United States v. Ibrahim McCants , 920 F.3d 169 ( 2019 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 17-3103
___________
UNITED STATES OF AMERICA
v.
IBRAHIM McCANTS,
Appellant
__________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2-15-cr-00551-001)
District Judge: Honorable Esther Salas
___________
Argued September 6, 2018
Before: HARDIMAN, KRAUSE, and BIBAS,
Circuit Judges.
(Filed: April 5, 2019)
Leticia Olivera [Argued]
Louise Arkel
Office of Federal Public Defender
1002 Broad Street
Newark, NJ 07102
Attorneys for Appellant
Mark E. Coyne
Richard J. Ramsay [Argued]
Office of United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102
Attorneys for Appellee
Brett G. Sweitzer
Federal Community Defender Office
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
Attorney for Amicus Appellant
____________
OPINION OF THE COURT
____________
HARDIMAN, Circuit Judge.
Ibrahim McCants appeals his judgment of conviction
and sentence. McCants argues he was wrongly convicted based
on evidence that was found during an unconstitutional search.
He also claims his sentence cannot stand because he was
wrongly designated a career offender under the United States
2
Sentencing Guidelines. For the reasons that follow, we will
affirm.
I
On the afternoon of June 28, 2015, a New Jersey woman
dialed 911 to report an ongoing domestic dispute. Here’s how
the call went:
CALLER: Can I have the number to East Orange
Police Department.
DISPATCHER: You need where?
CALLER: East Orange Police Department. It’s
[sic] emergency.
DISPATCHER: What’s the problem?
CALLER: This guy is out here beating up his
girlfriend. He’s about to kill her.
DISPATCHER: Where’s this at?
CALLER: It’s on Grove Street in East Orange.
DISPATCHER: Grove and—where on Grove?
CALLER: Grove and, and, and like Williams
Street.
DISPATCHER: What is he wearing?
CALLER: He’s wearing a red hat, with braids
and he’s beating her up really bad right now I
wanna break—I wanna break it up but, I don’t
wanna do nothing.
3
DISPATCHER: No—you don’t want to do that.
Stay—hold on a second, ma’am.
United States v. McCants, No. 15-551, 2016 WL 4705452, at
*1 (D.N.J. Sept. 7, 2016). As the operator was preparing to
dispatch police to the scene of the altercation, the caller
repeated “he is beating her up really badly” and stated, “I think
he has a gun.” Id. The caller then hung up and the operator
dispatched the call in this way:
Grove and William, Grove and William, right
now from a caller, it’s a male beating a female
really badly, male has braids with a red hat . . . .
Again, it’s going to be Grove and William. Male,
female. Male beating a female. Male has braids
red hat—at this time, I am advising the caller not
to intervene . . . . Now she is saying she believes
he has a gun . . . . Red hat and braids. Alright, the
caller disconnected.
Id.
East Orange police were in the area at the time the call
was dispatched and they found a man matching the description
near 146 Grove Street within one minute. Officer Moses
Sangster was the first to arrive on the scene. He “noticed a male
with dreads and a red hat” walking north on Grove Street with
a woman. App. 76. The couple was later identified as Appellant
Ibrahim McCants and Chelsea Fulton. Two other officers—
Stephen Rochester and Cory Patterson—also arrived on the
scene within minutes after hearing the call. Before they
approached the couple, Officer Rochester confirmed with the
dispatcher that “the male actor involved had dreadlocks.” App.
78. Officers Rochester and Patterson then “immediately
4
engaged” McCants and frisked him due to the “nature of the
call for service.” Id. During the pat down, Officer Rochester
found a loaded handgun inside a fanny pack McCants was
wearing. The officers placed McCants under arrest and
recovered distributable quantities of heroin.
Several written police reports described the interactions
between McCants and Fulton when the officers arrived at the
scene. Officer Rochester reported that he observed McCants
“speaking with a black female.” Id.1 Both McCants and Fulton
confirmed in separate interviews they had been arguing,
though Fulton said, “at no point did the argument get physical.”
App. 82. Officer Crystal Singleton and Detective Jaleesa Wreh
reported that Fulton showed no signs of injury.
II
A grand jury charged McCants with unlawful
possession of a firearm by a convicted felon in violation of 18
U.S.C. § 922(g)(1) and possession with intent to distribute
heroin in violation of 21 U.S.C. §§ 841(a) and (b)(1)(C).
