United States v. Gregory Brown , 765 F.3d 185 ( 2014 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 13-4442
________________
UNITED STATES OF AMERICA
v.
GREGORY GARRETT BROWN,
Appellant
________________
Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal Action No. 1-11-cr-00034-001)
District Judge: Honorable Maurice B. Cohill, Jr.
________________
Argued June 12, 2014
Before: AMBRO and BARRY, Circuit Judges,
and RESTANI,* Judge
(Opinion filed: September 2, 2014)
*
Honorable Jane A. Restani, Judge, United States Court of
International Trade, sitting by designation.
Thomas W. Patton (Argued)
Assistant Federal Public Defender
Office of Federal Public Defender
1001 State Street
1111 Renaissance Centre
Erie, PA 16501
Counsel for Appellant
Rebecca Ross Haywood (Argued)
Assistant U.S. Attorney
Office of the United States Attorney
700 Grant Street, Suite 4000
Pittsburgh, PA 15219
Counsel for Appellee
________________
OPINION OF THE COURT
________________
AMBRO, Circuit Judge
Gregory Garrett Brown appeals the decision of the
District Court enhancing his sentence on a finding that he is a
career offender. For that finding, the Court followed the
approach set out by our Court in United States v. Mahone,
662 F.3d 651 (3d Cir. 2011). Brown contends the Supreme
Court’s decision in Descamps v. United States, 133 S. Ct.
2276 (2013), overrules Mahone. At issue is how far beyond
2
the literal words of a criminal statute a judge may inquire to
find that a prior conviction qualifies for the career offender
enhancement.
I. Background
In 2010, while serving time in state custody for
another offense, Brown mailed a threatening letter to
Magistrate Judge Susan Baxter. Judge Baxter presided over
the earlier dismissal of Brown’s habeas petition. In the letter,
Brown intimated that upon his release from custody he
planned to kill Judge Baxter and former District Judge Sean
McLaughlin. Following an investigation, Brown pled guilty
to mailing a threatening communication in violation of
18 U.S.C. § 876(c).
A presentence investigation report (“PSR”)
recommended, among other things, that Brown be sentenced
pursuant to the career offender enhancement in the United
States Sentencing Guidelines. That enhancement applies to a
defendant convicted under § 876(c) if he has “at least two
prior felony convictions of either a crime of violence or a
controlled substance offense.” U.S.S.G. § 4B1.1(a). The
PSR’s recommendation was based on four prior offenses in
Brown’s criminal history: (1) a 1986 conviction for
aggravated assault, in violation of 18 Pa. Cons. Stat. § 2702;
(2) a 2004 conviction for making terroristic threats, in
violation of 18 Pa. Cons. Stat. § 2706; (3) a 2005 conviction
also for making terroristic threats, in violation of § 2706; and
(4) a 2005 conviction for retaliating against a judicial officer,
in violation of 18 Pa. Cons. Stat. § 4953.1. The two 2005
convictions arose from the same conduct.
A pair of concessions by the parties limited the dispute
at sentencing and similarly limits the breadth of our review on
appeal: Brown concedes that his 1986 conviction qualifies as
3
a crime of violence for purposes of the enhancement, and the
Government does not contend that the 2005 retaliation
conviction so qualifies. Thus the parties’ arguments at
sentencing focused on whether either of Brown’s two
convictions for making terroristic threats in violation of
§ 2706 counted as qualifying (called predicate) offenses for
purposes of the enhancement.
The definitional part of the Pennsylvania statute
divides violations into three categories, only the first of
which—§ 2706(a)(1)—can be a predicate offense. That
Brown’s convictions, the Government contended, were
predicate offenses was conclusively decided by an earlier
case, United States v. Mahone, 662 F.3d 651 (3d Cir. 2011),
which held that some, but not all, violations of subsection
(a)(1) were predicate offenses and that a sentencing judge
may inquire further to determine if the facts of a prior
conviction qualified. Among other arguments, Brown
countered that Mahone is no longer controlling in light of
Descamps v. United States, 133 S. Ct. 2276 (2013), in which
the Supreme Court held that a sentencing court may not look
to the facts underlying a prior conviction but instead must
look to its elements.
