United States v. Mekail Jones

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 13-1020

_____________

UNITED STATES OF AMERICA

v.

MEKAIL OMAR JONES,

Appellant

Appeal from the United States District Court

for the Western District of Pennsylvania

(District Court No. 1-11-cr-00042-001)

District Judge: Honorable Sean J. McLaughlin

Argued October 18, 2013

Before: RENDELL, JORDAN and LIPEZ*, Circuit Judges

(Opinion Filed: January 10, 2014)

*Honorable Kermit V. Lipez, Senior United States

Circuit Judge for the Court of Appeals for the First Circuit,

sitting by designation.

Lisa B. Freeland, Esquire

Federal Public Defender

Thomas W. Patton, Esquire (Argued)

Assistant Federal Public Defender

Office of Federal Public Defender

1001 State Street

1111 Renaissance Centre

Erie, PA 16501

Counsel for Appellant

David J. Hickton, Esquire

United States Attorney

Michael L. Ivory, Esquire (Argued)

Assistant United States Attorney

Rebecca R. Haywood, Esquire

Office of United States Attorney

700 Grant Street, Suite 4000

Pittsburgh, PA 15219

Christine A. Sanner, Esquire

Office of United States Attorney

17 South Park Row, Room A330

Erie, PA 16501

Counsel for Appellee

2

OPINION

RENDELL, Circuit Judge:

Defendant Mekail Omar Jones appeals his sentence of

120 months imprisonment following his guilty plea to

possession of a firearm by a convicted felon. Jones makes

three claims of error by the District Court. First, he argues

that his prior conviction for vehicular flight should not have

counted as a crime of violence under the sentencing

guidelines. Second, Jones contends that his conduct in this

case did not support a guideline enhancement for assault on a

police officer. Third, he states that the District Court erred by

presuming his guidelines range to be reasonable, ignoring

arguments made by his defense counsel.

For the reasons that follow we will affirm in part, and

reverse in part, the District Court’s judgment of sentence.

I.

On the afternoon of April 27, 2011, uniformed City of

Erie police officers Ryan Onderko and Gregory Baney

responded to a disturbance call at a bar located at Parade and

11th Streets in Erie, Pennsylvania. As the officers

approached the bar in their marked police cruiser, they

spotted an individual, later identified as Jones, running from

the bar.

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Officer Onderko was familiar with Jones from a prior

arrest, as described below, and both officers were aware that

Jones had an outstanding arrest warrant. As the police cruiser

approached, Jones stopped running and began walking, and

Officer Onderko was then able to recognize him. Officer

Onderko exited the car and said, “hey, Jones, come here.”

(App. 258.) Jones then “took off running” toward 12th Street

and Officer Onderko pursued him on foot, “yelling several

times, ‘stop you’re under arrest.’” (Id.) The foot-chase that

ensued saw Jones lead Officer Onderko across traffic on 12th

Street before heading back in the direction where the chase

began.

As Officer Onderko closed in, he could tell that Jones

was reaching or digging in his waistband, but could not

discern what Jones was reaching for. (App. 259.) Officer

Baney parked the police cruiser, exited and began to pursue

Jones as well. As Jones fled back towards the parking lot

where the chase had begun, Officer Baney observed Jones

retrieve a handgun from his waistband while he was “no more

than . . . two parking spots” away. (App. 218.) Officer

Onderko then caught up to Jones and tackled him from

behind. At that moment, Officer Baney shouted, “Gun!” and

the handgun flew out of Jones’s hand. (App. 219.) In

tackling Jones, Officer Onderko suffered a complete tear of

his anterior cruciate ligament. Yet Jones managed to escape

and continue fleeing. Officer Baney grabbed Jones’s shirt,

but Jones slipped out of his shirt and again continued to run.

Officer Baney then shot Jones with his taser from a distance

of 30-40 feet three times, finally subduing Jones.

Police later recovered the firearm that Jones had

removed from his waistband, a Smith & Wesson .38 caliber

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handgun. In a post-arrest statement, Jones, a convicted felon,

admitted that he was carrying the gun. Jones was

subsequently charged with, and pleaded guilty to, one count

of possession of a firearm by a convicted felon, in violation of

18 U.S.C. § 922(g)(1).

The Presentence Report (“PSR”) calculated Jones’s

base offense level to be 24, pursuant to U.S.S.G.

§2K2.1(a)(2), because Jones had previously been convicted of

two “crimes of violence”: conspiracy to commit robbery, and

fleeing or attempting to elude law enforcement. Jones

objected, arguing that fleeing or attempting to elude was not a

crime of violence. (App. 47.)

This prior conviction was for a second degree

misdemeanor charge of “Fleeing or Attempting to Elude [a]

Police Officer” under Pennsylvania law, 75 Pa. Cons. Stat.

§ 3733. The relevant language of the statute is as follows:

Offense defined.--Any driver of a

motor vehicle who willfully fails

or refuses to bring his vehicle to

a stop, or who otherwise flees or

attempts to elude a pursuing

police officer, when given a visual

and audible signal to bring the

vehicle to a stop, commits an

offense as graded in subsection

(a.2).

The “grading” provision makes this offense a misdemeanor of

the second degree, unless, while “fleeing or attempting to

elude a police officer,” the driver (1) drives under the

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influence of alcohol or a controlled substance, or (2) crosses a

state line, or (3) “endangers a law enforcement officer or

member of the general public due to the driver engaging in a

high-speed chase.” 75 Pa. Cons. Stat. § 3733(a.2)(i)-(iii). In

that event, the offense is a third-degree felony.

The District Court first took note of several cases

which had held that vehicular flight is categorically a crime of

violence, as well as a non-precedential opinion of our Court

in which we held that a conviction for vehicular flight under

Pennsylvania law constituted a crime of violence. (App. 298-

300) (citing United States v. Jackson, 495 F. App’x 224 (3d

Cir. 2012).

However, the District Court did not resolve whether

misdemeanor vehicular flight pursuant to 75 Pa. Cons. Stat. §

3733(a)(1) categorically constitutes a crime of violence under

the sentencing guidelines. Instead, the District Court looked

at the records of Jones’s conviction and concluded, “the

factual conduct attributed to the defendant in the criminal

information . . . and agreed to by the defendant during his

colloquy is consistent with that attributed to the defendant in

the Third Circuit’s decision in Jackson and would support an

application of the enhancement pursuant to a modified

categorical approach.” (App. 301.) The District Court then

recounted that “during the [plea] colloquy, the defendant

admitted to backing his vehicle into Officer Onderko’s

attended vehicle, engaging in a high speed chase, and failing

to stop for multiple stoplights and stop signs. In addition, he

admitted to striking a fence and driving onto a lawn.” (App.

