United States v. Carter, No. 12-3754 (3d Cir. 2013)
Annotate this CaseCarter pled guilty to conspiracy to use and produce counterfeit credit cards and armed robbery, resulting in a U.S.S.G. range of 121 to 130 months’ imprisonment. The district court sentenced Carter to 45 months’ imprisonment followed by three years’ supervised release, which began in November 2009. In June 2010, based on allegations of sexual conduct toward the 13-year-old daughter of Carter’s girlfriend, Carter pled guilty in state court to misdemeanors and was sentenced to five years’ probation. In October 2011, Carter was arrested for attempting to use stolen credit cards. He pled guilty to access device fraud and was sentenced to 9 to 23 months’ imprisonment. In revoking Carter’s supervised release, the court calculated the applicable range, U.S.S.G. 7B1.4 (2011), categorizing the credit card fraud as a Grade B violation, and, over Carter’s objection that he never touched the girl, found that Carter’s conduct amounted to a forcible sexual offense, a “crime of violence” and a Grade A violation of supervised release. The court sentenced him to 37 months’ imprisonment, four months above the Guidelines range, to run consecutively to any state sentence, stating that it would have imposed the same sentence regardless whether the sexual assault was a Grade A or B violation. The Third Circuit affirmed. Regardless of the charge, a court may consider a defendant’s actual conduct in concluding that he has violated the terms of supervised release. The court should have set out Carter’s specific crime of violence, but, because it provided an alternate basis for Carter’s sentence, any error was harmless.
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