United States v. Darron Henderson

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 22-2613

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UNITED STATES OF AMERICA

v.

DARRON HENDERSON,

Appellant

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On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(No. 2-21-cr-00184-001)

U.S. District Judge: Honorable Chad F. Kenney

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Argued: July 11, 2023

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Before: SHWARTZ, RESTREPO, and CHUNG, Circuit

Judges.

(Filed: August 15, 2023)

Caroline G. Cinquanto

2 Greenwood Square

3331 Street Road

Bensalem, PA 19020

Brett G. Sweitzer [ARGUED]

Federal Community Defender Office for the Eastern District

of Pennsylvania

601 Walnut Street

The Curtis Center, Suite 540 West

Philadelphia, PA 19106

Counsel for Appellant

Michael R. Miller

Shannon G. Zabel

Robert A. Zauzmer [ARGUED]

Office of United States Attorney

615 Chestnut Street

Suite 1250

Philadelphia, PA 19106

Counsel for Appellee

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OPINION OF THE COURT

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SHWARTZ, Circuit Judge.

Darron Henderson received a sentencing enhancement

under United States Sentencing Guideline (“U.S.S.G.”)

§ 2K2.1(a)(4) based on his Pennsylvania robbery conviction

2

because the District Court concluded that the subsection of the

robbery statute Henderson violated, 18 Pa. Cons. Stat.

§ 3701(a)(1)(ii), qualifies as a “crime of violence” as defined

by U.S.S.G. § 4B1.2(a). The District Court was correct and so

we will affirm.

I

In 2019, police officers stopped Henderson due to a

traffic violation, searched his vehicle, and found a loaded semi-

automatic firearm with an obliterated serial number and

thirteen rounds of ammunition. Henderson was indicted for,

and pled guilty to, possession of a firearm by a convicted felon

in violation of 18 U.S.C. § 922(g)(1). At the time of the

offense, Henderson had a prior state robbery conviction under

18 Pa. Cons. Stat. § 3701(a)(1)(ii).

At sentencing, the District Court applied the sentencing

enhancement under U.S.S.G. § 2K2.1(a)(4) based on

Henderson’s robbery conviction. The Court concluded that:

(1) § 3701(a) is divisible and Henderson was convicted of

violating subsection (ii) of the statute; and (2) subsection (ii)

qualified as a “crime of violence” under U.S.S.G. § 4B1.2(a)

because the subsection provides that a person is guilty of

robbery if he “threatens another with or intentionally puts him

in fear of immediate serious bodily injury,” App. 109 (quoting

18 Pa. Cons. Stat. § 3701(a)(1)(ii)), 120, which means a

violation of the subsection necessarily “requires the purposeful

use or threat of physical force against another,” App. 109, 120.

Based on this prior conviction, Henderson’s base

offense level was twenty. U.S.S.G. § 2K2.1(a)(4). This

offense level was increased by four because the firearm he

3

possessed had an obliterated serial number,

U.S.S.G. § 2K2.1(b)(4)(B), and reduced by three for

acceptance of responsibility, U.S.S.G. § 3E1.1, resulting in a

total offense level of twenty-one. Given his criminal history

category of IV, his Guideline range was fifty-seven to seventy-

one months’ imprisonment. The Court imposed a sentence of

sixty months’ imprisonment and three years’ supervised

release.

Henderson appeals.

II1

A

A defendant convicted of violating § 922(g)(1) faces an

enhanced base offense level under the Sentencing Guidelines

if he has a prior felony conviction of “either a crime of violence

or a controlled substance offense.” U.S.S.G. § 2K2.1(a)(2),

(a)(4)(A). The Guidelines define a “crime of violence” as

any offense under federal or state law,

punishable by imprisonment for a term

exceeding one year, that—

1

The District Court had jurisdiction under 18 U.S.C.

§ 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291

and 18 U.S.C. § 3742. We review the District Court’s factual

findings for clear error and its legal conclusions de novo,

United States v. Lowe, 791 F.3d 424, 427 (3d Cir. 2015),

including the Court’s determination that a conviction

constitutes a “crime of violence” under the Guidelines, United

States v. Chapman, 866 F.3d 129, 131 (3d Cir. 2017).