10-11.) Thus, the District Court concluded that Jones’s prior

conviction for fleeing and eluding was a crime of violence

and overruled his objection.

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The Government also objected to the PSR, urging that

an additional six-level increase pursuant to U.S.S.G. §

3A1.2(c)(1) was warranted, because Jones assaulted Officer

Onderko during the foot-chase. Jones objected to this

enhancement. The District Court sustained the Government’s

objection, concluding that reaching for a loaded gun is

enough to produce a substantial risk of serious bodily injury,

thereby warranting the six-level enhancement.

Toward the conclusion of sentencing, the District

Court addressed defense counsel’s request for a variance,

inquiring as to the factors that would support a sentence

below the guidelines range. The Court also engaged in a

colloquy with defense counsel concerning his argument that it

did not promote respect for the law to enhance Jones’s

sentence to the statutory maximum based on uncharged

conduct.

In calculating the final guidelines range, pursuant to §

2K2.1(a)(2), the District Court utilized the base offense level

of 24 based on two prior convictions for crimes of violence.

The Court then added four levels for an enhancement under §

2K2.1(b)(6)(B), not at issue here, for the possession of a

firearm in connection with resisting arrest. Subtracting three

levels for acceptance of responsibility, the offense level stood

at 25 with a criminal history category III, corresponding to an

imprisonment range of 70 to 87 months. Then, the

subsequent addition of six levels for “assault” on Officer

Onderko pursuant to § 3A1.2(c)(1) led to a new total offense

level of 31, for an imprisonment range of 135 to 168 months.

However, the statutory maximum time of imprisonment was

ten years, so that pursuant to § 5G1.1(c), 120 months became

Jones’s guidelines range. The District Court accordingly

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sentenced Jones to 120 months’ imprisonment. In so doing,

the District Court declined to grant a downward variance.

II.

The District Court had jurisdiction over this case under

18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. §

1291.

Determination of what constitutes a crime of violence

under the sentencing guidelines, and legal interpretations of

the guidelines, are both subject to plenary review. United

States v. McQuilkin, 97 F.3d 723, 727 (3d Cir. 1996). Factual

findings pertaining to sentencing are reviewed for clear error,

and we review application of the guidelines to the facts for

abuse of discretion. Id.; United States v. Blackmon, 557 F.3d

113, 118 (3d Cir. 2009). We review procedural error for

abuse of discretion, but if an appellant fails to raise a

contemporaneous objection below, we will review for plain

error. United States v. Russell, 564 F.3d 200, 203 (3d Cir.

2009).

As noted above, Jones raises three separate claims of

error concerning his sentence: (1) that the District Court erred

in determining that his vehicular flight conviction constituted

a crime of violence under the guidelines, (2) that the District

Court erred in imposing a six-level enhancement for

assaulting the police, and (3) that the District Court

improperly presumed the applicable sentencing guidelines to

be reasonable, while ignoring defense counsel’s arguments.

We address each of these claims in turn.

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1. Vehicular Flight - Crime of Violence

Under U.S.S.G. § 2K2.1(a)(2) a defendant’s base

offense level is 24 if the instant offense was committed after

at least two felony convictions involving a “crime of

violence.” A crime of violence is defined in § 4B1.2(a)(1)-

(2) as :

any offense under federal or state

law, punishable by imprisonment

for a term exceeding one year,

that-- (1) has as an element the

use, attempted use, or threatened

use of physical force against the

person of another, or (2) is

burglary of a dwelling, arson, or

extortion, involves the use of

explosives, or otherwise involves

conduct that presents a serious

potential risk of physical injury to

another.

(emphasis added). Because the Pennsylvania crime defined

above does not have as an element the use of physical force,

and is not listed as an enumerated offense, the issue in this

case is whether Jones’s conviction for misdemeanor vehicular

flight qualifies as a crime of violence pursuant to the final,

residual clause of § 4B1.2(a)(2).

In making this determination, courts are required to

follow the “categorical approach,” wherein the crime of

conviction is evaluated as to whether it categorically

constitutes a crime of violence. “That is, we consider

9

whether the elements of the offense are of the type that would

justify its inclusion within the residual provision, without

inquiring into the specific conduct of this particular offender.”

James v. United States, 550 U.S. 192, 202 (2007) (emphasis

in original). 1 Thus, in the ordinary case involving the residual

clause, the categorical approach calls for a straightforward

procedure: determining whether the elements of the statute of

conviction categorically “involve[] conduct that presents a

serious potential risk of physical injury to another.” See

§ 4B1.2(a)(2); see also Sykes v. United States, 131 S. Ct.

2267 (2011) (applying the categorical approach to determine

if vehicular flight constitutes a crime of violence under the

residual clause of the Armed Career Criminal Act

(“ACCA”)).

The Supreme Court has recently spoken as to when we

can look beyond the fact of conviction and examine certain

record evidence, in determining whether the conviction

constitutes a crime of violence. In Descamps v. United

States, 133 S. Ct. 2276 (2013), the Court held that only where

the conviction involves a divisible statute, containing multiple

alternate elements, where it may be impossible to conclude

which statutory provision was the basis for the conviction, is

1

James concerned the Armed Career Criminal Act

(“ACCA”), 18 U.S.C. § 924 (e)(1), which mandates a

minimum of fifteen years imprisonment if a defendant has

three prior convictions for a “violent felony.” 550 U.S. at 195.

However, “the definition of a violent felony under the ACCA

is sufficiently similar to the definition of a crime of violence

under the Sentencing Guidelines that authority interpreting

one is generally applied to the other . . . .” United States v.

Hopkins, 577 F.3d 507, 511 (3d Cir. 2009) (footnote omitted).

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the sentencing court permitted to investigate the record

beyond the fact of conviction. Pursuant to this “modified

categorical approach,” a court may consult extra-statutory

documents 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.” Shepard v. United States, 544 U.S. 13, 16 (2005).

