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3d 48
Michael Ricks appeals his sentence as a career offender, alleging that the
district court committed legal error when it utilized his 1986 guilty plea to a
state offense of burglary for which he received 90 days imprisonment,
probation and a fine. Ricks asserts that since his actual sentence was less than
one year, it could not serve as one of the "two prior felony convictions"
required by U.S.S.G. Secs. 4B1.2(1)(ii), 4B1.2(3).
Although we conclude that Ricks' arguments lack merit and we will affirm, we
write to clarify that Ricks' primary argument depends entirely on dictum in
United States v. Shoupe, 929 F.2d 116, 121 n. 3 (3d Cir.) ("Shoupe I "), cert.
denied, --- U.S. ----, 112 S.Ct. 382, 116 L.Ed.2d 333 (1991), dictum that
conflicts with the Sentencing Guidelines and with caselaw, dictum that we
therefore cannot follow.
I.
3
We have jurisdiction of a final judgment of the district court, which had subject
matter jurisdiction pursuant to 18 U.S.C. Sec. 3231. See 18 U.S.C. Sec. 3742;
28 U.S.C. Sec. 1291. We exercise plenary review of the district court's
application of legal precepts. See, e.g., United States v. McAllister, 927 F.2d
136, 137 (3d Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 111, 116 L.Ed.2d 80
(1991); United States v. LaFrombois, 943 F.2d 914, 915 (8th Cir.1991). We
review the district court's findings of fact for clear error. See, e.g., United States
v. McMillen, 917 F.2d 773, 774 (3d Cir.1990); LaFrombois, 943 F.2d at 915.
II.
4
Ricks nevertheless argues that because he received only 90 days, his burglary
was not "punishable" by more than one year and therefore should not have been
counted. Ricks relies on footnote 3 in Shoupe I, 929 F.2d at 121 n. 3. In Shoupe
I, the defendant argued that because his prior convictions had involved
cooperation with authorities, the district court had properly departed downward.
We disagreed and remanded, noting that only the government may move for a
departure based upon cooperation. Shoupe I, 929 F.2d at 120-21. In footnote 3,
we remarked:
Id. at 121 n. 3.
This footnote does not aid Ricks because it is dictum, that is, it contains
propositions not essential to the determination of Shoupe I. Moreover, it
conflicts with the plain text of the Guidelines, with our precedent and with
federal caselaw generally. We are therefore constrained to hold that the dictum
of footnote 3 in Shoupe I "is not and has never been law in this court and
therefore never achieved the jurisprudential quality of a decision." Universal
Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98, 104 n. 7 (3d Cir.1981).1
III.
9
Because Ricks' argument regarding the relevance of his prior sentence lacks
merit and because his alternative argument also lacks merit,2 we will affirm the
judgment of the district court.
At most, the footnote refers obliquely to U.S.S.G. Sec. 4A1.3, which allows
downward departure if criminal history over-represents the actual seriousness
of the defendant's past conduct. See United States v. Shoupe, 988 F.2d 440, 443
n. 5 (3d Cir.1993) ("Shoupe II ") ("Whatever the majority's intent [in Shoupe I,
footnote 3]. Shoupe may have taken this [dictum] as a suggestion that Sec.
4A1.3 be applied on remand").
Ricks argued for a Sec. 4A1.3 departure but, because of Ricks' prior assaults
against the victim in this case, the district court determined that the balance
between departure and deterrence counseled sentencing Ricks at the bottom of
the range for career offenders. Ricks does not challenge the court's refusal to
depart on Sec. 4A1.3 grounds.
2