United States v. Gregory Brown

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 13-4442

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UNITED STATES OF AMERICA

v.

GREGORY GARRETT BROWN,

Appellant

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Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Criminal Action No. 1-11-cr-00034-001)

District Judge: Honorable Maurice B. Cohill, Jr.

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Argued June 12, 2014

Before: AMBRO and BARRY, Circuit Judges,

and RESTANI,* Judge

(Opinion filed: September 2, 2014)

*

Honorable Jane A. Restani, Judge, United States Court of

International Trade, sitting by designation.

Thomas W. Patton (Argued)

Assistant Federal Public Defender

Office of Federal Public Defender

1001 State Street

1111 Renaissance Centre

Erie, PA 16501

Counsel for Appellant

Rebecca Ross Haywood (Argued)

Assistant U.S. Attorney

Office of the United States Attorney

700 Grant Street, Suite 4000

Pittsburgh, PA 15219

Counsel for Appellee

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OPINION OF THE COURT

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AMBRO, Circuit Judge

Gregory Garrett Brown appeals the decision of the

District Court enhancing his sentence on a finding that he is a

career offender. For that finding, the Court followed the

approach set out by our Court in United States v. Mahone,

662 F.3d 651 (3d Cir. 2011). Brown contends the Supreme

Court’s decision in Descamps v. United States, 133 S. Ct.

2276 (2013), overrules Mahone. At issue is how far beyond

2

the literal words of a criminal statute a judge may inquire to

find that a prior conviction qualifies for the career offender

enhancement.

I. Background

In 2010, while serving time in state custody for

another offense, Brown mailed a threatening letter to

Magistrate Judge Susan Baxter. Judge Baxter presided over

the earlier dismissal of Brown’s habeas petition. In the letter,

Brown intimated that upon his release from custody he

planned to kill Judge Baxter and former District Judge Sean

McLaughlin. Following an investigation, Brown pled guilty

to mailing a threatening communication in violation of

18 U.S.C. § 876(c).

A presentence investigation report (“PSR”)

recommended, among other things, that Brown be sentenced

pursuant to the career offender enhancement in the United

States Sentencing Guidelines. That enhancement applies to a

defendant convicted under § 876(c) if he has “at least two

prior felony convictions of either a crime of violence or a

controlled substance offense.” U.S.S.G. § 4B1.1(a). The

PSR’s recommendation was based on four prior offenses in

Brown’s criminal history: (1) a 1986 conviction for

aggravated assault, in violation of 18 Pa. Cons. Stat. § 2702;

(2) a 2004 conviction for making terroristic threats, in

violation of 18 Pa. Cons. Stat. § 2706; (3) a 2005 conviction

also for making terroristic threats, in violation of § 2706; and

(4) a 2005 conviction for retaliating against a judicial officer,

in violation of 18 Pa. Cons. Stat. § 4953.1. The two 2005

convictions arose from the same conduct.

A pair of concessions by the parties limited the dispute

at sentencing and similarly limits the breadth of our review on

appeal: Brown concedes that his 1986 conviction qualifies as

3

a crime of violence for purposes of the enhancement, and the

Government does not contend that the 2005 retaliation

conviction so qualifies. Thus the parties’ arguments at

sentencing focused on whether either of Brown’s two

convictions for making terroristic threats in violation of

§ 2706 counted as qualifying (called predicate) offenses for

purposes of the enhancement.

The definitional part of the Pennsylvania statute

divides violations into three categories, only the first of

which—§ 2706(a)(1)—can be a predicate offense. That

Brown’s convictions, the Government contended, were

predicate offenses was conclusively decided by an earlier

case, United States v. Mahone, 662 F.3d 651 (3d Cir. 2011),

which held that some, but not all, violations of subsection

(a)(1) were predicate offenses and that a sentencing judge

may inquire further to determine if the facts of a prior

conviction qualified. Among other arguments, Brown

countered that Mahone is no longer controlling in light of

Descamps v. United States, 133 S. Ct. 2276 (2013), in which

the Supreme Court held that a sentencing court may not look

to the facts underlying a prior conviction but instead must

look to its elements.

