The opinion
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 19-1631
UNITED STATES OF AMERICA,
v.
DAVID PAYO,
Appellant
Appeal from the United States District Court
for the Western District of Pennsylvania
(District Court No. 2:17-cr-00211-001)
District Judge: Honorable Mark R. Hornak
Argued on January 22, 2025
Before: HARDIMAN, McKEE, and AMBRO, Circuit Judges
(Opinion filed: April 28, 2025)
Laura S. Irwin
Matthew S. McHale [ARGUED]
OFFICE OF UNITED STATES ATTORNEY
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
Counsel for Appellee
Renee Pietropaolo [ARGUED]
OFFICE OF FEDERAL PUBLIC DEFENDER
1001 Liberty Avenue
Suite 1500
Pittsburgh, PA 15222
Counsel for Appellant
___________
OPINION OF THE COURT
___________
AMBRO, Circuit Judge
David Payo pled guilty to committing two robberies in
2017. The District Court applied a career-offender enhance-
ment to his sentence based on three of his previous robbery
convictions: one federal conviction from 2001, one Pennsylva-
nia conviction from 2008, and one Pennsylvania conviction
from 2010. Payo argued that the enhancement was unwar-
ranted because the 2008 and 2010 convictions did not involve
crimes of violence. The District Court disagreed, holding that
both did—the former based on a state-court docket sheet the
Government had not produced, the latter based on an argument
the Government had not advanced. We disagree with both
2
decisions, so we vacate Payo’s sentence and remand for further
proceedings.
I. BACKGROUND
Payo was indicted for two counts of bank robbery and
one count of Hobbs Act robbery. He pled guilty to the two
bank-robbery counts, although his plea agreement allowed him
to appeal any career-offender sentencing enhancement.
The Probation Office determined under the Sentencing
Guidelines that Payo was a career offender with a total offense
level of 29 and a criminal history category of VI. According to
the Guidelines, a defendant is a career offender subject to a
sentencing enhancement if he or she, among other things, has
“at least two prior felony convictions of … a crime of vio-
lence.” U.S. Sent’g Guidelines Manual § 4B1.1(a) (U.S. Sent’g
Comm’n Nov. 2016). A prior conviction is a crime of violence
if the underlying offense was “punishable by imprisonment for
a term exceeding one year,” and either (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 pos-
session of a firearm … or explosive material.” U.S.S.G.
§ 4B1.2(a). We often call the first prong the force (or elements)
clause and the second the enumerated-offenses clause.
The Probation Office based Payo’s career-offender sta-
tus on a 2001 federal conviction for robbing two banks; a 2008
Pennsylvania conviction for robbing two stores; and a 2010
Pennsylvania conviction for robbing another bank. At the time
of Payo’s 2008 and 2010 convictions, Pennsylvania’s robbery
statute provided in relevant part that:
3
A person is guilty of robbery if, in the course of
committing a theft, he:
(i) inflicts serious bodily injury upon an-
other;
(ii) threatens another with or intentionally
puts him in fear of immediate serious bod-
ily injury; [or]
…
(iv) inflicts bodily injury upon another or
threatens another with or intentionally
puts him in fear of immediate bodily in-
jury ….
18 Pa. Cons. Stat. § 3701(a)(1).
To determine Payo’s sentence, the District Court or-
dered the parties to submit sentencing memorandums. Payo
submitted one, but the Government did not. After reviewing
Payo’s submission, the District Court acknowledged that he
had “raise[d] a number of legal issues” about “whether the ‘Ca-
reer Offender’ provisions … appl[ied].” App. 40 (Dkt. No. 56).
It was “stumped as to why the United States would not want to
weigh in as to such important matters” and “provide[d] [it]
with a final opportunity to do so.” App. 40 (Dkt. No. 56).
This time, the Government responded. It argued that the
career-offender enhancement applied to Payo based on his
2001 and 2008 convictions. In its view, Payo’s two-count con-
viction for bank robbery under 18 U.S.C. § 2113(a) counted as
two crimes of violence. For good measure, it also claimed, re-
lying solely on the presentence report, that his 2008 Pennsyl-
vania conviction for robbery was under § 3701(a)(1)(ii) and
thus involved a crime of violence.
The District Court held a status conference to discuss
the parties’ sentencing submissions, during which it explained
4
that it could not determine, based on the presentence report
alone, which subsection of § 3701(a)(1) had supported Payo’s
2008 conviction. As we explain below, the answer to that ques-
tion matters a great deal. Subsection (ii)—the one the Govern-
ment claimed Payo was convicted under—is a crime of vio-
lence. But other subsections might not be. To answer this ques-
tion, the District Court intended to deploy something called the
modified categorical approach, which would involve looking
at a narrow category of reliable materials known as Shepard
documents to determine which subsection in fact supported
Payo’s conviction. See infra Section III.A.1. After the hearing,
the District Court ordered the Government to produce Shepard
documents shedding light on the 2008 conviction.
Over Payo’s objection, the Government produced sev-
eral documents. It now claimed that the documents showed
“Payo was convicted of two counts of 18 Pa. [Cons.
Stat. §] 3701(a)(1)(i) or (ii),” and “submit[ted] that either of
these convictions would qualify as a crime of violence.”
App. 176 (emphases added). The Government also argued in
its cover memorandum, apparently for the first time, that
Payo’s 2010 conviction under § 3701(a)(1)(iv) involved a
crime of violence under the force clause. It said nothing about
the enumerated-offenses clause.
After reviewing the Government’s documents, the Dis-
trict Court concluded that Payo’s two-count federal conviction
constituted only a single crime of violence. And it also found
that the Government’s Shepard documents had not established
whether Payo’s 2008 conviction was under subsection (i) or
(ii). To resolve the matter, it took judicial notice of a state-court
docket sheet indicating that the conviction was under the latter.
It rested its conclusion on the docket sheet even though it was
not generated by the Pennsylvania convicting court and
5
included a prominent disclaimer that its contents may be inac-
curate.
The Court then turned to Payo’s 2010 conviction. It de-
clined to adopt the Government’s argument that subsection (iv)
qualified as a crime of violence under the force clause. It in-
stead held that subsection qualified under the enumerated-of-
fenses clause because its elements categorically matched those
of the generic definition of robbery.
In the end, the Court agreed with the Probation Office’s
Guidelines calculation: Payo’s offense level was 29, his crimi-
nal history category was VI, and his Guidelines range was be-
tween 151 and 188 months. It sentenced him to two concurrent
terms of 127 months’ incarceration and three years’ supervised
release. Payo timely appealed.
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction under 18 U.S.C.
§ 3231. We have jurisdiction under 28 U.S.C. § 1291 because
this is an appeal from a final decision of a district court and
under 18 U.S.C. § 3742(a) because this is an appeal of a sen-
tence imposed under the Sentencing Reform Act of 1984.
