United States v. Quinnones

• Decision Date: 26 October 2021
• Docket Number: No. 20-2709,20-2709
• Citation: 16 F.4th 414
• Parties: UNITED STATES of America v. Shawn Shannon QUINNONES, a/k/a Michael Murphy, Appellant
• Court: U.S. Court of Appeals — Third Circuit

16 F.4th 414

UNITED STATES of America

v.Shawn Shannon QUINNONES, a/k/a Michael Murphy, Appellant

No. 20-2709

United States Court of Appeals, Third Circuit.

Argued October 5, 2021

Filed: October 26, 2021

Thomas M. Zaleski, Robert A. Zauzmer [ARGUED], Office of United States Attorney, 615 Chestnut Street, Suite 1250, Philadelphia, PA 19106, Counsel for Appellee

Abigail E. Horn [ARGUED], Federal Community Defender Office for the Eastern District of Pennsylvania, 601 Walnut Street, The Curtis Center, Suite 540 West, Philadelphia, PA 19106, Counsel for Defendant-Appellant

Before: SHWARTZ, RESTREPO, and SCIRICA, Circuit Judges.

OPINION

SHWARTZ, Circuit Judge.

In this case, we are required to determine whether assault by a prisoner under the portion of 18 Pa. Cons. Stat. § 2703 that criminalizes "caus[ing] another to come into contact with [bodily] fluid" when the prisoner knew or should have known the fluid came from someone with a communicable disease is a "crime of violence" under the United States Sentencing Guidelines’ career offender provision, U.S.S.G. § 4B1.1. We conclude it is not.

I

Shawn Shannon Quinnones pleaded guilty to two counts of armed bank robbery in violation of 18 U.S.C. §§ 2113(a), (d) and § 2. She also stipulated that her commission of an armed robbery of a Family Dollar store should be treated at sentencing as if it were a third count of conviction. The United States Probation Office prepared a Presentence Investigation Report ("PSR") detailing Quinnones’ criminal history and recommending that she be sentenced as a career offender under U.S.S.G. § 4B1.1 because her crime of conviction for armed bank robbery and her four prior convictions for assault by a prisoner in violation of 18 Pa. Cons. Stat. § 2703 were all "crimes of violence."

Quinnones objected to the career offender designation, arguing that three of her § 2703 convictions did not qualify as crimes of violence.¹ The District Court disagreed, applied the career offender designation, departed downward from the Guidelines range of 188-235 months, and sentenced Quinnones to 132 months’ imprisonment, followed by five years’ supervised release, and $8,058 in restitution.

Quinnones appeals.

II²

A

Quinnones argues that her convictions under § 2703 are not "crimes of violence" as defined by U.S.S.G. § 4B1.2, and, therefore, the District Court erred by sentencing her as a career offender. To evaluate this contention, we first set forth the definition of "crime of violence" under the Sentencing Guidelines. We then identify the elements of the statute of conviction, here § 2703. Thereafter, we compare those elements to the definition of "crime of violence" to determine whether § 2703 fits the definition.

B

A defendant whose crime of conviction is a "crime of violence" or a "controlled substance offense" and who has at least two prior convictions for such offenses is subject to sentencing as a career offender under U.S.S.G. § 4B1.1. As relevant here, the career offender provision defines a "crime of violence" as any felony that "has as an element the use, attempted use, or threatened use of physical force."³ U.S.S.G. § 4B1.2(a)(1).

To further define the phrase "crime of violence," we examine the meaning of "use" and "physical force." The word "use" means the "intentional employment of ... force, generally to obtain some end." Tran v. Gonzales, 414 F.3d 464, 470 (3d Cir. 2005). "Physical force" in the career offender provision refers to "force capable of causing physical pain or injury to another." United States v. Chapman, 866 F.3d 129, 132 (3d Cir. 2017) (quotation marks omitted) (quoting Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) ). Together, the "use of physical force" in § 4B1.2(a)(1) 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." Id. Under this definition, the qualifying physical force may be direct or indirect so long as it is "strong enough to constitute power," id. at 140, 142 (quotation marks omitted), and more than the "slightest offensive touching," id. at 139.

C

Applying this definition, we next examine whether § 2703 is a "crime of violence" under § 4B1.2. To do so, we are required to use the much-criticized categorical approach,⁴ which requires that we identify the elements of the statute of conviction, rather than the facts that led to the conviction, and compare those elements to the definition of "crime of violence."