Before the sentencing hearing, Judge Cohill issued

tentative findings rejecting Brown’s argument. Relying on

Mahone, he concluded that a violation of subsection (a)(1)

was a crime of violence (thus a predicate offense under the

Guidelines) and that the documents underlying Brown’s

conviction demonstrated that he was convicted under that

subsection in 2004. He also determined that the 2005

terroristic threats conviction did not qualify as a predicate

offense because the documents supporting that conviction did

not definitively establish under which subsection of the

statute Brown was convicted. Addressing the effect of

Descamps, Judge Cohill explained that Mahone was at most

4

“overruled in its analysis of the FACTS of the case for

making a determination of career offender, not the case’s

determination of (a)(1) as a crime of violence.” App. at 10

n.5 (emphasis in original). He thus applied the career

offender enhancement based on Brown’s 1986 aggravated

assault conviction and his 2004 terroristic threats conviction.

The enhancement raised Brown’s offense level and his

criminal history category, more than doubling his

recommended Guidelines’ sentence from 30-37 months to 77-

96 months. The Court sentenced Brown to 84 months’

imprisonment. This timely appeal followed.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction pursuant to 18

U.S.C. § 3231. We exercise appellate jurisdiction under 28

U.S.C. § 1291 and 18 U.S.C. § 3742. “Whether a prior

conviction constitutes a crime of violence for purposes of the

career offender Guideline is a question of law over which we

exercise plenary review.” United States v. Marrero, 743 F.3d

389, 393 (3d Cir. 2014).

III. Discussion

On appeal, Brown contends that the career offender

enhancement did not apply to him because he has only one

predicate “crime of violence” in his criminal history (the 1986

aggravated assault conviction) and the Guidelines require two

predicate offenses for the enhancement to apply. The

Government responds that either the 2004 or the 2005

terroristic threats conviction supplies the necessary second

predicate offense. Brown asserts that his convictions under

the Pennsylvania terroristic threats statute are not “crimes of

violence” as defined by the Guidelines.

5

We conclude that, in light of the Supreme Court’s

explanation in Descamps, Brown’s convictions under 18 Pa.

Cons. Stat. § 2706 are not “crimes of violence” for purposes

of the Guidelines’ career offender enhancement. In effect,

Descamps abrogated the portion of Mahone that held

otherwise.

A. The Career Offender Enhancement

Under the Guidelines, the career offender enhancement

applies to a defendant if:

(1) [he] was at least eighteen years old at the

time [he] committed the instant offense of

conviction; (2) the instant offense of conviction

is a felony that is either a crime of violence or a

controlled substance offense; and (3) [he] has at

least two prior felony convictions of either a

crime of violence or a controlled substance

offense.

U.S.S.G. § 4B1.1(a). The issue here is the third criterion—

whether the 2004 (or 2005) conviction is a “crime of

violence.” How we go about deciding that issue, and what we

can consider in doing so, takes up much of what follows.

The Guidelines define a “crime of violence” in

relevant part as any crime punishable by more than a year of

imprisonment that “has as an element the use, attempted use,

or threatened use of physical force against the person of

another.” U.S.S.G. § 4B1.2(a)(1).1 Sentencing courts

1

A prior conviction may also be a “crime of violence” if it “is

burglary of a dwelling, arson, or extortion, involves use of

explosives, or otherwise involves conduct that presents a

serious potential risk of physical injury to another.” U.S.S.G.

6

examining a prior conviction to determine whether it is a

federally defined “crime of violence” must apply a

categorical approach. United States v. Abbott, 748 F.3d 154,

157 (3d Cir. 2014) (citing Descamps, 133 S. Ct. at 2283).2

Under this approach sentencing courts “compare the elements

§ 4B1.2(a)(2). This category, which has an analog in the

Armed Career Criminal Act (ACCA), see 18 U.S.C.

§ 924(e)(2)(B)(ii), is sometimes referred to as the list of

“generic crimes” or “generic offenses.” See Descamps, 133

S. Ct. at 2282. Nothing in § 4B1.2(a)(2) states that a threat to

commit a generic crime is itself a “crime of violence,” and the

Government has never argued that Brown’s § 2706

convictions fall under § 4B1.2(a)(2).

