United States v. Randolph

UNITED STATES of America, v. James RANDOLPH, Defendant.

Crim. Action No. 18-380 (FLW)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

May 10, 2019

*NOT FOR PUBLICATION*

OPINION

WOLFSON, United States District Judge:

After Defendant James Randolph ("Defendant") pled guilty to a one-count indictment charging him with unlawful possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), this Court held a sentencing hearing, wherein Defendant was sentenced to a term of imprisonment of 24 months, a within Guidelines sentence, based upon an offense level of 14. As part of Defendant's sentence, I found that Defendant was not subject to the sentencing enhancement for firearms offenses, under U.S.S.G. § 2K2.1(a)(4)(A), concluding that his prior conviction under New Jersey state law for aggravated assault did not qualify as a "crime of violence" under the Sentencing Guidelines. During the course of the sentencing hearing, however, I reserved the right to supplement my oral ruling by written opinion. The present opinion serves to supplement the my findings as to whether Defendant's prior conviction for aggravated assault qualifies as "crime of violence" under the Sentencing Guidelines.

I. BACKGROUND

On November 27, 2019, Defendant pled guilty to a one-count indictment charging him with unlawful possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The U.S. Probation Office determined that an advisory sentencing range of 30 to 37 months applies, and the Government sought a sentence at the top of that range.

On March 21, 2019, Defendant submitted a memorandum outlining his position as to the sentence to be imposed and objecting to the Probation Office's Guideline calculation. The Government submitted a sentencing memorandum in opposition on March 25, 2019.¹ The parties' arguments at sentencing focused on whether Defendant's prior state conviction for aggravated assault was a "crime of violence" under U.S.S.G. § 2K2.1(a)(4)(A)—and thus, whether Defendant would be subject to a base-level sentencing enhancement for firearms offenses. The Sentencing Guidelines assign a base offense level of 20 if "the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense." U.S.S.G. § 2K2.1(a)(4)(A). The Government argues that this enhancement applies because of Defendant's prior conviction for aggravated assault under N.J.S.A. 2C:12-1(b)(7).² Defendant, in contrast, argues the enhancement is not appropriate, because his aggravated assault conviction was not a "crime of violence," since N.J.S.A. § 2C:12-1(b)(7) allows for a conviction based on "extreme indifference recklessness," which is broader than the generic version of the crime. The issue presented has been addressed by a number of courts with no simple answer. Currently, two cares are on appeal to the Third Circuit, which will yield a decision on this knotty question.

At sentencing, I determined that Defendant's prior conviction for aggravated assault was not a "crime of violence," and thus the base offense level was 14; I imposed a within Guidelines sentence of 24 months, consistent with that offense level.

II. LEGAL STANDARD

This Court has jurisdiction pursuant to 18 U.S.C. § 3231. See United States v. Chapman, 866 F.3d 129, 131 (3d Cir. 2017). "In sentencing a defendant, district courts follow a three-step process: At step one, the court calculates the applicable Guidelines range, which includes the application of any sentencing enhancements." United States v. Wright, 642 F.3d 148, 152 (3d Cir. 2011). "At step two, the court considers any motions for departure and, if granted, states how the departure affects the Guidelines calculation." Id. "At step three, the court considers the recommended Guidelines range together with the statutory factors listed in 18 U.S.C. § 3553(a) and determines the appropriate sentence, which may vary upward or downward from the range suggested by the Guidelines." Id. In calculating the Guidelines sentence, the Third Circuit has "explained that, '[a]s before [United States v. Booker, 543 U.S. 220 (2005)], the standard of proof under the guidelines for sentencing facts continues to be preponderance of the evidence.'" United States v. Ali, 508 F.3d 136, 143 (3d Cir. 2007) (citation omitted). The Government bears the burden of demonstrating that a sentence should be calculated by using a higher base offense level. United States v. Howard, 599 F.3d 269, 271-72 (3d Cir. 2010). The present dispute concerns the applicable Guidelines range at step one, and thus, the Government bears the burden of demonstrating, by a preponderance of the evidence, that Defendant's prior conviction triggers the sentencing enhancement in U.S.S.G. § 2K2.1(a)(4)(A).