McCants filed a pretrial motion to suppress the firearm and
drugs and requested an evidentiary hearing on the motion,
arguing the officers did not have reasonable suspicion that he
was engaged in criminal activity before they frisked him. The
1
Although the parties largely agreed on the facts, they
disputed whether McCants and Fulton were arguing when the
officers arrived. The Government claimed they were “yelling
at each other.” McCants, 2016 WL 4705452, at *2. But
McCants argued in his motion to suppress they were not and
Fulton corroborated McCants’s account in an affidavit. The
District Court did not make any factual findings regarding this
dispute.
5
Government opposed the motion, and the District Court denied
it without oral argument. The Court found that the stop was
based on reasonable suspicion because the caller’s
“anonymous tip bore sufficient indicia of reliability.”
McCants, 2016 WL 4705452, at *7.
The District Court then conducted a stipulated bench
trial, and McCants was found guilty as charged on both counts.
The United States Probation Office prepared a Presentence
Investigation Report (PSR) in which it designated McCants a
career offender. McCants objected to the PSR, arguing that his
two previous second-degree robbery convictions in New Jersey
did not qualify as crimes of violence under § 4B1.2 of the
Sentencing Guidelines. Had the convictions not qualified as
crimes of violence, his advisory range would have been
lowered from 168–210 months to 63–78 months under
Guidelines § 2K2.1. The District Court overruled McCants’s
objection, concluding that his two prior robbery convictions
qualified as crimes of violence. At sentencing, the Court varied
downward, imposing a sentence of 120 months’ imprisonment
followed by three years of supervised release. McCants timely
appealed.
III
The District Court had jurisdiction under 18 U.S.C.
§ 3231 and we have jurisdiction under 28 U.S.C. § 1291 and
18 U.S.C. § 3742(a). McCants argues that the District Court
erred in denying his motion to suppress and in finding that his
prior robbery convictions qualified as crimes of violence under
Guidelines § 4B1.2. 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). We
review de novo the Court’s determination that a conviction
6
constitutes a “crime of violence” under the Guidelines. United
States v. Chapman, 866 F.3d 129, 131 (3d Cir. 2017).
IV
We begin by addressing McCants’s argument that he
was wrongly convicted because the District Court admitted
into evidence the fruits (drugs and a gun) of an unconstitutional
search. The dispositive question underlying this argument is
whether the anonymous 911 tip provided sufficient indicia of
reliability for reasonable suspicion of ongoing criminal
activity.
The Fourth Amendment prohibits “unreasonable
searches and seizures.” U.S. CONST. amend. IV. Although
searches generally require warrants supported by probable
cause, officers may conduct brief investigatory stops under
Terry v. Ohio, 392 U.S. 1 (1968), if they have “reasonable,
articulable suspicion that criminal activity is afoot.” Illinois v.
Wardlow, 528 U.S. 119, 123 (2000). Such reasonable suspicion
requires “at least a minimal level of objective justification for
making the stop” and more than an “inchoate and
unparticularized suspicion or ‘hunch’” of criminal activity. Id.
at 123–24 (internal quotation marks omitted) (quoting Terry,
392 U.S. at 27). We evaluate the totality of the circumstances
in considering “whether a reasonable, trained officer standing
in [the officer’s] shoes could articulate specific reasons
justifying [the] detention.” United States v. Brown, 448 F.3d
239, 246–47 (3d Cir. 2006) (internal quotation marks omitted)
(quoting Johnson v. Campbell, 332 F.3d 199, 206 (3d Cir.
2003)).
A body of caselaw has developed over the years
involving anonymous reports to police of criminal activity.
7
These tips can provide reliable information helpful to
investigations and can create reasonable suspicion of ongoing
criminal activity. Navarette v. California, 572 U.S. 393, 397
(2014). Whether an anonymous tip provides enough
information for reasonable suspicion depends “upon both the
content of information possessed by police and its degree of
reliability.” Alabama v. White, 496 U.S. 325, 330 (1990).
Our Court has identified five factors that indicate
reliability for anonymous tips:
(1) The tip information was relayed from the
informant to the officer in a face-to-face
interaction such that the officer had an
opportunity to appraise the witness’s credibility
through observation.
(2) The person providing the tip can be held
responsible if her allegations turn out to be
fabricated.
(3) The content of the tip is not information that
would be available to any observer. . . .