2

Although Abbott and Descamps involved sentencing

enhancements under the ACCA, rather than the career

offender enhancement in the Guidelines, they nonetheless

bind our analysis. “Precedent . . . requires the application of

case law interpreting ‘violent felony’ in [the] ACCA to ‘crime

of violence’ in U.S.S.G. § 4B1.2[ ] because of the substantial

similarity of the two sections.” Marerro, 743 F.3d at 394 n.2

(second alteration added) (internal quotation marks and

citation omitted). See also United States v. Hopkins, 577 F.3d

507, 511 (3d Cir. 2009) (“[T]he 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 . . . .”). Both before and after Descamps we have

consistently applied the categorical approach to

determinations under the career offender enhancement.

Compare United States v. Stinson, 592 F.3d 460, 462 (3d Cir.

2010), with Marrero, 743 F.3d at 395, and United States v.

Jones, 740 F.3d 127, 133 (3d Cir. 2014).

7

of the statute forming the basis of the defendant’s conviction

with the elements of the ‘generic’ crime—i.e., the offense as

commonly understood. The prior conviction qualifies as an

ACCA predicate only if the statute’s elements are the same

as, or narrower than, those of the generic offense.”

Descamps, 133 S. Ct. at 2281. In practice, courts “may ‘look

only to the statutory definitions’—i.e., the elements—of a

defendant’s prior offenses, and not ‘to the particular facts

underlying those convictions.’” Id. at 2283 (emphasis in

original) (quoting Taylor v. United States, 495 U.S. 575, 600

(1990)). In the ordinary case of identifying whether a prior

conviction fits the § 4B1.2(a)(1) definition, a court simply

asks “whether the state crime has the use or threat of physical

force [against the person of another] as an element of the

offense.” United States v. Remoi, 404 F.3d 789, 794 (3d Cir.

2005) (internal quotation marks omitted). If the state statute

“sweeps more broadly” than the federal definition, a

conviction under it is not a career offender predicate even if

the defendant actually committed the offense in a way that

involved the use (or threatened use) of physical force against

another. See Descamps, 133 S. Ct. at 2283 (explaining that a

defendant convicted of a burglary statute that “sweeps more

broadly” than the ACCA’s generic burglary offense is not

subject to the enhancement “even if the defendant actually

committed the offense in its generic form”).

However, there is a “narrow range of cases” whereby a

court can look beyond the fact of conviction and examine

certain record evidence from the conviction to determine

whether the prior offense is a crime of violence. Taylor, 495

U.S. at 602. In Descamps, the Supreme Court explained that

when a statute is “divisible”— i.e., “comprises multiple,

alternative versions of the crime”—a sentencing court may

look to a limited class of extra-statutory documents to

determine which version of the offense was the basis of

conviction. 133 S. Ct. at 2284. This is known as the

8

“modified categorical approach.” Id. at 2283. Under this

approach, if a statute is divisible, a court may consult “the

charging paper and jury instructions” when the conviction

resulted from a jury trial, Taylor, 495 U.S. at 602, or, when

the conviction resulted from a guilty plea, “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). The modified categorical approach still “retains

the categorical approach’s central feature: a focus on the

elements, rather than the facts, of a crime.” Descamps, 133 S.

Ct. at 2285. It simply allows a sentencing court “to examine

a limited class of documents to determine which of a statute’s

alternative elements formed the basis of the defendant’s prior

conviction.” Id. at 2284 (emphasis added).

It bears repeating that the modified categorical

approach is “applicable only to divisible statutes.” Id.;

accord id. at 2285 (“[T]he modified approach merely helps

implement the categorical approach when a defendant was

convicted of violating a divisible statute.”). In Descamps, for

example, the Supreme Court held that the modified approach

could not be applied to the California burglary statute at issue

because it had a “single, indivisible set of elements.” Id. at

2282. To explain the difference between a divisible and

indivisible statute, and why the modified categorical approach

may be used only with the former, the Court imagined a

hypothetical assault statute that simply required the “use of a

‘weapon,’” as opposed to a specific list of weapons. Id. at

2289 (internal quotation marks omitted). Including a

“weapon” as an element of the crime makes the statute

indivisible because it creates only an “implied list” of the

ways the offense may be committed rather than an explicit list

of ways to commit the crime. Id. (emphasis in original). A

sentencing court should not examine extra-statutory

documents (such as a charging document or guilty plea) and

9

find that a defendant committed a predicate gun crime based

on a conviction under such an indivisible statute because,

[a]s long as the statute itself requires only an

indeterminate “weapon,” that is all the

indictment must (or is likely to) allege and all

the jury instructions must (or are likely to)

mention. And most important, that is all the

jury must find to convict the defendant. The

jurors need not all agree on whether the

defendant used a gun or a knife or a tire iron (or

any other particular weapon that might appear

in an imagined divisible statute), because the

actual statute requires the jury to find only a

“weapon.” And even if in many cases[] the jury

could have readily reached consensus on the

weapon used, a later sentencing court cannot

supply that missing judgment. Whatever the

underlying facts or the evidence presented, the

defendant still would not have been convicted,

in the deliberate and considered way the

Constitution guarantees, of an offense with the

same (or narrower) elements as the supposed

generic crime (assault with a gun).