As the Supreme Court emphasized in Descamps:

the modified approach merely

helps implement the cat egorical

approach when a defendant

was convicted of violating a

divisible statute. The modified

approach thus acts not as an

exception, but instead as a tool. It

retains the categorical approach’s

central feature: a focus on the

elements, rather than the facts, of

a crime. . . . All the modified

approach adds is a mechanism for

making that comparison when a

statute lists multiple, alternative

elements, and so effectively

creates “several different . . .

crimes.”

Descamps, 133 S. Ct. at 2285 (quoting Nijhawan v. Holder,

557 U.S. 29, 41 (2009)).

Thus, only if the Pennsylvania statute effectively

creates several different crimes, such that it, “renders opaque

which element played a part in the defendant’s conviction,”

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should the court resort to the modified categorical approach.

Id. at 2283. This approach should be followed if certain

elements of the statute fit within the definition of a crime of

violence, while other alternative elements do not. In that

event, the court would need to know which elements were the

basis for the defendant’s conviction, and the court may

examine Shepard documents to make that determination. See

id. 2285 (“If at least one, but not all of those crimes [in a

given statute] matches the generic version, a court needs a

way to find out which the defendant was convicted of.”)

While it could be argued that the Pennsylvania statute

in question is a divisible one, given the clauses separated by

“or,” Jones’s conviction does not require further examination

under the modified categorical approach. That is because it

matters little whether Jones intentionally “fail[ed] or refus[ed]

to bring his vehicle to a stop,” or “otherwise fle[d] or

attempt[ed] to elude” law enforcement, after being ordered to

stop. 75 Pa. Cons. Stat. § 3733(a). All of the listed conduct

involves the same type of intentional disobedience of a

command from law enforcement while in a vehicle. As such,

all of the listed conduct is of the same nature, that either

would or would not collectively fit under the definition of a

crime of violence. Thus, for purposes of our analysis, the

statute creates one crime of willfully fleeing from law

enforcement, and we need not resort to the modified

approach.

While it may be tempting to examine the conduct

underlying a given conviction, as the District Court did, the

Supreme Court now says we cannot. Indeed, until only

recently we sometimes employed the modified categorical

approach in a way that may have implied its use was not so

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limited. See United States v. Marrero, 677 F.3d 155, 159 (3d

Cir. 2012) (examining underlying conduct without

determining threshold question of whether the statute is

divisible such that some combinations of elements would be a

crime of violence and some would not), judgment vacated,

133 S. Ct. 2732 (2013). However, we are bound by the

holding of Descamps, which makes clear that use of the

modified categorical approach is restricted to determining the

crime of conviction from divisible statutes, in which certain

proscribed conduct fits within the definition of a crime of

violence, and other conduct does not.

Under Descamps, the District Court erred, although

perhaps understandably given some of our prior case law, by

engaging in a factual analysis in determining whether Jones’s

conviction was a crime of violence. The Court recounted that

“during the [plea] colloquy, the defendant admitted to

backing his vehicle into Officer Onderko’s attended vehicle,

engaging in a high speed chase, and failing to stop for

multiple stoplights and stop signs. In addition, he admitted to

striking a fence and driving onto a lawn.” (App. 10-11.) The

Court accordingly concluded that the “defendant’s prior

conviction of fleeing and attempting to elude police is a crime

of violence . . . .” (App. 11.) As courts may only utilize the

modified categorical approach where the court needs to

determine the statutory basis for the defendant’s conviction,

we now view this factual inquiry as improper.

The Government contends that the Court did not err

because it did not utilize the modified approach, or because

the factual analysis constituted an alternative holding. Both

arguments are meritless. First, the District Court specifically

stated that it could apply the enhancement “pursuant to a

13

modified categorical approach,” before proceeding to cite the

conduct of the defendant during the car chase. (App. 10.)

Second, although the District Court noted that “various

Circuit Courts which have considered the question have

determined that vehicular flight categorically involves a

potential risk of serious injury,” the District Court did not rely

on such authority to reach a similar conclusion. (App. 7.)

Rather, the District Court relied on the “factual conduct

attributed to the defendant in the criminal information and

agreed to by the defendant during his colloquy,” to conclude

that Jones had committed a crime of violence under the

guidelines. (App. 10.) As an improper use of the modified

categorical approach, this was error, and would normally

require us to remand for resentencing on this basis. 2

However, the District Court’s error may be harmless if

Jones’s misdemeanor flight conviction nonetheless qualifies

categorically as a crime of violence. See United States v.

Taylor, 630 F.3d 629, 635 (7th Cir. 2010) (finding improper

use of modified categorical approach harmless where the

“district court reached the correct conclusion” in determining

a conviction to be a crime of violence). The Supreme Court

spoke to this issue in Sykes, 131 S. Ct. 2267, holding that an

offense under the Indiana vehicular flight law was a violent

felony under the residual clause of the ACCA. The Indiana

statute generally prohibited “knowingly or intentionally . . .

2

Because we find the District Court erred in looking to the

factual conduct underlying the flight conviction, we need not

address Jones’s further argument that the District Court also

erred by reciting facts alleged in separate counts of the state

court information and stated in other counts of the plea

colloquy.

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flee[ing] from a law enforcement officer after the officer has,

by visible or audible means, identified himself and ordered

the person to stop.” Id. at 2271 (quoting Ind. Code 35-44-3-

3(a)(3)). The statute contained multiple distinct offenses,

including: (1) engaging in flight while using a vehicle, and (2)

engaging in flight while “operat[ing] a vehicle in a manner

that creates a substantial risk of bodily injury to another

person.” Id. (quoting Ind. Code 35-44-3-3(b)(A)-(B)(1)).

Both of these offenses were graded as “Class D” felonies

under Indiana law. Id.

In Sykes, the defendant argued that because he was

convicted under the simple vehicular flight provision, and not

the aggravated counterpart, his conviction necessarily did not

involve a substantial risk of violence, and thus did not

constitute a violent felony. Id. at 2276. The Supreme Court

rejected this argument, relying in part on the fact that both the

simple and aggravated offenses were graded as Class D

felonies, reflecting a legislative judgment that both types of

violations significantly risked violence. Id. Jones urges here

that, because in Sykes both crimes were felonies and his

offense is only a misdemeanor, Sykes requires a finding in his

favor.