(4) The person providing the information has
recently witnessed the alleged criminal activity.
(5) The tip predicts what will follow, as this
provides police the means to test the informant’s
knowledge or credibility[.]
United States v. Torres, 534 F.3d 207, 211 (3d Cir. 2008)
(ellipsis in original). In assessing the reliability of a tip, courts
within the Third Circuit must consider these factors with
8
reference to the totality of the circumstances presented in each
case. Id.
Here, the District Court found that “the [c]aller’s
anonymous tip bore sufficient indicia of reliability,” which
provided the officers with reasonable suspicion to stop and
frisk McCants consistent with Terry. McCants, 2016 WL
4705452, at *7. In the District Court’s view, the tip sufficed
because the caller used the 911 system to report firsthand
knowledge of ongoing domestic violence, and she gave an
accurate description that was quickly confirmed by the police.
McCants argues that the 911 call could not have
provided the officers with reasonable suspicion to justify the
stop for two main reasons: (1) the tip was vague and did not
demonstrate sufficient indicia of reliability; and (2) the officers
did not find corroborating evidence of domestic violence at the
scene. These arguments are unpersuasive in light of controlling
precedent.
First, McCants contends that the 911 call was unreliable
because it was akin to the bare-bones tip deemed inadequate
by the Supreme Court in Florida v. J.L., 529 U.S. 266 (2000).
In J.L., the police received an anonymous call “that a young
black male standing at a particular bus stop and wearing a plaid
shirt was carrying a gun.” Id. at 268. The Supreme Court held
that this “bare report of an unknown, unaccountable informant”
who did not explain the basis for his tip lacked sufficient
indicia of reliability. Id. at 271. But the facts of McCants’s
appeal differ from J.L. in important respects. Here, the 911
caller gave a firsthand account of ongoing criminal activity, as
well as a highly specific and accurate description of the
suspect’s location, clothing, and hair. In J.L., the informant
reported significantly fewer details and described potentially
9
innocuous behavior without explaining why the informant
thought the subject was committing (or was about to commit)
a crime. Because of these differences, we disagree with
McCants that the 911 call mirrors the limited and vague report
in J.L.
As the Government argues, the indicia of reliability in
McCants’s case are like those in Navarette v. California. The
Supreme Court there concluded that a tip created reasonable
suspicion of drunk driving because it was highly specific,
based on substantially contemporaneous eyewitness
knowledge, and reported over the 911 system. Navarette, 572
U.S. at 399–401. The Court explained that the eyewitness’s
firsthand knowledge of ongoing criminality “lends significant
support to the tip’s reliability.” Id. at 399. So too here, where
police were able to confirm the detailed description of the
suspect within minutes of the call. In fact, McCants was
engaged by police much more quickly than was Navarette, who
wasn’t stopped until eighteen minutes after the dispatcher’s
call. Id. In Navarette, the Supreme Court also reasoned that the
911 call bolstered the tip’s credibility because the system’s
ability to identify callers is a safeguard against false reports. Id.
at 400. Although 911 calls are not per se reliable and the police
in this case did not identify the caller, the informant’s use of
the 911 system here adds to the tip’s reliability in the same way
it did in Navarette.
Relatedly, McCants argues that the District Court did
not give adequate consideration to three of the reliability
factors we identified in Torres: the lack of face-to-face
interaction between the informant and police; the absence of
predictive information in the call; and the fact that the content
of the caller’s tip was available to any observer. Although it is
true that the 911 call here does not present all of the reliability
10
factors, this deficiency does not preclude a finding of
reasonable suspicion because, as we have explained, “a tip
need not bear all of the indicia—or even any particular
indicium—to supply reasonable suspicion.” Torres, 534 F.3d
at 213. Accordingly, the District Court did not err when it
concluded that the tip was sufficiently reliable because it met
two of the factors: the informant “recently witnessed the
alleged criminal activity,” McCants, 2016 WL 4705452, at *5
(quoting Brown, 448 F.3d at 249–50), and can be “held
responsible if her allegations turn out to be fabricated,” id. at
*6 (quoting Brown, 448 F.3d at 249).
