United States v. Henderson

80 F.4th 207

UNITED STATES of America v. Darron HENDERSON, Appellant

No. 22-2613

United States Court of Appeals, Third Circuit

Argued: July 11, 2023

Filed: August 15, 2023

On Appeal from the United States District Court for the Eastern District of Pennsylvania (No. 2-21-cr-00184-001), U.S. District Judge: Honorable Chad F. Kenney

Caroline G. Cinquanto, 2 Greenwood Square, 3331 Street Road, Bensalem, PA 19020, Brett G. Sweitzer [ARGUED], Federal Community Defender Office for the Eastern District of Pennsylvania, 601 Walnut Street, The Curtis Center, Suite 540 West, Philadelphia, PA 19106, Counsel for Appellant

Michael R. Miller, Shannon G. Zabel, Robert A. Zauzmer [ARGUED], Office of United States Attorney, 615 Chestnut Street, Suite 1250, Philadelphia, PA 19106, Counsel for Appellee

Before: SHWARTZ, RESTREPO, and CHUNG, Circuit Judges.

OPINION OF THE COURT

SHWARTZ, Circuit Judge.

Darron Henderson received a sentencing enhancement under United States Sentencing Guideline ("U.S.S.G.") § 2K2.1(a)(4) based on his Pennsylvania robbery conviction because the District Court concluded that the subsection of the robbery statute Henderson violated, 18 Pa. Cons. Stat. § 3701(a)(1)(ii), qualifies as a "crime of violence" as defined by U.S.S.G. § 4B1.2(a). The District Court was correct and so we will affirm.

I

In 2019, police officers stopped Henderson due to a traffic violation, searched his vehicle, and found a loaded semi-automatic firearm with an obliterated serial number and thirteen rounds of ammunition. Henderson was indicted for, and pled guilty to, possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). At the time of the offense, Henderson had a prior state robbery conviction under 18 Pa. Cons. Stat. § 3701(a)(1)(ii).

At sentencing, the District Court applied the sentencing enhancement under U.S.S.G. § 2K2.1(a)(4) based on Henderson's robbery conviction. The Court concluded that: (1) § 3701(a) is divisible and Henderson was convicted of violating subsection (ii) of the statute; and (2) subsection (ii) qualified as a "crime of violence" under U.S.S.G. § 4B1.2(a) because the subsection provides that a person is guilty of robbery if he "threatens another with or intentionally puts him in fear of immediate serious bodily injury," App. 109 (quoting 18 Pa. Cons. Stat. § 3701(a)(1)(ii)), 120, which means a violation of the subsection necessarily "requires the purposeful use or threat of physical force against another," App. 109, 120.

Based on this prior conviction, Henderson's base offense level was twenty. U.S.S.G. § 2K2.1(a)(4). This offense level was increased by four because the firearm he possessed had an obliterated serial number, U.S.S.G. § 2K2.1(b)(4)(B), and reduced by three for acceptance of responsibility, U.S.S.G. § 3E1.1, resulting in a total offense level of twenty-one. Given his criminal history category of IV, his Guideline range was fifty-seven to seventy-one months' imprisonment. The Court imposed a sentence of sixty months' imprisonment and three years' supervised release.

Henderson appeals.

II¹

A

A defendant convicted of violating § 922(g)(1) faces an enhanced base offense level under the Sentencing Guidelines if he has a prior felony conviction of "either a crime of violence or a controlled substance offense." U.S.S.G. § 2K2.1(a)(2), (a)(4)(A). The Guidelines define 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).

U.S.S.G. § 4B1.2(a). The first section is known as the "elements clause," and the second section is known as the "enumerated offenses clause." United States v. Ramos, 892 F.3d 599, 605 (3d Cir. 2018).

To decide whether an offense constitutes a crime of violence, we apply the "categorical approach," which requires "compar[ing] the elements of the statute under which the defendant was convicted to the [G]uidelines' definition of crime of violence." Id. at 606 (quotations and citation omitted). If the statute forming the basis of the defendant's conviction necessarily has as an element "the use, attempted use, or threatened use of physical force against another person," or if its elements substantially correspond to the elements of one of the enumerated offenses, then the statute proscribes a predicate crime of violence within the meaning of the Guidelines. Id.; United States v. Brasby, 61 F.4th 127, 134 (3d Cir. 2023). If, however, the statute of conviction lacks such an element, it "sweeps more broadly" than the Guidelines definition and does not qualify as a crime of violence, even if the defendant actually committed the offense by using, attempting to use, or threatening to use physical force against another person. Ramos, 892 F.3d at 606 (citation omitted). Thus, we "not only [ ] ignore the actual manner in which the defendant committed the prior offense, but also [ ] presume that the defendant did so by engaging in no more than 'the minimum conduct criminalized by the state statute.' " Id. (quoting Moncrieffe v. Holder, 569 U.S. 184, 191, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013)).

