United States of America v. Heriberto Santiago

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-2716
UNITED STATES OF AMERICA
v.
HERIBERTO SANTIAGO,
Appellant.
On Appeal from the United States District court
for the Eastern District of Pennsylvania
(D. C. No. 5-08-cr-00353-001)
District Judge: Hon. Eduardo C. Robreno
Submitted under Third Circuit LAR 34.1(a)
on May 10, 2010
Before: BARRY and ROTH, Circuit Judges
and HILLMAN*, District Judge
(Opinion filed July 19, 2010)
O P I N I O N
*Honorable Noel L. Hillman, United States District Judge for the District of New
Jersey, sitting by designation.

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ROTH, Circuit Judge:
Appellant Heriberto Santiago pled guilty to a four-count indictment charging him
with (1) possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1);
(2) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c); and (3-4) being a felon in possession of a firearm and of ammunition,
both in violation of 18 U.S.C. § 922(g)(1). On appeal, he argues that the District Court
committed three errors. First, he contends that the court erred in denying his motion to
suppress evidence obtained pursuant to an allegedly defective warrant. Second, he urges
that the court improperly classified his prior Pennsylvania conviction for reckless
endangerment as a “crime of violence” under the Sentencing Guidelines. And third, he
argues that the court erred by entering separate convictions for the possession both of a
firearm and of ammunition. We will affirm the District Court’s order denying Santiago’s
motion to suppress and its judgment entering separate convictions for possession of the
firearm and ammunition, but we will vacate his sentence and remand the case for re-
sentencing.
I. Background
On November 1, 2007, the Allentown police obtained a warrant to search
Santiago’s home and vehicle for a cellular telephone, based on two affidavits of probable
cause submitted by police detectives. In those affidavits, the detectives indicated that a
witness to an Allentown homicide had been been in contact with that telephone multiple

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times on the day of the crime, including a call just nine minutes prior to the homicide.
The witness admitted that he had been at the scene of the crime in order to buy illegal
drugs, but he lied about who owned the cellular telephone in question. The detectives
determined that the cellular telephone belonged to Santiago, and they obtained cell site
location records that revealed that the cellular telephone had been in the approximate area
of the homicide around the time of the crime.
The police executed the warrant on November 2. They detained Santiago outside
his home while he was getting into his car and found a .40 caliber semiautomatic handgun
on his person. The police then searched his house and, based on their plain view
observations of drug trafficking evidence, obtained a warrant to search the residence for
drugs and ammunition. That search revealed a full box of 39mm ammunition.
Santiago was charged in a four-count indictment, as described above. He moved
to suppress the evidence seized during the execution of the warrant, alleging that the
initial warrant failed to establish probable cause. The District Court denied that motion,
and Santiago subsequently pled guilty to all charges, conditioned on his being able to
appeal the suppression denial after his conviction. At sentencing, the District Court
calculated Santiago’s base offense level for possession of the firearm and ammunition to
be 20 under § 2K2.1(a)(4)(A) of the Sentencing Guidelines, determining that Santiago’s
prior conviction for reckless endangerment of another person qualified as a “crime of

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The District Court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction1
under 28 U.S.C. § 1291.
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violence.” The court sentenced Santiago to a total of 120 months imprisonment, and
Santiago appealed.1
II. Discussion
A. Motion to Suppress
Santiago first argues that the District Court erred in denying his motion to suppress
the evidence obtained pursuant to the initial search warrant for the cellular telephone. He
contends that “the search warrant was devoid of probable cause to believe that the cellular
telephone sought was or contained evidence relating to the homicide being investigated.”
The District Court denied the suppression motion based on the facts set forth in the
affidavit. In reviewing this denial, we “sit[] like a district court and must, like the district
court, give great deference to the magistrate judge’s probable cause determination.”
United States v. Hodge, 246 F.3d 301, 305 (3d Cir. 2001). Our role “is not to decide
probable cause de novo, but to determine whether ‘the magistrate had a substantial basis
for concluding that probable cause existed.’” United States v. Stearn, 597 F.3d 540, 554
(3d Cir. 2010) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)).
We agree with the District Court that the affidavits “contain ample indicia of
probable cause that Defendant’s cellular telephone was evidence of a crime.” The
affidavits contained information indicating that Santiago owned the cellular telephone in

