BARFIELD v. USA
MEMORANDUM OPINION as to DIRK LANIEL BARFIELD, JR. indicating that, based upon the reasons stated within, Defendant's Amended Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255 (Doc. (66) at CR 09-93) is denied, with pre judice. The Court also holds that Defendant has failed to make a substantial showing of the denial of a Constitutional right and is not entitled to a certificate of appealability. See 28 U.S.C.§ 2253(c)(2). An appropriate Order follows. Signed by Judge Nora Barry Fischer on 2/28/17. (jg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA
DIRK BARFIELD, JR.,
Criminal No. 09-93
Civil No. 15-1310
This matter is before the Court on an amended motion to vacate, set aside, or correct
sentence under 28 U.S.C. § 2255 filed by Defendant Dirk Barfield, Jr., which is opposed by the
Government. (Docket Nos. 66; 74; 80; 84). Defendant argues that his sentence of 151 months’
incarceration must be vacated in light of Johnson v. United States, 576 U.S. ___, 135 S.Ct. 2551,
2556-57 (2015), which held that the “residual clause” of the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii), is void for vagueness and subsequent precedent
applying Johnson to the residual clause in the career offender guideline, U.S.S.G. § 4B1.2(a)(2).
(Docket Nos. 66; 80). In opposition, the Government maintains that Defendant was correctly
deemed a career offender at the time of his initial sentencing and that he remains a career
offender based on his prior convictions of possession within intent to deliver a controlled
substance (cocaine) and aggravated assault, both of which qualify as predicate offenses without
reliance upon the challenged residual clause. (Docket No. 74). The motion has been fully
briefed and the state court records from the Court of Common Pleas of Washington County were
procured by the Government and made part of the record before this Court. (See Docket No. 84).
After careful consideration of the parties’ positions and for the following reasons, Defendant’s
Amended Motion  is denied, and no certificate of appealability shall issue.
By way of background, on May 19, 2009, Defendant pled guilty pursuant to a plea
agreement to one count of possession with intent to distribute and distribution of five (5) grams
or more of a mixture and substance containing a detectable amount of cocaine base, commonly
known as crack, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii), for conduct
occurring on or about August 21, 2008. (Docket Nos. 20; 21; 22; 50). As part of their plea
agreement, among other things, the parties stipulated that Defendant was responsible for
distribution of between 5 and 20 grams of crack cocaine; the United States agreed not to file an
851 information stating a prior conviction as a basis of increased punishment; and Defendant
agreed not to seek a sentence below 120 months’ (or 10 years’) incarceration. (Docket No. 21 at
¶¶ B.3; C.2). The plea agreement did not address the potential for a career offender designation;
however, at the change of plea hearing, Government counsel advised that Defendant was likely a
career offender to which defense counsel concurred. (Docket No. 50 at 16-7, 27-8). The
prosecutor also described the basis for the potential 851 Information that was withheld, i.e., a
prior felony drug trafficking conviction. (Id. at 16-17).
On November 18, 2009, Defendant was sentenced to a term of imprisonment of 151
months, followed by a 5-year term of supervised release. (Docket No. 34). He was deemed a
career offender under U.S.S.G. § 4B1.1, based on prior state court convictions for recklessly
endangering another person, simple assault, and aggravated assault. (Docket Nos. 27 at ¶ I.6; 51
at 3). Defendant did not object to the career offender designation at the time. (See, e.g., Docket
Nos. 25; 30; 51). Rather, Defendant moved for a variance from the advisory guidelines range of
188-235 months’ incarceration. (Id.). The Court granted the variance motion, in part, reducing
the applicable guidelines range to 151-188 months’ incarceration based on the disparities
between crack and powder cocaine, and imposed a sentence of 151 months, at the low end of that
range. (Docket Nos. 31; 34; 35; 51).
In post-sentencing proceedings, Defendant sought a sentence reduction under 18 U.S.C.
