United States v. Cornish ( 1997 )

Opinions of the United
1997 Decisions States Court of Appeals
for the Third Circuit
1-3-1997
United States v. Cornish
Precedential or Non-Precedential:
Docket 95-2086,95-2101
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
Nos. 95-2086 & 95-2101
___________
UNITED STATES OF AMERICA
v.
ANTHONY CORNISH,
a/k/a JERJUAN MITCHALL
United States of America,
Appellant at No. 95-2086
Anthony Cornish,
Appellant at No. 95-2101
___________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. No. 94-cr-00378)
___________
Argued
June 12, 1996
BEFORE: SCIRICA and ROTH, Circuit Judges,
and RESTANI, Judge, Court of International Trade.*
(Filed January 3, l997)
___________
Michael R. Stiles
United States Attorney
Walter S. Batty, Jr.
Assistant United States Attorney
Clement J. McGovern, III (Argued)
Special Assistant United States Attorney
615 Chestnut Street, Room 1250
Philadelphia, PA 19106
COUNSEL FOR APPELLANT/CROSS-APPELLEE
* *
Honorable Jane A. Restani, Judge, United States Court
of International Trade, sitting by designation.
1
Maureen Kearney Rowley
Chief Federal Defender
Elaine DeMasse
Senior Appellate Counsel
Robert Epstein (Argued)
Assistant Federal Defender
437 Chestnut Street, Suite 800
Lafayette Building
Philadelphia, PA 19106
COUNSEL FOR APPELLEE/CROSS-APPELLANT
____________
OPINION OF THE COURT
____________
RESTANI, Judge.
This action is before the court on appeal by the United
States and cross-appeal by defendant Anthony Cornish a/k/a
Jerjuan Mitchall ("Cornish"). The government contests the
district court's determination that Cornish's prior third degree
robbery conviction is not a "violent felony" for sentence
enhancement purposes, while Cornish challenges the district
court's jury instructions with regard to the stipulated fact of
Cornish's prior felony conviction. We find no error in the
district court's jury instructions, but find that the district
court did err in failing to apply the enhanced penalties provided
by 18 U.S.C. § 924(e) and USSG § 4B1.4 and remand for
resentencing.
BACKGROUND
On April 16, 1994, two police officers were on routine
patrol in a marked police vehicle when they observed a car being
operated in a reckless manner. (Supp. App. 50a-52a) The
officers attempted to stop the vehicle, but the vehicle reversed
2
its direction and fled. They pursued the vehicle, using their
lights and sirens in an attempt to stop the vehicle. (Supp. App.
53a) While fleeing the police, the driver of the vehicle, later
identified as Cornish, threw a gun out of the driver's side
window, jumped out of the vehicle, and fled on foot. (Supp. App.
54a) The vehicle continued forward a short distance and came to
rest after hitting a fence. (Supp. App. 54a) One officer
recovered the weapon, a .38 caliber Colt handgun, while two
others apprehended Cornish several blocks away as he attempted to
climb over a fence. (Supp. App. 54a-55a, 187a)
On September 21, 1994, Cornish was indicted by a federal
grand jury on a single count of possession of a firearm by a
convicted felon pursuant to 18 U.S.C. § 922(g) (1994).1
Following a jury trial, Cornish was found guilty on February 15,
1995. At the sentencing hearing, the district court held that
Cornish's prior conviction for third degree robbery is not a
"violent felony" pursuant to 18 U.S.C. § 924(e) (1994)2 and U.S.
1
18 U.S.C. § 922(g) provides in relevant part, "[i]t shall
be unlawful for any person-- (1) who has been convicted in any
court of, a crime punishable by imprisonment for a term exceeding
one year; . . . to ship or transport in interstate or foreign
commerce, or possess in or affecting commerce, any firearm or
ammunition . . . ."
2 2
18 U.S.C. § 924(e)(1) provides in relevant part that:
In the case of a person who violates [18 U.S.C. § 922(g)]
and has three previous convictions by any court
referred to in [18 U.S.C. § 922(g)(1)] for a violent
felony . . . committed on occasions different from one
another, such person shall be fined not more than
$25,000 and imprisoned not less than fifteen years, the
court shall not suspend the sentence of, or grant a
probationary sentence to, such person with respect to
the conviction under [18 U.S.C. § 922(g)].