Descamps v. United States, 570 U.S. 254, 260, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) (citation omitted); United States v. Ramos, 892 F.3d 599, 606 (3d Cir. 2018). Where the statute of conviction contains variations with alternate elements, such that "certain elements of the statute fit within the definition of a crime of violence, while other alternative elements do not," we may look beyond the elements to determine which part of the statute formed the basis for the conviction.⁵ United States v. Jones, 740 F.3d 127, 134 (3d Cir. 2014). This so-called "modified categorical approach" permits courts to consider "the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or [ ] some comparable judicial record [embodying] this information." Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005).

The version of § 2703 in effect at the time of Quinnones’ convictions provided:

A person who is confined in or committed to any local or county detention facility, jail or prison or any State penal or correctional institution or other State penal or correctional facility located in this Commonwealth is guilty of a felony of the second degree if he, while so confined or committed or while undergoing transportation to or from such an institution or facility in or to which he was confined or committed intentionally or knowingly, commits an assault upon another with a deadly weapon or instrument, or by any means or force likely to produce serious bodily injury. A person is guilty of this offense if he intentionally or knowingly causes another to come into contact with blood, seminal fluid, saliva, urine or feces by throwing, tossing, spitting or expelling such fluid or material^{[6 ]} when, at the time of the offense, the person knew, had reason to know, should have known or believed such fluid or material to have been obtained from an individual, including the person charged under this section, infected by a communicable disease, including, but not limited to, human immunodeficiency

virus (HIV) or hepatitis B.

18 Pa. Cons. Stat. § 2703 (2019).⁷ Thus, a defendant could violate the statute if she: (1) committed an "assault upon another with a deadly weapon"; (2) committed an assault "by any means or force likely to produce serious bodily injury"; or (3) "cause[d] another to come into contact with [a bodily fluid]" that came from someone infected with a communicable disease. Id. Regardless of whether the statute is viewed as indivisible or divisible, the parties do not dispute that Quinnones was convicted of the portion of § 2703 that made it a crime for a prisoner to cause another to come into contact with a bodily fluid that came from someone with a communicable disease, and that this is the least culpable way to violate the statute.

Having determined that the statutory variation concerning use of "bodily fluids" formed the basis for Quinnones’ conviction, we next look at that offense's elements to "ascertain the least culpable conduct hypothetically necessary to sustain a conviction." United States v. Dahl, 833 F.3d 345, 350 (3d Cir. 2016) (quotation marks omitted). To secure a conviction under the relevant portion of § 2703, the Commonwealth must prove the defendant: (1) was a prisoner; (2) caused the victim to come into contact with bodily fluid by throwing, tossing, spitting, or expelling the fluid; (3) knew, had reason to know, or should have known or believed the fluid came from someone who had a communicable disease; and (4) either (a) her purpose was to have the victim have contact with the fluid or (b) she was aware she would almost certainly cause the victim to have contact with the fluid. See Pennsylvania Suggested Standard Criminal Jury Instructions § 15.2703(A) (2019). Under these elements, the least culpable conduct for which a defendant can be convicted under the statute is (1) spitting or expelling fluid when (2) the person should have known the fluid was infected.

D

We will now determine whether spitting or expelling fluid under § 2703 necessarily involves the use of physical force contemplated by § 4B1.2. As stated previously, "use of physical force" under § 4B1.2 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. Spitting or expelling fluid in their least culpable forms do not involve force for the purpose of § 4B1.2 because such acts are not capable of causing physical pain or injury.⁸ Cf. Ramos, 892 F.3d at 612 (holding that a Pennsylvania conviction for aggravated assault with a deadly weapon under 18 Pa. Cons. Stat. § 2702(a)(4) is a crime of violence because it is "nearly impossible to conceive of a scenario in which a person could knowingly or intentionally injure, or attempt to injure, another person with a deadly weapon without engaging in at least some affirmative, forceful conduct"). For this reason, many of our sister circuits have held that where a crime can be committed by spitting, that crime—like § 2703 —does not categorically involve "physical force" as defined in Chapman and Johnson.⁹ See, e.g., United States v. Carthorne, 726 F.3d 503, 512 (4th Cir. 2013) (holding that assault and battery of a police officer in Virginia is not a crime of violence...