United States v. Darron Henderson ( 2023 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 22-2613
______________
UNITED STATES OF AMERICA
v.
DARRON HENDERSON,
Appellant
______________
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
______________
Argued: July 11, 2023
______________
Before: SHWARTZ, RESTREPO, and CHUNG, Circuit
Judges.
(Filed: August 15, 2023)
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
______________
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
2
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
3
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
The District Court had jurisdiction under 18 U.S.C.
§ 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291and 18 U.S.C. § 3742. We review the District Court’s factual
findings for clear error and its legal conclusions de novo,
United States v. Lowe, 791 F.3d 424, 427 (3d Cir. 2015),
including the Court’s determination that a conviction
constitutes a “crime of violence” under the Guidelines, United
States v. Chapman, 866 F.3d 129, 131 (3d Cir. 2017).
4
(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
5
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 (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
(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.
6
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
2
“An act shall be deemed ‘in the course of committing
a theft’ if it occurs in an attempt to commit theft or in flight
after the attempt or commission.” 18 Pa. Cons. Stat.
§ 3701(a)(2).
7
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 (“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.
3
First-degree felonies are subject to a maximum term
of twenty years’ imprisonment. 18 Pa. Cons. Stat. § 1103(1).
Second-degree felonies are subject to a maximum term of ten
years’ imprisonment. 18 Pa. Cons. Stat. § 1103(2). Third-
degree felonies are subject to a maximum term of seven years’
imprisonment. 18 Pa. Cons. Stat. § 1103(3).
4
Henderson argues on appeal that § 3701 is not
divisible, but he withdrew his divisibility argument before the
District Court and conceded at sentencing that the statute is
divisible. Although Henderson failed to preserve his
challenge, Barna v. Bd. of Sch. Dirs. of Panther Valley Sch.
Dist., 877 F.3d 136, 146-47 & n.7 (3d Cir. 2017) (explaining a
claim is “waived” when intentionally abandoned, and “may not
be resurrected on appeal”), the categorical approach requires
that we determine whether § 3701 is divisible to ensure we are
examining the actual crime of conviction.
8
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, 141 S. Ct.
1817, 1826 (2021).5 As we will explain, subsection (ii) meets
both requirements and thus qualifies as a crime of violence.
5
Borden addressed the elements clause of the ACCA,
which is identical to the elements clause of § 4B1.2(a)(1). See
18 U.S.C.A. § 924(e)(2)(B)(i). Given their similarity, “courts
generally apply authority interpreting one provision to the
other.” United States v. Brasby, 61 F.4th 127, 133 (3d Cir.
2023).
Borden left open the question of whether offenses
requiring a mental state of “extreme recklessness” satisfy the
elements clause. 141 S. Ct. at 1825 n.4. Because this is an
9
1
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, 139 S. Ct. 544, 553
(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 pain,” and “[s]erious bodily
injury” as “[b]odily injury which creates a substantial risk of
death or which causes serious, permanent disfigurement, or
protracted loss or impairment of the function of any bodily
member or organ.” 18 Pa. Cons. Stat. § 2301. Because
subsection (ii) requires proof that the victim was threatened
with, or put in fear of, immediate serious bodily injury, it
contemplates a level of force that is capable of causing physical
pain or injury and therefore satisfies the force provision of
§ 4B1.2(a)’s elements clause. Cf. United States v. McCants,
952 F.3d 416, 428 (3d Cir. 2020) (holding textually similar
open question, we do not address it here and focus our analysis
on whether robbery under subsection (ii) requires that the
offense be committed intentionally or knowingly.
10
New Jersey robbery statute qualified as crime of violence
because it required a threat of “bodily injury”).6
6
United States v. Harris, 289 A.3d 1060 (Pa. 2023), and
its conclusion that Pennsylvania’s aggravated assault statute
does not require force, is not applicable. In Harris, the
Pennsylvania Supreme Court explained that the aggravated
assault statute did not contain a requirement of force and thus
could be violated by an omission. Id. at 1074. The court
observed that the aggravated assault statute does not identify
the “manner of causing a particular bodily injury,” instead
providing only that a defendant must “cause” such injury. Id.
at 1070-71. Like the statutes Harris distinguished from
aggravated assault, such as an “attempt[] by physical menace”
to put others in fear of bodily injury, subsection (ii)
criminalizes a specific act. As we explain in the following
section, subsection (ii)’s “threaten another” language identifies
the act in which the defendant must engage, namely a
declaration directed toward another. Thus, because subsection
(ii) identifies the manner by which the harm must be caused, it
differs from the aggravated assault statute. By identifying the
act, subsection (ii) robbery cannot be committed by omission.
