United States v. Parrott

585 F.Supp.3d 661

UNITED STATES of America

v.Phillip PARROTT

CRIMINAL ACTION NO. 09-245

United States District Court, E.D. Pennsylvania.

Filed February 8, 2022

Andrew J. Schell, U.S. Attorney's Office, Philadelphia, PA, for United States of America.

MEMORANDUM

SURRICK, District Judge

Phillip Parrott seeks habeas relief under 28 U.S.C. § 2255, challenging his sentence-enhancement under the Armed Career Criminal Act ("ACCA"), 28 U.S.C. § 924(e). He contends that his second-degree robbery conviction under Pennsylvania law no longer qualifies as a violent felony under the ACCA after recent Supreme Court precedent, Borden v. United States , ––– U.S. ––––, 141 S.Ct. 1817, 210 L.Ed.2d 63 (2021). Because we conclude that Pennsylvania's second-degree robbery statute is indivisible, as it sets forth one distinct offense with alternate means of committing the offense, under the categorical approach, Parrott's conviction does not qualify as a predicate ACCA offense. Accordingly, his Motion to Correct Sentence under 28 U.S.C. § 2255 (ECF No. 88) will be granted and his sentence will be vacated.

I. BACKGROUND

On November 24, 2009, a jury convicted Parrott of possessing a firearm and ammunition as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). (ECF No. 46.) At his sentencing on March 12, 2010, Parrott was subjected to the ACCA's 15-year mandatory minimum sentence based on two prior drug convictions and a 1994 conviction for second-degree robbery. (Presentence Report ¶ 31 (on file with Court).) The Court sentenced Parrott to 262 months in prison followed by five years of supervised release. (ECF No. 64.) Parrott's subsequent appeal of his conviction was affirmed by the Third Circuit. See United States v. Parrott , 450 F. App'x 228, 229 (3d Cir. 2011).

After the Supreme Court invalidated a portion of the ACCA in Johnson v. United States , 576 U.S. 591, 597, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), numerous defendants like Parrott who had their sentences enhanced by the ACCA sought leave from their respective Circuit Courts of Appeals to file a second or successive habeas petition under 28 U.S.C. § 2255(h)(2). On June 16, 2016, Parrott filed a Motion to Correct Sentence under 28 U.S.C. § 2255. (ECF No. 88.) On July 19, 2016, the Third Circuit granted Parrott leave to file a second or successive habeas petition based upon the Supreme Court's Johnson decision. (ECF No. 89.) The case was stayed pending decisions by the Third Circuit and the Supreme Court that would provide guidance to the district courts on application of Johnson . After the Supreme Court issued its Borden decision, Parrott sought emergency bail, contending that Borden —which held that crimes that can be committed with a mens rea of recklessness do not qualify as violent felonies under the ACCA—demanded him relief under § 2255.¹

II. DISCUSSION

A. Legal Framework

Before we turn to the issue in this case—whether Parrott's 1994 conviction for second-degree robbery no longer qualifies as an ACCA predicate—we will first explain the legal principles that frame our analysis.²

As noted above, the ACCA imposes a 15-year mandatory minimum sentence on any individual convicted under 18 U.S.C. § 922(g) who also has three prior convictions "for a violent felony or a serious drug offense, or both." 18 U.S.C. § 924(e)(1).³

Parrott received the sentence enhancement provided by the ACCA because at the time of his sentencing, his three prior convictions all qualified as predicate acts: two prior drug convictions and the 1994 second-degree robbery conviction. There is no dispute that Parrott's two prior drug convictions qualify as predicate ACCA crimes. Parrott's entitlement to relief under § 2255 turns on whether his second-degree robbery conviction constitutes a "violent felony" under the ACCA.

The ACCA defines "violent felony" as

any crime punishable by imprisonment for a term exceeding one year ... that—

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another [the elements clause ]; or

(ii) is burglary, arson, or extortion, involves use of explosives [the enumerated offenses clause ], or otherwise involves conduct that presents a serious potential risk of physical injury to another [the residual clause. ]

18 U.S.C. § 924(e)(2)(B). As mentioned above, in Johnson , the Supreme Court invalidated the definition's residual clause, concluding that it was unconstitutionally vague and a violation of due process. 576 U.S. at 595-97, 135 S.Ct. 2551. Parrott's second-degree robbery conviction does not fall under the enumerated offenses clause. Our analysis therefore centers on whether the conviction falls under the elements clause. If it does, then Parrott's ACCA-enhanced sentence stands. If it does not, then Parrott is entitled to be resentenced without the enhancement.⁴