Before the sentencing hearing, Judge Cohill issued
tentative findings rejecting Brown’s argument. Relying on
Mahone, he concluded that a violation of subsection (a)(1)
was a crime of violence (thus a predicate offense under the
Guidelines) and that the documents underlying Brown’s
conviction demonstrated that he was convicted under that
subsection in 2004. He also determined that the 2005
terroristic threats conviction did not qualify as a predicate
offense because the documents supporting that conviction did
not definitively establish under which subsection of the
statute Brown was convicted. Addressing the effect of
Descamps, Judge Cohill explained that Mahone was at most
4
“overruled in its analysis of the FACTS of the case for
making a determination of career offender, not the case’s
determination of (a)(1) as a crime of violence.” App. at 10
n.5 (emphasis in original). He thus applied the career
offender enhancement based on Brown’s 1986 aggravated
assault conviction and his 2004 terroristic threats conviction.
The enhancement raised Brown’s offense level and his
criminal history category, more than doubling his
recommended Guidelines’ sentence from 30-37 months to 77-
96 months. The Court sentenced Brown to 84 months’
imprisonment. This timely appeal followed.
II. Jurisdiction and Standard of Review
The District Court had jurisdiction pursuant to 18
U.S.C. § 3231. We exercise appellate jurisdiction under 28
U.S.C. § 1291 and 18 U.S.C. § 3742. “Whether a prior
conviction constitutes a crime of violence for purposes of the
career offender Guideline is a question of law over which we
exercise plenary review.” United States v. Marrero, 743 F.3d
389, 393 (3d Cir. 2014).
III. Discussion
On appeal, Brown contends that the career offender
enhancement did not apply to him because he has only one
predicate “crime of violence” in his criminal history (the 1986
aggravated assault conviction) and the Guidelines require two
predicate offenses for the enhancement to apply. The
Government responds that either the 2004 or the 2005
terroristic threats conviction supplies the necessary second
predicate offense. Brown asserts that his convictions under
the Pennsylvania terroristic threats statute are not “crimes of
violence” as defined by the Guidelines.
5
We conclude that, in light of the Supreme Court’s
explanation in Descamps, Brown’s convictions under 18 Pa.
Cons. Stat. § 2706 are not “crimes of violence” for purposes
of the Guidelines’ career offender enhancement. In effect,
Descamps abrogated the portion of Mahone that held
otherwise.
A. The Career Offender Enhancement
Under the Guidelines, the career offender enhancement
applies to a defendant if:
(1) [he] was at least eighteen years old at the
time [he] committed the instant offense of
conviction; (2) the instant offense of conviction
is a felony that is either a crime of violence or a
controlled substance offense; and (3) [he] has at
least two prior felony convictions of either a
crime of violence or a controlled substance
offense.
U.S.S.G. § 4B1.1(a). The issue here is the third criterion—
whether the 2004 (or 2005) conviction is a “crime of
violence.” How we go about deciding that issue, and what we
can consider in doing so, takes up much of what follows.
The Guidelines define a “crime of violence” in
relevant part as any crime punishable by more than a year of
imprisonment that “has 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).1 Sentencing courts
1
A prior conviction may also be a “crime of violence” if it “is
burglary of a dwelling, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.” U.S.S.G.
6
examining a prior conviction to determine whether it is a
federally defined “crime of violence” must apply a
categorical approach. United States v. Abbott, 748 F.3d 154,
157 (3d Cir. 2014) (citing Descamps, 133 S. Ct. at 2283).2
Under this approach sentencing courts “compare the elements
§ 4B1.2(a)(2). This category, which has an analog in the
Armed Career Criminal Act (ACCA), see 18 U.S.C.
§ 924(e)(2)(B)(ii), is sometimes referred to as the list of
“generic crimes” or “generic offenses.” See Descamps, 133
S. Ct. at 2282. Nothing in § 4B1.2(a)(2) states that a threat to
commit a generic crime is itself a “crime of violence,” and the
Government has never argued that Brown’s § 2706
convictions fall under § 4B1.2(a)(2).