Id. at 2290.

By contrast, a statute is “divisible” when it “list[s]

potential offense elements in the alternative.” Id. at 2283.

For example, continuing with the Supreme Court’s

hypothetical, it considered for analysis an assault statute that

prohibits assault with a “gun, axe, sword, baton, slingshot,

knife, machete, bat,” “grenade[], pipe bomb[], spear[], tire

iron[], BB gun[], nunchucks, [or] crossbow[].” Id. at 2289-90

(internal quotation marks omitted). Under such a statute, if

assault with a gun is categorically (that is, always) a predicate

10

offense, then a sentencing court may examine the documents

underlying a defendant’s conviction to see whether he was

charged with and convicted of using a gun. Id. at 2290.

Furthermore, a sentencing court should apply the

modified approach to a divisible statute and examine extra-

statutory documents only when “at least one, but not all” of

the separate versions of the offense is, by its elements, a

predicate offense. Id. at 2285. As the Fourth Circuit has

explained, “[g]eneral divisibility . . . is not enough; a statute is

divisible for purposes of applying the modified categorical

approach only if at least one of the categories into which the

statute may be divided constitutes, by its elements, a crime of

violence.” United States v. Cabrera-Umanzor, 728 F.3d 347,

352 (4th Cir. 2013) (emphasis in original) (citing Descamps,

133 S. Ct. at 2285).

The modified categorical approach is perhaps best

explained by a generic example. Imagine a defendant

previously convicted for violating Statute X. In considering

whether that prior conviction is a predicate offense, a

sentencing should first determine whether a violation of X is,

no matter the circumstances of the particular crime, always a

crime of violence. If so, it is a predicate offense under the

regular categorical approach and there is no need to analyze

the statute any further. If, on the other hand, the court

determines that X is overbroad (i.e., it covers some conduct

that is a crime of violence and some that is not), the court

should then inquire whether X is divisible. If the court

determines that X is generally divisible into, say, three

versions of the offense—subsections a, b and c—it should

next determine whether any of these subsections (for

example, X(a)) is, by its particular elements, always a

federally defined crime of violence. If so, then the court may

apply the modified categorical approach to determine whether

11

the defendant was convicted under X(a). That is the typical

way in which the modified categorical approach operates.

This case probes how far the modified categorical

approach logically extends if a statute is divisible into

subparts but no version of the offense (a, b or c) is in all

circumstances a crime of violence. May a sentencing court

nonetheless look to extra-statutory documents to see whether

the particular offense a defendant committed was a crime of

violence? Or must the Court halt its analysis and find that the

conviction is not a predicate offense? Descamps, which took

a hard line on how the modified categorical approach

operates, requires the latter. If a statute is generally divisible

into multiple versions, but each version is overbroad (covers

at least some conduct that is not a crime of violence) and

indivisible (cannot be further divided into sub-versions based

on the elements), the extra-statutory documents are irrelevant

and a sentencing court’s analysis has reached a dead-end: the

prior conviction is not a predicate offense. See Descamps,

133 S. Ct. at 2283.

We now turn to the particular statute—the

Pennsylvania terroristic threats statute, 18 Pa. Cons. Stat.

§ 2706—underlying Brown’s 2004 and 2005 convictions.

B. The Terroristic Threats Statute

Descamps instructs that we focus on the elements of

the offense rather than Brown’s particular conduct in

committing the offense. Section 2706 prohibits

communicat[ing], either directly or indirectly, a threat

to:

(1) commit any crime of violence with

intent to terrorize another;

12

(2) cause evacuation of a building, place

of assembly or facility of public

transportation; or

(3) otherwise cause serious public

inconvenience, or cause terror or serious

public inconvenience with reckless

disregard of the risk of causing such

terror or inconvenience.