§ 3582(c) based on the 2011 retroactive amendments to the crack cocaine guidelines. (Docket
No. 38). The Court denied Defendant’s motion, finding that he was ineligible for the sentence
reduction under binding Third Circuit precedent and that he had otherwise been afforded the
relief provided under the retroactive amendments by virtue of the Court’s having granted the
variance at the sentencing hearing. (Docket No. 45). On appeal, the United States Court of
Appeals for the Third Circuit affirmed this Court’s decision. See United States v. Barfield, 543
F. App’x 288 (3d Cir. 2013).
Defendant initially filed a pro se § 2255 motion and brief in support on October 8, 2015
seeking resentencing in light of Johnson. (Docket Nos. 56; 57). Thereafter, the Federal Public
Defender entered an appearance on his behalf and moved for a stay of proceedings, which the
Court granted, terminating the pro se motion, without prejudice. (Docket Nos. 59; 60; 61).
Through counsel, Defendant filed his Amended Motion to Vacate on July 6, 2016.
(Docket No. 66). The Government initially sought a stay of proceedings pending the disposition
of Beckles v. United States, No. 15-8544 (cert. granted June 27, 2016), by the Supreme Court of
the United States. (Docket No. 70). After reviewing Defendant’s opposition, the Court denied
the motion to stay and directed the Government to file its response. (Docket No. 73). As
ordered, the Government filed its response on November 8, 2016, attaching online docket sheets
from the Administrative Office Pennsylvania Courts (“AOPC”) as proof of Defendant’s prior
controlled substance offense and aggravated assault and notifying the Court that it was
attempting to obtain the certified conviction records from the Court of Common Pleas of
Washington County. (Docket No. 74). Defendant submitted a reply brief on December 1, 2016,
arguing that the uncertified docket reports were not sufficient to prove the predicate offenses and
maintaining his position that he no longer qualified as a career offender without the application
of the now-unconstitutional residual clause. (Docket No. 80). Upon review of the parties’
papers, the Court issued an order on February 14, 2017 directing the Government to submit a
Status Report by February 21, 2017, advising as to the status of the state court conviction
records. (Docket No. 83). On the Court’s deadline, the Government filed its Status Report,
along with the conviction records, including:
certified copies of the charging document, sentence order and
transcript of the plea and sentence hearing as to the aggravated
assault conviction at Criminal Action No. 2006-02374; and,
certified copies of the charging document and sentence order
regarding the possession with intent to deliver crack cocaine
conviction at Criminal Action No. 2005-01866.
(Docket No. 84). The parties have not sought leave of court to make any further submissions
and the Court considers Defendant’s Amended Motion to be fully briefed and ripe for
III. LEGAL STANDARD
A prisoner in federal custody may move to vacate his or her sentence under 28 U.S.C. §
2255(a) if such “sentence was imposed in violation of the Constitution or laws of the United
States.” 28 U.S.C. § 2255(a). A motion under § 2255 is a collateral challenge that is viewed less
favorably than a direct appeal and “relief under § 2255 is available only when ‘the claimed error
of law was a fundamental defect which inherently results in a complete miscarriage of justice,
and ... present[s] exceptional circumstances where the need for the remedy afforded by the writ
... is apparent.’” United States v. Travillion, 759 F.3d 281, 288 (3d Cir. 2014) (quoting Davis v.
United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974)) (further quotations
omitted). Generally, a district court must order an evidentiary hearing in a federal habeas case if
a criminal defendant’s § 2255 allegations raise an issue of material fact. United States v.
Biberfeld, 957 F.2d 98, 102 (3d Cir. 1992). But, if there is “no legally cognizable claim or the
factual matters raised by the motion may be susceptible of resolution through the district judge’s
review of the motion and records in the case,” the motion may be decided without a hearing.