Admittedly, the statute in this case sets forth both a

misdemeanor and a felony. It is a second-degree

misdemeanor for a driver to “willfully fail[] or refuse[] to

bring his vehicle to a stop, or . . . otherwise flee[] or attempt[]

to elude a pursuing police officer, when given a visual and

audible signal to bring the vehicle to a stop . . . .” 75 Pa.

Cons. Stat. § 3733(a). However, vehicular flight is a third-

degree felony if it also “endangers a law enforcement officer

or member of the general public due to the driver engaging in

15

a high-speed chase . . . .” Id. § 3733(a.2)(2)(iii). Jones was

initially charged with the third-degree felony provision, but

later pled to a second-degree misdemeanor violation of the

statute.

The Sykes Court took note of this precise situation,

where “a crime is a lesser included offense . . . in cases where

that offense carries a less severe penalty than the offense that

includes it.” 131 S. Ct. at 2277. However, the Court stated it

was not deciding whether such a lesser-graded offense would

also constitute a violent felony. Id. Thus, we are left without

specific guidance as to whether the fact that Jones’s

conviction was a misdemeanor matters in determining

whether it is a crime of violence.

Even without such guidance, however, we reject the

notion that the misdemeanor versus felony distinction is

controlling here. The language of the misdemeanor

provision, as noted above, prohibits willfully fleeing from law

enforcement in a vehicle. The language of the Sykes court

was unequivocal in describing the significant risks associated

with intentional vehicular flight. The Court explained that

“[e]ven if the criminal attempting to elude capture drives

without going at full speed or going the wrong way, he

creates the possibility that police will, in a legitimate and

lawful manner, exceed or almost match his speed or use force

to bring him within their custody. A perpetrator’s

indifference to these collateral consequences has violent—

even lethal—potential for others.” Id. at 2273. In support,

the Court cited numerous statistics showing the high rate of

crashes and injuries which result from car chases with police,

and the relatively lower risk of violence associated with

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burglary and arson, which are enumerated in the ACCA as

violent felonies. Id. at 2274-75.

Our sister circuit courts who have addressed this

situation have uniformly held that lesser, lower-graded flight

offenses are violent felonies under the ACCA (or crimes of

violence under the guidelines). In response, Jones argues that

the statutes in those cases contained narrow aggravated flight

provisions, such that the lesser flight counterparts still

encompassed substantially risky crimes. For instance, Jones

points out that in United States v. Doyle, 678 F.3d 429, 432

(6th Cir. 2012), Tennessee’s aggravated flight law only

applied where “the flight or attempt to elude creates a risk of

death or injury to innocent bystanders or other third parties,”

such that the simple flight provision at issue still

encompassed flights which posed a risk to pursuing police

officers. Further, in both United States v. Hudson, 673 F.3d

263 (4th Cir. 2012), and United States v. Petite, 703 F.3d

1290 (11th Cir. 2013), the Courts of Appeals found Florida’s

lesser-included flight statute to be a violent felony, noting that

the aggravated flight provision criminalized only those flights

involving high-speed chases, such that the lesser provision

covered still-risky lower-speed chases. By contrast, Jones

urges that the Pennsylvania aggravated flight provision is

very broad, encompassing risk to police officers, third parties,

and lower-speed chases, so that misdemeanor flight under

Pennsylvania law must relate to conduct that does not involve

substantial risk, and thus cannot constitute a crime of violence

under the sentencing guidelines.

While Jones’s characterization of these cases is

accurate to a point, those courts were also guided, as we are,

by the unambiguous language of Sykes concerning the danger

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posed by vehicular flight. For instance, the Eleventh Circuit

noted that “[t]he Supreme Court could not have been clearer

in concluding that vehicle flight from a law enforcement

officer is an extraordinarily risky enterprise . . . .” Petite, 703

F.3d at 1296-97. Similarly, the Fourth Circuit recognized that

“intentional vehicular flight in any manner poses a potential

level of risk that is sufficient to render the offense a violent

felony.” Hudson, 673 F.3d at 268 (emphasis in original); see

also Doyle, 678 F.3d at 435 (finding that in vehicular flight,

the “expected confrontation between suspect and police

officer places property and persons at serious risk of injury.”)

Thus, while these courts were properly concerned with the

differentiation between the grades of offenses in the statutes

at issue, they also were mindful of the profound risks which

are part and parcel of intentional flight from the police, as

detailed in Sykes.

And, the language of the Pennsylvania misdemeanor

provision itself rebuts Jones’s contention that it would

involve only non-dangerous conduct. Indeed, it encompasses

exactly the type of conduct Sykes considered, intentional

flight. The felony of aggravated flight, 75 Pa. Cons. Stat. §

3733(a)(2)(iii), encompasses flight which “endangers a law

enforcement officer or member of the general public due to

the driver engaging in a high-speed chase.” The

Pennsylvania Superior Court opinion In re R.C.Y., relied upon

by Jones, states that “the legislature included this term [high-

speed chase] to indicate that the enhanced penalties applied

only in cases where the defendant’s actions created an

extraordinary danger to the public at large or to police

officers.” 27 A.3d 227, 230 (Pa. Super. Ct. 2011). Thus,

while the felony provision is aimed at extraordinary danger,

the misdemeanor provision nonetheless encompasses the

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danger inherent in willful flight from, or eluding of, police

after being signaled by police to stop. This clearly fits within

the definition of a crime of violence, as it “involves conduct

that presents a serious potential risk of physical injury to

another.” U.S.S.G. § 4B1.2(a)(2).

As Sykes explained, “[r]isk of violence is inherent to

vehicle flight. Between the confrontations that initiate and

terminate the incident, the intervening pursuit creates high

risks of crashes. It presents more certain risk as a categorical

matter than burglary.” Sykes, 131 S. Ct. at 2274. “Unlike

burglaries, vehicle flights from an officer by definitional

necessity occur when police are present, are flights in

defiance of their instructions, and are effected with a vehicle

that can be used in a way to cause serious potential risk of

physical injury to another.” Id.; see also Commonwealth v.

Ruffin, 16 A.3d 537 (Pa. Super. Ct. 2011) (describing a

misdemeanor flight conviction under § 3733 involving a

flight from police, where the defendant put his car into

reverse and caused a collision with a police vehicle).

