United States v. Harris

• Docket Number: 17-1861
• Decision Date: 27 November 2023
• Citation: 88 F.4th 458
• Parties: UNITED STATES of America v. Marc James HARRIS, Appellant
• Court: U.S. Court of Appeals — Third Circuit

88 F.4th 458

UNITED STATES of America v. Marc James HARRIS, Appellant

No. 17-1861

United States Court of Appeals, Third Circuit

November 27, 2023

Josh A. Davison, Esq., Bernadette A. McKeon, Esq., Robert A. Zauzmer, Esq., Office of United States Attorney, Philadelphia, PA, for Plaintiff-Appellee.

Brett G. Sweitzer, Esq., Federal Community Defender Office for the Eastern District of Pennsylvania, Philadelphia, PA, for Defendant-Appellant.

Present: CHAGARES, Chief Judge, JORDAN, HARDIMAN, KRAUSE, RESTREPO, BIBAS, PORTER, MATEY, PHIPPS, MONTGOMERY-REEVES, CHUNG, AMBRO,^*FUENTES^*, Circuit Judges

ORDER SUR PETITION FOR REHEARING EN BANC

L. Felipe Restrepo, Circuit Judge

The petition for rehearing en banc filed by appellee in the above-entitled case having been submitted to the judges who participated in the decision of this Court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the judges of the circuit in regular service not having voted for rehearing, the petition for rehearing en banc by the Court, is denied.Judge Jordan, joined by Chagares, C.J., and Hardiman, Krause, Bibas, Porter, & Matey, JJ., files the attached concurrence.

Jordan, J., amended concurring in denial of rehearing en banc, joined by Chagares, C.J., and Hardiman, Krause, Bibas, Porter, & Matey, JJ.

We recognize that our decision today declining en banc reconsideration of this matter will be a source of great frustration for the government.Frustration is the gift that the "categorical approach" keeps on giving.This peculiar analytical construct has forced us and other courts to reach perverse outcomes in many, many cases, this one being only the latest.¹And even when the result of applying the categorical approach sometimes makes sense, time and effort is often wasted because a more obvious route to the sensible result is readily available.Even worse is the difficulty of justifying the categorical approach and its outcomes to the citizenry we serve.The public may not care whether anyone finds the categorical approach frustrating, but they do care about justice, and we are unable to explain how our holding in this case satisfies basic notions of right and wrong.Despairing of that, we write to describe why the outcome here is compelled by precedent and to highlight why changes in the categorical approach are needed.

For those who may not be familiar with the categorical approach, we provide a brief overview of its origin and development, with particular focus on the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), the legislation that, along with another firearms statute, 18 U.S.C. § 924(c), and the Immigration and Nationality Act("INA"), 8 U.S.C. § 1101, et seq., has been the primary seedbed for this extraordinary doctrine.We then explain how application of the categorical approach regularly generates unjust results and taxes judicial resources.We conclude by explaining our support for a more fact-based approach that would maintain key aspects of Supreme Court precedent while allowing courts to take account of an individual's actual conduct and, hence, provide real justice.²

First, however, we provide a summary of the facts in this case and a defense of our decision to decline en banc review.

I.Background

A. Harris's Convictions

Marc Harris has a long rap sheet.In 2010, he pled guilty in federal court to yet another crime: being a felon in unlawful possession of a firearm, a violation of 18 U.S.C. § 922(g).His earlier convictions in Pennsylvania state courts became relevant in that federal proceeding because he was sentenced to enhanced penalties under ACCA.³To be subject to such penalties, a defendant must have at least three prior convictions for crimes that qualify as violent felonies or serious drug offenses.A "violent felony" is defined in ACCA to include "any crime punishable by imprisonment for a term exceeding one year . . . that . . . has as an element the use, attempted use, or threatened use of physical force against the person of another[.]"18 U.S.C. § 924(e)(2)(B)(i).That particular definition is contained in what has come to be called the "elements clause" or the "force clause" of ACCA.⁴

Among Harris's prior convictions is one for first-degree aggravated assault under § 2702(a)(1) of title 18 of Pennsylvania's consolidated statutes, and the District Court relied on that conviction when it sentenced him under ACCA on the federal gun-possession charge.During the hearing at which Harris pled guilty, the government described the facts behind his § 2702(a)(1) conviction.He had snatched a woman's purse, and, shortly thereafter, when the woman recognized him on the street and fled into her home, he shot a gun at the residence, narrowly missing a neighbor who had been with the woman and was following her inside.(Revised Answering Br.at 6.)When the District Court asked Harris if those facts were true, he said yes.(Id.)