United States v. Costanzo, 625 F.2d 465, 470 (3d Cir. 1980); see also United States v. Lilly, 536
F.3d 190, 195 (3d Cir. 2008). If a hearing is not held, the district judge must accept the criminal
defendant’s allegations as true “unless they are clearly frivolous on the basis of the existing
record.” Gov’t of Virgin Islands v. Bradshaw, 726 F.2d 115, 117 (3d Cir. 1984). Similarly,
“vague and conclusory allegations contained in a § 2255 petition may be disposed of without
further investigation.” United States v. Knight, 2009 WL 275596, at *13 (W.D. Pa. 2009)
(quoting United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000)).
Defendant argues that his prior convictions for recklessly endangering another person,
simple assault, and aggravated assault no longer support a sentencing enhancement under
Guideline § 4B1.1 after Johnson v. United States, __ U.S. __, 135 S. Ct. 2551, 192 L. Ed. 2d 569
(2015). (Docket Nos. 66, 80). In response, the Government concedes that Defendant’s simple
assault and reckless endangerment convictions do not qualify as valid predicate offenses.
(Docket No. 74). Nonetheless, the Government argues that the career offender enhancement
remains appropriate, based on two prior convictions: aggravated assault, under 18 Pa. C.S. §
2702(a)(4), which fulfills the so-called “force” or “elements” clause of U.S.S.G. § 4B1.2(a)(1);
and possession with intent to deliver cocaine, under 35 Pa. Stat. § 780-113(a)(30), which is a
“controlled substance offense” under U.S.S.G. § 4B1.2(b). (Id.). In his Reply, Defendant
contends that the Government has not submitted materials sufficient to establish that he was, in
fact, convicted of a qualifying aggravated assault offense; however, he proffers no substantive
challenge to the Government’s contentions regarding his prior drug offense.
(Docket No. 80).
With leave of court, the Government responded to the alleged defects in the record by submitting
the certified state court records regarding the prior convictions from the Court of Common Pleas
of Washington County. (Docket No. 84). Having reviewed the state court records in light of the
parties’ arguments, the Court agrees with the Government that Defendant remains a career
offender under the prevailing law and that his motion to vacate should be denied.
In Johnson, the Supreme Court determined that the residual clause of the ACCA was
unconstitutionally vague. Johnson, 135 S. Ct. at 2556-57. As this Court has observed, “[a]fter
Johnson, the law has developed rapidly with decisions being rendered on challenges by offenders
to other statutes and provisions of the Sentencing Guidelines that contain language similar or
identical to the ‘residual clause’ of ACCA.” United States v. Hill, No. 7-371, --- F. Supp. 3d ----,
2016 WL 7076929, at *3 (W.D. Pa. Dec. 5, 2016) (citations omitted). Such decisions, within
this Circuit, have applied Johnson to the residual clause of Section 4B1.2(a)(2). Id. at **14-15.
Two prior felony convictions that fulfill the force clause of Section 4B1.2(a)(1), or the
“controlled substance offense” provision of Section 4B1.2(b), of course, remain valid grounds
for a sentencing enhancement. See U.S.S.G. §§ 4B1.2(a)(1), (2), (b) (Aug. 1, 2016). In this
context, the Government bears the burden of demonstrating that career offender status is proper.
