United States v. Ramos

• Citation: 892 F.3d 599
• Decision Date: 15 June 2018
• Docket Number: No. 17-2720,17-2720
• Parties: UNITED STATES of America, Appellant v. Juan H. RAMOS
• Court: U.S. Court of Appeals — Third Circuit

892 F.3d 599

UNITED STATES of America, Appellant

v.Juan H. RAMOS

No. 17-2720

United States Court of Appeals, Third Circuit.

Argued on May 15, 2018

Opinion filed: June 15, 2018

Louis D. Lappen, Acting United States Attorney, Robert A. Zauzmer [ARGUED], Assistant United States of Attorney Chief of Appeals, Bernadette A. McKeon, Jeffery W. Whitt, Office of the United States Attorney, 615 Chestnut Street, Suite 1250, Philadelphia, PA 19106, Counsel for Appellant

Leigh M. Skipper, Chief Federal Defender, Brett Sweitzer, Chief of Appeals, Alexander C. Blumenthal, Assistant Federal Defender, Arianna J. Freeman [ARGUED], Andrew J. Dalack, Federal Community Defender Office for the Eastern District of Pennsylvania, 601 Walnut Street, The Curtis Center, Suite 540 West, Philadelphia, PA 19106, Counsel for Appellee

Before: SMITH, Chief Judge, HARDIMAN and ROTH, Circuit Judges

OPINION

ROTH, Circuit Judge

INTRODUCTION

The government appeals the District Court's determination at sentencing that Juan Ramos is not a "career offender" under Section 4B1.1 of the U.S. Sentencing Guidelines. That determination was based on the conclusion that Ramos's prior state court conviction for aggravated assault is not a predicate "crime of violence," as that term is defined in the Guidelines. We disagree with that conclusion. Applying the modified categorical approach to Pennsylvania's divisible aggravated assault statute, we hold that Ramos's prior conviction for second-degree aggravated assault with a deadly weapon, in violation of 18 Pa. C.S. § 2702(a)(4), is categorically a crime of violence. Because the District Court did not designate Ramos a career offender for sentencing purposes, we will vacate the judgment of sentence and remand for resentencing.

BACKGROUND

Ramos's status as a career offender is dictated by his criminal record, which includes several prior felony convictions. First, in July 1998, Ramos "threw a brick at the nose of a 10-year-old child," who then required medical treatment at a local hospital.¹ As a result, Ramos pled guilty to aggravated assault in the Philadelphia County Common Pleas Court.² Second, in October 1999, Ramos was apprehended with 2.76 grams of heroin and subsequently convicted in state court for manufacturing, delivering, or possessing with intent to manufacture or deliver a controlled substance, and knowingly possessing a controlled substance.³ And third, in August 2001, Ramos broke into a furniture store and stole "several futons"; he later pled guilty to burglary in state court.⁴

The instant offense conduct occurred in January 2008, when Philadelphia police officers observed Ramos selling crack cocaine out of a truck.⁵ The police arrested Ramos and recovered a loaded handgun from the vehicle. A federal grand jury indicted Ramos for various drug and weapons offenses in November 2008.⁶ One year later, Ramos pled guilty to each of the charged offenses, stipulating in his plea agreement that he was a career offender.⁷

At sentencing, the District Court concluded that Ramos had three predicate drug or violent felony convictions under the Armed Career Criminal Act (ACCA)—the three state court convictions set out above—and was thus subject to a 15-year mandatory minimum sentence. Factoring in Ramos's acceptance of responsibility, the District Court determined that Ramos's effective Guidelines range was 248-to-295 months' imprisonment—i.e. , an advisory Guidelines range of 188-to-235 months' imprisonment combined with a mandatory, consecutive 60-month sentence under 18 U.S.C. § 924(c).⁸ After granting the government's motion for a downward departure, the court sentenced Ramos to a 180-month term of imprisonment.

In May 2016, Ramos sought post-conviction relief pursuant to 28 U.S.C. § 2255, arguing that, under Johnson v. United States ( Johnson II ),⁹ his prior burglary conviction was no longer a career offender predicate and, therefore, his career-offender designation and sentence were invalid. Both the government and the District Court agreed that Ramos's sentence was invalid under Johnson II .¹⁰ Accordingly, the District Court vacated Ramos's sentence and held a resentencing hearing in July 2017.