We review anew the District Court’s legal conclusions,
including its determination that a conviction constitutes a
“crime of violence” under the Guidelines. United States v. Hen-
derson, 80 F.4th 207, 210 n.1 (3d Cir. 2023) (quoting United
States v. Chapman, 866 F.3d 129, 131 (3d Cir. 2017)). We re-
view any factual findings for clear error. United States v. Bent-
ley, 49 F.4th 275, 291 (3d Cir. 2022). And we review determi-
nations that the Government waived or forfeited legal argu-
ments for abuse of discretion. Kars 4 Kids Inc. v. Am. Can!, 8
F.4th 209, 219 n.9 (3d Cir. 2021).
6
III. THE DISTRICT COURT EXCUSED FORFEITURES AND
CONSIDERED A NON-SHEPARD DOCUMENT.
Before us, Payo focuses on three arguments, though
each contains sub-arguments. First, he contends that the Dis-
trict Court violated party-presentation and separation-of-power
principles by resurrecting arguments that the Government had
forfeited. In his view, the parties, not the courts, present the
issues and facts, so when a district court excuses one side’s for-
feitures without explanation, it deprives the parties of their
right to frame the case. And when the Federal Government is
the party whose forfeitures are excused, Payo claims a district
court also interferes with the choices of a coordinate branch.
Second, Payo argues that the Court abused its discretion by re-
lying on the state-court docket sheet to determine that his 2008
conviction was under § 3701(a)(1)(ii) rather than (i). He be-
lieves that it should have confined its analysis to the Shepard
documents the parties submitted and that it strayed when it
considered the docket sheet. And third, Payo claims that neither
subsection (i) nor (iv) categorically matches generic robbery,
and thus neither qualifies as a career-offender crime.
A. Did the District Court Impermissibly Excuse any
Government Forfeitures?
Payo argues that the District Court violated party-
presentation and separation-of-powers principles in three
ways.
1. The Government forfeited its right to introduce Shepard
documents, and the District Court improperly excused
that forfeiture when it afforded the Government another
opportunity to do so before sentencing.
2. The Court improperly relieved the Government of its
burden to prove that the sentencing enhancement should
7
apply by relying on a document—the state-court docket
sheet—that the Government never submitted.
3. The Court advanced, and then accepted, an argument
the Government never made: that Payo’s 2010 convic-
tion under § 3701(a)(1)(iv) satisfied the enumerated-of-
fenses clause. According to Payo, the Government ar-
gued only that Pennsylvania robbery satisfied the force
clause—an argument the District Court declined to
adopt.
Though Payo’s first two arguments are wrong, his third
is right.
1. The District Court Could Afford the
Government Another Opportunity to Produce
Shepard Documents Before Sentencing.
In the ordinary case, a court deciding whether a prior
conviction qualifies as a crime of violence may look only at the
elements of the offense that supported the prior conviction. We
call this mode of analysis the categorical approach. In cases
like this one, however—when several independently sufficient
elements could have supported the conviction—the parties
may introduce a narrow set of reliable materials solely to help
the court identify the elements that in fact sustained the con-
viction. See Shepard v. United States, 544 U.S. 13, 16 (2005)
(typical materials include the “charging document, written plea
agreement, transcript of plea colloquy, and any explicit factual
finding by the trial judge to which the defendant assented”).
Because this is a variation on the standard categorical ap-
proach, courts call it the modified categorical approach and the
limited set of materials Shepard documents. “The Supreme
Court has repeatedly stressed that there is a ‘demand for cer-
tainty’ in determining whether a defendant was convicted of a
8
qualifying offense.” United States v. Gandy, 917 F.3d 1333,
1340 (11th Cir. 2019) (quoting Mathis v. United States, 579
U.S. 500, 519 (2016)). To that end, Shepard documents must
have the “conclusive significance of a prior judicial record,”
Shepard, 544 U.S. at 25, and must “speak plainly” in establish-
ing the elements of the underlying offense, Mathis, 579 U.S.
at 519.
The Government “bears the burden of proving by a pre-
ponderance of the evidence that a sentencing enhancement ap-
plies.” United States v. Napolitan, 762 F.3d 297, 309 (3d Cir.
2014). According to Payo, the “[G]overnment waived its right
to present evidence and argument to satisfy its burden” by re-
peatedly declining to submit Shepard documents and choosing
instead to rest on the presentence report. Appellant’s Br. 15–16.
The Court’s decision to give the Government another chance
before the sentencing hearing, he believes, was an abuse of dis-
cretion.
“We enforce waiver and forfeiture against criminal de-
fendants and the [G]overnment equally.” United States v. Dow-
dell, 70 F.4th 134, 140 (3d Cir. 2023) (Hardiman, J.). “The pol-
icy supporting waiver and forfeiture is the ‘party presentation
principle,’ which applies ‘in both civil and criminal cases, in
the first instance and on appeal.’” Id. at 140–41 (quoting
Greenlaw v. United States, 554 U.S. 237, 243 (2008)). “[C]at-
egorically excus[ing] waivers or forfeitures … would violate
the party presentation principle,” which “ensures that courts
decide only those issues argued by interested and motivated
litigants.” Id. at 145. “And when, as in this case, the [G]overn-
ment is a party, categorically excusing forfeiture would raise
separation of powers concerns” too, because at sentencing “the
[G]overnment—not the Court—bears the burden of proving”
that an enhancement applies. Id. at 146.
9
Payo cites no cases holding that a sentencing court
abuses its discretion, or violates any of the other principles he
invokes, by affording a party additional opportunities to build
the record before sentencing. The cases he does cite—United
States v. Sineneng-Smith, 590 U.S. 371 (2020), and Dowdell—
are not on point.
In Sineneng-Smith, the Ninth Circuit appointed, sua
sponte, amici to make a constitutional argument that the parties
never raised. 590 U.S. at 374. The Supreme Court held that this
“takeover of the appeal” was a “radical transformation of th[e]
case [that went] well beyond the pale.” Id. at 379–80. By con-
trast, affording the Government another opportunity to support
an argument it had made all along—before the sentencing hear-
ing—is not a “radical transformation.”
And in Dowdell, the Government forfeited a legal argu-
ment against suppressing evidence from a traffic stop, yet it
argued that the district court should have considered it anyway.
70 F.4th 134. We disagreed. “Had the [d]istrict [c]ourt inter-
vened [t]here by excusing the Government’s forfeiture and ap-
plying [its] own novel legal theory, it would have undermined
the judiciary’s neutrality and encroached upon the executive
branch’s prosecutorial prerogative to argue its case.” Id. at 146.
Again, affording the parties another opportunity to flesh out the
record before resolving a crucial factual question is different
from and more ordinary than advancing and accepting a legal
argument that neither party made.
2. A District Court Can Judicially Notice
Documents the Government Never Produced.
Payo next argues that even if the District Court’s deci-
sion to afford the Government another opportunity to submit
Shepard documents was within its discretion, its decision to
10
seek out those documents independently was not. The Govern-
ment disputes the premise. In its view, the Court did not con-
duct its own investigation. It merely judicially noticed a docket
sheet—something it may do even if neither party submitted it.
