United States v. Haines

296 F.Supp.3d 726

UNITED STATES of America

v.Anthony HAINES, Defendant.

CRIMINAL ACTION NO. 11–706

United States District Court, E.D. Pennsylvania.

Signed October 30, 2017

Filed October 31, 2017

Virginia Paige Pratter, Department of Justice, Philadelphia, PA, for United States of America.

Richard D. Malmed, CJA Appointment, Philadelphia, PA, for Defendant.

MEMORANDUM OPINION

Rufe, District Judge The Government and Defendant Anthony Haines, who is before the Court for resentencing, disagree over whether his prior conviction for aggravated assault constitutes a "crime of violence"¹ that subjects him to a career offender sentencing enhancement,² when there are no available judicial records that identify the specific subsection of the Pennsylvania aggravated assault statute³ under which he was convicted. Because the statute in its entirety criminalizes merely reckless conduct, the Court holds that pursuant to established Third Circuit law, Defendant's prior conviction is not a predicate crime of violence, and the Court will not apply a career offender enhancement in calculating his Guidelines range.

I. BACKGROUND

In 2013, Defendant pleaded guilty to two counts of possession with intent to distribute cocaine and marijuana in violation of 21 U.S.C. § 841, and one count of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1). He was sentenced to 180 months of imprisonment. At the time of Defendant's sentencing, he had, among other convictions, one prior conviction for a serious drug offense, one conviction for first-degree robbery under 18 Pa. Cons. Stat. § 3701(a), and one conviction for aggravated assault under 18 Pa. Cons. Stat. § 2702(a).

Defendant's original sentence has since been vacated. During Defendant's original sentencing proceedings, there was no dispute that he had three previous convictions for "a violent felony or a serious drug offense," and was therefore subject to the 15–year mandatory minimum prescribed by the Armed Career Criminal Act ("ACCA").⁴ In 2016, the Supreme Court invalidated the residual clause of the ACCA's definition of "violent felony" as unconstitutionally vague.⁵ Defendant then filed a Motion to Vacate, Set Aside, or Correct his Sentence Pursuant to 28 U.S.C. § 2255, asserting that his robbery and aggravated assault convictions no longer qualified as violent felonies in the absence of the residual clause. The Court agreed that Defendant's robbery conviction was no longer a violent felony, and on that ground, granted Defendant's motion to vacate his sentence.⁶

With respect to Defendant's resentencing, the Government acknowledges that he is no longer subject to the mandatory minimum or the sentencing enhancement prescribed by the ACCA. However, the Government maintains that Defendant's aggravated assault conviction constitutes a "crime of violence," as defined in § 4B1.2(a) of the Sentencing Guidelines, which, alongside his prior drug conviction, subjects him to a career offender enhancement under § 4B1.1.⁷ Defendant challenges the enhancement on the grounds that not all subsections of Pennsylvania's aggravated assault statute, 18 Pa. Cons. Stat. § 2702(a), satisfy § 4B1.2(a) and there are no available records that establish the specific subsection of the statute under which Defendant was convicted.

The Court heard argument during Defendant's resentencing hearing on October 2, 2017 and continued the hearing so that the issue could be fully considered.

In a Supplemental Sentencing Report, amended on October 5, 2017 ("Amended Supplemental Sentencing Report"), the Probation Office calculated Defendant's Guidelines range based on the assumption that he has no predicate crime of violence but provided an alternative range under the Government's approach.⁸ The disparity between the two calculations is substantial: in the absence of a predicate crime of violence, Defendant's Guidelines range is 37–46 months; with a predicate crime of violence, the resulting Guidelines range would be 151–188 months.⁹

II. DISCUSSION

A. § 4B1.2(a)

Section 4B1.2(a) of the United States Sentencing Guidelines, as effective November 1, 2016, defines a "crime of violence" 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 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.C. § 841(c).¹⁰