Although the government conceded that Ramos was not a career offender under the ACCA , it nonetheless took the position at resentencing that Ramos remained a career offender under the Guidelines —which require only two predicate drug or violent felony convictions, as opposed to the three convictions required by the ACCA.¹¹ The government thus recommended that the court again impose a 180-month sentence. Ramos countered that he was not a career offender under the Guidelines because his prior aggravated assault conviction was not a predicate crime of violence. Proceeding from that premise, Ramos contended that his effective Guidelines range was 97-to-106 months' imprisonment.¹² The District Court adopted Ramos's proposed Guidelines calculation, ruling from the bench that Ramos was not a career offender because there was doubt as to whether aggravated assault under Pennsylvania law qualifies as a crime of violence.¹³ Having concluded that Ramos was not a career offender, the District Court sentenced Ramos to a 105-month term of imprisonment—more than six years less than his initial sentence and the sentence recommended by the government.

In September 2017, the government appealed the District Court's conclusion that Ramos was not a career offender under the Guidelines. Several days after the government filed its opening brief, the District Court issued a memorandum, reiterating its position that Ramos was not a career offender on the ground that his aggravated assault conviction was not a crime of violence, but disavowing its earlier rationale for that conclusion.¹⁴

DISCUSSION¹⁵

The sole issue we must resolve on appeal is whether Ramos is a career offender under Section 4B1.1 of the Guidelines. Ramos argues that he is not a career offender—a designation that applies only to defendants with at least two predicate drug or violent felony convictions¹⁶ —because only one of his prior felony convictions (i.e. , his 1999 drug conviction) qualifies as a career offender predicate.¹⁷ According to Ramos, his 1998 aggravated assault conviction cannot qualify as a career offender predicate since it is not a "crime of violence" within the meaning of the Guidelines. The government, by contrast, argues that Ramos is a career offender because his aggravated assault conviction was for a crime of violence. To resolve this appeal, we must determine whether Ramos's 1998 aggravated assault conviction qualifies as a predicate crime of violence under the Guidelines.

I. Legal Framework: Career Offender Status, Crimes of Violence, and the Categorical and Modified Categorical Approaches

A. The Career Offender and Crime of Violence Provisions of the Guidelines

Under the Guidelines, a defendant is designated a "career offender" and thus subject to enhanced sentencing exposure if, as relevant here, "the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense."¹⁸ Because the parties agree that Ramos's 1999 drug conviction is a predicate controlled substance offense, Ramos is a career offender so long as his prior aggravated assault conviction is a predicate crime of violence.

Section 4B1.2 of the Guidelines sets out two separate definitions of the term "crime of violence." Any federal or state offense, punishable by a term of imprisonment exceeding one year, is a crime of violence if the offense:

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or

(2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c).¹⁹

The first definition is known as the "elements clause," and the second definition is known as the "enumerated offenses clause."²⁰

B. The Categorical and Modified Categorical Approaches

To determine whether a prior conviction qualifies as a predicate crime of violence, courts use the categorical approach or, when applicable, the modified categorical approach. Both approaches require us to "compare the elements of the statute under which the defendant was convicted to the [G]uidelines' definition of crime of violence."²¹ When conducting that analysis under the elements clause, as here, we ask whether the use, attempted use, or threatened use of physical force against another person is categorically an element of the offense of conviction.²² If the statute forming the basis of the defendant's conviction necessarily has such an element, then the statute proscribes a predicate crime of violence within the meaning of the Guidelines.²³ But if the statute of conviction lacks such an element, it "sweeps more broadly" than the Guidelines' definition, and a prior conviction under the statute cannot serve as a career offender predicate—even if the defendant actually committed the offense by using, attempting to use, or threatening to use physical force against another person.²⁴

It may appear counterintuitive that a defendant who actually uses physical force against another person when committing a felony does not, by definition, commit a violent crime under the elements clause. But that outcome is dictated by the categorical approach, which is concerned only with the elements of the statute of conviction, not the specific offense conduct of an offender.²⁵ In fact, 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 state statute."²⁶ This academic focus on a hypothetical offender's hypothetical conduct is not, however, an "invitation to apply legal imagination" to ...