2
Although Abbott and Descamps involved sentencing
enhancements under the ACCA, rather than the career
offender enhancement in the Guidelines, they nonetheless
bind our analysis. “Precedent . . . requires the application of
case law interpreting ‘violent felony’ in [the] ACCA to ‘crime
of violence’ in U.S.S.G. § 4B1.2[ ] because of the substantial
similarity of the two sections.” Marerro, 743 F.3d at 394 n.2
(second alteration added) (internal quotation marks and
citation omitted). See also United States v. Hopkins, 577 F.3d
507, 511 (3d Cir. 2009) (“[T]he definition of a violent felony
under the ACCA is sufficiently similar to the definition of a
crime of violence under the Sentencing Guidelines that
authority interpreting one is generally applied to the
other . . . .”). Both before and after Descamps we have
consistently applied the categorical approach to
determinations under the career offender enhancement.
Compare United States v. Stinson, 592 F.3d 460, 462 (3d Cir.
2010), with Marrero, 743 F.3d at 395, and United States v.
Jones, 740 F.3d 127, 133 (3d Cir. 2014).
7
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 an
ACCA predicate only if the statute’s elements are the same
as, or narrower than, those of the generic offense.”
Descamps, 133 S. Ct. at 2281. In practice, courts “may ‘look
only to the statutory definitions’—i.e., the elements—of a
defendant’s prior offenses, and not ‘to the particular facts
underlying those convictions.’” Id. at 2283 (emphasis in
original) (quoting Taylor v. United States, 495 U.S. 575, 600
(1990)). In the ordinary case of identifying whether a prior
conviction fits the § 4B1.2(a)(1) definition, 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.” United States v. Remoi, 404 F.3d 789, 794 (3d Cir.
2005) (internal quotation marks omitted). 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. See Descamps, 133 S. Ct. at 2283 (explaining that a
defendant convicted of a burglary statute that “sweeps more
broadly” than the ACCA’s generic burglary offense is not
subject to the enhancement “even if the defendant actually
committed the offense in its generic form”).
However, there is a “narrow range of cases” whereby a
court can look beyond the fact of conviction and examine
certain record evidence from the conviction to determine
whether the prior offense is a crime of violence. Taylor, 495
U.S. at 602. In Descamps, the Supreme Court explained that
when a statute is “divisible”— i.e., “comprises multiple,
alternative versions of the crime”—a sentencing court may
look to a limited class of extra-statutory documents to
determine which version of the offense was the basis of
conviction. 133 S. Ct. at 2284. This is known as the
8
“modified categorical approach.” Id. at 2283. Under this
approach, if a statute is divisible, a court may consult “the
charging paper and jury instructions” when the conviction
resulted from a jury trial, Taylor, 495 U.S. at 602, or, when
the conviction resulted from a guilty plea, “the charging
document, written plea agreement, transcript of plea colloquy,
and any explicit factual finding by the trial judge to which the
defendant assented.” Shepard v. United States, 544 U.S. 13,
16 (2005). The modified categorical approach still “retains
the categorical approach’s central feature: a focus on the
elements, rather than the facts, of a crime.” Descamps, 133 S.
Ct. at 2285. It simply allows a sentencing court “to examine
a limited class of documents to determine which of a statute’s
alternative elements formed the basis of the defendant’s prior
conviction.” Id. at 2284 (emphasis added).
It bears repeating that the modified categorical
approach is “applicable only to divisible statutes.” Id.;
accord id. at 2285 (“[T]he modified approach merely helps
implement the categorical approach when a defendant was
convicted of violating a divisible statute.”). In Descamps, for
example, the Supreme Court held that the modified approach
could not be applied to the California burglary statute at issue
because it had a “single, indivisible set of elements.” Id. at
2282. To explain the difference between a divisible and
indivisible statute, and why the modified categorical approach
may be used only with the former, the Court imagined a
hypothetical assault statute that simply required the “use of a
‘weapon,’” as opposed to a specific list of weapons. Id. at
2289 (internal quotation marks omitted). Including a
“weapon” as an element of the crime makes the statute
indivisible because it creates only an “implied list” of the
ways the offense may be committed rather than an explicit list
of ways to commit the crime. Id. (emphasis in original). A
sentencing court should not examine extra-statutory
documents (such as a charging document or guilty plea) and
9
find that a defendant committed a predicate gun crime based
on a conviction under such an indivisible statute because,
[a]s long as the statute itself requires only an
indeterminate “weapon,” that is all the
indictment must (or is likely to) allege and all
the jury instructions must (or are likely to)
mention. And most important, that is all the
jury must find to convict the defendant. The
jurors need not all agree on whether the
defendant used a gun or a knife or a tire iron (or
any other particular weapon that might appear
in an imagined divisible statute), because the
actual statute requires the jury to find only a
“weapon.” And even if in many cases[] the jury
could have readily reached consensus on the
weapon used, a later sentencing court cannot
supply that missing judgment. Whatever the
underlying facts or the evidence presented, the
defendant still would not have been convicted,
in the deliberate and considered way the
Constitution guarantees, of an offense with the
same (or narrower) elements as the supposed
generic crime (assault with a gun).