Accordingly, when intentional vehicular flight from law

enforcement does not “create[] an extraordinary danger,” but

nonetheless falls under Pennsylvania’s misdemeanor flight

provision, we hold that such flight still categorically “presents

a serious potential risk of physical injury to another,”

constituting a crime of violence under the sentencing

guidelines. See In re R.C.Y., 27 A.3d at 230; U.S.S.G.

§ 4B1.2(a)(2). 3 We therefore conclude that the District

3

Jones’s argument pertaining to United States v. Lewis, 330

Fed. App’x 353 (3d Cir. 2009) does not alter our conclusion.

“It is well established that we are not bound by our own non-

19

Court’s error in applying the modified categorical approach

was harmless and we will affirm the District Court’s ruling

that Jones’s misdemeanor flight conviction qualified as a

crime of violence.

2. Enhancement for Assault on Official Victim

Jones next argues that the District Court erred by

applying a six-level enhancement pursuant to U.S.S.G. §

3A1.2(c)(1). That provision permits an increase in sentence

where, “in a manner creating a substantial risk of serious

bodily injury, the defendant . . . having reasonable cause to

believe that a person was a law enforcement officer, assaulted

such officer during the course of the offense or immediate

flight therefrom.” Application Note 4 to that Guideline states

in relevant part: “Subsection (c) applies in circumstances

tantamount to aggravated assault (i) against a law

enforcement officer, committed in the course of, or in

immediate flight following, another offense . . . .”

The parties do not dispute that Jones reasonably

understood that Officer Onderko and Baney were law

enforcement officers as required by the first clause of §

3A1.2(c)(1). Rather, the issue on appeal concerns whether

Jones actually assaulted a law enforcement officer pursuant to

the enhancement. Jones claims that “assault,” under

§ 3A1.2(c)(1), requires assaultive conduct whereby he caused

an official victim to actually experience apprehension of

immediate bodily injury. Jones contends that the facts of this

case fail to support any such finding. The Government

precedential opinions.” Castillo v. Attorney Gen. U.S., 729

F.3d 296, 310 n.4 (3d Cir. 2013).

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responds that the act of producing a gun while running from

law enforcement constitutes assault, because such an act

could reasonably cause fear.

Section 3A1.2(c)(1) does not define assault, and its

precise meaning is a matter of first impression in our Court.

However, several of our sister circuit courts have attempted to

parse the language of this enhancement. For instance, in

United States v. Lee, 199 F.3d 16 (1st Cir. 1999), a defendant

physically struggled with officers in attempting to escape

from a traffic stop, while repeatedly reaching for a loaded gun

in his waistband. Id. at 16-17. In determining whether such

conduct amounted to assault, the court in Lee held, and the

parties agree, that assault under § 3A1.2(c)(1) should

generally “be read as a reference to common law criminal

assault.” 4 Id. at 17.

Lee has been cited approvingly by several other circuit

courts for the proposition that the definition of common law

assault applies to § 3A1.2(c)(1), and we are aware of no court

of appeals that has held to the contrary. See United States v.

Olson, 646 F.3d 569, 572 (8th Cir. 2011) (“We join those

circuits that have concluded that the term ‘assault’ in the

Official Victim enhancement is a reference to common-law

criminal assault.”); United States v. Hampton, 628 F.3d 654,

660 (4th Cir. 2010) (noting with approval that “application of

the common law meaning of ‘assault’ provides us with the

4

At that time, the assault enhancement was designated §

3A1.2(b). Any differences in the wording of the current

enhancement are immaterial. For the sake of clarity, we refer

to the enhancement under its current numbering, §

3A1.2(c)(1), regardless of its designation in any opinion.

21

same result we reach by considering its common meaning”);

United States v. Robinson, 537 F.3d 798, 803 (7th Cir. 2008).

In addition, we previously adopted the common-law

definition of assault where that term was undefined in a

federal statute. See United States v. McCulligan, 256 F.3d 97,

102 (3d Cir. 2001). Thus, in interpreting § 3A1.2(c)(1), we

hold in accord with our sister circuits that assault is defined

according to its common-law definition.

Thus, we adopt the concept of assault as generally

outlined in Lee:

Common law assault

embraces two different crimes:

one is attempted battery, that is,

an intended effort to cause bodily

harm to another which falls short

of success . . . regardless of

whether the intended victim

knows of the attempt . . . The

other branch of assault is an act

which is intended to, and

reasonably does, cause the victim

to fear immediate bodily harm;

such “menacing” constitutes

assault even if no physical harm

is attempted, achieved, or

intended.

199 F.3d at 18 (emphasis added) (citations omitted). In

rendering its decision, the Lee court first held that attempted

battery was inapplicable, as there had been no finding of

intent on the part of the defendant to shoot at the police

officers, “and it is not clear that the evidence would readily

22

lend itself to such a finding unless the judge discredited Lee’s

own statement as to his intent.” Id. However, the court

determined that the second type of assault, an act which

would reasonably cause fear, reflected the defendant’s

actions, as the defendant’s “efforts to free his gun did cause

[the officer] to fear – quite reasonably so, in our view – and

the district judge so found.” Id. at 20. 5

Just as the court in Lee, we can readily dispose of the

first prong of assault, attempted battery. The Government

does not claim, and the District Court here made no finding,

that Jones withdrew the gun with the intent to harm either

Officer Onderko or Officer Baney. The most that can be said

is that the District Court granted a separate enhancement, not

appealed here, under § 2K2.1(b)(6), which involves the use of

a firearm in connection with another felony offense. The

Court granted the enhancement on the ground that the

defendant “used or possessed the firearm at issue while

resisting arrest.” (App. 306.) In connection with that ruling

the Court stated, “I find it reasonable to infer from the

circumstances surrounding his flight and efforts to resist

arrest that he drew the firearm at that precise moment in order

to further his efforts to escape. At a minimum, drawing a

firearm at that moment certainly had the potential to facilitate

5

Significant for our analysis below, the facts of Lee indicate

that the officers were aware of the threat that the defendant

was reaching for a gun. See, 199 F.3d at 17 (“[T]he officers

screamed to each other that Lee was reaching for his waist

and they sought to grab his hands.”)

23

his resisting arrest.” 6 (App. 305.) Such statements do not

constitute a finding that Jones withdrew the gun with the

intent to harm Officer Onderko or Baney, and the evidence

does not support such a finding. Accordingly, attempted

battery, which requires a finding that the defendant intended

to harm another, is inapplicable here.