See, e.g., United States v. Dates, No. 6-83, 2016 WL 5852016, at *3 (W.D. Pa. Oct. 6, 2016);
Hill, 2016 WL 7076929, at *6 (“It is the Government's burden at sentencing to demonstrate the
applicability of a sentencing enhancement by a preponderance of the evidence.”) (citation
Based on this Court’s review of the record, the career offender enhancement in
Defendant’s case was expressly premised on “at least two prior felony convictions for a crime of
violence or a controlled substance offense, specifically, convictions in the Washington County
Court of Common Pleas, Washington, Pennsylvania, of Recklessly Endangering Another Person
… Simple Assault… and Aggravated Assault at Criminal No. 2374-2006,” as stated in the
Court’s Tentative Findings and Rulings. (Docket Nos. 27 at ¶ I.6; 51 at 3). As is this Court’s
practice, the Tentative Findings and Rulings were incorporated into the record at sentencing after
no objections were lodged to same by counsel for the parties. (Docket No. 51 at 3). The record
reveals that the Court did not specifically refer to Defendant’s conviction for possession with
intent to distribute as grounds for the enhancement, although this conviction was referenced in
the Presentence Investigation Report (“PIR”) as a predicate offense and no objections were made
to the PIR. (See PIR at ¶ 24; Docket Nos. 25; 26; 51). Given the Government’s present
concessions that Defendant’s simple assault and reckless endangerment convictions cannot serve
as valid predicate offenses, (see Docket No. 74), the Court finds that the § 4B1.1 enhancement in
Defendant’s case was, in fact, based on only one potentially valid predicate offense, i.e., the
aggravated assault conviction at Criminal No. 2374-2006 in the Court of Common Pleas of
However, in this Court’s estimation, an order vacating Defendant’s sentence under 28
U.S.C. § 2255 is not warranted because the career offender enhancement is otherwise supported
by two of the four predicate offenses that were initially identified in ¶ 24 of the PIR, both of
which remain valid predicate offenses under either Guideline §§ 4B1.1(a)(1), (2) or (b). With
respect to Defendant’s prior drug offense, Defendant was not deprived of the benefit of
customary process prior to sentencing as he was provided an opportunity to object to the
conviction but did not do so. See United States v. McColley, No. 7-45, 2016 WL 1156520, at *3
(W.D. Pa. Mar. 24, 2016) (When a sentence was premised on now-invalid predicate offenses,
even if other likely valid predicates exist, the sentence may be vacated and resentencing
scheduled, if a defendant “has not had the benefit of a full and fair hearing, or other proceedings
that typically occur prior to sentencing.”); see also United States v. Yeager, No. 7-25, 2016 WL
3220479, at *1(W.D. Pa. June 10, 2016) (same).
Indeed, defense counsel acknowledged the
drug offense at the sentencing hearing, (Docket No. 51 at 8-9, 11), and it was central to the
parties’ plea bargaining, pursuant to which the Government agreed to not file an 851
Information, setting forth that particular conviction as a basis for increased statutory penalties
and in exchange, Defendant stipulated that he would not seek a sentence below 120 months’ (or
10 years’) incarceration. (Docket No. 21 at ¶¶ B.3; C.2). Further, the certified state court
records and the docket report submitted by the Government make clear that Defendant pled
guilty to 35 Pa. Stat. § 780-113(30) and he was sentenced to 3 to 23 months’ incarceration,
(Docket Nos. 74; 84), confirming the information set forth by the Probation Office at ¶ 32 of the
PIR. As the Court of Appeals has recognized, see United States v. Edmonds, 606 F. App’x 656,
660 (3d Cir. 2015), objections to prior convictions for possession with intent to deliver under 35
Pa. Stat. § 780-113(30) for ACCA purposes are “squarely foreclosed” by binding precedent in
United States v. Abbott, 748 F.3d 154 (3d Cir. 2014). Abbott is equally applicable in the context
of the sufficiency of the career offender guideline. See, e.g., United States v. McBride, 625 F.
App’x 61, 64 n.5 (3d Cir. 2015). Defendant has not argued otherwise. (See Docket Nos. 66, 80).
Accordingly, Defendant’s drug conviction supports both his original sentence and a career
offender designation based on the current law.
Defendant’s second potentially qualifying prior conviction arose under Pennsylvania’s
aggravated assault statute, 18 Pa.C.S. § 2702, which has been held divisible and subject to a
modified categorical approach. United States v. Lewis, No. 15-368, 2017 WL 368088, *3 (E.D.