III. DISCUSSION

According to the Government, Plaintiff's prior conviction for aggravated assault qualifies as a "crime of violence" under both clauses in the Guidelines that define the term: the "elements clause," U.S.S.G. § 4B1.2(a)(1), and the "enumerated offense clause," U.S.S.G. § 4B1.2(a)(2). The Guidelines define a "crime of violence," in relevant part, as:

(a) . . . 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.

Before analyzing the issues, I must first decide the appropriate standard. There are two alternative standards that courts employ when evaluating whether a prior conviction constitutes a "crime of violence" under either the elements clause or the enumerated offense clause: the "categorical approach" and the "modified categorical approach." United States v. Brown, 765 F.3d 185, 189 (3d Cir. 2014). Under the categorical approach, the sentencing court must "compare the elements of the statute forming the basis of the defendant's conviction with the elements of the 'generic' crime—i.e., the offense as commonly understood. The prior conviction qualifies as . . . [a] predicate only if the statute's elements are the same as, or narrower than, those of the generic offense." Descamps v. United States, 570 U.S. 254, 257 (2013). The alternative "modified categorical approach"—which allows a court to look past the elements of the crime to the facts of the case—applies only if a statute is divisible. A divisible statute "lists multiple, alternative elements and . . . effectively sets forth several different crimes." United States v. Hemingway, 734 F.3d 323, 331 (4th Cir. 2013) (quoting Descamps, 570 U.S. at 264).

Here, Defendant was convicted under N.J.S.A. § 2C:12-1(b)(7), which contains different mens rea alternatives, but does not "set forth several different crimes." I will, therefore, apply the categorical approach and look only to the elements of the New Jersey aggravated assault statute in evaluating whether Defendant's prior conviction was for a "crime of violence." See United States v. Hedgeman, No. 16-537, 2018 WL 534156, at *3 (D.N.J. Jan. 23, 2018) (applying categorical approach to analysis of same statute at issue here); see also United States v. Barcenas-Yanez, 826 F.3d 752, 758 (4th Cir. 2016) (holding that the mere fact that Texas aggravated assault statute sets out alternative means of satisfying mens rea requirement did not render it "divisible" and thereby permit sentencing court to utilize modified categorical approach in deciding whether prior conviction was for "crime of violence"). Indeed, both the Government and Defendant concede that, here, the categorical approach is appropriate.

A. Elements Clause

The Government first argues that Defendant's aggravated assault conviction is crime of violence under § 4B1.2(a)(1), the elements clause. In the context of determining whether an offense qualifies as a "crime of violence" under the elements clause, "a court simply asks 'whether the state crime has the use or threat of physical force [against the person of another] as an element of the offense.'" Brown, 765 F.3d at 189 (quoting United States v. Remoi, 404 F.3d 789, 794 (3d Cir. 2005)). "If the statute has this element, or 'defines the crime more narrowly,' then the conviction can serve as a predicate offense." Chapman, 866 F.3d at 134 (quoting Descamps, 133 S. Ct. at 2283). Conversely, if the state statute "'sweeps more broadly' than the federal definition, a conviction under it is not a career offender predicate even if the defendant actually committed the offense in a way that involved the use (or threatened use) of physical force against another." Brown, 765 F.3d at 189 (citing Descamps, 133 S. Ct. at 2283).

1. Third Circuit Law

Traditionally under Third Circuit law, a statute that permits conviction based on a mens rea lower than intent is not sufficient to qualify as a "crime of violence" under the elements clause. See Popal v. Gonzales, 416 F.3d 249, 254 (3d Cir. 2005) ("It is now settled law in this Circuit that an offender has committed a 'crime of violence'...only if he acted with an intent to use force") (citing Tran v. Gonzales, 414 F.3d 464 (3d Cir. 2005); United States v. Parson, 955 F.2d 858, 866 (3d Cir. 1992)). As the Third Circuit explained in evaluating the Sentencing Guidelines' elements clause,

We held in Popal that [a] simple assault [conviction which] requires a minimum mens rea of recklessness rather than intent[ ] is not a crime of violence. The reasoning behind [that] decision was hardly new or innovative. Indeed, we held therein that it is "settled law in this Circuit that an offender has committed a 'crime of violence' only if he acted with an intent to use force." Popal, 416

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