3
Sentencing Guidelines Manual ("USSG") § 4B1.4 (1995). On
November 16, 1995, Cornish was sentenced to 108 months
incarceration, five years supervised release, and a $50 special
assessment.
STANDARD OF REVIEW
As Cornish did not object to the district court's jury
instructions below, our review is limited to plain error under
Fed. R. Crim. P. 52(b). See United States v. Retos, 25 F.3d
1220, 1228-29 (3d Cir. 1994). We have plenary review over the
district court's interpretation and application of the sentencing
guidelines to the facts found. See United States v. Collado, 975
F.2d 985, 990 (3d Cir. 1992).
DISCUSSION
I.
Cornish claims that the district court violated his
constitutional rights protected by the Fifth and Sixth Amendments
to United States Constitution when it instructed the jury to
"accept" the stipulated fact of his prior felony conviction. By
so instructing the jury, Cornish argues that the court improperly
removed that element of the crime from the jury's consideration.
The Fifth Amendment guarantees that no one will be deprived
of liberty "without due process of law," and the Sixth Amendment
ensures that, "[i]n all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by an impartial
jury." U.S. Const. amend. V & VI. The Supreme Court has held
that, "these provisions require criminal convictions to rest upon
4
a jury determination that the defendant is guilty of every
element of the crime with which he is charged, beyond a
reasonable doubt." United States v. Gaudin, 115 S. Ct. 2310,
2313 (1995). A necessary corollary to this rule is that, "a
trial judge is prohibited from entering a judgment of conviction
or directing the jury to come forward with such a verdict,
regardless of how overwhelmingly the evidence may point in that
direction." United States v. Martin Linen Supply Co., 430 U.S.
564, 572-73 (1977) (citations omitted).
Prior to trial, the parties entered into two stipulations.
The first stipulation provided that, if called to testify, an
agent from the Bureau of Alcohol, Tobacco & Firearms would state
that the firearm in question was shipped or transported in
interstate commerce. (Supp. App. 187a-88a) The second
stipulation provided that Cornish was previously convicted of a
crime punishable by imprisonment for a term exceeding one year.
(Supp. App. 188a) These stipulations were formally introduced
into evidence at the close of the government's case. (Supp. App.
189a)
Prior to jury deliberations, the district court instructed
the jury as follows:
The Government is required to prove beyond a reasonable
doubt every essential element . . . of a crime charged
in order to justify a verdict of guilty.
. . . The three essential elements or necessary parts of
this criminal charge or offense are as follows: First,
at the time of the offense, defendant had previously
been convicted of a crime punishable by imprisonment of
more than a year. And here it's agreed that on April
16th, 1994, defendant had been previously convicted of
such a crime. . . .
The second element is that the defendant knowingly
possessed a firearm or gun, and the third is that
5
interstate or foreign commerce was affected to some
degree . . . . (Supp. App. 304-05a)
The district court also instructed the jury as to various types
of evidence: "Evidence is the testimony of the witnesses, the
exhibits received into evidence, and also as you know certain
facts were agreed to by stipulation and are therefore to be
accepted by you without any evidence." (Supp. App. 308a)
After a suggestion by defense counsel, the court concluded its
charge with:
Of course, members of the jury, I gave you a choice of
accepting either the Government's or the defendant's
evidence, but I also instructed you that you can reject
anybody's evidence. So you really have in that sense a
third choice. You can accept or reject anyone's
testimony, any of the evidence. (Supp. App. 312a)
Cornish contends that the district court committed
reversible error when it effectively directed a verdict for the
government on the prior felony conviction element of the §
922(g)(1) offense. Cornish relies on the reasoning in the Sixth
Circuit's opinion in United States v. Mentz, 840 F.2d 315, 318
(6th Cir. 1988), in which the defendant was convicted of two
counts of bank robbery. A security officer from each bank
testified that the banks were federally insured. Id. The Sixth
Circuit held that the district court's jury instruction that both
banks were federally insured improperly directed a verdict in
favor of the government on an essential element of the crime
because the judge's conclusive statement left no room for the
jury to believe otherwise. Id. at 320 & n.8. Cornish argues
that in the present case, the district court similarly erred when
it instructed the jury that it must "accept" the stipulated fact
6
of Cornish's prior felony conviction.