To determine whether a statute qualifies as an ACCA predicate offense, courts must first determine whether the statute is divisible. A divisible statute is one that "lists elements in the alternative," which in turn defines multiple crimes. Mathis v. United States , 579 U.S. 500, 136 S. Ct. 2243, 2249, 195 L.Ed.2d 604 (2016). In contrast, a statute that is indivisible, "merely specifies diverse means of satisfying a single element of a single crime – or otherwise said, spells out various factual ways of committed some component of the offense." Id. If indivisible, jury unanimity is not required on any of the enumerated means of committing the offense. Id. In addition, if a statute is indivisible, courts must use the "categorical approach" to determine if it qualifies as a predicate crime under the ACCA. If a statute is divisible, courts use the "modified categorical approach."

Under the categorical approach, "a court must examine whether an offense's statutory definition (not the particular facts of a case) constitutes a ‘violent felony’ under the ACCA." United States v. Collins , No. 01-780-1, 2018 WL 278703, at *4 (E.D. Pa. Jan. 3, 2018) (Citing Mathis , 136 S. Ct. at 2256-57 ). Under this approach, the elements of the crime of conviction are compared to the element of the generic version of the offense. Mathis , 136 S. Ct. at 2247. "The prior crime qualifies as an ACCA predicate if, but only if, its elements are the same as, or narrower then, those of the generic offense." Id.

Under the modified categorical approach—used when a statute is divisible—a court "may go beyond the mere fact of conviction" and the statutory text, Taylor v. United States , 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and consult "a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) [referred to by courts as " Shepard documents"] to determine what crime, with what elements, a defendant was convicted." Mathis , 136 S. Ct. at 2249 (citing Shepard v. United States , 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) ). "The court can then compare that crime, as the categorical approach commands, with the relevant generic offense." Id.

In Borden , the Supreme Court held that crimes that can be committed with a mens rea of recklessness do not qualify as violent crimes under the ACCA. Accordingly, we must decide whether Parrott, in his robbery conviction, was convicted of an offense that can be committed with a mens rea of recklessness. If it can, then his robbery conviction does not qualify as a violent felony under the ACCA.

B. Pennsylvania's Second-Degree Robbery Statute is Indivisible and is Therefore Not an ACCA Predicate

The Third Circuit has not had the opportunity to determine whether a conviction under Pennsylvania's second-degree robbery statute qualifies as an ACCA predicate offense. At least two district courts in this Circuit, however, have concluded that it does not. See United States v. Blakney , No. 11-562-1, 2021 WL 3929694, at *3 (E.D. Pa. Sept. 2, 2021) ; United States v. Giles , No. 94-20-01, 2021 WL 5418158, at *6 (E.D. Pa. Nov. 19, 2021). The well-reasoned analyses in these decisions provide further support for our holding.

The conviction at issue here is under Pennsylvania's second-degree robbery statute, 18 Pa. Cons. Stat. § 3701(a)(1)(iv), which provides as follows:

A person is guilty of robbery if, in the course of committing a theft, he: ...

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

The Government argues that this statute is divisible into two separate second-degree robbery crimes: the first is inflicting bodily injury upon another, and the second is threatens another with or intentionally puts him in fear of immediate bodily injury. As to the first clause, the Government concedes that it can be committed with recklessness and therefore does not qualify as an ACCA predicate under Borden . When a Pennsylvania criminal statute does not expressly state a mens rea for an element of an offense, as is the case for the first clause, the Pennsylvania Code provides a minimum mens rea of recklessness. See 18 Pa. Con. Stat. Ann. § 302(c) ("When the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts intentionally, knowingly or recklessly with respect thereto."). The Government argues that the second clause—"threatens another with or intentionally puts him in fear of immediate bodily injury"—requires a mens rea of intent from the phrase "intentionally puts him in fear" and therefore does count as a violent felony under the ACCA.

The Government's argument is not persuasive. The Pennsylvania second-degree robbery statute, on its face, supports a finding that it lists means of committing the offense and not elements, which must be proved unanimously. See Mathis , 136 S. Ct. at 2256 (noting that in determining whether listed statutory items are elements or means, "the statute on its face may resolve the case"). "If, for example, the...