4

(1) has as an element the use, attempted

use, or threatened use of physical force

against the person of another, or

(2) is murder, voluntary manslaughter,

kidnapping, aggravated assault, a forcible

sex offense, robbery, arson, extortion, or

the use or unlawful possession of a

firearm described in 26 U.S.C. § 5845(a)

or explosive material as defined in 18

U.S.C. § 841(c).

U.S.S.G. § 4B1.2(a). The first section is known as the

“elements clause,” and the second section is known as the

“enumerated offenses clause.” United States v. Ramos, 892

F.3d 599, 605 (3d Cir. 2018).

To decide whether an offense constitutes a crime of

violence, we apply the “categorical approach,” which requires

“compar[ing] the elements of the statute under which the

defendant was convicted to the [G]uidelines’ definition of

crime of violence.” Id. at 606 (quotations and citation

omitted). If the statute forming the basis of the defendant’s

conviction necessarily has as an element “the use, attempted

use, or threatened use of physical force against another

person,” or if its elements substantially correspond to the

elements of one of the enumerated offenses, then the statute

proscribes a predicate crime of violence within the meaning of

the Guidelines. Id.; United States v. Brasby, 61 F.4th 127, 134

(3d Cir. 2023). If, however, the statute of conviction lacks

such an element, it “sweeps more broadly” than the Guidelines

definition and does not qualify as a crime of violence, even if

5

the defendant actually committed the offense by using,

attempting to use, or threatening to use physical force against

another person. Ramos, 892 F.3d at 606 (citation omitted).

Thus, we “not only [] ignore the actual manner in which the

defendant committed the prior offense, but also [] presume that

the defendant did so by engaging in no more than ‘the

minimum conduct criminalized by the state statute.’” Id.

(quoting Moncrieffe v. Holder, 569 U.S. 184, 191 (2013)).

When a statute “list[s] elements in the alternative, and

thereby define[s] multiple crimes,” it is divisible, and we must

identify which of the alternate elements was the basis for the

conviction. Mathis v. United States, 579 U.S. 500, 505-06

(2016). Under this “modified categorical approach,” we

identify the statutory offense of conviction by looking at a

“specific set of extra-statutory documents,” such as the

“charging document, written plea agreement, transcript of plea

colloquy, and any explicit factual finding by the trial judge.”

Ramos, 892 F.3d at 606-07.

Thus, we must first determine whether the Pennsylvania

robbery statute is divisible. If it is divisible, then we must

identify the provision that formed the basis of Henderson’s

conviction, and thereafter determine whether that provision

constitutes a crime of violence under the elements clause or

enumerated offenses clause.

6

B

Under Pennsylvania law, a person commits robbery, if

“in the course of committing a theft,”2 he:

(i) inflicts serious bodily injury upon another;

(ii) threatens another with or intentionally puts

him in fear of immediate serious bodily injury;

(iii) commits or threatens immediately to commit

any felony of the first or second degree;

(iv) inflicts bodily injury upon another or

threatens another with or intentionally puts him

in fear of immediate bodily injury;

(v) physically takes or removes property from

the person of another by force however slight; or

(vi) takes or removes the money of a financial

institution . . . .

18 Pa. Cons. Stat. § 3701(a)(1). “Theft means taking someone

else’s property intending not to give it back.” Pa. Suggested

Standard Criminal Jury Instructions 15.3701A. Robbery under

subsections (i)–(iii) are first-degree felonies, robbery under

subsections (iv) and (vi) are second-degree felonies, and

2

“An act shall be deemed ‘in the course of committing

a theft’ if it occurs in an attempt to commit theft or in flight

after the attempt or commission.” 18 Pa. Cons. Stat.

§ 3701(a)(2).

7

robbery under subsection (v) is a third-degree felony. 18 Pa.

Cons. Stat. § 3701(b)(1). These various felony levels carry

different penalties.3

The subsections of § 3701(a)(1) are not separate means

of satisfying a specific element, but rather “clearly la[y] out

alternative elements” for separate robbery offenses.4 United

States v. Peppers, 899 F.3d 211, 232 (3d Cir. 2018) (citation

omitted) (holding § 3701 divisible); see also United States v.

Blair, 734 F.3d 218, 225 (3d Cir. 2013) (same). Moreover, the

fact that the various subsections trigger different penalties

shows that they are alternative elements that must be proven.

