United States v. Mayo, 16-4282

Citation901 F.3d 218
Decision Date22 August 2018
Docket NumberNo. 16-4282,16-4282
Parties UNITED STATES of America v. Anthony MAYO, a/k/a Billy Silks Anthony Mayo, Appellant
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

James V. Wade, Federal Public Defender Middle District of Pennsylvania, Frederick W. Ulrich [ARGUED], Office of Federal Public Defender, 100 Chestnut Street, Suite 306, Harrisburg, PA 17101, Counsel for Appellant

Bruce Brandler, United States Attorney, David J. Freed, Carlo D. Marchioli [ARGUED], Kate L. Mershimer, Office of United States Attorney, 228 Walnut Street, Suite 220, P.O. Box 11754, Harrisburg, PA 17108, Counsel for Appellee

Before: CHAGARES, JORDAN, and FUENTES, Circuit Judges.


JORDAN, Circuit Judge.

This appeal involves one of the many second or successive motions for post-conviction relief under 28 U.S.C. § 2255 that have been filed in the wake of the Supreme Court's decision in Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). Johnson invalidated the "residual clause" of the definition of "violent felony" found in the Armed Career Criminal Act (the "ACCA"), 18 U.S.C. § 924(e)(2)(B)(ii). Anthony Mayo is currently serving a twenty-three year term of imprisonment for a 2001 conviction, imposed under the ACCA's recidivist enhancement provision, 18 U.S.C. § 924(e)(1). He was convicted of being a felon in possession of a firearm, and his sentence was enhanced based on his having committed three prior offenses that the District Court treated as violent felonies under the ACCA. Those predicate offenses, all under Pennsylvania law, are an aggravated assault, for which he was convicted in 1993, and two robberies, for which he was convicted in 1993 and 1994. Mayo argues that, in light of Johnson , his sentence is now unconstitutional because none of his prior convictions were for crimes that qualify as a "violent felony" as defined in the ACCA.

The District Court rejected Mayo's Johnson claim, concluding that each of the convictions in question was indeed for a violent felony and hence a predicate for enhancing his sentence. At least as to the aggravated assault conviction, however, the Court erred. That conviction was under 18 Pa. Cons. Stat. § 2702(a)(1), which prohibits "attempt[ing] to cause serious bodily injury to another, or caus[ing] such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life[.]" As Pennsylvania interprets § 2702(a)(1), it does not necessarily involve the element of physical force required by the Supreme Court's interpretation of the ACCA. Thus, at least one of the convictions that the District Court relied on to enhance Mayo's sentence does not qualify as a violent felony, and we will vacate and remand for further proceedings.


Being a felon in possession, in violation of 18 U.S.C. § 922(g)(1), is an offense that typically carries a maximum penalty of ten years' imprisonment. Id. § 924(a)(2).1 But the ACCA ups the ante. It states that "a person who violates section 922(g)... and has three previous convictions ... for a violent felony ... committed on occasions different from one another, ... shall be fined ... and imprisoned not less than fifteen years[.]" 18 U.S.C. § 924(e)(1). The statute defines "violent felony" as "any crime punishable by imprisonment for a term exceeding one year ... that [A] has as an element the use, attempted use, or threatened use of physical force against the person of another; or [B] is burglary, arson, or extortion, involves use of explosives, or [C] otherwise involves conduct that presents a serious potential risk of physical injury to another[.]" Id. § 924(e)(2)(B). The three alternative clauses, labeled here as [A], [B], and [C], are commonly referred to, respectively, as the force or elements clause, the enumerated offenses clause, and the residual clause. As none of Mayo's predicate offenses is listed in the enumerated offenses clause, we are concerned here only with whether his ACCA-enhanced sentence was based on the now-unconstitutional residual clause or the elements clause.

1. Mayo's 2001 Felon-In-Possession Conviction

In late 2000, a grand jury returned a five-count indictment against Mayo and a coconspirator, alleging that the pair had used guns in connection with several drug trafficking offenses.2 The indictment included the felon-in-possession charge leading to the sentence presently at issue, and it also recited Mayo's 1993 Pennsylvania aggravated assault conviction and his 1993 and 1994 Pennsylvania robbery convictions. Pursuant to a written agreement, Mayo pled guilty to the gun charge and acknowledged that, based on § 924(e), he faced a mandatory minimum sentence of fifteen years' imprisonment, with a maximum of life imprisonment. At the plea hearing, the government represented that Mayo had three prior convictions that qualified as violent felonies under the ACCA. Prior to accepting his plea, the District Court confirmed that Mayo had unlawfully possessed a firearm and that he had been convicted of the aggravated assault and robbery crimes listed in the indictment. The Court also reiterated that he faced a fifteen-year mandatory minimum sentence.