18 Pa. Cons. Stat. § 2706(a).

Because § 2706(a) is phrased in the disjunctive—

“describing three variations of the same offense”—the statute

is divisible into subsections (a)(1), (a)(2), and (a)(3), Mahone,

662 F.3d at 654,3 and we apply the modified categorical

approach to discern which of the three versions of the offense

a defendant was convicted of if at least one of the versions by

its elements is a crime of violence in all instances. Descamps,

133 S. Ct. at 2285. The provision “encompasses some crimes

that could be committed by using, attempting to use, or

threatening to use ‘physical force against the person of

another,’ as well as against another person’s property.”

Mahone, 662 F.3d at 653 (emphasis in original). Crimes

threatened, attempted, or committed against the person of

another may fit the applicable Guidelines’ definition of a

“crime of violence”—“the use, attempted use, or threatened

use of physical force against the person of another,” U.S.S.G.

§ 4B1.2(a)(1)—while crimes against property do not. Id.

Subsection (a)(1) is thus the only version of the offense that

3

We cite to Mahone frequently in our analysis of § 2706 even

though Descamps supersedes it. We do so because, as

explained below, Mahone was abrogated only in part. Thus

much of its analysis of the Pennsylvania terroristic threat

statute still guides our analysis here.

13

potentially qualifies as a “crime of violence” because only it

may involve an intentional threat to use force against a

person. Id. at 654-55.

But a determination that a defendant was previously

convicted under § 2706(a)(1) does not end the inquiry. The

subsection prohibits threatening to “commit any crime of

violence with intent to terrorize another,” yet it does not

define what is a “crime of violence.” Though we might think

Pennsylvania’s definition matches the definition in the

Guidelines, thereby making any violation of § 2706(a)(1) a

predicate offense, we cannot conclude that without further

application of the categorical approach. See Mahone, 662

F.3d at 655 (“We cannot conclude at this step in our analysis

that the statutory variation in § 2706(a)(1) categorically

qualifies as a [crime of violence] . . . because this variation of

the statute contains the undefined term ‘crime of violence.’”).

As we observed in Mahone, another Pennsylvania

statute defines a “crime of violence” for purposes of

sentencing. 42 Pa. Cons. Stat. § 9714(g); Mahone, 662 F.3d

at 655 (citing United States v. Ortiz-Gomez, 562 F.3d 683,

685-86 (5th Cir. 2009)). Included within that definition is a

version of arson that does not necessarily “ha[ve] as an

element the use, attempted use, or threatened use of physical

force against the person of another.” U.S.S.G. § 4B1.2(a)(1);

see Ortiz-Gomez, 562 F.3d at 686 (citing 18 Pa. Cons. Stat.

§§ 3301(a)(1) and 9714(g)) (observing that in Pennsylvania

arson can be committed by “start[ing] a fire for the purpose of

damaging a structure . . . regardless of whether a person is

present”). Because in Pennsylvania arson can exist

“regardless of whether a person is present,” that crime would

not be included in the Guidelines’ definition of a “crime of

violence.” Mahone, 662 F.3d at 655-56 (quoting Ortiz-

Gomez, 562 F.3d at 686). Hence a threat to commit arson

with intent to terrorize another—a violation of § 2706(a)(1)—

14

would not be a predicate offense under § 4B1.2(a) of the

Guidelines. Id. at 655-56.4

A violation of § 2706(a)(1) thus may sometimes be a

“crime of violence” as defined by the Guidelines (for

example, threatening to commit murder) and sometimes not

(for example, threatening to commit arson). See id. at 656.

Moreover, unlike the hypothetical assault statute from

Descamps that listed each type of weapon, § 2706(a)(1) does

not list each crime of violence, and thus it is also indivisible.

See Descamps, 133 S. Ct. at 2290. Because the

categorization of a § 2706 offense depends on a fact

underlying the conviction (the crime the defendant

threatened) that is not an element of the offense, Descamps

instructs that the statute is overbroad and indivisible as to

(a)(1) and thus fails as a predicate offense under the

categorical approach. See 133 S. Ct. at 2281-82 (prohibiting

a court from looking to an offender’s underlying conduct to

determine that a prior conviction qualifies as a predicate

offense when “the elements of the crime fail to satisfy [the]

categorical test”). The Supreme Court unambiguously

rejected this so-called “modified factual” approach. Id. at

2287 (internal quotation marks and citation omitted). It

explained that the problem is that this approach “asks not

whether ‘statutory definitions’ necessarily require an

adjudicator to find [a crime of violence], but instead whether

the prosecutor’s case realistically led the adjudicator to make

that determination.” Id.