Mathis, 579 U.S. at 518 (“If statutory alternatives carry

different punishments . . . they must be elements.”). For these

reasons, § 3701 is divisible. Peppers, 899 F.3d at 232; Blair,

734 F.3d at 225.

3

First-degree felonies are subject to a maximum term

of twenty years’ imprisonment. 18 Pa. Cons. Stat. § 1103(1).

Second-degree felonies are subject to a maximum term of ten

years’ imprisonment. 18 Pa. Cons. Stat. § 1103(2). Third-

degree felonies are subject to a maximum term of seven years’

imprisonment. 18 Pa. Cons. Stat. § 1103(3).

4

Henderson argues on appeal that § 3701 is not

divisible, but he withdrew his divisibility argument before the

District Court and conceded at sentencing that the statute is

divisible. Although Henderson failed to preserve his

challenge, Barna v. Bd. of Sch. Dirs. of Panther Valley Sch.

Dist., 877 F.3d 136, 146-47 & n.7 (3d Cir. 2017) (explaining a

claim is “waived” when intentionally abandoned, and “may not

be resurrected on appeal”), the categorical approach requires

that we determine whether § 3701 is divisible to ensure we are

examining the actual crime of conviction.

8

Because § 3701 is divisible, we apply the “modified

categorical approach,” which allows us to consider “extra-

statutory documents” to identify the subsection under which

Henderson was convicted. Ramos, 892 F.3d at 606-07. The

parties do not dispute that Henderson was convicted under

subsection (ii). As a result, we next examine whether

subsection (ii) of the Pennsylvania robbery statute is a crime of

violence under either § 4B1.2(a)’s elements clause or its

enumerated offenses clause.

C

To qualify as a crime of violence under the elements

clause, the offense must have “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). For subsection (ii) to meet

this definition, (1) a defendant must threaten to use physical

force, Ramos, 892 F.3d at 611, and (2) the threat must be made

intentionally or knowingly, Borden v. United States, 141 S. Ct.

1817, 1826 (2021).5 As we will explain, subsection (ii) meets

both requirements and thus qualifies as a crime of violence.

5

Borden addressed the elements clause of the ACCA,

which is identical to the elements clause of § 4B1.2(a)(1). See

18 U.S.C.A. § 924(e)(2)(B)(i). Given their similarity, “courts

generally apply authority interpreting one provision to the

other.” United States v. Brasby, 61 F.4th 127, 133 (3d Cir.

2023).

Borden left open the question of whether offenses

requiring a mental state of “extreme recklessness” satisfy the

elements clause. 141 S. Ct. at 1825 n.4. Because this is an

9

1

The first question is whether a theft where a defendant

“threatens another with or intentionally puts him in fear of

immediate serious bodily injury,” 18 Pa. Cons. Stat.

§ 3701(a)(1)(ii), involves the threatened use of physical force

against another. Section 4B1.2(a)(1) envisions the requisite

“use of physical force” as “force capable of causing physical

pain or injury.” Stokeling v. United States, 139 S. Ct. 544, 553

(2019) (quotations omitted).

The plain language of subsection (ii) satisfies this

requirement. The statute states that the threatened force must

place the victim in fear of immediate “serious bodily injury.”

Pennsylvania defines “[b]odily injury” as an “[i]mpairment of

physical condition or substantial pain,” and “[s]erious bodily

injury” as “[b]odily injury which creates a substantial risk of

death or which causes serious, permanent disfigurement, or

protracted loss or impairment of the function of any bodily

member or organ.” 18 Pa. Cons. Stat. § 2301. Because

subsection (ii) requires proof that the victim was threatened

with, or put in fear of, immediate serious bodily injury, it

contemplates a level of force that is capable of causing physical

pain or injury and therefore satisfies the force provision of

§ 4B1.2(a)’s elements clause. Cf. United States v. McCants,

952 F.3d 416, 428 (3d Cir. 2020) (holding textually similar

open question, we do not address it here and focus our analysis

on whether robbery under subsection (ii) requires that the

offense be committed intentionally or knowingly.