The Government has the better argument. To be sure,
Payo is correct that the Government bears the ultimate burden
of proving that the career-offender enhancement applies. Na-
politan, 762 F.3d at 309. But just because it bears that burden
does not mean that the District Court cannot consider judicially
noticeable material. Although the Federal Rules of Evidence
do not apply to sentencing matters, Fed. R. Evid. 1101(d)(3),
Rule 201(c)(1) illustrates the general principle that a court may
“take judicial notice on its own,” even though one party almost
always has the ultimate burden of proof.
Whether the District Court could, however, consider
this docket sheet when employing the modified categorical ap-
proach to determine whether a sentencing enhancement applies
is a different question. As we later explain, it could not because
this docket sheet was not a Shepard document. See infra Sec-
tion III.B.1.b.
3. The Government Forfeited Its Argument That
Payo’s 2010 Conviction Under § 3701(a)(1)(iv)
Satisfied the Enumerated-Offenses Clause.
Payo also claims that the District Court erred by advanc-
ing and accepting an argument for the sentencing enhancement
that the Government never made. In its sentencing memoran-
dum, the Government never claimed that subsection (iv) was a
crime of violence. It instead rested its sentencing argument on
Payo’s prior federal conviction and 2008 Pennsylvania convic-
tion. It was not until its Shepard submission that the Govern-
ment finally asserted that subsection (iv) was a crime of
11
violence. Even then, it limited its argument to the force clause.
The District Court implicitly acknowledged as much in its sen-
tencing opinion when it noted that “only the Defendant has of-
fered a generic version of robbery.” App. 18. The closest the
Government came was when it cited United States v. Ball for
the proposition that “[t]he First Circuit has held that 18 [Pa.
Cons. Stat. §] 3701(a)(1)(iv) is a crime of violence.” App. 176
(citing 870 F.3d 1, 6 (1st Cir. 2017)).
The District Court declined to hold that subsection (iv)
was a crime of violence under the force clause. And it reasoned
that Ball was not on point because its analysis focused on the
Armed Career Criminal Act’s (ACCA’s) now-defunct residual
clause. See Johnson v. United States, 576 U.S. 591 (2015)
(holding residual clause unconstitutionally vague). The Court
thus “decline[d] the Government’s invitation to treat Ball as
informative as to Mr. Payo’s case.” App. 18.
The Court nonetheless proceeded to analyze subsec-
tion (iv) under the enumerated-offenses clause, and concluded
that it categorically matched the generic definition of robbery.
Payo contends that by failing to argue that subsection (iv) sat-
isfied the enumerated-offenses clause before sentencing, the
Government forfeited that argument. And by not only excusing
that forfeiture but also raising and adopting a legal argument
that the Government never advanced to apply a sentencing en-
hancement, the District Court violated party-presentation and
separation-of-powers principles. We agree.
In Dowdell, we reasoned that if the district court had
“intervened … by excusing the Government’s forfeiture and
applying [its] own … legal theory, it would have undermined
the judiciary’s neutrality and encroached upon the executive
branch’s prosecutorial prerogative to argue its case.” 70 F.4th
at 146. Yet the District Court here did just that. It mined our
12
cases for a generic definition of robbery that the Government
did not provide and concluded that subsection (iv) was a cate-
gorical match based on arguments the Government never
made.
Despite its insistence to the contrary, the Government’s
unelaborated citation to Ball was no enumerated-offenses ar-
gument. It cited that case only for the broad proposition that
subsection (iv) was a crime of violence. It did not even mention
the enumerated-offenses clause, let alone explain why subsec-
tion (iv) qualifies under it. “[S]imply citing a case in the Dis-
trict Court is not sufficient to raise all arguments that might
flow from it.” United States v. Dupree, 617 F.3d 724, 731 (3d
Cir. 2010) (Hardiman, J.).
Our concurring colleague claims that the “record shows
that Dowdell does not apply” here because the “Government
argued that Payo had been ‘convicted of two crimes’”—includ-
ing § 3701(a)(1)(iv)—“that categorically include the use of
force or the threatened use of force.” Conc. Op. 4 (quoting
App. 177). But this language, which comes from the Govern-
ment’s cover memorandum for its Shepard documents, shows
only that it had argued subsection (iv) was a crime of violence
under the force clause. No one disputes that. This language
does not show that the Government argued that subsection (iv)
was a crime of violence under the enumerated-offenses clause.
Our colleague also claims that the Government’s ge-
neric citation to Ball was enough to raise an enumerated-of-
fenses clause argument because that case also discussed ge-
neric robbery and the District Court “took … ‘the opportunity
to consider the argument.’” Conc. Op. 5 n.1. He believes that
Dupree is distinguishable because “[t]here, the [G]overnment
cited a case to make one argument in the district court and a
different argument on appeal.” Id. (citing Dupree, 617 F.3d
13
at 730–31). That is an accurate statement of the procedural pos-
ture in Dupree, but it is unclear why this distinction matters.
Unless the standard for preserving an issue for a district court’s
consideration is substantially different from the standard for
preserving an issue for appeal, then an unexplained citation to
a case, without more, is not enough to preserve all arguments
that flow from it. Dowdell illustrates the point. The district
court there held that the Government had forfeited a potentially
winning argument, even though it had cited cases theoretically
implicating that argument. We agreed that the Government had
forfeited its argument before the district court. Not only did we
quote Dupree for the proposition that case citations without
elaboration cannot preserve arguments not explicitly
made, Dowdell, 70 F.4th at 141, but we also held that the dis-
trict court would have abused its discretion had it excused the
Government’s forfeiture and considered the argument any-
way, id. at 145.
It is no answer to claim, as our colleague does, that the
District Court ultimately reached the enumerated-offenses is-
sue anyway. The question is not, as the concurrence frames it,
whether the Government as appellee forfeited the argument be-
fore us; it is whether the Government as prosecutor forfeited
the argument before the District Court. The issue we must de-
cide is whether the District Court abused its discretion in im-
posing a sentencing enhancement by relying on an argument
the Government did not make.
* * *
Payo’s 2010 conviction cannot support his sentencing
enhancement because the Government forfeited the argument
that § 3701(a)(1)(iv) is a crime of violence under the enumer-
ated-offenses clause and concedes that it is not one under the
14
force clause. We next address whether his 2008 conviction can
do the job.
B. Was Payo’s 2008 Conviction Under § 3701(a)(1)(i)
or (ii)?
The District Court concluded that the 2008 conviction
was under § 3701(a)(1)(ii), which all agree is a crime of vio-
lence, rather than § 3701(a)(1)(i), which might not be. It rested
its conclusion on an online criminal docket sheet it found on
its own. Payo argues that the District Court erred in doing so
because the docket sheet is not only unreliable but also in ten-
sion with the Shepard documents the parties actually produced.