4

One might wonder why a threat to commit arson does not

qualify as a predicate offense under § 4B1.2(a)(2) of the

Guidelines. See supra note 1. The Government has never

argued that it does, perhaps because subsection (a)(2) covers

the offense of arson, not the threat to commit arson.

15

Mahone, which was decided before Descamps, applied

precisely the sort of “modified factual” approach the Supreme

Court has since disavowed. In Mahone, the criminal record

of the defendant included a conviction under a nearly

identical predecessor to the current Pennsylvania terroristic

threats statute. 662 F.3d at 653. He was charged with

“threaten[ing] to commit the violent crime of criminal

homicide with intent to terrorize [the victim].” Id. at 656.

The plea colloquy’s factual recitation included the allegation

that Mahone threatened to kill the victim, which he admitted

by pleading guilty. Id.

Mahone appealed the sentencing judge’s application of

the enhancement, and we affirmed. Id. at 652. We concluded

that, although subsection (a)(1) covered some conduct that

would not be a “crime of violence” under the Guidelines,

because Mahone was in fact charged with, and thus convicted

of, threatening a federally defined “crime of violence,”

criminal homicide, his § 2706 conviction qualified as a

predicate offense under the career offender enhancement. Id.

at 657.

Descamps overrode that conclusion. Like the burglary

statute there that criminalized simple shoplifting and

“define[d] burglary more broadly than the generic offense”

under the ACCA, 133 S. Ct. at 2285 (internal quotation marks

omitted), we now hold that § 2706(a)(1) is overbroad in that it

criminalizes conduct that is not always considered a federally

defined “crime of violence.” Hence a violation of the statute

is categorically not a predicate offense for purposes of the

career offender enhancement. See Descamps, 133 S. Ct. at

2283 (“[I]f the statute sweeps more broadly than the generic

crime, a conviction under that law cannot count as an ACCA

predicate, even if the defendant actually committed the

offense in its generic form.”). Descamps thus supersedes the

portion of Mahone that held otherwise.

16

C. Application of the Career Offender

Enhancement to Brown

Returning to our case, the District Court, relying on

Mahone, analyzed the facts underlying Brown’s conviction,

rather than focusing on the legal elements of the alleged

predicate offense, to determine that Brown’s 2004 terroristic

threats conviction qualified for the career offender

enhancement. No doubt, given the facts surrounding Brown’s

2004 and 2005 convictions, they would appear to be “crimes

of violence” to a layperson. The PSR explains that in 2004

Brown repeatedly threatened to harm two correctional

officers at the Erie County Prison, including threats to murder

the officers. The charging document for the 2004 offense

alleges that Brown stated, among other things, “When I get

out of here, I’m gonna murder you bitch.” In 2005, much like

the current offense of conviction, Brown apparently sent a

letter to a state court judge in Erie, Pennsylvania, in which he

threatened to kill the judge.

But Descamps rejects that approach; the factual

circumstances of the conviction are not what matter, the key

is the elements of the crime. As we explained above and in

Mahone, subsection (a)(1) of the Pennsylvania terroristic

threats statute (the subsection under which Brown concedes

he was convicted) is overbroad because, in using the

undefined term “crime of violence,” it covers at least one

factual circumstance—threatening to commit arson—that

does not meet the Guidelines’ definition of a “crime of

violence.” “The modified [categorical] approach . . . has no

role to play[,]” Descamps, 133 S. Ct. at 2285, because no

single subsection of § 2706, by its elements, can be

categorized exclusively as a crime of violence and thus may

not qualify as a predicate offense for the enhancement.