The Pennsylvania statute at issue specifies that "[a] person is guilty of aggravated assault if he . . . attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life[.]"18 Pa. Cons. Stat. § 2702(a)(1).By its terms, the statute is aimed at punishing violent crimes.If some additional indication of legislative intent were needed, the title "Aggravated assault" should suffice.⁵The District Court decided that Harris's first-degree aggravated assault conviction was a qualifying ACCA predicate and, with that and his other offenses, he should receive an enhanced sentence.Later, when Supreme Court precedent called into question the contours of ACCA,⁶ Harris filed a motion under 28 U.S.C. § 2255,⁷ which the District Court denied.We reversed that denial, and the government's present petition for rehearing en banc (the "Petition") seeks to overturn our ruling.

B.The Categorical Approach Applied to Harris

If one not versed in the intricacies of the categorical approach read the foregoing and thought that shooting a gun at someone is obviously enough to support a conviction for aggravated assault under § 2702(a)(1), which, again, is the pertinent state statute, he'd be right.Gunplay will indeed get you convicted of first-degree aggravated assault in Pennsylvania.But if, in turn, the reader thought a conviction for that shooting would constitute a violent felony under ACCA, he would be dead wrong, even if the victim was literally dead.Thanks to the categorical approach, that felony is not "violent" for ACCA purposes, because the categorical approach does not deal well with the obvious.It attends only to theoretical possibilities, taking no account of the defendant's actual conduct and asking only what other conduct in some other casemight be prosecuted under the statute of conviction.

Here's how it works: one examines the text of the statute under which the earlier conviction in question was obtained - in this case, § 2702(a)(1), the proposed ACCA predicate conviction - and then one hypothesizes the least culpable conduct with the least culpable mens rea that could qualify as a violation of that statute.As a plurality of the Supreme Court recently put it, "[t]he focus is . . . on whether . . . a state offense necessarily involves the defendant's 'use, attempted use, or threatened use of physical force against the person of another.'If any - even the least culpable - of the acts criminalized do not entail that kind of force," then "the statute of conviction does not categorically match the federal standard, and so cannot serve as an ACCA predicate."Borden v. United States, — U.S. —, 141 S. Ct. 1817, 1822, 210 L.Ed.2d 63(2021)(quoting18 U.S.C. § 924(e)(2)(B)(i)).Thus, "the categorical approach requires courts not only to ignore the actual manner in which the defendant committed the prior offense, but also to presume that the defendant did so by engaging in no more than 'the minimum conduct criminalized by the statestatute[,]' "United States v. Ramos, 892 F.3d 599, 606(3d Cir.2018)(quotingMoncrieffe v. Holder, 569 U.S. 184, 191, 133 S.Ct. 1678, 185 L.Ed.2d 727(2013)), and with the least culpable mindset, Borden, 141 S.Ct. at 1825.It is that set of presumptions that often leads to perverse results in categorical-approach cases.

So how did application of the categorical approach work out for Harris in this case?Really well.He ended up winning.SeeUnited States v. Harris, 68 F.4th 140, 141(3d Cir.2023)("Harris' aggravated assault conviction is stricken as a predicate, and he no longer has the three violent felony convictions necessary to justify the enhancement.").And he won because, to his good fortune, we had already applied the categorical approach in a similar case, United States v. Mayo, 901 F.3d 218(3d Cir.2018), with a result that was ideal for him.The very same Pennsylvania statute and the very same ACCA question were presented in Mayo as in Harris's case, namely, whether a conviction under 18 Pa. Cons. Stat. § 2702(a)(1) constitutes a qualifying ACCA predicate offense for a defendant charged with violating 18 U.S.C. § 922(g).We said in Mayo that it did not, although it was undisputed that the defendant there was convicted of first-degree aggravated assault because he had "hit [the victim] on the head with a brick, punched and kicked [the victim] . . . , and hit [the victim] with a glass bottle[.]"Mayo, 901 F.3d at 222(alterations in original).None of that real-world violence mattered.It never does with the categorical approach.What mattered in Mayo, and ultimately for Harris, is that aggravated assault under Pennsylvania's § 2702(a)(1) does not provide a categorical match with ACCA's elements clause, which calls for the use of physical force against another.Id. at 224.

There is not a categorical match for two...