Cornish claims that because a jury has the power to reject a
stipulation, the appropriate jury instruction regarding
stipulations is to the effect that the jury may, but is not
required to, accept the stipulation as evidence and consider that
fact as proved. Cornish cites the Devitt and Blackmar model
charge which provides that:
When the attorneys on both sides stipulate or agree as to
the existence of a fact, you may accept the stipulation
as evidence and regard that fact as proved. You are
not required to do so, however, since you are the sole
judge of the facts.
Hon. Edward J. Devitt, Hon. Charles B. Blackmar, Michael A.
Wolff, and Kevin F. O'Malley, Federal Jury Practice and
Instructions, Civil and Criminal, § 12.03, at 333 (1992).
Cornish argues that the district court's failure to similarly
instruct the jury constituted a structural defect in his trial,
requiring reversal, irrespective of the evidence or whether a
contemporaneous objection was made.
The government counters that the district court's jury
instruction did not amount to a directed verdict in favor of the
government on an essential element of the crime as the district
court never instructed the jury to not consider the prior felony
conviction element. The government contends that the court
simply informed the jury of the three elements that required
proof beyond a reasonable doubt and accurately stated that the
parties had agreed to the existence of a prior felony conviction.
The government distinguishes the Sixth Circuit's opinion in
Mentz from the present case, in that Mentz did not involve a
7
stipulation by the parties to an element of the crime, but the
district court's assessment of the sufficiency of the evidence
presented on an element of the crime.
We note that Courts of Appeal for the Fourth and Tenth
Circuit have recently addressed this issue in United States v.
Muse, 83 F.3d 672 (4th Cir.), cert. denied, 117 S. Ct. 261
(1996), and United States v. Mason, 85 F.3d 471 (10th Cir.
1996).3 In Muse, the defendant was also prosecuted under 18
U.S.C. § 922(g)(1). 83 F.3d at 673-74. Muse argued that the
district court erroneously instructed the jury on the effect of
certain stipulations, similar to the stipulations in the present
case. Id. at 677. The Fourth Circuit found that, "[w]hile a
valid stipulation relieves the prosecution of the burden of
producing any other evidence in order to establish the fact
stipulated, it does not relieve the prosecution from the burden
of 'proving every element of the crime' beyond a reasonable
doubt." Id. at 679. The court concluded that:
In view of the special evidentiary character of a
stipulation--more potent than an admission but less
draconian than a "guilty plea"--and the power of the
jury to "acquit for any reason," developing the proper
language for a jury instruction regarding the effect of
stipulations as to an element of a criminal offense
requires a trial court to walk a careful line. The
government is entitled to have the court inform the
jury of the powerful effect of a stipulation but a
court cannot direct a verdict, even a partial verdict,
3
We also note that the Sixth Circuit Court of Appeal has
considered this issue in United States v. Jones, 65 F.3d 520 (6th
Cir.), vacated and reh'g en banc granted, 73 F.3d 616 (6th Cir.
1995). Although the Sixth Circuit originally held that the
district court's jury instruction with regard to the stipulation
that Jones was a previously convicted felon constituted
reversible error, the Sixth Circuit has not yet issued its
opinion en banc.
8
against the defendant.
Id. at 680 (citation omitted). While noting that no appellate
case has set forth the proper language for a jury instruction in
this situation, the court approvingly cited the model jury
instructions for the Eighth and Ninth Circuits which both include
language that, given a stipulation, the jury "should . . . treat
[the stipulated] facts as having been proved." Id. The court
then held that the district court's instruction to the jury that
it must "consider" the elements and that it "should" find that
the government established those elements through the
stipulations was not erroneous. Id.
The Tenth Circuit took a somewhat different approach.