McCants next argues that “[n]o reasonable officer
would have stopped and frisked” him based on an allegation of
ongoing domestic violence when Fulton, the putative victim,
showed no signs of injury. McCants Br. 30. This argument too
is contrary to the Supreme Court’s decision in Navarette,
where the officers followed Navarette’s car for five minutes
without noticing any sign of drunk driving. The absence of
corroborative evidence, the Court held, did not negate the
reasonable suspicion created by the 911 call. Navarette, 572
U.S. at 403–04. In the Court’s opinion, “[o]nce reasonable
suspicion of drunk driving arises, ‘[t]he reasonableness of the
officer’s decision to stop a suspect does not turn on the
availability of less intrusive investigatory techniques.’” Id. at
404 (quoting United States v. Sokolow, 490 U.S. 1, 11 (1989)).
In considering the officers’ reasonable inferences about
Fulton’s demeanor, we note that we have given “considerable
deference to police officers’ determinations of reasonable
suspicion given their own experience and specialized training
to make inferences from and deductions about the cumulative
information available to them that might well elude an
untrained person.” United States v. Graves, 877 F.3d 494, 499
11
(3d Cir. 2017) (internal quotation marks omitted) (quoting
United States v. Brown, 765 F.3d 278, 290 (3d Cir. 2014)), cert.
denied, 139 S. Ct. 159 (2018). And as the District Court noted,
the Seventh Circuit addressed the circumstances common to
domestic violence calls while upholding a Terry stop under
facts similar to those presented in this appeal. See United States
v. Wooden, 551 F.3d 647 (7th Cir. 2008).
In Wooden, the police responded to an anonymous
report that a tall, black male wearing a black jacket and blue
jeans was arguing with his girlfriend and had drawn a gun at a
specific location. Id. at 648. The police conducted a pat-down
even though the couple was chatting amicably when the
officers arrived. Id. at 648, 650. In upholding the stop, the
Seventh Circuit recognized that the report implied the need for
a hasty response. Id. at 650. The court observed, along with
other factors supporting reasonable suspicion, that “domestic
violence comes and goes” and there is a “risk that an armed
man may threaten the woman with him” with future violence
if she does not remain calm when police arrive. Id.
McCants’s argument regarding Fulton’s demeanor does
not give proper weight to law enforcement officers’
experiences and training regarding domestic violence. He
contends that while it was “plausible that the suspect car in
Navarette was observed driving normally after running
someone off the road,” no officer could have reasonable
suspicion of ongoing domestic violence after approaching
Fulton, who was composed and unscathed. McCants Br. 32.
This comparison to Navarette is unpersuasive: considering
officers’ experiences, it might be less plausible that a drunk-
driving suspect could drive normally for five minutes than that
Fulton might appear calm and uninjured during her interaction
with the police. See Wooden, 551 F.3d at 650. For these
12
reasons, the District Court did not err in deferring to the
officers’ reasonable inferences regarding Fulton’s demeanor in
light of the 911 call.
In sum, viewing all the circumstances, the anonymous
tip bore sufficient indicia of reliability and provided the
officers with reasonable suspicion that justified the Terry stop.
The caller used the 911 system to report an eyewitness account
of domestic violence and provided the officers with a detailed
description of the suspect and location, both of which were
quickly confirmed by the police. Accordingly, we hold that the
District Court did not err in denying McCants’s motion to
suppress the evidence collected during the Terry stop.
V
We turn next to the sentence imposed upon McCants.
The District Court agreed with the Probation Office that
McCants is a career offender because two of his prior
convictions for second-degree robbery in New Jersey qualify
as crimes of violence under the Sentencing Guidelines. The
Guidelines define a “crime of violence” as any felony offense
under state or federal law that:
(1) has as an element the use, attempted use, or
threatened use of physical force against the
person of another [the “elements” clause], 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
13
defined in 18 U.S.C. § 841(c) [the “enumerated
offense” clause].
Guidelines § 4B1.2(a).
A
We use the categorical approach to determine whether
a prior conviction is a predicate offense for a crime-of-violence
sentencing enhancement. United States v. Ramos, 892 F.3d
599, 606 (3d Cir. 2018). In doing so, we “compare the elements
of the statute under which the defendant was convicted to the
[G]uidelines’ definition of crime of violence.” Id. (quoting
United States v. Wilson, 880 F.3d 80, 83 (3d Cir. 2018)).