Id. at 2290.
By contrast, a statute is “divisible” when it “list[s]
potential offense elements in the alternative.” Id. at 2283.
For example, continuing with the Supreme Court’s
hypothetical, it considered for analysis an assault statute that
prohibits assault with a “gun, axe, sword, baton, slingshot,
knife, machete, bat,” “grenade[], pipe bomb[], spear[], tire
iron[], BB gun[], nunchucks, [or] crossbow[].” Id. at 2289-90
(internal quotation marks omitted). Under such a statute, if
assault with a gun is categorically (that is, always) a predicate
10
offense, then a sentencing court may examine the documents
underlying a defendant’s conviction to see whether he was
charged with and convicted of using a gun. Id. at 2290.
Furthermore, a sentencing court should apply the
modified approach to a divisible statute and examine extra-
statutory documents only when “at least one, but not all” of
the separate versions of the offense is, by its elements, a
predicate offense. Id. at 2285. As the Fourth Circuit has
explained, “[g]eneral divisibility . . . is not enough; a statute is
divisible for purposes of applying the modified categorical
approach only if at least one of the categories into which the
statute may be divided constitutes, by its elements, a crime of
violence.” United States v. Cabrera-Umanzor, 728 F.3d 347,
352 (4th Cir. 2013) (emphasis in original) (citing Descamps,
133 S. Ct. at 2285).
The modified categorical approach is perhaps best
explained by a generic example. Imagine a defendant
previously convicted for violating Statute X. In considering
whether that prior conviction is a predicate offense, a
sentencing should first determine whether a violation of X is,
no matter the circumstances of the particular crime, always a
crime of violence. If so, it is a predicate offense under the
regular categorical approach and there is no need to analyze
the statute any further. If, on the other hand, the court
determines that X is overbroad (i.e., it covers some conduct
that is a crime of violence and some that is not), the court
should then inquire whether X is divisible. If the court
determines that X is generally divisible into, say, three
versions of the offense—subsections a, b and c—it should
next determine whether any of these subsections (for
example, X(a)) is, by its particular elements, always a
federally defined crime of violence. If so, then the court may
apply the modified categorical approach to determine whether
11
the defendant was convicted under X(a). That is the typical
way in which the modified categorical approach operates.
This case probes how far the modified categorical
approach logically extends if a statute is divisible into
subparts but no version of the offense (a, b or c) is in all
circumstances a crime of violence. May a sentencing court
nonetheless look to extra-statutory documents to see whether
the particular offense a defendant committed was a crime of
violence? Or must the Court halt its analysis and find that the
conviction is not a predicate offense? Descamps, which took
a hard line on how the modified categorical approach
operates, requires the latter. If a statute is generally divisible
into multiple versions, but each version is overbroad (covers
at least some conduct that is not a crime of violence) and
indivisible (cannot be further divided into sub-versions based
on the elements), the extra-statutory documents are irrelevant
and a sentencing court’s analysis has reached a dead-end: the
prior conviction is not a predicate offense. See Descamps,
133 S. Ct. at 2283.
We now turn to the particular statute—the
Pennsylvania terroristic threats statute, 18 Pa. Cons. Stat.
§ 2706—underlying Brown’s 2004 and 2005 convictions.
B. The Terroristic Threats Statute
Descamps instructs that we focus on the elements of
the offense rather than Brown’s particular conduct in
committing the offense. Section 2706 prohibits
communicat[ing], either directly or indirectly, a threat
to:
(1) commit any crime of violence with
intent to terrorize another;
12
(2) cause evacuation of a building, place
of assembly or facility of public
transportation; or
(3) otherwise cause serious public
inconvenience, or cause terror or serious
public inconvenience with reckless
disregard of the risk of causing such
terror or inconvenience.