When a statute "list[s] elements in the alternative, and thereby define[s] multiple crimes," it is divisible, and we must identify which of the alternate elements was the basis for the conviction. Mathis v. United States, 579 U.S. 500, 505-06, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). Under this "modified categorical approach," we identify the statutory offense of conviction by looking at a "specific set of extra-statutory documents," such as the "charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge." Ramos, 892 F.3d at 606-07.

Thus, we must first determine whether the Pennsylvania robbery statute is divisible. If it is divisible, then we must identify the provision that formed the basis of Henderson's conviction, and thereafter determine whether that provision constitutes a crime of violence under the elements clause or enumerated offenses clause.

B

Under Pennsylvania law, a person commits robbery, if "in the course of committing a theft,"² he:

(i) inflicts serious bodily injury upon another;

(ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury;

(iii) commits or threatens immediately to commit any felony of the first or second degree;

(iv) inflicts bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury;

(v) physically takes or removes property from the person of another by force however slight; or

(vi) takes or removes the money of a financial institution . . . .

18 Pa. Cons. Stat. § 3701(a)(1). "Theft means taking someone else's property intending not to give it back." Pa. Suggested Standard Criminal Jury Instructions 15.3701A. Robbery under subsections (i)-(iii) are first-degree felonies, robbery under subsections (iv) and (vi) are second-degree felonies, and robbery under subsection (v) is a third-degree felony. 18 Pa. Cons. Stat. § 3701(b)(1). These various felony levels carry different penalties.³

The subsections of § 3701(a)(1) are not separate means of satisfying a specific element, but rather "clearly la[y] out alternative elements" for separate robbery offenses.⁴ United States v. Peppers, 899 F.3d 211, 232 (3d Cir. 2018) (citation omitted) (holding § 3701 divisible); see also United States v. Blair, 734 F.3d 218, 225 (3d Cir. 2013) (same). Moreover, the fact that the various subsections trigger different penalties shows that they are alternative elements that must be proven. Mathis, 579 U.S. at 518, 136 S.Ct. 2243 ("If statutory alternatives carry different punishments . . . they must be elements."). For these reasons, § 3701 is divisible. Peppers, 899 F.3d at 232; Blair, 734 F.3d at 225.

Because § 3701 is divisible, we apply the "modified categorical approach," which allows us to consider "extra-statutory documents" to identify the subsection under which Henderson was convicted. Ramos, 892 F.3d at 606-07. The parties do not dispute that Henderson was convicted under subsection (ii). As a result, we next examine whether subsection (ii) of the Pennsylvania robbery statute is a crime of violence under either § 4B1.2(a)'s elements clause or its enumerated offenses clause.

C

To qualify as a crime of violence under the elements clause, the offense must have "as an element the use, attempted use, or threatened use of physical force against the person of another." U.S.S.G. § 4B1.2(a)(1). For subsection (ii) to meet this definition, (1) a defendant must threaten to use physical force, Ramos, 892 F.3d at 611, and (2) the threat must be made intentionally or knowingly, Borden v. United States, — U.S. —, 141 S. Ct. 1817, 1826, 210 L.Ed.2d 63 (2021).⁵As we will explain, subsection (ii) meets both requirements and thus qualifies as a crime of violence.

The first question is whether a theft where a defendant "threatens another with or intentionally puts him in fear of immediate serious bodily injury," 18 Pa. Cons. Stat. § 3701(a)(1)(ii), involves the threatened use of physical force against another. Section 4B1.2(a)(1) envisions the requisite "use of physical force" as "force capable of causing physical pain or injury." Stokeling v. United States, — U.S. —, 139 S. Ct. 544, 553, 202 L.Ed.2d 512 (2019) (quotations omitted).

The plain language of subsection (ii) satisfies this requirement. The statute states that the threatened force must place the victim in fear of immediate "serious bodily injury." Pennsylvania defines "[b]odily injury" as an "[i]mpairment of physical condition or substantial...