McCants’s designation as a career offender was based
on two convictions under N.J. STAT. ANN. § 2C:15-1, which
provides:
a. Robbery defined. A person is guilty of robbery
if, in the course of committing a theft, he:
(1) Inflicts bodily injury or uses force upon
another; or
(2) Threatens another with or purposely puts him
in fear of immediate bodily injury; or
(3) Commits or threatens immediately to commit
any crime of the first or second degree.
....
b. Grading. Robbery is a crime of the second
degree, except that it is a crime of the first degree
14
if in the course of committing the theft the actor
attempts to kill anyone, or purposely inflicts or
attempts to inflict serious bodily injury, or is
armed with, or uses or threatens the immediate
use of a deadly weapon.
N.J. STAT. ANN. § 2C:15-1.
We can look beyond the elements of the statute for this
comparison only if it is “divisible” and lists “elements in the
alternative, and thereby define[s] multiple crimes.” Mathis v.
United States, 136 S. Ct. 2243, 2249 (2016). The statute is
phrased disjunctively, using “or” to offset subsections (a)(1)
through (a)(3). Such a statute is divisible if it lists “elements”
of the offense and not “means” of committing that offense. Id.
at 2248. “‘Elements’ are the ‘constituent parts’ of a crime’s
legal definition—the things the ‘prosecution must prove to
sustain a conviction.’” Id. (quoting Elements of Crime,
BLACK’S LAW DICTIONARY (10th ed. 2014)). “At a trial, they
are what the jury must find beyond a reasonable doubt to
convict the defendant, and at a plea hearing, they are what the
defendant necessarily admits when he pleads guilty.” Id.
(citation omitted). “Means,” on the other hand, are “various
factual ways of committing” a single element. Id. at 2249.
McCants insists the New Jersey robbery statute is
indivisible because the alternatives in subsections (a)(1)–(3)
are means, rather than elements. He contends that under
Mathis, alternatively-phrased statutes contain elements only
when each subsection carries different punishments, which is
not true of the New Jersey robbery statute. We disagree. In
Mathis, the Supreme Court explained that “the statute on its
face may resolve the issue” of characterizing alternatives. Id.
at 2256. In doing so, the Court used differences in punishment
15
as an example of a clear statutory clue, not as the only
permissible textual analysis. See id.
We agree with the Government that the New Jersey
robbery statute sets out alternative elements for sustaining a
conviction rather than the means of committing the offense.
Crimes comprise elements; means illustrate ways of satisfying
individual elements. If the subsections of § 2C:15-1 were
means, they would list “diverse means of satisfying a single
element” of robbery. Id. at 2249 (emphasis added). But the
statute does not identify an individual element of which
subsections (a)(1)-(3) are mere examples—it states no
overarching genus of which they are species. Instead, it lists in
the disjunctive three separately enumerated, alternative
elements of robbery.
By contrast, in Mathis, the burglary statute defined
burglary to require “enter[ing] an occupied structure,” IOWA
CODE § 713.1, and gave as examples of an occupied structure
“any building, structure, [or] land, water, or air vehicle,” id.
§ 702.12. Thus, the element (the genus) for burglary was an
occupied structure and the means (the species) were any
building, structure, or land, water, or air vehicle. Here, the
alternative elements for robbery are (a)(1)-(3) and the means
are the various types of force, threats, and crimes that could
satisfy those subsections. Structurally, § 2C:15-1 puts
subsections (a)(1)-(3) on the level of elements, not means.
Subsections (a)(1)–(3) are elements because each
requires different proof beyond a reasonable doubt to sustain a
second-degree robbery conviction. Under (a)(1), the
prosecutor must prove that the defendant inflicts injury or uses
force upon another person. However, the defendant need only
threaten or place another person in fear of immediate bodily
16
injury under (a)(2), or threaten to commit another first- or
second-degree crime under (a)(3).
Our conclusion would be different if McCants could
show “that a jury” in New Jersey “need not make any specific
findings (or a defendant admissions) on” which of these
subsections a defendant violated. Mathis, 136 S. Ct. at 2249. If
“[a] jury could convict even if some jurors conclude[d] that the
defendant [violated (a)(1)] while others conclude[d] that he
[violated (a)(2)],” then the subsections would be means, not
elements. Id. (internal quotation marks omitted). Because
McCants makes no such showing, we rely on the phrasing and
structure of § 2C:15-1 to hold that subsections (a)(1)-(3) list
elements, not means.
This analysis parallels our decision in United States v.