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question, that he had been in contact with a witness immediately before the homicide, and
that he had been in the vicinity of the homicide. We, therefore, hold that the District
Court had a substantial basis to conclude that there was probable cause that Santiago’s
cellular telephone would contain evidence pertaining to the homicide.
B. “Crime of Violence”
We exercise plenary review over the District Court’s determination that Santiago’s
prior Pennsylvania conviction for reckless endangerment of another person was a “crime
of violence.” United States v. Johnson, 587 F.3d 203, 207 (3d Cir. 2009). Under the
Sentencing Guidelines, a firearm offense in violation of 18 U.S.C. § 922(g)(1) carries a
base offense level of 20 if the offender had previously committed a “crime of violence” or
a “controlled substance offense.” U.S.S.G. § 2K2.1(a)(4)(A). A “crime of violence” is
defined as
“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.”
Id. § 4B1.2(a).
The question presented in this appeal is whether the Pennsylvania reckless
endangerment offense is of the type that would justify its inclusion within § 4B1.2(a)(2),

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In the District Court, the government argued that Parson was controlling. On appeal,2
however, the government concedes that, post-Begay, reckless endangerment is not a
crime of violence. Even though the government concedes this point, “a government
concession of law is not binding on this court.” United States v. Marino, 682 F.2d 449,
455 (3d Cir. 1982) (internal quotation marks omitted).
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known as the “residual provision.” See Johnson, 587 F.3d at 208. Santiago had
previously been convicted and sentenced to 23 months’ imprisonment for reckless
endangerment under 18 Pa. Cons. Stat. § 2705. That statute provides that “[a] person
commits a misdemeanor of the second degree if he recklessly engages in conduct which
places or may place another person in danger of death or serious bodily injury.”
The District Court determined that reckless endangerment fell within the residual
provision, based on our decision in United States v. Parson, 955 F.2d 858 (3d Cir. 1992),
in which we held that a Delaware conviction for reckless endangerment was a crime of
violence. Santiago argues that, following Begay v. United States, 553 U.S. 137 (2008),
Parson’s holding must be reevaluated. He urges that reckless endangerment should no
longer be considered a crime of violence because it lacks the requisite “purposeful” mens
rea to fall within the residual provision.2
In Begay, the Supreme Court interpreted a virtually identical residual provision in
the definition of “violent felony” under the Armed Career Criminal Act, 18 U.S.C. §
924(e)(2)(B)(ii). The Court found that the list of examples in the residual provision –
burglary, arson, extortion, use of explosives – indicated that “the statute covers only
similar crimes, rather than every crime that ‘presents a serious risk of physical injury to

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another.’” 553 U.S. at 142 (citing 18 U.S.C. § 924(e)(2)(B)(ii)). And the Court concluded
that crimes are similar to the enumerated examples if they involve “purposeful, violent,
and aggressive conduct.” Id. at 144-45 (internal quotation marks omitted).
We have applied Begay’s analysis to the definition of “crime of violence” and held
that a prior conviction falls within § 4B1.2(a)’s residual provision “if it ‘typically
involve[s] purposeful, violent, and aggressive conduct.’” United States v. Stinson, 592
F.3d 460, 465 (3d Cir. 2010) (citing Begay, 553 U.S. at 144-45); Johnson, 587 F.3d at
208.
To determine whether a crime involves “purposeful, violent, and aggressive
conduct,” we apply “a categorical approach to classify a prior conviction,” asking
“whether the elements of the offense are of the type that would justify its inclusion within
the residual provision, without inquiring into the specific conduct of this particular
offender.” Johnson, 587 F.3d at 208 (internal quotation marks omitted).
Johnson involved an intentional crime, but in dictum we questioned “whether
reckless conduct may amount to a crime of violence post-Begay.” Id. at 210 n.8. We
further noted that “nearly every court of appeals that has considered the issue has held
that reckless conduct does not qualify as a crime of violence post-Begay.” Id. (citing
United States v. Baker, 559 F.3d 443, 453 (6th Cir. 2009); United States v. Roseboro, 551
F.3d 226, 242-43 (4th Cir. 2009); United States v. Smith, 544 F.3d 781, 786-87 (7th Cir.
2008); United States v. Gray, 535 F.3d 128, 131-32 (2d Cir. 2008)).