The Presentence Investigation Report ("PSR") discussed the offense of conviction and provided further details on Mayo's three earlier convictions.3 Then, applying the 2000 version of the United States Sentencing Guidelines (the "guidelines"), it set forth Mayo's offense level as 31 and his criminal history as category VI, yielding a guidelines imprisonment range of 188-235 months. Mayo did not file any objections to the PSR.

At his 2001 sentencing, Mayo conceded "the specific factual allegations attributed to [him]," which were "almost identical" to what he had acknowledged at the plea hearing. (App. at 72.) He also said that the criminal history was correct. The District Court ultimately adopted the PSR's findings and issued a sentence based on the ACCA enhancement. The sentence issued without specification of whether the Court was relying on the elements clause or the residual clause.4 The Court sentenced Mayo to a twenty-three year (276-month) term of incarceration, which exceeded the recommended guidelines range. In the Court's view, Mayo demonstrated "a strong likelihood of recidivism," (App. at 87), and an upward departure was warranted because his criminal history significantly underrepresented the seriousness and extent of his past crimes, and his offense level failed to account for the risk he posed by carrying a "high capacity semi-automatic firearm," (App. at 88). Mayo appealed his sentence, but we affirmed. United States v. Mayo , 59 F. App'x 457 (3d Cir. 2003).

2. Mayo's § 2255 Motions

Mayo later filed a motion under 28 U.S.C. § 2255, to vacate or correct his sentence. The District Court denied the motion, and we declined to issue a certificate of appealability.

A decade later, in 2016, the Supreme Court issued its decision in Johnson , invalidating the residual clause of the ACCA as unconstitutionally vague. It subsequently declared that ruling retroactive in Welch v. United States , ––– U.S. ––––, 136 S.Ct. 1257, 1268, 194 L.Ed.2d 387 (2016). Based on Johnson , Mayo filed a second § 2255 motion seeking resentencing, and, as required by 28 U.S.C. §§ 2244 and 2255, he sought permission from us to pursue that second effort at post-conviction relief. We granted his request, stating that Mayo "ha[d] made a prima facie showing that his proposed § 2255 motion contains a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court that was previously unavailable." (App. at 112.)

In his second § 2255 motion, Mayo argued that his prior conviction for aggravated assault and his two prior convictions for robbery no longer qualify as violent felonies after Johnson invalidated the residual clause, and therefore that his ACCA-based sentence violates his due process rights. Specifically, he contended that he had already served the ten-year statutory maximum sentence that would have applied but for the ACCA enhancement.5 The government responded with a motion to dismiss, saying that the District Court lacked jurisdiction because Mayo failed to establish that he is entitled to proceed on a second § 2255 motion, as he had not established that his sentence was based on the residual clause such that Johnson even applies. The government also argued, on the merits, that Mayo's convictions still qualify as violent felonies under the ACCA's elements clause.

The District Court agreed with that latter argument, and it denied Mayo's motion on the merits, without addressing the jurisdictional challenge. It rejected his argument that Pennsylvania's aggravated assault statute, 18 Pa. Cons. Stat. § 2702(a)(1), lacks the requisite element of force necessary for a conviction under it to categorically constitute a violent felony. Reviewing the facts as to the aggravated assault conviction, the Court noted that Mayo had "hit [the victim] on the head with a brick, punched and kicked [the victim] while lying on the ground, and hit [the victim] with a glass bottle[.]" (App. at 8-9.)

Turning to the robbery convictions, the Court likewise rejected Mayo's legal arguments and noted that, in the first robbery conviction, Mayo "had an unidentifiable object in his hand and told the victim, I'll blow your head off, get down," and in the second, he had "held a gun to [the victim] and ordered her to open the safe." (App. at 10 (citations and internal quotation marks omitted).) It concluded that those "facts, which were not objected to by Mayo," were sufficient to meet the ACCA's elements clause. (App. at 9-10; see also id. at 9 n.1, 10 n.2 (noting its reliance on uncontroverted facts in the presentence report as a " Shepard document").)

Mayo appealed. We granted a certificate of appealability to address "whether [Mayo's] due process rights were violated by the use of his...

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