The Government claims that there is ample evidence for
us to affirm the District Court’s finding. First, it asserts that the
Court could consider the docket sheet because it was a judi-
cially noticeable Shepard document. Second, it contends that
we may consider the plea colloquy from Payo’s 2008 convic-
tion—no doubt a Shepard document—which it offers for the
first time on appeal. And third, it argues that we may consider
Payo’s presentence report. We address each argument in turn.
1. The District Court Erred in Considering the
State-Court Docket Sheet.
Payo claims that even if the District Court could inde-
pendently look at materials that the Government never submit-
ted, those materials should have been limited to Shepard doc-
uments, and the state-court docket sheet was not one. The Gov-
ernment makes two counterarguments. First, it responds that
the District Court could look beyond Shepard documents to de-
termine the subsection under which Payo was convicted be-
cause determining the bare fact of a conviction is analytically
different from determining the nature of that conviction. In its
15
view, the modified categorical approach is concerned only with
the latter, so Shepard’s restrictions do not limit the District
Court in the way Payo claims. Second, the Government’s
fallback is that even if the District Court’s analysis were so
constrained, the docket sheet is reliable enough to qualify as a
Shepard document. Neither argument is persuasive. Payo is
correct that the District Court’s inquiry was limited to Shepard
documents and that the docket sheet is not such a document.
a. Courts conducting a modified categorical
analysis are confined to Shepard documents.
Our precedent lays out a three-step framework for de-
termining whether to apply a career-offender enhancement.
First, we ask if the relevant statute is divisible. United States v.
Ramos, 892 F.3d 599, 607 (3d Cir. 2018). Second, if it is, we
ask whether “the limited set of extra-statutory materials that we
may consult under the modified categorical approach estab-
lish[es] with certainty which subsection” of the divisible stat-
ute “provided the basis for [the] conviction.” Id. And third, if
it does, we ask whether that specific offense “categorically
qualif[ies] as a predicate crime of violence under the Guide-
lines.” Id.
Payo acknowledges that § 3701(a)(1) is divisible.
United States v. Peppers, 899 F.3d 211, 232 (3d Cir. 2018); Ap-
pellant’s Br. 31 (noting that the question “posed here” is
“which subsection of a divisible statute [Payo’s] prior convic-
tion rested” on). He contends that the District Court could thus
look to only a “limited set of extra-statutory materials” to de-
termine “which subsection … provided the basis for [his] con-
viction.” Ramos, 892 F.3d at 607; see also Appellant’s
Br. 28–29. In his view, the docket sheet is not sufficiently reli-
able to qualify as a Shepard document, and so the District
Court erred by relying on it.
16
The Government responds that the District Court could
rely on the docket sheet, even if it were not a Shepard docu-
ment, because there is “an analytical distinction between rec-
ords used to determine the bare factual question of a defend-
ant’s prior conviction” and “the legal question of what ele-
ments comprise the offense of conviction.” Appellee’s Br. 25.
According to the Government, determining which subsection
of § 3701(a)(1) Payo was convicted under involves the former
question, so “Shepard’s strictures do not fully apply.” Appel-
lee’s Br. 25–26. The Government acknowledges that we have
not expressly recognized this distinction. So it instead directs
us to the Fourth Circuit’s decision in United States v. Washing-
ton, which distinguished between two questions: “what records
may the [G]overnment use in determining [a defendant’s] of-
fense of conviction, and what records may the [G]overnment
use in determining whether the nature of that conviction qual-
ifies it as an ACCA predicate.” United States v. Washington,
629 F.3d 403, 412 (4th Cir. 2011).
The Government is correct that these inquiries can be
analytically distinct, but whether they are depends on the ob-
ject of the modified categorical approach. For example, in
Washington the defendant was convicted under a Maryland
statute that made it illegal “[t]o manufacture, distribute, or dis-
pense, or to possess a controlled dangerous substance in suffi-
cient quantity to reasonably indicate … an intent to manufac-
ture, distribute, or dispense, a controlled dangerous substance.”
Id. at 407–08 (quoting Md. Code. Ann. art. 27 § 286(a)(1)).
Whether a sentence enhancement under ACCA applied did not
turn on whether he was convicted under that statute; it turned
on which drug was involved in the offense. So the sentencing
court was not limited to Shepard documents in conducting the
former inquiry, but it was in conducting the latter.
17
Here, determining whether Payo was convicted under
§ 3701(a)(1)(ii) is not, as in Washington, logically prior to the
modified categorical analysis; it is itself the object of the anal-
ysis. Recall that once we determine the statute is divisible, “we
apply the ‘modified categorical approach’ … to identify the
subsection under which [the defendant] was convicted.” Hen-
derson, 80 F.4th at 212 (emphasis added). The Government’s
argument would have us consider non-Shepard documents to
determine which subsection of a divisible statute a defendant
was convicted under, even when we are purporting to use the
modified categorical approach to answer precisely that ques-
tion. That does not make sense. If we acknowledge that we are
“apply[ing] the ‘modified categorical approach’ … to identify
the subsection under which” Payo was convicted, then we can-
not say, as the Government asserts, that we are also allowed to
consider non-Shepard materials to make this same determina-
tion. Id. If we could, the modified categorical approach, and
thus our cases applying it to § 3701(a)(1), would contribute
nothing.
When a district court is conducting the modified cate-
gorical approach, rather than some predicate sentencing fact-
finding as in Washington, “the ‘judicially noticeable docu-
ments’ that are appropriate for consideration are materials such
as the ‘charging document, written plea agreement, transcript
of plea colloquy, and any explicit factual finding by the trial
judge to which the defendant assented’”—in other words,
Shepard documents. Reina-Rodriguez v. United States, 655
F.3d 1182, 1192 (9th Cir. 2011) (quoting Shepard, 544 U.S.
at 16). Allowing the Government—or the District Court on its
own initiative—to rely on non-Shepard materials to determine
the elements that supported a defendant’s conviction would
welcome the very “evil [the Supreme Court] sought to
18
prevent—inquiries into the underlying facts that would essen-
tially turn the sentencing hearings into mini-trials.” Id.
b. The state-court docket sheet is not a Shepard
document.
If the District Court was properly confined to Shepard
documents in determining whether Payo was convicted under
§ 3701(a)(1)(ii), and it relied on a docket sheet in reaching that
conclusion, then we must next determine whether that docket
sheet is a Shepard document. What documents a sentencing
court “may rely on to determine the nature of a prior convic-
tion” is a “question[] of law, which we review de novo.” United
States v. Howard, 599 F.3d 269, 271 (3d Cir. 2010) (citations
omitted).