18 Pa. Cons. Stat. § 2706(a).
Because § 2706(a) is phrased in the disjunctive—
“describing three variations of the same offense”—the statute
is divisible into subsections (a)(1), (a)(2), and (a)(3), Mahone,
662 F.3d at 654,3 and we apply the modified categorical
approach to discern which of the three versions of the offense
a defendant was convicted of if at least one of the versions by
its elements is a crime of violence in all instances. Descamps,
133 S. Ct. at 2285. The provision “encompasses some crimes
that could be committed by using, attempting to use, or
threatening to use ‘physical force against the person of
another,’ as well as against another person’s property.”
Mahone, 662 F.3d at 653 (emphasis in original). Crimes
threatened, attempted, or committed against the person of
another may fit the applicable Guidelines’ definition of a
“crime of violence”—“the use, attempted use, or threatened
use of physical force against the person of another,” U.S.S.G.
§ 4B1.2(a)(1)—while crimes against property do not. Id.
Subsection (a)(1) is thus the only version of the offense that
3
We cite to Mahone frequently in our analysis of § 2706 even
though Descamps supersedes it. We do so because, as
explained below, Mahone was abrogated only in part. Thus
much of its analysis of the Pennsylvania terroristic threat
statute still guides our analysis here.
13
potentially qualifies as a “crime of violence” because only it
may involve an intentional threat to use force against a
person. Id. at 654-55.
But a determination that a defendant was previously
convicted under § 2706(a)(1) does not end the inquiry. The
subsection prohibits threatening to “commit any crime of
violence with intent to terrorize another,” yet it does not
define what is a “crime of violence.” Though we might think
Pennsylvania’s definition matches the definition in the
Guidelines, thereby making any violation of § 2706(a)(1) a
predicate offense, we cannot conclude that without further
application of the categorical approach. See Mahone, 662
F.3d at 655 (“We cannot conclude at this step in our analysis
that the statutory variation in § 2706(a)(1) categorically
qualifies as a [crime of violence] . . . because this variation of
the statute contains the undefined term ‘crime of violence.’”).
As we observed in Mahone, another Pennsylvania
statute defines a “crime of violence” for purposes of
sentencing. 42 Pa. Cons. Stat. § 9714(g); Mahone, 662 F.3d
at 655 (citing United States v. Ortiz-Gomez, 562 F.3d 683,
685-86 (5th Cir. 2009)). Included within that definition is a
version of arson that does not necessarily “ha[ve] 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);
see Ortiz-Gomez, 562 F.3d at 686 (citing 18 Pa. Cons. Stat.
§§ 3301(a)(1) and 9714(g)) (observing that in Pennsylvania
arson can be committed by “start[ing] a fire for the purpose of
damaging a structure . . . regardless of whether a person is
present”). Because in Pennsylvania arson can exist
“regardless of whether a person is present,” that crime would
not be included in the Guidelines’ definition of a “crime of
violence.” Mahone, 662 F.3d at 655-56 (quoting Ortiz-
Gomez, 562 F.3d at 686). Hence a threat to commit arson
with intent to terrorize another—a violation of § 2706(a)(1)—
14
would not be a predicate offense under § 4B1.2(a) of the
Guidelines. Id. at 655-56.4
A violation of § 2706(a)(1) thus may sometimes be a
“crime of violence” as defined by the Guidelines (for
example, threatening to commit murder) and sometimes not
(for example, threatening to commit arson). See id. at 656.
Moreover, unlike the hypothetical assault statute from
Descamps that listed each type of weapon, § 2706(a)(1) does
not list each crime of violence, and thus it is also indivisible.
See Descamps, 133 S. Ct. at 2290. Because the
categorization of a § 2706 offense depends on a fact
underlying the conviction (the crime the defendant
threatened) that is not an element of the offense, Descamps
instructs that the statute is overbroad and indivisible as to
(a)(1) and thus fails as a predicate offense under the
categorical approach. See 133 S. Ct. at 2281-82 (prohibiting
a court from looking to an offender’s underlying conduct to
determine that a prior conviction qualifies as a predicate
offense when “the elements of the crime fail to satisfy [the]
categorical test”). The Supreme Court unambiguously
rejected this so-called “modified factual” approach. Id. at
2287 (internal quotation marks and citation omitted). It
explained that the problem is that this approach “asks not
whether ‘statutory definitions’ necessarily require an
adjudicator to find [a crime of violence], but instead whether
the prosecutor’s case realistically led the adjudicator to make
that determination.” Id.