The second type of assault, dubbed “menacing” in Lee,

presents a closer question. Such assault requires that the

defendant intends to and reasonably does cause fear. The

“intends to” element, for purposes of this provision, should be

satisfied if the defendant has “ample reason to know that fear

will be caused,” such that “the lack of purpose to cause fear

should not matter.” Lee, 199 F.3d at 19. We will not dwell

on the intent requirement as it is clearly satisfied in this case.

But, the “reasonably does cause fear” aspect is more

troubling. Jones argues that he did not commit assault in part

because he did not actually frighten Officer Onderko. By

contrast, the Government notes that Officer Baney saw Jones

withdraw the handgun and that the gun had a profound impact

on Officer Baney.

However, the Government argued below only that

Jones assaulted Officer Onderko, and never claimed that

6

Similarly, the District Court also overruled Jones’s objection

which sought to modify the PSR to state that Jones

intentionally threw the gun away when he was tackled by

Officer Onderko. However, the District Court made no

affirmative finding as to Jones’s intent when he produced the

gun.

24

Officer Baney was a victim of an assault. 7 The Government

has therefore waived any claim on appeal that Officer Baney

was assaulted during the foot-chase.

Accordingly, the sole question is whether Jones

assaulted Officer Onderko by “menacing.” As noted above,

Officer Onderko was pursuing Jones on foot from behind, and

he could see that Jones was “digging, either in his pockets or

in his waistband,” but Officer Onderko could not tell what

Jones was reaching for. (App. 262.) When asked whether he

would have done anything differently if he had known Jones

had a gun, Officer Onderko responded, “I would not have

tackled him.” (App. 264.) That clearly indicates that Officer

Onderko did not realize Jones had a gun and thus did not

experience fear.

7

See (Gov. Supp. Sentencing Mem., App. 104 (“Defendant

resisted arrest and assaulted Officer Onderko.”); id. at App.

105 (arguing that § 3A1.2(c)(1) “applies here, based on

Defendant’s resisting arrest and assaultive conduct against

Officer Onderko . . . .”); Sentencing Transcript, November

28, 2012, App. 284 (Government attorney claiming, “his

mens rea goes to his knowing or having reasonable cause to

believe that Officer Onderko, whom he assaulted, was a law

enforcement officer.”); id. at App. 202 (Defense attorney

noting “the only one he’s alleged to have committed an

aggravated assault on is Officer Onderko.”); Gov. Post-

Hearing Brief, App. 181 (“Thus, section 3A1.2 applies if the

Defendant either assaulted Officer Onderko when Defendant

drew his weapon, or if Defendant assaulted Officer Onderko

thereafter, in his ‘immediate flight’ from the offense.”)).

25

Officer Baney’s testimony noted the simultaneous

nature of the events at issue. As he stated at sentencing, “I

saw the weapon being pulled, I yelled gun, and that is exactly

when in a simultaneous action Officer Onderko tackled Mr.

Jones.” Officer Baney further agreed that at the “moment of

impact” Jones’s arm went up and “the gun [went] flying.”

(App. 219.)

Seeking to clarify the language of the criminal

complaint drafted by Officer Baney, the Government further

focused on the precise timing of the events at issue.

Government counsel inquired, “[w]hat about the sense of

timing that comes from that sentence, when you have the

phrase throw a gun and was tackled. Did you intend, are you

expressing that those happened at separate points in time?”

Officer Baney replied, “[n]o, I’m just expressing that it

happened at that time.” Government counsel further asked,

“[y]our understanding of the event, was that it was a

simultaneous gun flying in the air at the moment of tackle?”

Officer Baney responded unequivocally, “[y]es.” (App. 227-

28).

Taken together, Officer Baney’s testimony establishes

that he yelled “gun,” “exactly when in a simultaneous action

Officer Onderko tackled Mr. Jones,” and that “it was a

simultaneous gun flying in the air at the moment of tackle[.]”

(App. 219, 227-28.) Therefore, according to his own

testimony, Officer Baney shouted “gun” at the same moment

that the firearm flew out of Jones’s hand.

For his part, Officer Onderko never saw the gun in

Jones’s hand, in the air, or even on the ground until Jones was

finally apprehended. As Officer Onderko testified at

26

sentencing: “I did not see the gun until it was recovered.”

(App. 269.) Further, nothing in the record indicates that

Officer Onderko suspected that Jones had a gun during the

pursuit. 8 Finally, because Officer Baney yelled “gun” at the

same moment that the gun flew out of Jones’s hand, Officer

Onderko was not aware of the presence of a firearm until it

was no longer in Jones’s possession. The facts thus present a

relatively unusual scenario, an alleged “menacing” assault

where the victim was unaware of any menace until it had

ceased.

A helpful framework for analyzing such an assault is

found in one of the few cases presenting roughly similar facts,

United States v. Acosta-Sierra, 690 F.3d 1111 (9th Cir. 2012).

In that case, the defendant threw a rock at federal Customs

and Border Protection Officer. As the Ninth Circuit

recounted, “[t]he rock did not strike Officer Lopez, though it

came within two feet of hitting his head. Officer Lopez did

not see [the defendant] throw the rock or observe it travel

through the air. In fact, Officer Lopez only became aware of

the rock when he heard it hit the metal gate behind him . . . .”

8

The following exchange took place at sentencing:

Counsel for Government: And as you see him then reaching

for something at his waistband, you don’t know what he’s

grabbing for?

Officer Onderko: No, I do not.

Counsel for Government: Just digging around for something.

Officer Onderko: That’s correct. (App. 263.)

27

Id. at 1115. The defendant was charged with assault on a

federal officer, in violation of 18 U.S.C. § 111(a)(1) and (b).

Id.

Because “assault” was not defined in the federal

statute, the Ninth Circuit adopted a common law definition

similar to that utilized above for § 3A1.2(c)(1). Id. at 1117.

The Acosta-Sierra court further held that “a victim’s

apprehension of immediate bodily injury must be determined

by an objective standard of reasonableness . . . the evidence

must permit an inference that a reasonable person ‘standing in

the official’s shoes,’ that is, observing what the official

observed, would have apprehended imminent bodily injury.”

Id. at 1119-20. This objective standard also aligns with the

common-law test adopted for § 3A1.2(c)(1) in Lee: “an act

which is intended to, and reasonably does, cause the victim to

fear immediate bodily harm . . . .” 199 F.3d at 18.