Payo argues that the docket sheet here is not sufficiently
reliable to qualify as part of the “specific set of extra-statutory
documents” the sentencing court may use in conducting the
modified categorical analysis. Ramos, 892 F.3d at 607. He con-
tends that “[c]omputerized docket sheets obtained from an
online repository of data that is inputted by unknown individ-
uals from various agencies at unknown times are not conclu-
sive records made or used in adjudicating guilt.” Appellant’s
Br. 29. He also notes that “each page of the computerized
docket sheets” that the District Court relied on contained the
following disclaimer:
Neither the courts of the Unified Judicial System
of the Commonwealth of Pennsylvania nor the
Administrative Office of Pennsylvania Courts
assume any liability for inaccurate or delayed
data, errors or omissions on these reports. Docket
Sheet information should not be used in place of
a criminal history background check which can
19
only be provided by the Pennsylvania State Po-
lice. Moreover an employer who does not com-
ply with the provisions of the Criminal History
Record Information Act may be subject to civil
liability as set forth in 18 Pa. C.S. Section 9183.
Appellant’s Br. 30 (quoting App. 26–33).
Shepard documents are more limited than those docu-
ments the Government can introduce to prove other sentencing
facts, like the fact of a prior conviction. “The Supreme Court
has repeatedly stressed that there is a ‘demand for certainty’ in
determining whether a defendant was convicted of a qualifying
offense.” Gandy, 917 F.3d at 1340 (quoting Mathis, 579 U.S.
at 519). That demand for certainty limits us to documents that
have the “conclusive significance of a prior judicial record.”
Shepard, 544 U.S. at 25. Those documents must “speak
plainly” in establishing the elements of the underlying offense.
Mathis, 579 U.S. at 519.
Several other circuits have categorically held that
docket sheets are not Shepard documents. See, e.g., United
States v. Leaverton, 895 F.3d 1251, 1255 (10th Cir. 2018) (ob-
serving that “Shepard documents are limited to conclusive rec-
ords made or used in adjudicating guilt”; “docket sheets fall far
short of this standard” and “do not qualify as Shepard docu-
ments” (internal quotation marks omitted)). But we need not
address whether a docket sheet can ever be a Shepard docu-
ment because this one clearly is not. It was prepared not by the
convicting court but by some other entity and then made avail-
able through the Unified Judicial System of Pennsylvania Web
Portal. Each page of the docket sheet also prominently declares
that “[n]either the courts of the Unified Judicial System of the
Commonwealth of Pennsylvania nor the Administrative Office
of Pennsylvania Courts assume any liability for inaccurate or
20
delayed data, errors or omissions on these reports.”
App. 26–33. The Government characterizes this warning as
“boilerplate,” aimed only at “protecting the courts from civil
liability.” Appellee’s Br. 27. We are more inclined to read the
warning to mean what it says: the docket sheet may be inaccu-
rate. Because the docket sheet does not “approach[] the cer-
tainty of the record of conviction,” it is not a Shepard document
and the District Court erred by relying on it. Shepard, 544 U.S.
at 23.
The Government resists this conclusion. It points to our
decisions in Howard and United States v. Henderson, 841 F.3d
623 (3d Cir. 2016), which in its view held that docket sheets
like this one are Shepard documents. But both cases are distin-
guishable. Howard involved neither the modified categorical
approach nor Shepard documents. The defendant there argued
that the Government could not prove the bare fact of a prior
felony conviction with “an incomplete certified conviction rec-
ord and [municipal court] Docket entries.” Howard, 599 F.3d
at 272. In the defendant’s view, those documents lacked “suf-
ficient indicia of reliability to support [their] probable accu-
racy,” id. at 271 (quoting United States v. Miele, 989 F.2d 659,
663 (3d Cir. 1993))—the ordinary reliability standard for con-
sidering information at sentencing, see United States v. Free-
man, 763 F.3d 322, 337 (3d Cir. 2014) (discussing indicia-of-
reliability standard). We disagreed that the docket sheet failed
to clear that lower reliability threshold. We held that the sen-
tencing court could rely on uncertified docket entries to apply
the career-offender enhancement because those “docket entries
[we]re the type of judicial records that are permissible for sen-
tencing courts to use to establish past convictions for sentenc-
ing purposes.” Howard, 599 F.3d at 273. In other words, the
Government in Howard was trying to establish a more garden-
variety sentencing fact—the kind the Fourth Circuit in
21
Washington held was not subject to Shepard’s heightened reli-
ability requirement. See supra at 17–18. Howard thus stands
merely for the proposition that a state-court docket entry is re-
liable enough to prove the fact of a prior felony conviction.
Although it cites Shepard, it is not a Shepard case.
Henderson is off point too. That case, unlike Howard,
did involve a modified categorical analysis, but not a docket
sheet. The document at issue there was a form “completed by
the Clerk of Courts in the Court of Common Pleas for Alle-
gheny Pennsylvania” and “used for reporting … violations of
the Controlled Substance, Drug, Device and Cosmetic Act.”
Henderson, 841 F.3d at 632 n.10. Henderson cited Howard for
the proposition that “we have deemed ‘other reliable judicial
records’ to be sufficient, including incomplete certified convic-
tion records and docket entries because we have found that
‘both … are records of the convicting court.’” Id. at 632 (quot-
ing Howard, 599 F.3d at 272–73) (internal citation omitted)
(omission in original). But as explained, we did not hold that
state-court docket sheets were Shepard documents in Howard.
The point in Henderson was only that the modified categorical
approach is not limited to “‘[a]ctual’ conviction documents”; it
can include other sufficiently reliable “records of the convict-
ing court.” Id.
2. We Cannot Consider Shepard Documents
Introduced on Appeal.
The Government next argues that it can establish Payo’s
2008 conviction was for violating § 3701(a)(1)(ii) even with-
out the state-court docket sheet. “To eliminate any doubt,” it
“has now obtained the plea-colloquy transcript, which further
confirms that subsection (ii) is ‘the only logical choice’ for
[the] statute of conviction.” Appellee’s Br. 18. According to the
Government, the plea colloquy shows that Payo “threatened
22
each victim by pulling back a piece of clothing to show what
appeared to be a gun tucked into his waistband.” Id. at 19. On
its reading, “[t]here was no factual basis presented for Payo to
admit to causing serious bodily injury,” which is an element of
§ 3701(a)(1)(i). Id. The Government insists that it “has ob-
tained this transcript on appeal not to sandbag, but in a good-
faith effort to assure itself and the Court of the accuracy of the
underlying convictions.” Id. at 20. It cites our unpublished de-
cision in United States v. Volek for the principle that “we are
able to take judicial notice of the Shepard documents submitted
by the [G]overnment for the first time on appeal.” 796 F. App’x
123, 126 (3d Cir. 2019).
It is hard to harmonize Volek with our earlier published
decisions holding that the Government ordinarily must defend
a sentencing enhancement using the record it produced before
the sentencing court. In United States v. Dickler, we held that
when “the [G]overnment has the burden of production and per-
suasion as it does on issues like enhancement of the offense
level under [the Guidelines], … its case should ordinarily have
to stand or fall on the record it makes the first time around.” 64
F.3d 818, 832 (3d Cir. 1995). “It should not normally be af-
forded ‘a second bite at the apple.’” Id. (internal citation omit-
ted). To be sure, we noted that there is “no constitutional or
statutory impediment to the district court’s providing the
[G]overnment with an additional opportunity to present evi-
dence on remand.” Id. But it may do so only “if [the Govern-
ment] has tendered a persuasive reason why fairness so re-
quires.” Id. In United States v. Rowe, we reiterated “our distaste
for ‘a second bite at the apple.’” 919 F.3d 752, 763 (3d Cir.