4
One might wonder why a threat to commit arson does not
qualify as a predicate offense under § 4B1.2(a)(2) of the
Guidelines. See supra note 1. The Government has never
argued that it does, perhaps because subsection (a)(2) covers
the offense of arson, not the threat to commit arson.
15
Mahone, which was decided before Descamps, applied
precisely the sort of “modified factual” approach the Supreme
Court has since disavowed. In Mahone, the criminal record
of the defendant included a conviction under a nearly
identical predecessor to the current Pennsylvania terroristic
threats statute. 662 F.3d at 653. He was charged with
“threaten[ing] to commit the violent crime of criminal
homicide with intent to terrorize [the victim].” Id. at 656.
The plea colloquy’s factual recitation included the allegation
that Mahone threatened to kill the victim, which he admitted
by pleading guilty. Id.
Mahone appealed the sentencing judge’s application of
the enhancement, and we affirmed. Id. at 652. We concluded
that, although subsection (a)(1) covered some conduct that
would not be a “crime of violence” under the Guidelines,
because Mahone was in fact charged with, and thus convicted
of, threatening a federally defined “crime of violence,”
criminal homicide, his § 2706 conviction qualified as a
predicate offense under the career offender enhancement. Id.
at 657.
Descamps overrode that conclusion. Like the burglary
statute there that criminalized simple shoplifting and
“define[d] burglary more broadly than the generic offense”
under the ACCA, 133 S. Ct. at 2285 (internal quotation marks
omitted), we now hold that § 2706(a)(1) is overbroad in that it
criminalizes conduct that is not always considered a federally
defined “crime of violence.” Hence a violation of the statute
is categorically not a predicate offense for purposes of the
career offender enhancement. See Descamps, 133 S. Ct. at
2283 (“[I]f the statute sweeps more broadly than the generic
crime, a conviction under that law cannot count as an ACCA
predicate, even if the defendant actually committed the
offense in its generic form.”). Descamps thus supersedes the
portion of Mahone that held otherwise.
16
C. Application of the Career Offender
Enhancement to Brown
Returning to our case, the District Court, relying on
Mahone, analyzed the facts underlying Brown’s conviction,
rather than focusing on the legal elements of the alleged
predicate offense, to determine that Brown’s 2004 terroristic
threats conviction qualified for the career offender
enhancement. No doubt, given the facts surrounding Brown’s
2004 and 2005 convictions, they would appear to be “crimes
of violence” to a layperson. The PSR explains that in 2004
Brown repeatedly threatened to harm two correctional
officers at the Erie County Prison, including threats to murder
the officers. The charging document for the 2004 offense
alleges that Brown stated, among other things, “When I get
out of here, I’m gonna murder you bitch.” In 2005, much like
the current offense of conviction, Brown apparently sent a
letter to a state court judge in Erie, Pennsylvania, in which he
threatened to kill the judge.
But Descamps rejects that approach; the factual
circumstances of the conviction are not what matter, the key
is the elements of the crime. As we explained above and in
Mahone, subsection (a)(1) of the Pennsylvania terroristic
threats statute (the subsection under which Brown concedes
he was convicted) is overbroad because, in using the
undefined term “crime of violence,” it covers at least one
factual circumstance—threatening to commit arson—that
does not meet the Guidelines’ definition of a “crime of
violence.” “The modified [categorical] approach . . . has no
role to play[,]” Descamps, 133 S. Ct. at 2285, because no
single subsection of § 2706, by its elements, can be
categorized exclusively as a crime of violence and thus may
not qualify as a predicate offense for the enhancement.