United States v. Mason, 85 F.3d 471 (10th Cir. 1996). In Mason,
the defendant was prosecuted under 18 U.S.C. § 922(g) and the
parties stipulated to the prior felony conviction and interstate
commerce elements of the crime. Id. at 471-72. On appeal, Mason
argued that the district court improperly invaded the province of
the jury by removing the stipulated elements from the jury's
consideration, relying on the Sixth Circuit's opinion in United
States v. Jones, 65 F.3d 520 (6th Cir. 1995). 85 F.3d at 472.
Finding no error in the district court's jury instructions, the
Tenth Circuit reasoned that:
[T]he jury need not resolve the existence of an element when
the parties have stipulated to the facts which
establish that element. . . . [T]he judge has not
removed the consideration of an issue from the jury;
the parties have. More specifically, by stipulating to
elemental facts, a defendant waives his right to a jury
trial on that element.
Id. The Tenth Circuit also rejected what it deemed the
9
underlying premise in Jones--jury nullification. Id. at 473.
The court reasoned that although a jury in a criminal case has
the practical power to render a verdict at odds with the evidence
or the law, a jury does not have the lawful power to reject
stipulated facts because such a power, if exercised, would
conflict with the jurors' sworn duty to apply the law to the
facts, regardless of outcome. Id. (citing United States v.
Trujillo, 714 F.2d 102, 105 (11th Cir. 1983)). In conclusion,
the court stated that its holding "simply reaffirms that a
defendant may waive this right to a jury determination on a
particular issue when it is in his interest to do so." Id. at
474.
Although it is possible to waive constitutional rights,
neither Supreme Court precedent nor the Federal Rules of Criminal
Procedure provide clear guidance on how to accomplish properly a
partial waiver of the right to trial by jury. We need not
resolve that issue, however, in this case.4
As noted, Cornish did not object to the jury instruction at
trial. Therefore, we review for plain error. United States v.
Sokolow, 91 F.3d 396, 408 (3d Cir. 1996); Fed. R. Crim. P. 52(b).
The Supreme Court has defined plain error:
There must be an "error" that is "plain" and that"affect[s]
substantial rights." Moreover, Rule 52(b) leaves the
decision to correct the forfeited error within the
sound discretion of the Court of Appeals, and the court
4
See Lyng v. Northwest Indian Cemetery Prot. Assn., 485
U.S. 439, 445-46 (1988) ("fundamental and longstanding principle
of judicial restraint requires that courts avoid reaching
constitutional questions in advance of the necessity of deciding
them"); United States v. Breyer, 41 F.3d 884, 892 (3d Cir. 1994)
(same).
10
should not exercise that discretion unless the error
"seriously affect[s] the fairness, integrity or public
reputation of the judicial proceedings.
United States v. Olano, 507 U.S. 725, 732 (1993) (quoting United
States v. Young, 470 U.S. 1, 15 (1985)). See also Henderson v.
Kibbe, 431 U.S. 145, 154 (1977) ("It is the rare case in which an
improper instruction will justify reversal of a criminal
conviction when no objection has been made in the trial court.").
Here, there is no doubt that Cornish was convicted of
robbery on three prior occasions. These satisfy the prior
conviction element of 18 U.S.C. § 922(g). Nor is there any doubt
that Cornish entered into the stipulation voluntarily.
Apparently Cornish agreed to the stipulation to shield the jury
from hearing the factual background of his prior robbery
convictions. Under this set of circumstances, the district
court's jury instruction could not have seriously affected the
fairness, integrity or public reputation of the judicial
proceedings. Therefore, in exercising our discretion under Rule
52(b), we may affirm the district court.
We would reach the same conclusion were we to apply a
harmless error standard because the district court's instruction
did not affect the defendant's substantial rights and was
harmless beyond a reasonable doubt. Chapman v. California, 386
U.S. 18, 24 (1967); 28 U.S.C. § 2111; Fed. R. Crim. P. 52(a).
