United States v. Brown

• Decision Date: 04 November 2014
• Docket Number: No. 13–4442.,13–4442.
• Citation: 765 F.3d 185
• Parties: UNITED STATES of America v. Gregory Garrett BROWN, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

765 F.3d 185

UNITED STATES of America

v.Gregory Garrett BROWN, Appellant.

No. 13–4442.

United States Court of Appeals,Third Circuit.

Argued June 12, 2014.

Opinion filed Sept. 2, 2014.

As Amended Nov. 4, 2014.

Thomas W. Patton, (Argued), Assistant Federal Public Defender, Office of Federal Public Defender, Erie, PA, Counsel for Appellant.

Rebecca Ross Haywood, (Argued), Assistant U.S. Attorney, Office of the United States Attorney, Pittsburgh, PA, Counsel for Appellee.

Before: AMBRO and BARRY, Circuit Judges, and RESTANI,^* Judge.

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, ––– U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), overrules Mahone. At issue is how far beyond 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 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, ––– U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (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 “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.

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 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 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, 110 S.Ct. 2143, 109 L.Ed.2d 607 (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, 110 S.Ct. 2143. 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 “modified categorical approach.” Id. at 2283. Under this approach, if a statute is divisible, a court may...