17
Other Circuit Courts that have examined a statute that
contains multiple versions of an offense, none of which is
categorically a crime of violence by its elements, have
similarly concluded that the modified categorical approach
does not apply to those statutes. In Cabrera-Umanzor, the
Fourth Circuit was faced with a Maryland child abuse statute
that was “generally divisible” into two categories: physical
abuse and sexual abuse. 728 F.3d at 352 (emphasis in
original). The plea agreement demonstrated that the
defendant was convicted of committing sexual abuse, but that
category “d[id] not, by its elements, constitute any of the
potentially applicable crimes of violence enumerated in the
Guidelines Commentary.” Id. at 350, 352-53. The Court
concluded that the Maryland statute is “therefore not divisible
in the manner necessary to warrant application of the
modified categorical approach.” Id. at 353. Similarly, the
Sixth Circuit, while examining a Tennessee robbery statute,
applied Descamps’ categorical approach as follows:
Descamps may give the false impression that
the presence of a divisible statute of conviction
alone confers on a court the ability to turn to
certain approved, extra-statutory documents.
However, that is not so. The Supreme Court in
Descamps, in analyzing a defendant’s
conviction for burglary, repeated the caveat that
“[o]ur decisions authorize review of the plea
colloquy or other approved extra-statutory
documents only when a statute defines burglary
. . . alternatively, with one statutory phrase
corresponding to the generic crime and another
not.”
United States v. Mitchell, 743 F.3d 1054, 1064 (6th Cir. 2014)
(alteration and emphasis in original) (quoting Descamps, 133
S. Ct. at 2286). Finally, in United States v. Tucker, 740 F.3d
18
1177 (8th Cir. 2014) (en banc), the Eighth Circuit refused to
apply the modified categorical approach to a Nebraska escape
statute that criminalized certain types of escapes, only some
of which qualified as predicate offenses, where the version of
the offense of conviction was not, by its elements, a crime of
violence. See id. at 1182.
While the above speaks of other Circuits, the
Government, as it should, cites to our recent decision in
United States v. Blair, 734 F.3d 218 (3d Cir. 2013), and
argues that, where a statute is divisible at some level (here,
into subsections (a)(1), (a)(2), and (a)(3)), a sentencing court
may look to the extra-statutory documents to identify not only
the subsection of conviction but also to determine whether the
particular circumstances of the offense within that subsection
comprise a “crime of violence.” See Gov’t Br. at 39-40
(citing Blair, 734 F.3d at 224-25). We agree that, at first
blush, Blair appears to condone the analysis applied by the
District Court here. But a careful reading of that opinion,
which dealt with a different statute (18 Pa. Cons. Stat.
§ 3701), leads us to conclude that the portion of Blair on
which the Government relies does not apply to our case.
Blair’s prior robbery convictions resulted in his
sentence as a career offender under the ACCA. On appeal we
decided whether a robbery conviction in Pennsylvania that
did not reference the applicable subsection of the statute was
a violent felony under the ACCA. As here, three alternative
versions of the offense were at issue. We considered whether
the modified categorical approach could be used to determine
that Blair was convicted under the “least culpable” of those,
§ 3701(a)(1)(iii). Blair, 734 F.3d at 225-26. That part of the
statute makes it a crime in the course of a theft to “commit[ ]
or threaten[ ] immediately to commit any felony of the first or
second degree.” § 3701(a)(1)(iii). Like Mahone and the
District Court here, our Court concluded that Blair’s
19
conviction was a violent felony under the ACCA because the
extra-statutory documents demonstrated that he committed or
threatened to commit during the course of the theft an
aggravated assault—a felony “in the first or second degree
. . . [that] clearly involves violence.” Id. at 222-23.
Blair argued, among other things, that though
§ 3701(a)(1) as a whole is divisible into subsections (i), (ii),
and (iii), the last, and applicable, subsection is not further
divisible by the type of felony committed or threatened. He
contended (similar to Brown’s argument here) that
§ 3701(a)(1)(iii) is overbroad and indivisible because “some
felonies of the first and second degree involve no violence.”
Id. at 225. We assumed Blair was correct that the subsection
was “indivisible and categorically overbroad,” yet rejected his
argument. Id. We did so despite conceding that “Descamps
makes it clear that if the relevant statute is indivisible . . . and
. . . overbroad . . . , then the sentencing court cannot apply the
modified categorical approach,” id. at 224. The Government
seizes on the language rejecting Blair’s argument:
There is no precedent for the argument that a
sentencing court, having launched on the
modified categorical approach, should stop
when it gets to a statutory subsection and
determine again whether to proceed with that
approach and whether it can consider
documents it has already reviewed. . . . [T]he
documents that the District Court had reviewed
as part of the modified categorical analysis
plainly state that the felonies associated with
[Blair’s] 1991 robbery convictions were
“aggravated assault.” The search for the
applicable subsection in the relevant statute
does not send the sentencing judge into a state
of amnesia. To shift the metaphor, the blinders
20
are already off, and there is no requirement to
pretend otherwise.
