [it] fits squarely within the definition of a crime of
violence in the residual clause of U.S.S.G. § 4B1.2(a)(2)[.]” Stinson, 592 F.3d at 464.
We also concluded that the statute’s second prong proscribes “conduct that presents a
1 While a modified categorical approach is called for where only some elements of a
statute would constitute crimes of violence, that approach is unnecessary here because, as
discussed infra, Pennsylvania’s definition of resisting arrest meets the criteria of a crime
of violence under the categorical approach. See Stinson, 592 F.3d at 462 (citing Shepard
v. United States, 544 U.S. 13, 26 (2005)).

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serious potential risk of physical injury to another.” See U.S.S.G. § 4B1.2(a)(2).
Specifically, “resisting arrest necessarily involves confronting the authority of a police
officer who is likely armed and charged with defending the public. Because the police
officer is duty-bound to effectuate the arrest, the offense engenders a significant risk of
conflict and, correspondingly, a significant risk of injury.” Stinson, 592 F.3d at 465.
Thus, under the categorical approach, Pennsylvania’s resisting arrest statute–and the
conduct it encompasses “in the ordinary case”–“is sufficiently ‘purposeful, violent, and
aggressive’ to qualify as a crime of violence . . . .” Id. at 466 (citing Begay v. United
States, 553 U.S. 137, 145 (2008)).2 Accordingly, we affirmed the district court’s
conclusion that Stinson’s “prior conviction for resisting arrest[ qualified as] a categorical
2 Stinson resolved another issue argued by Coolbaugh—namely, whether Begay’s
holding that a felony DUI conviction is not a “violent felony” under the Armed Career
Criminal Act, provides a basis for concluding that a Pennsylvania resisting arrest
conviction is not a “crime of violence” for purposes of career offender classification.
Stinson observed that Begay is instructive on the question, but rejected the conclusion
that Stinson (and, here, Coolbaugh) urged:
Justice Breyer’s opinion in Begay provides needed clarity on the residual
clause[—i.e., U.S.S.G. § 4B1.2(a)(2)]. As explained there, the conduct falls
within the residual clause if it poses a degree of risk that is similar to the degree of
risk posed by the enumerated offenses (burglary of a dwelling, arson, extortion or
involves use of explosives), and is similar in kind to those offenses. Begay further
explains that an offense is similar in kind to the enumerated offenses if it typically
involves purposeful, violent, and aggressive conduct. This leads us to inquire
whether the second specified conduct in the Pennsylvania resisting arrest statute,
i.e., employing means justifying or requiring substantial force to overcome the
resistance, involves purposeful, violent, and aggressive conduct.
We conclude that it does.

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crime of violence,” and thereby qualified as a career offender predicate offense. See id.
at 466-67.
In light of the foregoing, Coolbaugh’s argument that the District Court erred in
classifying him as a career offender fails. He argues that defining resisting arrest as a
crime of violence pursuant to § 4B1.2 is “inconsistent” with the fact that resisting arrest is
among those offenses–which he, but not the U.S.S.G., describes as “minor”–that §
4A1.2(c) excludes, in certain circumstances, when computing criminal history. But
Stinson is clear that determining whether a conviction is a predicate offense turns on a
Taylor categorical approach. It does not turn, as Coolbaugh urges, on an inquiry into the
likelihood or “unlikel[ihood] that the Sentencing Commission would ... treat the offense
of resisting arrest as a crime of violence under the Career Criminal Offender
regulation[,]” simply because it is sometimes not counted for purposes of criminal history
computation in another section of the Guidelines–i.e., § 4A1.2(c)(1). Appellant’s Br. at
6, 8-9. Rather, Stinson expressly held that a Pennsylvania resisting arrest conviction is a
crime of violence for purposes of career offender status. See Stinson, 592 F.3d at 466.
Accordingly, Coolbaugh was properly classified as a career offender. We will affirm the
judgment of sentence.
Stinson, 592 F.3d at 465 (citing 18 Pa. Cons. Stat. Ann. § 5104; Begay, 553 U.S. at 145)
(internal alterations, quotation marks, and citations omitted).

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