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Even though Lee’s holding parted with our precedent in Parson, “a panel of our3
Court may decline to follow a prior decision of our Court without the necessity of an en
banc decision when the prior decision conflicts with a Supreme Court decision.”
Johnson, 587 F.3d at 207 n.4 (internal quotation marks omitted).
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After this appeal was filed, our Court issued its decision in United States v. Lee,
___ F.3d ___, 2010 WL 2757340, at *17 (3d Cir. July 14, 2010), in which we joined our
sister circuits in holding that “following Begay, a conviction for mere recklessness cannot
constitute a crime of violence.” Accordingly, the District Court erred in determining that3
Santiago’s prior reckless endangerment conviction was a crime of violence under
U.S.S.G. § 2K2.1(a)(4)(A).
This conclusion, however, does not end our analysis of this Sentencing Guidelines
provision. The government argues that § 2K2.1(a)(4)(A) was nonetheless applicable
because the presentence investigation report (PSR) also noted that Santiago had a prior
controlled substance offense that would alternatively justify this sentencing enhancement.
Even though this prior offense would qualify as a “controlled substance offense,” we find
the government’s argument unavailing.
In order to increase Santiago’s sentence based on a prior crime of violence or
controlled substance offense, the sentencing court can “use only those felony convictions
that receive criminal history points under § 4A1.1(a), (b), or (c).” U.S.S.G. §
2K2.1(a)(4)(A) cmt. n.10. Under § 4A1.1(a)-(c), a prior offense can receive a maximum
of 3 criminal history points if it resulted in a “sentence of imprisonment exceeding one

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On remand, if the District Court determines that the outcome of treating these two4
sentences as a single sentence underrepresents Santiago’s criminal history, it may decide
that an upward sentencing departure is warranted. U.S.S.G. § 4A1.2 cmt. n.3
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year and one month.” Id. § 4A1.1(a). Here, the PSR did not assign any criminal history
points to Santiago’s controlled substance offense because he was simultaneously
sentenced for both this crime and a prior escape offense. The Sentencing Guidelines
direct that when an offender is sentenced on the same day for two crimes committed
without an intervening arrest, the two sentences are to be considered a single sentence for
criminal history purposes. Id. § 4A1.2(a)(2). Santiago’s escape and controlled substance
offense sentences were, accordingly, combined as a single sentence. The PSR assigned 3
points to the escape crime, which is the same number of points that the escape offense
would have received on its own. Because the addition of the controlled substance offense
did not increase the criminal history points for the escape offense, the controlled
substance offense did not receive any criminal history points under § 4A1.1(a), (b), or (c).
See id. § 4A1.1(f), cmt. n.6. Therefore, this prior conviction cannot serve as an
alternative justification for the District Court’s application of § 2K2.1(a)(4)(A).4
Because Santiago’s prior reckless endangerment offense was not a “crime of
violence” and his controlled substance offense received no criminal history points, the
District Court erred in applying § 2K2.1(a)(4)(A) to increase his sentence.
C. Felon in Possession of Handgun and Ammunition
Santiago’s third and final argument is that the District Court erroneously entered

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separate counts of conviction for possession both of a handgun and of ammunition under
18 U.S.C. § 922(g)(1). Because this issue was not preserved in the District Court, we will
reverse only if the District Court committed a plain error that affected Santiago’s
substantial rights. Fed. R. Crim. P. 52(b); United States v. Tann, 577 F.3d 533, 535 (3d
Cir. 2009). In Tann, we held that “possession of both a firearm and ammunition, seized
at the same time in the same location, supports only one conviction and sentence under §
922(g)(1).” 577 F.3d at 537. Santiago asserts that Tann dictates that his simultaneous
possession of both a firearm and ammunition should count as one conviction, even though
the gun was found outside the home and the ammunition was discovered inside. Our
holding in Tann, however, left open the possibility that multiple convictions for
possession of a firearm and ammunition might be proper if they were seized in different
locations or if they were acquired in separate transactions. Id. at 536-37. Therefore,
Tann does not make it per se improper to impose separate convictions and sentences for
the simultaneous possession of both a firearm and ammunition.
To meet his burden of establishing plain error, Santiago argues that, had the police
executed the warrant moments earlier while he was still in his home, he could not have
been charged with multiple offenses because the gun and the ammunition would have
both been in the same location. We are not persuaded by this argument because multiple
convictions would still have been appropriate if the gun and the ammunition had been
purchased separately. But, because Santiago pled guilty to the separate counts and did not

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object to the separate convictions, the record is devoid of any evidence concerning how
and when these items were acquired. Accordingly, we cannot find that the District Court
committed plain error in entering separate convictions pursuant to § 922(g)(1) for gun and
ammunition possession.
III. Conclusion
For the reasons discussed above, we will affirm Santiago’s conviction, but we will
vacate his sentence and remand for re-sentencing.

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