Id. at 225-26 (citation omitted); see also Gov’t Br. at 35-36.
Applying this logic to our case, the Government argues
that, because § 2706(a) is broadly divisible into subsections
(a)(1), (a)(2), and (a)(3), once the sentencing court looked to
the charging document and jury instructions to determine
under which of those three subsections Brown was convicted,
it was also free to use those documents to determine whether
the particular circumstances of Brown’s conviction under
§ 2706(a)(1) fit the federal definition of a “crime of
violence.” Only in that way, the argument goes, are the
blinders off.
Though one may question the correctness of the above
excerpt in Blair as a general matter,5 it is distinguishable. By
5
The issue primarily would involve Blair’s statement that a
sentencing court can apply the modified categorical approach
to a statutory subsection that is “indivisible and categorically
overbroad.” Blair, 734 F.3d at 225. We understand the
instinct that there is an unjust cost for looking away from the
facts of that case. In 1991, Blair pled guilty to four counts of
first-degree robbery, in the process admitting that he
committed or threatened to commit aggravated assault in the
course of a theft. Blair, 734 F.3d at 221, 226. That certainly
seems like a violent felony. But Descamps instructs that it is
the elements, not the facts, of a prior conviction that matter,
see Descamps, 133 S. Ct. at 2287, and the elements in
§ 3701(a)(1)(iii)—“any felony [in Pennsylvania] of the first
or second degree”—include both felonies that are violent and
those that are not. As a result, sentencing judges, at least for
subsections not divisible solely by looking at their written
21
its own terms, a make-believe “state of amnesia” confined
only to textual elements does not apply where the sentencing
court has already embarked on a permitted use of the
modified categorical approach. See Blair, 734 F.3d at 225
(“There is no precedent for the argument that a sentencing
court, having launched on the modified categorical approach,
should stop when it gets to a statutory subsection and
determine again whether to proceed with that approach and
whether it can consider documents it has already reviewed.”);
id. at 226 (“Descamps does not demand a recursive process
wherein a district court that has already pursued the modified
categorical approach in addressing a divisible statute is
required to ignore the charging documents and guilty pleas it
has just reviewed.”). But where, as is our case, no version of
a terroristic threats offense under § 2706(a) has elements that
fit fully (that is, always) a crime of violence, a sentencing
court may not use the modified categorical approach at all.
See Descamps, 133 S. Ct. at 2285; Mahone, 662 F.3d at 654-
55; Cabrera-Umanzor, 728 F.3d at 352-53; Mitchell, 743
F.3d at 1064. Accordingly, the District Court could not apply
the modified categorical approach in the first place and Blair
does not control.
IV. Conclusion
The Supreme Court’s concluding remarks in
Descamps all but decide this case: “[The defendant]
may . . . have broken and entered, and so committed generic
burglary [under the ACCA]. But [the California burglary
statute]—the crime of which he was convicted—does not
elements, may look no further no matter how well they
understand the actual facts contained in extra-statutory
documents.
22
require the factfinder (whether jury or judge) to make that
determination.” 133 S. Ct. at 2293. So too here, Brown may
have threatened to murder persons in 2004 and 2005 and so
committed a “crime of violence.” But § 2706(a)—the crime
of which he was convicted—does not require the jury to make
that determination. Thus the modified categorical approach
has no permitted use. Because this holding applies equally to
the 2004 and 2005 terroristic threats convictions of Brown,
and the Government does not argue that any other offense in
his criminal history qualifies as a predicate offense, the career
offender enhancement did not apply to him.
We make no comment on the correct sentence for
Brown. Under 18 U.S.C. § 3553(a), the District Court has the
discretion to fashion an appropriate sentence under the factors
noted therein and in doing so is free to take into account his
pattern of behavior over the years, including his conduct in
2004 and 2005. We hold only that, in light of the Supreme
Court’s ruling in Descamps, the career offender enhancement
is not available in this case. We thus vacate Brown’s
judgment of sentence and remand for resentencing.
23