Applying this standard, the court noted that “Officer

Lopez did not see [the defendant] before he threw the rock

and did not realize what had happened until after the threat of

imminent bodily harm had passed. A reasonable person

observing what Officer Lopez observed, therefore, would not

have been aware of any threat.” Acosta-Sierra, 690 F.3d at

1121. Thus, the court held, “[b]ecause Officer Lopez did not

become aware of the threat until after it had dissipated, a

reasonable person in his position would not have apprehended

immediate bodily injury.” Id. at 1123. The Ninth Circuit

concluded that assault, founded on reasonable apprehension

of harm, did not apply to the defendant’s actions.

We similarly conclude that, given the consistent

reporting of the events in the record, whereby Officer

28

Onderko did not see the gun, no assault occurred. 9 We need

not decide whether, as Jones contends, an official must

subjectively experience apprehension for § 3A1.2(c)(1) to

apply. This is because, at minimum, such fear must be

objectively reasonable. See Lee, 199 F.3d at 18; United

States v. Olson, 646 F.3d 569, 574 (8th Cir. 2011) (finding

that fear of officers “was reasonable,” in applying assault

enhancement); United States v. Ford, 613 F.3d 1263, 1269

(10th Cir. 2010) (“The evidence easily supports the district

court’s finding that the gunshots placed the officers in

reasonable apprehension of being shot.”) That is, a court

must find that a defendant’s actions would cause fear in a

reasonable person standing in the shoes of the official victim.

This reasonableness evaluation incorporates the observations

actually made by the official, and does not permit a court to

presume additional knowledge or sight. The record

established that as Officer Onderko was unaware and did not

suspect that Jones possessed a gun, a reasonable person in his

position would not have experienced fear, and thus Jones did

not commit an assault. We therefore conclude that the

Government failed to carry its burden to show by a

preponderance of the evidence that this enhancement should

apply. See United States v. Diallo, 710 F.3d 147, 151 (3d Cir.

2013) (“[T]he government always bears the burden of

proving by a preponderance of the evidence that the facts

support a sentencing enhancement . . . .”)

Adopting the Government’s position would elevate

any conduct that might cause fear to the level of assault,

9

We also find that the issue of timing was exhaustively

addressed at sentencing, and further evidentiary development

on this point upon remand is not warranted.

29

regardless of whether any official victim felt, or would

reasonably have felt, apprehension. This standard would read

the element of “assault” out of the guideline, instead

enhancing sentences for any conduct that creates a risk of

bodily harm, even though such acts are already addressed by

other enhancements. See e.g., U.S.S.G. § 3C1.2 (“Reckless

Endangerment During Flight”). We decline to render the

critical requirement of assault a nullity.

The reasoning of the District Court in granting the

enhancement does not alter our conclusion. The District

Court found that “[c]ourts have repeatedly held that section

3A1.2 official victim enhancement is properly applied in

situations where a defendant who is fleeing or scuffling with

police officers attempts to produce or utilize a firearm

because ‘simply reaching for a loaded gun is enough to create

a substantial risk of serious bodily injury to another person.’”

(App. 17) (quoting United States v. Easter, 553 F.3d 519, 524

(7th Cir. 2009)). However, Easter concerned a different

guideline enhancement, “Reckless Endangerment During

Flight,” which applies, “[i]f the defendant recklessly created a

substantial risk of death or serious bodily injury to another

person in the course of fleeing from a law enforcement officer

. . . .” U.S.S.G. § 3C1.2. Section 3A1.2(c)(1), the

enhancement at issue here, requires not simply the creation of

a risk of bodily harm, but that the defendant actually assaults

a law enforcement officer. Reckless endangerment is far

different from assault, yet the District Court did not address

the elements of an assault. Under any of the potentially

applicable standards of review, this constitutes reversible

error.

30

We also note that this case is factually distinguishable

from most of the existing case law. The Government and

District Court both cited cases applying the assault

enhancement where a defendant reached for a gun near a law

enforcement official, but critically, the facts in such cases

supported a finding of reasonable fear on the part of the

official victim. For instance, the District Court cited at length

an unpublished Tenth Circuit opinion, United States v.

Boysel, 208 F.3d 227 (10th Cir. 2000), which concerned a

traffic stop wherein the defendant attempted to draw his gun

near a police officer. There, the Tenth Circuit noted that the

defendant exited his vehicle in an aggressive manner, and the

officer saw the defendant “‘very quickly reach[] behind the

small of his back, with his palm facing out, not to pull up a T-

shirt, but as to go for a weapon.’” Id. at *1. The Tenth

Circuit concluded that under such circumstances “a similarly

situated reasonable person would have experienced

apprehension,” and upheld the enhancement for assault. Id. at

*2. Unlike the official in Boysel, Officer Onderko was

unaware of any threat until it had passed.

Other cases cited by the District Court and

Government are even further afield. In United States v. Hill,

583 F.3d 1075, 1079-80 (8th Cir. 2009), an assault

enhancement was upheld where the district court found that,

“[t]he defendant was attempting to draw a weapon in order to

discharge that weapon at the officer . . . The defendant

stopping, turning towards the officer as he attempted to draw

the weapon creates a clear inference that the defendant was

attempting to use that weapon against the officer . . . .” Such

findings readily support an assault via attempted battery,

where, unlike assault by menacing, the defendant intends to

31

physically harm another but fails in the effort. 10 Here, the

District Court made no finding that Jones intended to harm

the officers, and attempted battery therefore cannot apply.

The final case cited by the District Court, United

States v. Powell, 6 F.3d 611 (9th Cir. 1993), also dealt with a

traffic stop where the defendant exited the car holding a gun.

While that case did not focus on the assaultive conduct at

issue, the Ninth Circuit did recount that the officer saw the

firearm, “screamed, ‘Gun!’ and attacked [the defendant] in an

effort to separate [the defendant] from the weapon.” Id. at

612. Such facts indicate that the officer was aware of the

threat and would reasonably have feared for his safety in such

a situation. Again, none of the cases cited above presents an

analogous situation to this case, where the alleged assault

victim was wholly unaware of the assaultive threat. Under

these rather unique circumstances, we hold that Officer

Onderko was not assaulted, under § 3A1.2(c)(1), by Jones’s

production of the gun. 11

10

It is immaterial whether the intended victim is aware of an

attempted battery, all that is required is an intent on the part

of the perpetrator to cause bodily harm. See Lee, 199 F.3d at

18.