17

Other Circuit Courts that have examined a statute that

contains multiple versions of an offense, none of which is

categorically a crime of violence by its elements, have

similarly concluded that the modified categorical approach

does not apply to those statutes. In Cabrera-Umanzor, the

Fourth Circuit was faced with a Maryland child abuse statute

that was “generally divisible” into two categories: physical

abuse and sexual abuse. 728 F.3d at 352 (emphasis in

original). The plea agreement demonstrated that the

defendant was convicted of committing sexual abuse, but that

category “d[id] not, by its elements, constitute any of the

potentially applicable crimes of violence enumerated in the

Guidelines Commentary.” Id. at 350, 352-53. The Court

concluded that the Maryland statute is “therefore not divisible

in the manner necessary to warrant application of the

modified categorical approach.” Id. at 353. Similarly, the

Sixth Circuit, while examining a Tennessee robbery statute,

applied Descamps’ categorical approach as follows:

Descamps may give the false impression that

the presence of a divisible statute of conviction

alone confers on a court the ability to turn to

certain approved, extra-statutory documents.

However, that is not so. The Supreme Court in

Descamps, in analyzing a defendant’s

conviction for burglary, repeated the caveat that

“[o]ur decisions authorize review of the plea

colloquy or other approved extra-statutory

documents only when a statute defines burglary

. . . alternatively, with one statutory phrase

corresponding to the generic crime and another

not.”

United States v. Mitchell, 743 F.3d 1054, 1064 (6th Cir. 2014)

(alteration and emphasis in original) (quoting Descamps, 133

S. Ct. at 2286). Finally, in United States v. Tucker, 740 F.3d

18

1177 (8th Cir. 2014) (en banc), the Eighth Circuit refused to

apply the modified categorical approach to a Nebraska escape

statute that criminalized certain types of escapes, only some

of which qualified as predicate offenses, where the version of

the offense of conviction was not, by its elements, a crime of

violence. See id. at 1182.

While the above speaks of other Circuits, the

Government, as it should, cites to our recent decision in

United States v. Blair, 734 F.3d 218 (3d Cir. 2013), and

argues that, where a statute is divisible at some level (here,

into subsections (a)(1), (a)(2), and (a)(3)), a sentencing court

may look to the extra-statutory documents to identify not only

the subsection of conviction but also to determine whether the

particular circumstances of the offense within that subsection

comprise a “crime of violence.” See Gov’t Br. at 39-40

(citing Blair, 734 F.3d at 224-25). We agree that, at first

blush, Blair appears to condone the analysis applied by the

District Court here. But a careful reading of that opinion,

which dealt with a different statute (18 Pa. Cons. Stat.

§ 3701), leads us to conclude that the portion of Blair on

which the Government relies does not apply to our case.

Blair’s prior robbery convictions resulted in his

sentence as a career offender under the ACCA. On appeal we

decided whether a robbery conviction in Pennsylvania that

did not reference the applicable subsection of the statute was

a violent felony under the ACCA. As here, three alternative

versions of the offense were at issue. We considered whether

the modified categorical approach could be used to determine

that Blair was convicted under the “least culpable” of those,

§ 3701(a)(1)(iii). Blair, 734 F.3d at 225-26. That part of the

statute makes it a crime in the course of a theft to “commit[ ]

or threaten[ ] immediately to commit any felony of the first or

second degree.” § 3701(a)(1)(iii). Like Mahone and the

District Court here, our Court concluded that Blair’s

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conviction was a violent felony under the ACCA because the

extra-statutory documents demonstrated that he committed or

threatened to commit during the course of the theft an

aggravated assault—a felony “in the first or second degree

. . . [that] clearly involves violence.” Id. at 222-23.

Blair argued, among other things, that though

§ 3701(a)(1) as a whole is divisible into subsections (i), (ii),

and (iii), the last, and applicable, subsection is not further

divisible by the type of felony committed or threatened. He

contended (similar to Brown’s argument here) that

§ 3701(a)(1)(iii) is overbroad and indivisible because “some

felonies of the first and second degree involve no violence.”

Id. at 225. We assumed Blair was correct that the subsection

was “indivisible and categorically overbroad,” yet rejected his

argument. Id. We did so despite conceding that “Descamps

makes it clear that if the relevant statute is indivisible . . . and

. . . overbroad . . . , then the sentencing court cannot apply the

modified categorical approach,” id. at 224. The Government

seizes on the language rejecting Blair’s argument:

There is no precedent for the argument that a

sentencing court, having launched on the

modified categorical approach, should stop

when it gets to a statutory subsection and

determine again whether to proceed with that

approach and whether it can consider

documents it has already reviewed. . . . [T]he

documents that the District Court had reviewed

as part of the modified categorical analysis

plainly state that the felonies associated with

[Blair’s] 1991 robbery convictions were

“aggravated assault.” The search for the

applicable subsection in the relevant statute

does not send the sentencing judge into a state

of amnesia. To shift the metaphor, the blinders

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are already off, and there is no requirement to

pretend otherwise.