Blair, 734 F.3d 218 (3d Cir. 2013), where we held that
Pennsylvania’s similar robbery statute was divisible because of
its “clearly laid out alternative elements.” Id. at 225. McCants
argues that our reasoning in Blair has been abrogated by
Mathis. But this argument is a nonstarter because earlier this
year we reaffirmed that the Pennsylvania robbery statute is
divisible. United States v. Peppers, 899 F.3d 211, 232 (3d Cir.
2018) (citing Mathis, 136 S. Ct. at 2256; Blair, 734 F.3d at
225).2 Because N.J. STAT. ANN. § 2C:15-1 lays out alternative
2
We held that this Pennsylvania robbery statute, which
was alternatively-phrased, is divisible:
(1) A person is guilty of robbery if, in the course
of committing a theft, he:
(i) inflicts serious bodily injury upon another;
17
(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.
Peppers, 899 F.3d at 231 (quoting 18 PA. CONS. STAT.
§ 3701(a) (June 24, 1976 to May 16, 2010)). Unlike the New
Jersey statute, a few subsections of the Pennsylvania statute
carried different penalties. Robbery under subsection (a)(1)(iv)
was a second-degree felony, while subsection (a)(1)(v) was a
third-degree felony. Otherwise, robberies under the other
subsections were first-degree felonies. Id.
In Ramos, we explained that a similarly-structured
Pennsylvania assault statute is divisible two ways. 892 F.3d at
606. First, the statute “proscribes two alternative degrees of
aggravated assault, which are subject to different maximum
sentences.” Id. at 609. Second, we found “the statute is further
divisible into four, alternative second-degree aggravated
assault offenses” because the statute uses disjunctive language
to list alternative elements—rather than alternative factual
means for committing the offense—in each subsection. Id.
Accordingly, disjunctive language setting out elements that
must be proved beyond a reasonable doubt can independently
show the statute is divisible on its face.
18
elements upon which prosecutors can sustain a second-degree
robbery conviction, we hold that the statute is divisible.
B
Having determined that the relevant statute is divisible,
we must ascertain whether McCants’s New Jersey robbery
convictions were predicate offenses that render him a career
offender. For divisible statutes, we use the modified
categorical approach to decide whether the defendant was
convicted of a qualifying offense under the Guidelines.
Shepard v. United States, 544 U.S. 13, 19–20, 26 (2005). This
gives us recourse to the “Shepard documents”—which include
the charging document, guilty plea allocution, jury
instructions, and judgment of conviction—to determine the
subsection upon which the conviction was based. United States
v. Brown, 765 F.3d 185, 189–90 (3d Cir. 2014).
Although the charging documents do not state explicitly
which subsection of the statute McCants was convicted under,
they do indicate that McCants was charged with violent
crimes.3 And a review of McCants’s plea colloquy leads
necessarily to the conclusion that he pleaded guilty to violating
subsection (a)(2) of the New Jersey robbery statute. Therein,
McCants acknowledged using force in committing both
robberies. Regarding the first robbery offense on December 13,
2003, the court asked McCants: “On that day did you attempt
or succeed by the use of threat of force, in taking some items
from an individual in the City of Newark?” App. 266. He
3
The first robbery indictment charges that McCants
used or threatened the use of what the victim perceived as a
deadly weapon. The second indictment charges that he
threatened the use of a deadly weapon.
19
responded, “Yeah.” App. 267. Regarding the second robbery
offense on April 28, 2004, the court asked McCants: “And on
that occasion did you take or attempt to take from an individual
by the threat of force some items?” Id. He again responded,
“Yes.” Id. We agree with the Government that McCants’s
admissions that he threatened or attempted to threaten another
with force is evidence of guilt under subsection (a)(2), which
requires that a defendant “[t]hreaten[] another with or
purposely put[] him in fear of immediate bodily injury.”
Although McCants concedes that the colloquy shows he
did not plead guilty under subsection (a)(1), which requires the
use of force, he makes two semantic arguments that his
admissions do not fall under subsection (a)(2). First, he
contends the colloquy does not address injury or fear, which he
believes are required by the statute. Second, he argues his
admissions regarding force do not equate to threats of
immediate bodily injury. Taken together, he claims the
colloquy allows for the possibility that he was convicted under
subsection (a)(3), which does not require violent force.
We disagree that McCants’s colloquy shows he could
have been convicted under subsection (a)(3). First, his
semantic arguments are inconsistent with the plea colloquy.