11

The Government does not contend on appeal that Jones’s

struggle with and flight from Officer Onderko constituted

assault, nor that Officer Onderko’s leg injury was the result of

assault. Cf. United States v. Hampton, 628 F.3d 654, 660-62

(4th Cir. 2010) (finding completed battery in defendant’s

struggle with police, constituting assault under §

3A1.2(c)(1)). Accordingly, we do not address such

arguments.

32

We stress that our holding today is narrow and highly

fact-specific, as indeed are many of the cases concerning an

enhancement pursuant to § 3A1.2(c)(1). We do not diminish

the risks faced and fear experienced by law enforcement

when confronted with a suspect attempting to withdraw a

firearm. Rather, our holding in this case simply reflects the

common-sense conclusion that if an officer is unaware that a

defendant is attempting to withdraw a gun, that officer has not

been assaulted by this conduct under § 3A1.2(c)(1). 12

The District Court therefore erred in applying the

enhancement and we will vacate the judgment of sentence

and remand for re-sentencing.

3. Reasonableness of Guidelines and Defense

Counsel’s Argument

Jones makes two final, somewhat related, arguments.

His first contention is that the District Court improperly

presumed that the guideline sentence range should apply.

That is, a district court judge “may not presume that the

Guidelines range is reasonable. He must make an

individualized assessment based on the facts presented.” Gall

v. United States, 552 U.S. 38, 50 (2007) (citation omitted).

Jones’s argument is premised on a few statements

made by the District Court at sentencing, which asked

12

Again, as noted above, an attempted battery-type assault

may be found if, unlike here, the record reflects that the

defendant intended to cause bodily harm, regardless of

whether the victim was aware of the attempt.

33

defense counsel to list “factors . . . that in your view support

variance below the 120-month guideline range.” (App. at

322.) Further, the District Court stated, “[i]n fashioning a

sentence, I’m required to consider, in addition to the advisory

guidelines range, the various factors set forth under 3553(a),

and I’ve attempted to do that here.” (App. 21-22.) Jones

argues that such statements demonstrate that the Court

presumed the guidelines to be reasonable, absent some

affirmative reason to vary from them.

We have repeatedly acknowledged that a district court,

“may vary upward or downward from the range suggested by

the Guidelines.” United States v. Wright, 642 F.3d 148, 152

(3d Cir. 2011). Thus, we cannot conclude that in simply

asking defense counsel to support his argument for a

variance, a court is improperly presuming the guidelines to be

reasonable. Cf. Nelson v. United States, 555 U.S. 350, 350-51

(2009) (finding reversible error where district judge stated

that “the Guidelines are considered presumptively

reasonable . . . .”). Further, we find that the District Court

thoughtfully performed the individualized analysis and

consideration of § 3553(a) factors required at sentencing.

(App. 325-30.) The record thus confirms that the District

Court at no point presumed the guidelines range to be

reasonable, and we accordingly reject Jones’s argument on

this ground.

Lastly, Jones contends that the District Court failed to

address his argument that it did not promote respect for the

law or provide just punishment to increase his sentence due to

enhancements based on uncharged conduct. He made a

related argument that a high sentence sends the wrong

message to the community because it signals to offenders that

entering a plea (or cooperating with authorities generally)

34

does not lead to leniency. A sentencing “court must

acknowledge and respond to any properly presented

sentencing argument which has colorable legal merit and a

factual basis.” United States v. Begin, 696 F.3d 405, 411 (3d

Cir. 2012) (quoting United States v. Ausburn, 502 F.3d 313,

329 (3d Cir.2007)).

It is well established that “conduct not formally

charged or not an element of the offense can be considered at

sentencing . . . .” United States v. Baird, 109 F.3d 856, 863

(3d Cir. 1997). The Supreme Court has further held that “a

jury’s verdict of acquittal does not prevent the sentencing

court from considering conduct underlying the acquitted

charge, so long as that conduct has been proved by a

preponderance of the evidence.” United States v. Watts, 519

U.S. 148, 157 (1997). After reviewing the District Court’s

reasons for its sentence, we conclude that it sufficiently

considered and addressed Jones’s arguments.

Defense counsel initially stated that it was “wrong” to

increase Jones’s sentence because of a finding, under the

guidelines, that he had assaulted a police officer. The Court

responded, “You have a fundamental disagreement with the

enhancements . . . under the guidelines, correct?” (App. 315.)

To this defense counsel responded in part, “[o]ne of the

biggest problems I have with the guidelines, is the

government uses it to get around the Constitution. The idea

that if you think he committed an aggravated assault, charge

him with that . . . .” (App. 315.)

Later, when defense counsel again reiterated his

argument concerning the finding of uncharged offenses, the

Court again stated, “[b]ut your point is, so I can make sure I

35

digest it and think about it appropriately. Your point is, not

only in this case, but in every case where an enhancement

applies, isn’t that really your point?” (App. 323.) Defense

counsel then argued in part, “I would say anybody who pleads

guilty should not get the statutory maximum. That’s just

fundamentally wrong.” (App. 323.)

In outlining its sentence, the District Court again

addressed defense counsel’s argument about promoting

respect for the law and providing just punishment. The Court

first recounted in detail Jones’s lengthy and violent criminal

history before stating:

I’ve also considered the

sentencing goal of promoting

respect for the law and the related

goal of imposing a sentence that is

sufficient, but not greater than

necessary, to effectuate the

sentencing goals.

I do not dispute that the

guideline range here, driven by

the enhancements, is significant.

And clearly much more

significant than it otherwise

would have been without them.

But the defendant finds himself in

that range because of his conduct

and no other reason.

(App. 329.) We conclude that the District Court’s thorough

questioning and thoughtful discussion at sentencing refutes

36

any contention that it somehow ignored defense counsel’s

argument. cf. Begin, 696 F.3d at 411 (finding that the district

court “asked no questions” concerning an argument of

defense counsel, in holding that the court failed to address it).

We, thus, reject Jones’s argument to the contrary.

III.

For the reasons stated above, we affirm in part and

reverse in part the District Court’s judgment of sentence. The

sentence is vacated and the case is remanded for resentencing.

37