Pa. Jan. 25, 2017). “[T]he ‘modified categorical approach’ [applicable to a divisible statute]
permits a court to determine which statutory phrase was the basis for the conviction.” Johnson v.
United States, 559 U.S. 133, 144, 130 S. Ct. 1265, 176 L. Ed. 2d 1 (2010) (citation omitted). To
do so, the Court may look to record documents, as provided in Shepard v. United States, 544
U.S. 13, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005) and Third Circuit precedent interpreting
same, namely, United States v. Henderson, 841 F.3d 623, 627-28 (3d Cir. 2016) and United
States v. Howard, 599 F.3d 269, 272 (3d Cir. 2010). These cases stand for the propositions that
“[a]ctual conviction documents, […] are not required to provide the requisite certainty demanded
by the Supreme Court” in Shepard. Henderson, 841 F.3d at 632 (citing Shepard and Howard).
Rather, this Court may utilize “other reliable judicial records,” “including incomplete certified
conviction records and docket entries” which the Court of Appeals has found may be deemed
“records of the convicting court” under Shepard. Id. (internal quotations omitted); see also
United States v. Maldonado, No. 10-288, 2016 WL 4206371, at *5 n. 5 (E.D. Pa. Aug. 9, 2016)
(quoting United States v. Howard, 599 F.3d 269, 273 (3d Cir. 2010)) (“Uncertified docket entries
‘are the type of judicial records that are permissible for sentencing courts to use to establish past
convictions for sentencing purposes.’”); United States v. Taylor, 444 F. App’x 613, 614 n.3 (3d
Cir. 2011) (“[W]e note that consideration of the uncertified docket from the AOPC was not
improper in light of our decision in [Howard].”).
Pertinent here, aggravated assault under 18 Pa.C.S. § 2702(a)(4) has been deemed a
“crime of violence” within the meaning of the “force” or “elements” clause of U.S.S.G. §
4B1.2(a)(1). United States v. Gorny, 655 F. App’x. 920, 925 (3d Cir. 2016) (nonprecedential);
see also Lewis, 2017 WL 368088, *3.
Moreover, aggravated assault was, at the time of
Defendant’s sentencing, enumerated in Note 1 to Section 4B1.2, which provided that a “crime of
violence” included “aggravated assault.” Johnson did not invalidate the enumerated offenses
listed in the Note, which have since been incorporated into the text of Section 4B1.2.1 Gorny,
655 F. App’x at 927 n. 10; U.S.S.G. § 4B1.2(a)(2). Hence, following Gorny, a case which was
prosecuted in this Court, a conviction for aggravated assault under 18 Pa. C.S. § 2702(a)(4)
remains a valid predicate offense for career offender purposes and Defendant’s objection to same
As noted, Defendant disputes that he was convicted of § 2702(a)(4), arguing that his
sentence should be vacated and that resentencing should be held based on an alleged lack of
sufficient proof that his conviction of aggravated assault was to that particular statutory
provision. (Docket Nos. 66; 80). In opposition, the Government has supplied the Court with the
The Court notes that the Sentencing Commission moved “aggravated assault” from the commentary to the
body of § 4B1.2(a)(2), effective August 1, 2016. The provision now states:
(a) 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 murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible
sex offense, robbery, arson, extortion, or the use or unlawful possession of a
firearm described in 26 U.S.C. 5845(a) or explosive material as defined in 18
U.S.S.G. § 4B1.2(a) (Aug. 1, 2016).