As noted by the Fourth Circuit in Muse, the model jury
instructions in some circuits require the district court to
instruct the jury that they "should" accept as proven the facts
to which the parties have stipulated. See, e.g., Manual of Model
11
Criminal Jury Instructions for the District Courts of the Eighth
Circuit (1992) § 2.03 ("The government and the defendant[s] have
stipulated -- that is, they have agreed -- that certain facts are
as counsel have just stated. You should therefore treat those
facts as having been proved."); Ninth Circuit Manual of Model
Jury Instructions Criminal (1995) § 2.04 ("The parties have
agreed to certain facts that have been stated to you. You should
therefore treat these facts as having been proved."). These
formulations avoid the hazard, apparent or not, of directing a
verdict on a factual issue and would be shielded from
constitutional challenge.
II.
Prior to trial, the government filed a Notice of Defendant's
Prior Convictions for Enhanced Sentencing Under Title 18, United
States Code, Section 924(e) (Supp. App. 314a-15a) and attached
certified copies of the defendant's prior convictions5 contending
5 5
The government submitted certified copies of Cornish's
three prior robbery convictions to establish the following record
of convictions:
1. On or about November 28, 1983, in Philadelphia Common
Pleas Court, case #8306-2147, Cornish was convicted of
second degree felony robbery charges and sentenced to a
term of imprisonment.
2. On or about October 25, 1984, in Philadelphia Common
Pleas Court, case #8312-2836, Cornish was convicted of
third degree felony robbery charges and sentenced to a
term of imprisonment.
3. On or about July 30, 1986, in Philadelphia Common Pleas
Court, case #8505-0939, Cornish was convicted of second
degree felony robbery charges and sentenced to a term
of imprisonment.
(Supp. App. 314a-15a; App. 14a-21a)
12
that they constituted "violent felonies" as defined by 18 U.S.C.
§ 924(e)(2)(B).6 Cornish filed objections to the Presentence
Investigation Report challenging the United States Probation
Office's conclusion that he was subject to an enhanced sentence
pursuant to § 924(e). Cornish conceded that his convictions for
robbery on November 28, 1983 and July 30, 1986 were "violent
felonies" under § 924(e)(2)(B), but objected to the inclusion of
his October 25, 1984 third degree robbery conviction as a
"violent felony." (Supp. App. 317a-18a) In that instance,
Cornish was convicted of robbery, a third degree felony pursuant
to 18 Pa. Cons. Stat. Ann. § 3701(a)(1)(v) (West 1983).7
6 6
18 U.S.C. § 924(e)(2)(B) Code defines a "violent
felony" as:
[A]ny 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; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that
presents a serious potential risk of physical
injury to another.
7 7
The Pennsylvania robbery statute provides:
(a) Offense defined.--
(1) A person is guilty of robbery if, in the course of
committing a theft, 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; or
(v) physically takes or removes property from the person of
another by force however slight.
(2) An act shall be deemed "in the course of committing a
13
The district court did not consider Cornish's conviction for
third degree robbery a "violent felony" pursuant to 18 U.S.C. §
924(e)(2)(B)(i) and thus, calculated Cornish's offense level as
23 with a criminal history category of IV, resulting in a
sentencing range of 100 to 124 months and an actual sentence of
108 months incarceration. United States v. Cornish, No. 94-378,
at 2 (E.D. Pa. Mar. 28, 1996). Had Cornish been classified as an
armed career criminal pursuant to 18 U.S.C. § 924(e), his offense
level would have been 33 with a resulting sentencing range of 235
to 293 months and subject to a 15 year mandatory minimum. Id.;
see also USSG § 4B1.4(b)(3)(B). The government challenges the
district court's ruling that Cornish's third degree felony
robbery conviction was not a "violent felony" and failure to
apply the enhanced penalties of § 924(e).
The Supreme Court has considered the meaning of a "burglary"
as a "violent felony" under 18 U.S.C. § 924(e) in Taylor v.
United States, 495 U.S. 575, 577 (1990). In Taylor, the Court
was asked to determine whether a conviction for second-degree
burglary under Missouri law was sufficient to qualify as a
"violent felony." Id. at 578. The Court rejected the view of
the court of appeals that Congress intended the meaning of
"burglary" under § 924(e)(2)(B)(ii) to be dependent on the
theft" if it occurs in an attempt to commit theft or in
flight after the attempt or commission.