2019) (internal citation omitted). We acknowledged that Dick-
ler “recognized a limited exception,” but held that the Govern-
ment did not provide a good reason for its failure, so we va-
cated the sentence, remanded the case for resentencing, and
23
specified that “the Government may not introduce new evi-
dence to prove drug quantity.” Id.; see also In re Indian Palms
Assocs., 61 F.3d 197, 205 (3d Cir. 1995) (“Judicial notice may
be taken at any stage of the proceeding, including on appeal,
as long as it is not unfair to a party to do so ….” (emphasis
added) (quotation marks and citations omitted)).
We will not permit the Government here to introduce
new Shepard documents on appeal. It bore the burden at sen-
tencing of proving that the career-offender enhancement ap-
plied to Payo. Napolitan, 762 F.3d at 309. That burden included
showing that he committed two predicate offenses. To prove
that his 2008 conviction was a crime of violence, and thus a
predicate offense, the Government introduced some Shepard
documents, but it repeatedly chose not to produce the plea col-
loquy. Although Volek states that we can review Shepard doc-
uments introduced on appeal, we believe that decision clashes
with our general rule—reaffirmed several times in our pub-
lished opinions—that the Government must, absent a persua-
sive reason, defend its sentencing enhancements based on the
record it created before the District Court. See, e.g., Rowe, 919
F.3d at 763; Dickler, 64 F.3d at 832.
3. Payo’s Presentence Report Is Not a Shepard
Document.
Leaving no stone unturned, the Government argues that
the docket sheet and plea colloquy are “not the only bas[e]s for
determining the subsection of conviction here.” Appellee’s
Br. 16. In its view, “[t]he [presentence report] also supports the
[D]istrict [C]ourt’s finding that the convictions were under
subsection (ii)” because “Payo’s robberies involved no actual
bodily injury, … only threats of serious bodily injury.” Id. (ci-
tation omitted).
24
A presentence report “can be a Shepard document when
the defendant does not object to a factual account of a crime
therein.” United States v. Doe, 810 F.3d 132, 147 (3d Cir.
2015). The Government acknowledges that Payo objected to
the factual descriptions of his prior conviction in the presen-
tence report, but insists that those were “boilerplate blanket ob-
jections.” Appellee’s Br. 16. Such objections are purportedly
“ineffective to nullify the [presentence report’s] findings.” Id.
According to the Government, Payo’s objection would be ef-
fective only if he “include[d] evidence to cast ‘real doubt’ on
the [presentence report’s] reliability.” Id. at 17 (quoting United
States v. Meherg, 714 F.3d 457, 459 (7th Cir. 2013)). “[O]bjec-
tions to the [presentence report that] are merely rhetorical and
unsupported by countervailing proof” are not enough. Id.
(quoting United States v. Cyr, 337 F.3d 96, 100 (1st Cir. 2003)).
The Government is conflating different ways a presen-
tence report might be used. It is correct that a court ordinarily
may consider a presentence report in determining sentencing
facts. For example, the First Circuit in Cyr held that the district
court had not erred by using the presentence report to establish
drug quantity for sentencing purposes. 337 F.3d at 101. The de-
fendant could not stop the court from considering a presentence
report to establish sentencing facts merely by registering a
blanket objection.
As we have explained, however, establishing ordinary
sentencing facts is different from determining which of several
alternative elements in a divisible statute supported a defend-
ant’s conviction. Under the modified categorical approach,
“the universe of records the [G]overnment may use in proving
the nature of a prior conviction” is limited to Shepard docu-
ments. Washington, 629 F.3d at 409. Those must have the “con-
clusive significance of a prior judicial record.” Shepard, 544
25
U.S. at 25. A presentence report is not ordinarily a Shepard
document because it is often itself based on non-Shepard doc-
uments, like police reports. See United States v. Serrano-Mer-
cado, 784 F.3d 838, 858 (1st Cir. 2015) (Lipez, J., concurring)
(“[P]olice reports are a typical source of the facts reported in a
[presentence report] ….”); see also Shepard, 544 U.S. at 16
(holding courts may not rely on police reports when conducting
a modified categorical analysis).
In Doe, we held that a presentence report may qualify
as a Shepard document if, but only if, the defendant registered
no objection to its contents. 810 F.3d at 147. The logic under-
lying that rule is that a presentence report has conclusive sig-
nificance when the defendant accepts that its factual contents
are accurate. But when a defendant does not concede that the
factual contents of the presentence report are accurate, then
that assumption no longer holds. The Government’s argument
that a defendant must make an effective objection with evi-
dence that casts doubt on the presentence report is right for or-
dinary sentencing facts, but gets it backwards for the modified
categorical analysis. The default presumption is that a presen-
tence report is not a Shepard document. A contrary rule would
allow the Government to smuggle information based on non-
Shepard materials into the modified categorical analysis, and
leave the defendant with the evidentiary burden of disproving
the Government’s claims. Because Payo objected to the factual
content of the presentence report, it is not a Shepard document,
and the District Court was right not to rely on it.
26
IV. WHAT IS THE APPROPRIATE REMEDY?
A. The District Court Shall Determine Whether
Payo’s 2008 Conviction Was Under § 3701(a)(1)(i)
or (ii).
We need not reach Payo’s third and final argument that
subsections (i) and (iv) do not categorically match the generic
offense of robbery because he succeeds on his first two argu-
ments. To recap: the District Court should not have concluded
that Payo’s 2010 conviction under § 3701(a)(1)(iv) satisfied
the enumerated-offenses clause. The Government never made
that argument before the District Court, and, in failing to do so,
forfeited it. By excusing the Government’s forfeiture without
explanation and advancing a legal argument the Government
did not make, the Court violated party-presentation and sepa-
ration-of-powers principles.
That leaves Payo’s 2008 conviction. The District Court
concluded, relying on a state-court docket sheet, that the con-
viction was under § 3701(a)(1)(ii), which is a crime of violence
under the force clause—the argument the Government made
all along. But as we explained, that docket sheet was not a
Shepard document. The District Court should not have relied
on it. And we cannot, as the Government requests, affirm the
District Court’s conclusion by looking at the 2008 plea collo-
quy, which is untimely, or the presentence report, which is not
a Shepard document because of Payo’s objection.
The sole remaining question is factual: Based on the
Shepard documents the Government submitted to the District
Court, was Payo’s 2008 conviction under subsection (i) or (ii)?