Id. at 225-26 (citation omitted); see also Gov’t Br. at 35-36.

Applying this logic to our case, the Government argues

that, because § 2706(a) is broadly divisible into subsections

(a)(1), (a)(2), and (a)(3), once the sentencing court looked to

the charging document and jury instructions to determine

under which of those three subsections Brown was convicted,

it was also free to use those documents to determine whether

the particular circumstances of Brown’s conviction under

§ 2706(a)(1) fit the federal definition of a “crime of

violence.” Only in that way, the argument goes, are the

blinders off.

Though one may question the correctness of the above

excerpt in Blair as a general matter,5 it is distinguishable. By

5

The issue primarily would involve Blair’s statement that a

sentencing court can apply the modified categorical approach

to a statutory subsection that is “indivisible and categorically

overbroad.” Blair, 734 F.3d at 225. We understand the

instinct that there is an unjust cost for looking away from the

facts of that case. In 1991, Blair pled guilty to four counts of

first-degree robbery, in the process admitting that he

committed or threatened to commit aggravated assault in the

course of a theft. Blair, 734 F.3d at 221, 226. That certainly

seems like a violent felony. But Descamps instructs that it is

the elements, not the facts, of a prior conviction that matter,

see Descamps, 133 S. Ct. at 2287, and the elements in

§ 3701(a)(1)(iii)—“any felony [in Pennsylvania] of the first

or second degree”—include both felonies that are violent and

those that are not. As a result, sentencing judges, at least for

subsections not divisible solely by looking at their written

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its own terms, a make-believe “state of amnesia” confined

only to textual elements does not apply where the sentencing

court has already embarked on a permitted use of the

modified categorical approach. See Blair, 734 F.3d at 225

(“There is no precedent for the argument that a sentencing

court, having launched on the modified categorical approach,

should stop when it gets to a statutory subsection and

determine again whether to proceed with that approach and

whether it can consider documents it has already reviewed.”);

id. at 226 (“Descamps does not demand a recursive process

wherein a district court that has already pursued the modified

categorical approach in addressing a divisible statute is

required to ignore the charging documents and guilty pleas it

has just reviewed.”). But where, as is our case, no version of

a terroristic threats offense under § 2706(a) has elements that

fit fully (that is, always) a crime of violence, a sentencing

court may not use the modified categorical approach at all.

See Descamps, 133 S. Ct. at 2285; Mahone, 662 F.3d at 654-

55; Cabrera-Umanzor, 728 F.3d at 352-53; Mitchell, 743

F.3d at 1064. Accordingly, the District Court could not apply

the modified categorical approach in the first place and Blair

does not control.

IV. Conclusion

The Supreme Court’s concluding remarks in

Descamps all but decide this case: “[The defendant]

may . . . have broken and entered, and so committed generic

burglary [under the ACCA]. But [the California burglary

statute]—the crime of which he was convicted—does not

elements, may look no further no matter how well they

understand the actual facts contained in extra-statutory

documents.

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require the factfinder (whether jury or judge) to make that

determination.” 133 S. Ct. at 2293. So too here, Brown may

have threatened to murder persons in 2004 and 2005 and so

committed a “crime of violence.” But § 2706(a)—the crime

of which he was convicted—does not require the jury to make

that determination. Thus the modified categorical approach

has no permitted use. Because this holding applies equally to

the 2004 and 2005 terroristic threats convictions of Brown,

and the Government does not argue that any other offense in

his criminal history qualifies as a predicate offense, the career

offender enhancement did not apply to him.

We make no comment on the correct sentence for

Brown. Under 18 U.S.C. § 3553(a), the District Court has the

discretion to fashion an appropriate sentence under the factors

noted therein and in doing so is free to take into account his

pattern of behavior over the years, including his conduct in

2004 and 2005. We hold only that, in light of the Supreme

Court’s ruling in Descamps, the career offender enhancement

is not available in this case. We thus vacate Brown’s

judgment of sentence and remand for resentencing.

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