The first prong of this section (the "force clause") applies to any crime that requires the "use of physical force against the person of another," (whether actual, attempted, or threatened) as an essential element. The second prong (the "enumerated offenses clause") applies to any crime that "substantially corresponds" to, and does not "sweep[ ] more broadly than," the "generic definition" of one of the listed crimes.¹¹ To determine the elements of a generic offense, courts may look to the definition of the crime used by the states, learned treatises, and the Model Penal Code.¹²

In determining whether a prior conviction falls under § 4B1.2(a), courts have employed the "categorical" and "modified categorical" approaches outlined in the ACCA context.¹³ Typically, under the categorical approach, courts may "look only to the statutory definitions—i.e. , the elements—of a defendant's prior offenses,"¹⁴ and consider whether "the least culpable conduct hypothetically necessary to sustain conviction under the statute" falls under either clause of § 4B1.2(a).¹⁵ However, when the court is confronted with a statute that is "divisible,"—that is, when the statute "comprises multiple, alternative versions of the crime," a modified categorical approach applies.¹⁶ Under this approach, a court may look to a limited set of judicial records, such as the charging document and the plea agreement and colloquy, to determine the elements of the crime of conviction, and assess whether those elements satisfy either prong of § 4B1.2(a).¹⁷ These records are commonly referred to as Shepard documents.

B. Defendant's Aggravated Assault Conviction

Defendant was convicted of aggravated assault in 1990 at the age of 18. At the time, aggravated assault was defined under 18 Pa. Cons. Stat. § 2702(a) as follows:

(a) Offense defined. A person is guilty of aggravated assault if he:

(1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life;

(2) attempts to cause or intentionally, knowingly, or recklessly causes serious bodily injury to [a police officer or other member of a protected class] while in the performance of duty;

(3) attempts to cause or intentionally or knowingly causes bodily injury to [a police officer or other member of a protected class] in the performance of duty;(4) attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon; or

(5) attempts to cause or intentionally or knowingly causes bodily injury to [a designated school employee] while acting in the scope of his or her employment or because of his or her employment relationship to the school.¹⁸

This Court has previously ruled that § 2702(a) is a divisible statute under which each subsection is a separate and alternative version of the crime, and so in assessing whether the conviction constitutes a "crime of violence," courts may limit their analysis to the specific subsection of the statute under which a defendant was convicted.¹⁹ Here, however, the Shepard documents for Defendant's aggravated assault conviction have been lost, preventing either party from establishing the specific elements of his crime of conviction. Therefore, Defendant's prior conviction cannot be a "crime of violence," unless § 2702(a) in its entirety, including each of its subsections, satisfies § 4B1.2(a).²⁰

A few aspects of the statute will be particularly relevant to the Court's analysis:

First, the subsections of § 2702(a) differ in the minimum level of mens rea required. Subsections (a)(3), (a)(4), and (a)(5) are all specific-intent offenses because they require that injury be caused "intentionally or knowingly." In contrast, subsections (a)(1) and (a)(2) require less culpable states of mind: Subsection (a)(1) requires recklessness "with extreme indifference to the value of human life," often referred to as "depraved heart" recklessness; subsection (a)(2) requires only simple recklessness.

Second, under Pennsylvania law, an aggravated assault under subsection (a)(1) of the Pennsylvania statute can be committed through omission without the affirmative threat or use of force. Specifically, in Commonwealth v. Thomas , the Superior Court of Pennsylvania held that a woman's conviction for aggravated assault under § 2701(a)(1) could be sustained based on her failure to feed and seek medical attention for her four-year old son, although there was no evidence that she used or threatened force against him.²¹

Third, although subsections (a)(1) and (a)(4) of § 2702(a) track the generic elements of "aggravated assault" as defined in the Model Penal Code, subsections (a)(2), (a)(3), and (a)(5) of the statute criminalize conduct that exceeds the scope of the generic offense when the conduct involves injury to members of protected classes of people (law enforcement and school employees).²²

In light of the third point, the parties agree that § 2702(a) as a whole exceeds the scope of the generic definition of "aggravated assault," and therefore does not satisfy the "enumerated clause" of the § 4B1.2. The Government rests its argument solely on the force clause, and notably, does not argue that § 2702(a) can qualify as a "crime of violence" if only some of its subsections satisfy the force clause...