If subsection (ii), then the enhancement stands because the par-
ties do not dispute that it satisfies the force clause. If subsec-
tion (i), then the enhancement was improper, at least here. That
27
is because on appeal the Government concedes that subsection
(i) cannot satisfy the force clause. And it already forfeited in
the District Court the argument that subsection (i) satisfies the
enumerated-offenses clause.1
Because this residual question is essentially factual, we
will remand to the District Court, in deference to its superior
familiarity with the details of this case, to conduct the inquiry
a second time. It should, however, confine its review to the
Shepard documents the Government compiled the first time
around. Because the Government did not provide a good rea-
son for its failure to submit the docket sheet or plea colloquy
at sentencing, we will not afford it “a second bite at the apple.”
Dickler, 64 F.3d at 832 (citation omitted).
If the District Court concludes that the remaining mate-
rials are inconclusive, then it must assume that the 2008 con-
viction was based on “the least culpable conduct hypothetically
necessary to sustain a conviction under the statute.” United
States v. Harris, 68 F.4th 140, 145 (3d Cir. 2023) (citation omit-
ted). Here, that would be § 3701(a)(1)(i). As the Government
concedes, a defendant can violate subsection (i) with a mens
rea of recklessness. By contrast, § 3701(a)(1)(ii) requires a
more culpable mens rea: the defendant must “threaten[]
1
Our concurring colleague again claims that the Government
preserved this argument by claiming that its Shepard docu-
ments “‘reveal[ed] … Payo was convicted of two counts of 18
Pa. C.S. [§] 3701(a)(1)(i) or (ii)’ and ‘submit[ted] that either of
these convictions would qualify as a crime of violence.’” Conc.
Op. 3 (quoting App. 176). No one disputes that the Govern-
ment argued subsection (i) was a crime of violence. The prob-
lem is that it never argued subsection (i) satisfied the enumer-
ated-offenses clause.
28
another with or intentionally put[] him in fear of immediate se-
rious bodily injury.” 18 Pa. Cons. Stat. § 3701(a)(1)(ii).
Finally, we request that the District Court act expedi-
tiously on remand to ensure it resolves Payo’s career-offender
status before he completes his sentence. Nearly six years
elapsed between when Payo was sentenced and when we heard
argument, and at the time of our writing his projected release
date is November 17, 2026.
B. The District Court May Consider Payo’s Personal
History.
On remand, if the District Court ultimately determines
that Payo is not a career offender, he may be eligible for release
immediately upon resentencing. In that event, the District
Court will have to determine what, if any, conditions to include
in any term of supervised release it might impose. In fashioning
the appropriate conditions of that release, the Court might con-
sider how Payo’s criminality is rooted in his lifelong struggles
with mental illness, drug addiction, and chronic pain.
For most of his life, Payo has experienced chronic back
pain, drug addiction, and severe mental health issues. He has
been diagnosed with anxiety disorder, bipolar depression, post-
traumatic stress disorder, and schizoaffective disorder. He has
a history of suicidal ideation and has several times received in-
patient mental health treatment.
In 2017, Payo committed the robberies that supported
the conviction before us now. A year earlier, he underwent spi-
nal fusion surgery and was committed twice to inpatient mental
health treatment. Unable to manage his pain, he told an emer-
gency room nurse that he “want[ed] to die” and planned to
“jump from the fourth floor building or use a razor blade to slit
his throat.” App. 113 (internal quotation marks omitted). These
29
pain and mental-health struggles helped fuel Payo’s addiction
as he resorted to drugs to self-medicate. And after he was ar-
rested for the 2017 robberies, Payo told the interviewing of-
ficer, “I planned on having you guys shoot me.” App. 115 (in-
ternal quotation marks omitted).
These misfortunes do not excuse Payo’s conduct. But
they do provide context. If he is ever to reenter society success-
fully and remain crime-free, then he must address his mental-
health and drug-use struggles. To that end, the District Court
may want to consider including conditions of release targeting
the underlying causes of Payo’s significant history of criminal-
ity.2
2
We also note that Payo is 60 years old. He was 53 years old
when he was sentenced. The United States Sentencing Com-
mission has published research suggesting an inverse relation-
ship between age and criminality. See U.S. Sent’g Comm’n,
Older Offenders in the Federal System 41–44 (July 2022); U.S.
Sent’g Comm’n, The Effects of Aging on Recidivism Among
Federal Offenders 22 (Dec. 2017). Older offenders are less
likely to recidivate and, when they do, are much more likely to
commit less serious offenses then their younger counterparts.
See Older Offenders in the Federal System 41–44; The Effects
of Aging 22. Payo’s age alone greatly reduces the risk he pre-
sents to society if he were to be released. During an eight-year
follow-up period of all individuals released in 2010 from fed-
eral custody, “[t]he recidivism rate of older offenders (21.3%)
was less than half that of offenders under the age of 50
(53.4%).” Older Offenders in the Federal System 42–43. And
during an eight-year follow-up period of all individuals re-
leased in 2005 from federal custody, the recidivism rate for in-
dividuals released at age 60 years or older was 16.4%; it was
30
V. CONCLUSION
The parties, not the courts, are “responsible for advanc-
ing the facts and arguments entitling them to relief” in our
criminal legal system. Dowdell, 70 F.4th at 141 (quoting
Greenlaw, 554 U.S. at 244). In a laudable effort to reach the
right answer, the District Court failed to hold the Government
to the arguments and factual record it chose to develop. Instead,
it resuscitated the Government’s forfeited argument that the
2010 conviction was a crime of violence under the enumerated-
offenses clause and purported to take judicial notice of a non-
Shepard document. We disagree with those decisions.
The only remaining live issue is whether Payo’s 2008
conviction was under § 3701(a)(1)(i) or (ii). We thus vacate
Payo’s sentence and remand for the District Court to answer
that question as expeditiously as possible using only the Shep-
ard documents produced by the Government the first time
around. If it can prove that Payo’s 2008 conviction was under
subsection (ii), the sentence enhancement stands; otherwise, it
does not.
64.8% for those who were released at an age younger than 30
years old. The Effects of Aging 2–3, 22.
31
HARDIMAN, Circuit Judge, concurring in the judgment.
I agree with my colleagues that we must vacate David
Payo’s sentence and remand for the District Court to resentence
him. The resentencing hearing should be de novo.
This appeal comes to us in an unusual procedural
posture. Payo was sentenced on March 7, 2019. The parties
disputed whether he was a “career offender” within the
meaning of U.S.S.G. § 4B1.1. To answer that question, the
parties focused mostly on whether Payo’s two-count
conviction for Pennsylvania robbery in violation of 18 Pa.
Cons. Stat. § 3701(a)(1)(i) or (ii) involved the use of force.
After Payo was sentenced, his appeal was stayed for
over four years pending the resolution of other cases involving
categorical approach issues. The law changed during that time.