Furthermore, unlike the aggravated assault statute,
subsection (ii) requires that the victim be threatened with or
placed in fear of “immediate” serious bodily injury. Harris is
also distinguishable because in its examination of
Pennsylvania’s aggravated assault statute it relied on a case in
which a mother was charged with aggravated assault through
an act of omission (i.e., starving a child to death), but such an
act would not satisfy the immediacy requirement in subsection
(ii). In the same way, a theft where a nursing home caretaker
who threatens to withhold medication necessary to prevent
11
2
The second question is whether subsection (ii) requires
proof that the defendant acted with a knowing or intentional
state of mind. Subsection (ii) prohibits, in the course of
committing a theft, “threaten[ing] another with or intentionally
put[ting] him in fear of immediate serious bodily injury.” 18
Pa. Cons. Stat. § 3701(a)(1)(ii). The second clause of
subsection (ii) explicitly provides for an intentional state of
mind by making it a crime to “intentionally put[] [another] in
fear of immediate serious bodily injury.” Id. The first clause
adverse medical consequences unless the patient gave the
caretaker money would not satisfy the immediacy
requirement. For this additional reason, Harris is not
applicable.
This result is confirmed by applying the realistic
probability test. Having found that subsection (ii) satisfies
4B1.2(a)(1)’s requisite quantum of force, to demonstrate that
subsection (ii) is yet still broader than § 4B1.2(a)(1),
Henderson must show a “realistic probability, not a theoretical
possibility, that the State would apply its statute” to a threat of
immediate serious bodily injury by omission. Moncrieffe v.
Holder, 569 U.S. 184, 191 (2013). To show such a realistic
probability, “an offender must at least point to his own case or
other cases in which the state courts in fact did apply the statute
in the special [] manner for which he argues.” Gonzales v.
Duenas-Alvarez, 549 U.S. 183, 193 (2007). Because
Henderson has failed to identify any case in which
Pennsylvania applied subsection (ii) to threats of immediate
serious bodily injury by omission, we hold that subsection (ii)
is not broader than § 4B1.2(a)(1) on this basis.
12
lacks the word “intentionally,” stating only that a person is
guilty of a robbery if he “threatens another with . . . immediate
serious bodily injury.” 18 Pa. Cons. Stat. § 3701(a)(1)(ii). The
text, structure, and case law, however, show that the first clause
also captures an intentional or knowing mens rea.
A term in a statute “is given more precise content by the
neighboring words with which it is associated.” United States
v. Williams, 553 U.S. 285, 294 (2008). The Supreme Court
applied this principle in Borden, where the Court considered
two different interpretations of the phrase “use of physical
force against the person of another,” as used in the ACCA. The
parties agreed that the “use of physical force” means the
“volitional” or “active” employment of force but had different
views as to whether “against the person of another” had: (1) a
passive meaning, which supported a mens rea of recklessness;
or (2) an oppositional meaning, which supported a stricter
mens rea. 141 S. Ct. 1817, 1825-1830 (2021). The passive
reading would interpret “against” to mean “making contact
with,” e.g. “waves crashing against the shore.” Id. at 1827(quotations omitted). The oppositional reading of “against”
would interpret the phrase to introduce a “conscious object” or
“intended target” of the force, not a “mere recipient” of the
force by happenstance, e.g. “[t]he general deployed his forces
against a rival regiment.” Id. at 1825-26. The Court adopted
the oppositional interpretation because “against” was paired
with “use of physical force,” and the “pairing of a volitional
action with the word ‘against’ supports that word’s
oppositional, or targeted, definition.” Id. at 1826.
The same interpretation applies here. Viewing
subsection (ii)’s threatens clause in its entirety, the clause
“threatens another with [] immediate serious bodily injury” has
13
an oppositional meaning because the language “another with”
introduces an intended target, not a mere recipient of the threat
by happenstance.
Pennsylvania courts, which are “the ultimate
expositors” of Pennsylvania law, support this interpretation of
“threatens another” in subsection (ii). Mullaney v. Wilbur, 421
U.S. 684, 691 (1975); see also Jackson v. Virginia, 443 U.S.
307, 324 n.16 (1979) (recognizing that States have the power
to define the substantive elements of criminal offenses). Under
Pennsylvania law, the “common and approved usage” of a
word dictates how it is construed within a statute. 1 Pa. Cons.
Stat. § 1903(a). See also Commonwealth v. Griffin, 207 A.3d
827, 830 (Pa. 2019) (“[T]he plain language of the statute itself
provides the clearest indication of legislative intent.”). When
determining a word’s common meaning, Pennsylvania law
directs us to consult a dictionary. See e.g., Chamberlain v.