His admissions of attempting or successfully using threat of
force to take items from individuals most closely match
subsection (a)(2). Second, McCants points to nothing in the
colloquy permitting even the inference that he pleaded guilty
under subsection (a)(3). Had McCants pleaded guilty to
subsection (a)(3), he would have needed to admit that he
committed or threatened to commit another crime. Yet his plea
colloquy makes reference to neither. Because he could not
have pleaded guilty to subsection (a)(3) and McCants concedes
he was not convicted under subsection (a)(1), the only logical
20
choice is subsection (a)(2). Thus, we have no reason to
overturn the District Court’s finding that the natural reading of
the plea colloquy is that McCants’s two prior robbery
convictions fall under N.J. STAT. ANN. § 2C:15-1(a)(2).
C
Finally, we must decide whether McCants’s convictions
under subsection (a)(2) are predicate offenses under either the
“elements” clause or the “enumerated offense” clause of
§ 4B1.2(a) of the Guidelines. In our view, they satisfy both.
Under the elements clause (§ 4B1.2(a)(1)), a conviction
qualifies if it “has as an element the use, attempted use, or
threatened use of physical force against the person of another.”
We have explained that the “use of physical force . . . involves
the intentional employment of something capable of causing
physical pain or injury to another person, regardless of whether
the perpetrator struck the victim’s body.” Chapman, 866 F.3d
at 133 (internal quotation marks omitted). Subsection (a)(2) of
the robbery statute requires that the defendant “[t]hreaten[]
another with or purposely put[] him in fear of immediate bodily
injury.” N.J. STAT. ANN. § 2C:15-1(a)(2). In New Jersey,
“bodily injury” is defined as “physical pain, illness or any
impairment of physical condition.” Id. § 2C:11-1(a). Under
both the Guidelines and New Jersey definitions, the defendant
must place another in fear of physical pain or injury. Because
§ 4B1.2(a)(1) does not mandate physical contact, New Jersey’s
definition of “bodily injury” falls within the Guidelines’
definition of “crime of violence.” Accordingly, we hold that
McCants’s conviction under subsection (a)(2) qualifies as a
crime of violence under the elements clause of § 4B1.2(a)(1)
of the Guidelines.
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We reach the same result with regard to the enumerated
offense clause (§ 4B1.2(a)(2)), which lists “robbery” as a crime
of violence. When the Guidelines specifically list an offense,
we “compare the elements of the crime of conviction to the
generic form of the offense as defined by the States, learned
treatises, and the Model Penal Code.” United States v.
Marrero, 677 F.3d 155, 165 (3d Cir. 2012) (quoting United
States v. Lockley, 632 F.3d 1238, 1242 (11th Cir. 2011)),
vacated on other grounds, 570 U.S. 929 (2013). The
defendant’s prior conviction qualifies as a crime of violence if
“the statutory definition of the prior conviction ‘substantially
corresponds’ to the generic definition of the offense.” Id.
(quoting Taylor v. United States, 495 U.S. 575, 602 (1990)).
McCants and the Government agree that “the generic
definition of robbery is . . . the taking of property from another
person or from the immediate presence of another person by
force or by intimidation.” App. 199. We held in Graves that
“generic robbery requires no more than de minimis force” to
meet this definition. 877 F.3d at 503. In evaluating whether
McCants’s robbery convictions qualify as crimes of violence
under the enumerated offense clause, we must determine
whether the New Jersey statute is broader than the generic
offense.
Subsection (a)(2) requires that the defendant
“[t]hreaten[] another with or purposely put[] him in fear of
immediate bodily injury.” N.J. STAT. ANN. § 2C:15-1(a)(2).
We agree with the Government that subsection (a)(2) falls
within the definition of generic robbery because the statute
requires the threat of bodily injury, which involves more
force—and is therefore categorically narrower—than de
minimis force, Graves, 877 F.3d at 504. Accordingly, we hold
that McCants’s convictions under subsection (a)(2) qualify as
22
crimes of violence under the enumerated offense clause of
§ 4B1.2(a)(2). Therefore, the District Court rightly designated
McCants a career offender because his two prior convictions
for second-degree robbery in New Jersey qualified as crimes
of violence under the Guidelines.
* * *
The District Court did not err in denying McCants’s
motion to suppress or in imposing his sentence. We will affirm
the judgment of conviction and sentence.
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