First, the Supreme Court held that a criminal offense that
requires only a mens rea of recklessness does not satisfy the
elements clause in the Armed Career Criminal Act’s definition
of “violent felony.” See Borden v. United States, 593 U.S. 420,
423 (2021) (plurality opinion). Second, we determined that 18
Pa. Cons. Stat. § 3701(a)(1)(ii) qualifies as a “crime of
violence” under U.S.S.G. § 4B1.2(a)’s elements clause. See
United States v. Henderson, 80 F.4th 207, 215 (3d Cir. 2023),
cert. denied, 144 S. Ct. 1379 (2024).
The decisions just mentioned caused the parties to shift
their focus on appeal. In the District Court, the Government
had argued that Payo pleaded guilty to violating § 3701(a)(1)(i)
or (ii) and that both subsections qualify as a “crime of
violence” under U.S.S.G. § 4B1.2(a)’s elements clause.
Meanwhile, Payo had contended that it was unclear whether he
pleaded guilty to violating § 3701(a)(1)(i) or (ii), and he had
1
tactically argued that under Shepard the District Court could
not consider a state court sentencing order that indicated he had
pleaded guilty to violating § 3701(a)(1)(i). The Government
now concedes that § 3701(a)(1)(i) cannot qualify as a crime of
violence under U.S.S.G. § 4B1.2(a)’s elements clause because
it requires only a mens rea of recklessness. So the Government
argues that the Shepard documents show Payo pleaded guilty
to violating § 3701(a)(1)(ii) and that § 3701(a)(1)(i) is an
enumerated offense. For his part, Payo now argues that the
Shepard documents show he pleaded guilty to violating
§ 3701(a)(1)(i), which he contends is not an enumerated
offense.
In view of these legal and tactical changes, the District
Court deserves the opportunity to resentence Payo without
constraint, subject to the now-controlling precedents. The
majority requires the opposite, severely circumscribing the
District Court’s ability to get this case correct based on the facts
and the law. In my view, the majority makes three fundamental
errors.
First, the majority holds that the District Court erred by
relying on the docket face sheet because it was not a Shepard
document. I agree that the District Court erred by relying
exclusively on the docket face sheet in view of the apparent
conflict between the docket face sheet and the sentencing
order. So I would remand for the District Court to reexamine
the docket face sheet, the state court sentencing order, and any
other appropriate Shepard documents to determine whether
Payo was convicted under 18 Pa. Cons. Stat. § 3701(a)(1)(i) or
(ii).
Second, the majority holds that the Government
forfeited the argument that § 3701(a)(1)(i) satisfies the
2
enumerated offenses clause. In doing so, the majority turns
forfeiture on its head by invoking the doctrine against the
appellee in this procedural posture. But as we have explained,
“forfeiture has greater consequences for appellants than for
appellees.” Montemuro v. Jim Thorpe Area Sch. Dist., 99 F.4th
639, 646 (3d Cir. 2024). The Government was “not required to
raise all possible alternative grounds for affirmance to avoid
[forfeiting] those grounds.” Eichorn v. AT&T Corp., 484 F.3d
644, 657–58 (3d Cir. 2007). And “[w]e may affirm a district
court for any reason supported by the record.” Brightwell v.
Lehman, 637 F.3d 187, 191 (3d Cir. 2011). So the Government
may defend the judgment below on a new ground. See, e.g.,
Los Rovell Dahda v. United States, 584 U.S. 440, 449–50
(2018) (affirming based on “an argument that the Government
did not make below” that was “closely related to the arguments
the Government did make below”). Considering alternative
grounds for affirmance is especially appropriate where, as here,
there has been a significant intervening change in the law. See
Borden, 593 U.S. at 423; see also United States v. Quailes, 126
F.4th 215, 218 n.4 (3d Cir. 2025) (“[W]e may reach forfeited
arguments that relate to an intervening change in controlling
case law that occurs while appeal is pending.”).
The Government also raised this issue in the District
Court, so it is especially mistaken to preclude it from renewing
this argument on remand. When it submitted the Shepard
documents, the Government argued that they “reveal[ed] . . .
Payo was convicted of two counts of 18 Pa. C.S. 3701(a)(1)(i)
or (ii)” and “submit[ted] that either of these convictions would
qualify as a crime of violence.” App. 176. Because the
Government raised this issue, I would allow the District Court
to consider it on remand and would not restrict the sources it
3
may consider in determining whether Payo’s conviction was
for § 3701(a)(1)(i) or (ii).
Third, the majority holds that because the Government
forfeited its argument that 18 Pa. Cons. Stat. § 3701(a)(1)(iv)
is a crime of violence under U.S.S.G. § 4B1.2(a)’s enumerated
offenses clause, the District Court abused its discretion by
accepting it. Citing dicta in United States v. Dowdell, 70 F.4th
134 (3d Cir. 2023), the majority concludes that the District
Court “violated party-presentation and separation-of-powers
principles” by reaching a forfeited argument. Maj. Op. Section
III-A-3. Once again, the majority flips forfeiture on its head by
invoking the doctrine against the appellee on an argument that
the District Court actually reached.
The District Court record shows that Dowdell does not
apply to this case. The Government argued that Payo had been
“convicted of two crimes that categorically include the use of
force or the threatened use of force.” App. 177. Those two
crimes included 18 Pa. Cons. Stat. § 3701(a)(1)(i) or (ii) and
id. § 3701(a)(1)(iv). App. 176. As for the latter, the
Government said only that “[t]he First Circuit has held that 18
Pa. C.S. 3701(a)(1)(iv) is a crime of violence.” Id. (citing
United States v. Ball, 870 F.3d 1, 6 (1st Cir. 2017)). But in an
opinion following that written submission, the District Court
recognized that Ball discussed whether § 3701(a)(1)(iv)
substantially corresponds with generic robbery. United States
v. Payo, 2019 WL 235112, at *4 (W.D. Pa. Jan. 16, 2019).
In sum, the Government’s sparse filing apprised the
District Court of its argument.1 Although the District Court
1
The majority also says that “simply citing a case in the
District Court is not sufficient to raise all arguments that might
4
could have required the Government to further develop its
argument, its decision not to do so was far from an abuse of
discretion. See Dowdell, 70 F.4th at 140–42. And its conclusion
that § 3701(a)(1)(iv) was an enumerated offense is a required
judicial function, not a violation of the separation of powers.
The idiosyncrasies of this case require a full and fair
hearing in the District Court so the sentencing judge can
ascertain, once and for all, whether Payo is a career offender.
With respect, I concur only in the judgment.
flow from it.” Maj. Op. Section III-A-3 (quoting United States
v. Dupree, 617 F.3d 724, 731 (3d Cir. 2010)) (cleaned up). That
language from Dupree is taken out of context. There, the
government cited a case to make one argument in the district
court and a different argument on appeal. Dupree, 617 F.3d at
730–31. We held the argument first raised on appeal was
forfeited because the district court was not given “the
opportunity to consider” it. Id. at 731. Here, by contrast, the
District Court had—and took—“the opportunity to consider
the argument” when the Government cited Ball. Id.; Payo,
2019 WL 235112, at *4–6.
5