(b) Grading.-- Robbery under subsection (a)(1)(iv) is a felony of
the second degree; robbery under subsection (a)(1)(v) is a
felony of the third degree; otherwise, it is a felony of the
first degree.
18 Pa. Cons. Stat. Ann. § 3701.
14
definition adopted by the state of conviction. Id. at 590. Such
a definition would lead to § 924(e)'s sentence enhancement to be
applied inconsistently for the same conduct by defendants
prosecuted in states that define burglary differently. Id. at
590-91. The Court found that:
[T]he only plausible interpretation of § 924(e)(2)(B)(ii) is
that, like the rest of the enhancement statute, it
generally requires the trial court to look only to the
fact of conviction and the statutory definition of the
prior offense. This categorical approach, however, may
permit the sentencing court to go beyond the mere fact
of conviction in a narrow range of cases where a jury
was actually required to find all the elements of
generic burglary.
Id. at 602 (footnote omitted). In conclusion, the Court held
that, "an offense constitutes 'burglary' for purposes of a §
924(e) sentence enhancement if either its statutory definition
substantially corresponds to 'generic' burglary, or the charging
paper and jury instructions actually required the jury to find
all the elements of generic burglary in order to convict the
defendant." Id.
This circuit has addressed the issue of what constitutes a
"violent felony" pursuant to 18 U.S.C. § 924(e)(2)(B) in United
States v. Preston, 910 F.2d 81 (3d Cir. 1990), cert. denied, 498
U.S. 1103 (1991). In Preston, the court considered whether the
defendant's prior conviction for criminal conspiracy to commit a
robbery constituted a "violent felony" pursuant to 18 U.S.C. §
924(e). Id. at 84. The court approved of the use of a
categorical approach to determine which prior convictions may be
considered by a sentencing court under § 924(e). Id. at 85. The
court noted that, "[w]hen necessary, a sentencing court may refer
15
to the relevant indictment or information papers and the jury
instructions in the prior conviction along with the certified
record of conviction, but the inquiry should not extend beyond
these documents." Id. (citation omitted). In holding that the
crime of conspiracy to commit robbery was a "violent felony"
within the meaning of § 924(e)(2)(B)(i), the court noted that
robbery is a "violent felony" for purposes of § 924(e). Id. at
86 (citing United States v. Palmer, 871 F.2d 1202, 1204 (3d Cir.)
(federal attempted bank robbery conviction "clearly" is a
"violent felony" under § 924(e)), cert. denied, 493 U.S. 890
(1989); United States v. Dickerson, 901 F.2d 579, 584 (7th Cir.
1990) (conviction under state robbery statute constitutes a per
se violent felony for purposes of § 924(e)). Because the court
found that the elements of criminal conspiracy to commit robbery
subsume the elements of robbery, the court held that the use of
threat or physical force was a part of McAllister's prior
conviction for the crime of conspiracy to commit a robbery.
Preston, 910 F.2d at 86-87.
The government further claims that this circuit ruled on
whether a Pennsylvania robbery conviction constitutes a "violent
felony" under § 924(e) in a more recent case dealing with what
proof is required to demonstrate the fact of prior convictions
necessary for § 924(e). United States v. Watkins, 54 F.3d 163
(3d Cir. 1995). In Watkins, the defendant argued for a per se
rule that certified copies of the judgments of conviction should
be required in every case before a sentencing court may determine
that the defendant's prior convictions are "violent felonies."
16
Id. at 168. The court noted that Watson was forced to make this
broad argument because the information in his presentence report
enabled the district court to clearly ascertain the statutes of
conviction, Pennsylvania's burglary and robbery statutes,
encompass only conduct that falls within the scope of §
924(e)(2)(B)(i) and (ii). Id. The court stated that, "[w]e have
previously held that conviction under [18 Pa. Cons. Stat. Ann. §
3701] necessarily involves the 'use or threat of physical force'
which qualifies for ACCA treatment as a 'violent felony.' Id. at
168 n.2 (citing Preston, 910 F.2d at 86-87).
Cornish argues that Preston and Watkins are inapposite as
neither involved a conviction for robbery in the third degree.