Unemployment Comp. Bd. of Rev., 114 A.3d 385, 394 (Pa.
2015) (“It is well-established that the common and approved
meaning of a word may be ascertained from an examination of
its dictionary definition.”). Black’s Law Dictionary defined
“threat” at the time § 3701 was enacted as “[a] declaration of
intention or determination to inflict punishment, loss, or pain
on another . . . [; a] declaration of one’s purpose or intention to
work injury to the person, property, or rights of another.” See
Threat, Black’s Law Dictionary (4th ed. 1968). Thus,
interpreting the “threatens another” language to convey an
intentional act, where the perpetrator knowingly states his
intent to harm his victim, is consistent with directives found
within Pennsylvania law.7
7
We acknowledge that the word “threat” alone has
been viewed as an actus reus and does “not carry its own
14
Pennsylvania case law further supports this
interpretation of subsection (ii). In Commonwealth v. Thomas,
546 A.2d 116 (Pa. Super. Ct. 1988), appeal denied, 554 A.2d
509 (Pa. 1989), the state court explained that a defendant
violates subsection (ii) if his threat “was calculated to inflict
fear of serious bodily injury.” Id. at 118. The court’s use of
the word “calculated” suggests that, to commit a violation of
subsection (ii), a defendant must intend to inflict fear of serious
bodily injury on the victim. Id. at 119.
Thus, the clause “threatens another with . . . immediate
serious bodily injury” conveys an intentional act because the
threat must be directed toward another person with the intent
of causing the victim to fear serious bodily injury. See Borden,
141 S. Ct. at 1827; Thomas, 546 A.2d at 119; see also United
States v. Stanford, No. 22-1272, 2023 WL 4835133 (3d Cir.
July 28, 2023) (holding that Delaware robbery, 11 Del. C.
§ 831(a), qualifies as a crime of violence under the elements
clause because it “requires the intentional use or threatened use
of immediate force ‘upon another person,’” and thus involves
force that is “consciously directed” toward a victim (quoting
implicit mens rea,” Larios v. Att’y Gen., 978 F.3d 62, 71 (3d
Cir. 2020) (citing Bovkun v. Ashcroft, 283 F.3d 166, 170 (3d
Cir. 2002)); see also Counterman v. Colorado, 143 S. Ct. 2106,
2117-18 (2023) (recognizing that a threat is an act that does not
embody a particular mens rea and acknowledging that a threat
may be committed recklessly), but here, where “threatens” is
coupled with a word of directionality, such as “another,” the
phrase “threatens another” provides insight into the state of
mind with which that threat occurs. Thus, our consideration of
the dictionary definition of “threat” is not inconsistent with
Larios.
15
Borden, 141 S. Ct. at 1826)).8 Because the “plain language of
the statute is the best indication of the legislature’s intent,” In
re B.W., 250 A.3d 1163, 1171 (Pa. 2021), and the language of
subsection (ii) requires intentional conduct, we need not rely
on the Pennsylvania Criminal Code’s default mens rea
provision to identify the applicable state of mind for violating
subsection (ii). We therefore conclude that subsection (ii)
embodies an intentional mens rea.
Because subsection (ii) involves the requisite force and
mens rea to qualify as a crime of violence under § 4B1.2’s
elements clause, we need not decide whether it is also one of
the crimes listed in the enumerated offenses clause. 9
8
Henderson asserts that reading a mens rea of intent into
the first clause of subsection (ii) would render the word
“intentionally” in the second clause superfluous. However, the
first clause’s use of the phrase “threatens another” addresses a
specific type of act, namely a communication that conveys an
intent to harm, and therefore the legislature did not need to use
the word “intentionally” to convey a knowing or intentional
mens rea. The second clause uses the phrase “intentionally
puts him in fear.” Without the use of the word “intentionally,”
conduct that “puts another in fear” could cover reckless
actions. Thus, unlike the first clause, the inclusion of the word
“intentionally” in the second clause is necessary to
demonstrate the legislature’s intent to punish only knowing or
intentional conduct.
9
Pennsylvania courts have viewed § 3701(a)(1)(ii) as
“substantially identical in nature and definition” to federal
bank robbery under 18 U.S.C. § 2113(a), Commonwealth v.
Taylor, 831 A.2d 661, 665-66 (Pa. Super. Ct. 2003), and we
have held § 2113(a) to be a crime of violence under
16
III
For the foregoing reasons, we will affirm.
§ 4B1.2(a)(1), United States v. Wilson, 880 F.3d 80, 85 (3d
Cir. 2018). This provides further support for the view that
subsection (ii) qualifies as a § 4B1.2(a) crime of violence.
17