The Court notes that 18 Pa.C.S. § 2702 was developed based, in relevant part, on Section 211.1 of the
Model Penal Code. See 18 Pa C.S. § 2702, cmt. 1967. The relevant provisions are nearly identical. Compare, 18
Pa.C.S. § 2702(a)(4) (“A person is guilty of aggravated assault if he: […] (4) attempts to cause or intentionally or
knowingly causes bodily injury to another with a deadly weapon”); with Model Penal Code § 211.1(2)(b) (“A
person is guilty of aggravated assault if he: (b) attempts to cause or purposely or knowingly causes bodily injury to
another with a deadly weapon.”).
online docket sheet from the AOPC reflecting that Defendant pled guilty to aggravated assault
under 18 Pa.C.S. § 2702(a)(4) at Count One of Criminal No. 2374-2006 as well as certified
copies of the charging document, sentence order and the transcript of the plea and sentence
hearing on September 10, 2007 in the Court of Common Pleas of Washington County. (See
Docket Nos. 74-2; 84-1). Viewed collectively, the Court holds that these judicial records have
sufficient indicia of reliability to support a finding, by a preponderance of the evidence, that
Defendant pled guilty to aggravated assault 18 Pa.C.S. § 2702(a)(4) and was sentenced to 18-36
months’ incarceration for such offense. Hill, 2016 WL 7076929, at *6. Notably, the information
contained in the judicial records from the Court of Common Pleas and the AOPC is fully
consistent with the information that was set forth in the PIR at ¶ 34, upon which the career
offender enhancement was initially based. Cf., United States v. Doe, 810 F. 3d 132, 147 (3d Cir.
2015) (A PIR may be a Shepard document when the defendant does not object thereto.).
Therefore, Defendant’s aggravated assault conviction also serves as a valid predicate offense for
career offender purposes under the current state of the law.3
The Court notes that to the extent that Defendant’s guilty plea was to the charge that he violated 18 Pa. C.S.
§ 2702(a)(6), the Court would hold, in the alternative, that a conviction under that subsection likewise constitutes a
“crime of violence” under the force or elements clause. To this end, the Court is persuaded by the well-reasoned
analysis of Judge Donetta W. Ambrose in United States v. Jackson, Crim. No. 10-235, 2016 WL 6839467, at *2
(W.D. Pa. Nov. 21, 2016) that a simple assault conviction under 18 Pa. C.S. § 2701(a)(3) is a valid predicate
supporting the career offender enhancement under the force or elements clause based on binding Third Circuit
precedent, namely Singh v. Gonzalez, 432 F.3d 533, 539-40 (3d Cir. 2006), which was not overruled in Mathis v.
United States, --- U.S. ----, 136 S.Ct. 2243 (2016). Here, the only differences between the aggravated assault charge
at § 2702(a)(6) and the simple assault statute at § 2701(a)(3) are the addition of the element that the offense was
committed against “any of the officers, agents, employees or other persons enumerated in subsection (c),” and would
include a police officer, as applied to Defendant’s actual conduct in the underlying case. Compare 18 Pa.C.S. §
2702(a)(6) (“A person is guilty of aggravated assault if he: […](6) attempts by physical menace to put any of the
officers, agents, employees or other persons enumerated in subsection (c), while in the performance of duty, in fear
of imminent serious bodily injury.”); with 18 Pa.C.S. § 2701(a)(3) (“Except as provided under section 2702 (relating
to aggravated assault), a person is guilty of assault if he: […] (3) attempts by physical menace to put another in fear
of imminent serious bodily injury.”).
For all of these reasons, the Court concludes that Defendant’s prior convictions for a drug
offense and aggravated assault support the sentence originally imposed pursuant to Guideline §
4B1.1. Thus, he has not demonstrated that he is entitled to relief under Section 2255.
Based on the foregoing, Defendant’s Amended Motion to Vacate, Set Aside or Correct
Sentence under 28 U.S.C. § 2255  is denied, with prejudice. The Court also holds that
Defendant has failed to make a substantial showing of the denial of a Constitutional right and is
not entitled to a certificate of appealability. See 28 U.S.C.§ 2253(c)(2). An appropriate Order
s/Nora Barry Fischer
Nora Barry Fischer
U.S. District Judge
Dated: February 28, 2017
cc/ecf: All counsel of record
Dirk Barfield, Jr. c/o Elisa Long, AFPD
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