Cornish states that both Preston and Watkins involved armed
robberies, which necessarily gave rise to a risk of substantial
bodily injury. See Preston, 910 F.2d at 84; Watkins, 54 F.3d at
164-65. Cornish claims that emphasis should instead be placed on
a case from the D.C. Circuit which dealt with a crime more
closely resembling the third degree robbery for which he was
convicted. See United States v. Mathis, 963 F.2d 399 (D.C. Cir.
1992). In Mathis, the court held that a robbery conviction under
section 22-2901 of the D.C. Code did not constitute a "violent
felony" for purposes of 18 U.S.C. § 924(e). Id. at 409. The
D.C. Code provision at issue provided that:
Whoever by force or violence, whether against resistance
or by sudden or stealthy seizure or snatching, or by
putting in fear, shall take from the person or
immediate actual possession of another anything of
value, is guilty of robbery . . . .
Id. at 401 n.6 (citing D.C. Code Ann. § 22-2901 (1973)). The
17
defendant, with an accomplice, robbed a woman on a moving bus by
"sandwiching" her between them and through "stealthy seizure"
took $30 from her purse. Id. The court of appeals agreed with
the district court's interpretation of the statutory language and
found that the statute had been specifically amended to include
"an unlawful taking of property from the person of another, by
sudden or stealthy seizure or snatching, without violence or
putting in fear, and with the exercise of only sufficient force
to accomplish the actual taking of the property." Id. at 408
(quoting Turner v. United States, 16 F.2d 535, 536 (D.C. Cir.
1926)). The court then held that "stealthy seizure" under
section 22-2901 is not a "violent felony" within the meaning of §
924(e), "because the proof required to satisfy the element of
force in the local statute falls below that which Congress
intended in enacting § 924(e)." Id. at 409. The court, however,
remanded the case to the district court for an examination of the
record of the defendant's robbery conviction (i.e., the jury
instructions and charging papers) to see whether it satisfies the
uniform, federal standard of "use of force" thereby qualifying as
a "violent felony" under § 924(e). Id. at 410.
The Supreme Court of Pennsylvania has held that:
[A]ny amount of force applied to a person while committing a
theft brings that act within the scope of robbery under
[18 Pa. Cons. Stat. Ann.] § 3701(1)(a)(v). . . .
The degree of actual force is immaterial, so long as it is
sufficient to separate the victim from his property in,
on or about his body.
Commonwealth v. Brown, 484 A.2d 738, 741 (Pa. 1984). In Brown,
the defendant ran up from behind the victim, quickly grabbed her
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purse, and ran away. Id. at 740. The Pennsylvania Supreme Court
found that the force used by Brown was a "harmful touching of the
person, accompanied with sufficient force to compel the victim to
part with the conscious control of her property, and supports a
robbery conviction under § 3701." Id. at 742. Moreover, the
court stated that, "[t]his conduct substantially differs from the
case of the thief who merely takes the property of another with
intent permanently to deprive him thereof, using no force or
threat of force on the victim--like the pick-pocket (Chapter 39
of the Crimes Code)." Id. Unlike the D.C. statute, "stealthy
seizure" is not included in Pennsylvania's robbery statute.
Cornish was convicted of third degree robbery pursuant to 18
Pa. Cons. Stat. Ann. § 3701(a)(1)(v), which requires that in the
course of committing a theft, a person "physically takes or
removes property from the person of another by force however
slight." 18 Pa. Cons. Stat. Ann. § 3701(a)(1)(v) (emphasis
added). Based on a literal reading of the statute, the
interpretation of § 3701 by the Pennsylvania Supreme Court, and
this circuit's decisions in Watkins and Preston, we find that any
conviction for robbery under the Pennsylvania robbery statute,
regardless of the degree, has as an element the use of force
against the person of another. We hold that Cornish's conviction
for third degree robbery is a "violent felony" pursuant to 18
U.S.C. § 924(e)(2)(B)(i) and the district court erred in failing
to apply the enhanced penalties of § 924(e). Accordingly, the
case is remanded for resentencing consistent with this opinion.
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