United States of America v. David Harford

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 08-2021
UNITED STATES OF AMERICA
v.
DAVID HARFORD,
Appellant
______
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 3-06-cr-00416-1)
District Judge: Honorable James M. Munley
______
Argued October 28, 2009
Before: SLOVITER, FUENTES, and HARDIMAN, Circuit Judges.
(Filed March 10, 2010)
_____
William Ruzzo (Argued)
Kingston, PA l8704
Attorney for Appellant
Daryl F. Bloom (Argued)
Office of United States Attorney
Harrisburg, PA l7108
Todd K. Hinkley
William S. Houser
Office of United States Attorney
Scranton, PA l8503

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Attorneys for Appellee
_____
OPINION
SLOVITER, Circuit Judge.
I.
Appellant David Harford, who pled guilty, appeals his sentence on one count of
conspiracy to manufacture, distribute, and possess with intent to distribute
methamphetamine in violation of 21 U.S.C. § 846. The District Court sentenced Harford
to seventy-five months of imprisonment, a three-year term of supervised release,
restitution of $6952.75, and a special assessment of $100.
At sentencing, the District Court adopted the Presentence Report (“PSR”).
According to the PSR, Harford had a total offense level of 29 and a criminal history
category of VI. Harford’s criminal history category was based on the District Court’s
determination that he was a career offender under U.S.S.G. § 4B1.1 due to prior
convictions for attempted burglary, simple assault, and resisting arrest. Under the
applicable Sentencing Guideline, the imprisonment range was 151-188 months, but the
District Court granted the Government’s motion under U.S.S.G. § 5K1.1 for a downward
departure of three levels in recognition of Harford’s substantial cooperation with
investigators. The District Court also departed downward one criminal history category
based on Harford’s unopposed motion for such a departure. After the grant of these

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We have jurisdiction pursuant to 18 U.S.C. § 3742. The1
standard of review for questions of law, such as whether a
conviction qualifies as a crime of violence, is plenary. United
States v. Hull, 456 F.3d 133, 137 (3d Cir. 2006).
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motions, Harford had a criminal history category of V and an imprisonment range of 84-
105 months. The District Court imposed a non-guideline sentence of seventy-five months
under 18 U.S.C. § 3553 based on Harford’s post-offense rehabilitation, strong family
support, and to avoid sentencing disparity among similar co-defendants.
Harford’s appeal raises one issue: whether the District Court correctly determined
that he is a career offender. Harford challenges the Court’s denomination of the crimes of
simple assault and resisting arrest under Pennsylvania law as crimes of violence for
purposes of career offender determinations.1
II.
Under U.S.S.G. § 4B1.1(a), Harford is a career offender if he (1) was at least
eighteen years old when the instant offense occurred; (2) the instant conviction is a crime
of violence or involves a controlled substance; and (3) he has at least two prior
convictions for felonies involving a crime of violence or a controlled substance. A crime
of violence means any offense punishable by imprisonment for a term exceeding one year
under federal or state law that (1) has as an element the use, attempted use, or threatened
use of physical force against another, or (2) is burglary of a dwelling, arson, extortion,
involves the use of explosives, or otherwise involves conduct that presents a serious

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potential risk of physical injury to another. U.S.S.G. § 4B1.2(a)(1)-(2).
The Supreme Court has held that under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e)(i)(B), courts must interpret the term “violent felony” by
considering not only whether the crime involves a serious potential risk of injury, but also
whether the crime is sufficiently similar to the enumerated crimes of burglary, arson,
extortion, or the use of explosives. Begay v. United States, 128 S. Ct. 1581, 1585 (2008).
Although this case involves the Sentencing Guidelines, authority interpreting the
definition of violent felony under the ACCA is generally applicable to cases arising under
the Guidelines. United States v. Stinson, 592 F.3d 460, 464 (3d Cir. 2010). Generally,
courts focus on the statutory language when considering whether a specified offense
qualifies as a crime of violence and not the underlying facts of the case. Begay, 128 S.
Ct. at 1584.
Since Harford’s appeal, this court has held that resisting arrest is a crime of
violence under Pennsylvania law. Stinson, 592 F.3d at 466-67. If attempted burglary is
also a crime of violence under the Guidelines, we may affirm without reaching the issue
of Harford’s prior conviction for simple assault.
In the District Court, Harford did not challenge the classification of his attempted
burglary conviction as a crime of violence. On appeal, Harford did not address the crime
in his brief and at oral argument Harford did not challenge the Government’s position
that attempted burglary is a crime of violence. Generally, failure to argue an issue on

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appeal results in waiver. United States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005).
Thus, any argument that attempted burglary is not a crime of violence is waived.
Even assuming waiver does not apply, this argument would fail. In United States
v. James, the Supreme Court held that attempted burglary under Florida law qualifies as a
crime of violence under the ACCA. 550 U.S. 192, 209 (2007). The applicable Florida
statute defined burglary as “entering or remaining in a dwelling, a structure, or a
conveyance with the intent to commit an offense therein . . . .” Fla. Stat. Ann. §
810.02(1)(a). Attempt was defined as “any act toward the commission” of an offense. Id.
at § 777.04(1). The Court reasoned that because Florida law required an “overt act
directed toward entry of a structure,” the crime presented a serious risk of physical injury
and therefore qualified as a crime of violence. James, 550 U.S. at 208-09. Thus, Harford
is a career offender if the applicable state statute under which he was convicted for
attempted burglary is similar to the Florida law considered in James. Neither party
discusses the applicable state law for Harford’s attempted burglary conviction but
according to the PSR, Harford was convicted for attempted burglary in New York. We
therefore turn to New York law.
III.
Under New York law, “[a] person is guilty of burglary . . . when he knowingly
enters or remains unlawfully in a building with intent to commit a crime therein.” N.Y
Penal Law § 140.20. A person is guilty of attempt when “he engages in conduct which

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tends to effect the commission of such crime.” Id. at § 110.00. In United States v.
Andrello, the Second Circuit held that third-degree attempted burglary was a crime of
violence under New York law because it required the defendant to come “within
dangerous proximity to the criminal end to be attained” and made “mere preparation”
insufficient. 9 F.3d 247, 249 (2d Cir. 1993) (per curiam) (quoting People v. Bracey, 360
N.E.2d 1094, 1097 (N.Y. 1977)). Following the Supreme Court’s decision in James, the
Second Circuit has reaffirmed its holding that attempted third-degree burglary under New
York law is a crime of violence. United States v. Lynch, 518 F.3d 164, 170 (2d Cir.
2008).
Although the PSR does not state what degree of attempted burglary Harford
committed, third-degree is the lowest class of burglary under New York law. It is
therefore irrelevant for which degree Harford was convicted. Because Harford’s
convictions for attempted burglary and resisting arrest are crimes of violence based on
applicable state law, the District Court did not err in finding that he is a career offender
under U.S.S.G. § 4B1.1.
IV.
For the reasons set forth above, we will affirm the judgment of sentence.

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