10

New Jersey robbery statute qualified as crime of violence

because it required a threat of “bodily injury”).6

6

United States v. Harris, 289 A.3d 1060 (Pa. 2023), and

its conclusion that Pennsylvania’s aggravated assault statute

does not require force, is not applicable. In Harris, the

Pennsylvania Supreme Court explained that the aggravated

assault statute did not contain a requirement of force and thus

could be violated by an omission. Id. at 1074. The court

observed that the aggravated assault statute does not identify

the “manner of causing a particular bodily injury,” instead

providing only that a defendant must “cause” such injury. Id.

at 1070-71. Like the statutes Harris distinguished from

aggravated assault, such as an “attempt[] by physical menace”

to put others in fear of bodily injury, subsection (ii)

criminalizes a specific act. As we explain in the following

section, subsection (ii)’s “threaten another” language identifies

the act in which the defendant must engage, namely a

declaration directed toward another. Thus, because subsection

(ii) identifies the manner by which the harm must be caused, it

differs from the aggravated assault statute. By identifying the

act, subsection (ii) robbery cannot be committed by omission.

Furthermore, unlike the aggravated assault statute,

subsection (ii) requires that the victim be threatened with or

placed in fear of “immediate” serious bodily injury. Harris is

also distinguishable because in its examination of

Pennsylvania’s aggravated assault statute it relied on a case in

which a mother was charged with aggravated assault through

an act of omission (i.e., starving a child to death), but such an

act would not satisfy the immediacy requirement in subsection

(ii). In the same way, a theft where a nursing home caretaker

who threatens to withhold medication necessary to prevent

11

2

The second question is whether subsection (ii) requires

proof that the defendant acted with a knowing or intentional

state of mind. Subsection (ii) prohibits, in the course of

committing a theft, “threaten[ing] another with or intentionally

put[ting] him in fear of immediate serious bodily injury.” 18

Pa. Cons. Stat. § 3701(a)(1)(ii). The second clause of

subsection (ii) explicitly provides for an intentional state of

mind by making it a crime to “intentionally put[] [another] in

fear of immediate serious bodily injury.” Id. The first clause

adverse medical consequences unless the patient gave the

caretaker money would not satisfy the immediacy

requirement. For this additional reason, Harris is not

applicable.

This result is confirmed by applying the realistic

probability test. Having found that subsection (ii) satisfies

4B1.2(a)(1)’s requisite quantum of force, to demonstrate that

subsection (ii) is yet still broader than § 4B1.2(a)(1),

Henderson must show a “realistic probability, not a theoretical

possibility, that the State would apply its statute” to a threat of

immediate serious bodily injury by omission. Moncrieffe v.

Holder, 569 U.S. 184, 191 (2013). To show such a realistic

probability, “an offender must at least point to his own case or

other cases in which the state courts in fact did apply the statute

in the special [] manner for which he argues.” Gonzales v.

Duenas-Alvarez, 549 U.S. 183, 193 (2007). Because

Henderson has failed to identify any case in which

Pennsylvania applied subsection (ii) to threats of immediate

serious bodily injury by omission, we hold that subsection (ii)

is not broader than § 4B1.2(a)(1) on this basis.

12

lacks the word “intentionally,” stating only that a person is

guilty of a robbery if he “threatens another with . . . immediate

serious bodily injury.” 18 Pa. Cons. Stat. § 3701(a)(1)(ii). The

text, structure, and case law, however, show that the first clause

also captures an intentional or knowing mens rea.

A term in a statute “is given more precise content by the

neighboring words with which it is associated.” United States

v. Williams, 553 U.S. 285, 294 (2008). The Supreme Court

applied this principle in Borden, where the Court considered

two different interpretations of the phrase “use of physical

force against the person of another,” as used in the ACCA. The

parties agreed that the “use of physical force” means the

“volitional” or “active” employment of force but had different

views as to whether “against the person of another” had: (1) a

passive meaning, which supported a mens rea of recklessness;

or (2) an oppositional meaning, which supported a stricter

mens rea. 141 S. Ct. 1817, 1825-1830 (2021). The passive

reading would interpret “against” to mean “making contact

with,” e.g. “waves crashing against the shore.” Id. at 1827

(quotations omitted). The oppositional reading of “against”

would interpret the phrase to introduce a “conscious object” or

“intended target” of the force, not a “mere recipient” of the

force by happenstance, e.g. “[t]he general deployed his forces

against a rival regiment.” Id. at 1825-26. The Court adopted

the oppositional interpretation because “against” was paired

with “use of physical force,” and the “pairing of a volitional

action with the word ‘against’ supports that word’s

oppositional, or targeted, definition.” Id. at 1826.

The same interpretation applies here. Viewing

subsection (ii)’s threatens clause in its entirety, the clause

“threatens another with [] immediate serious bodily injury” has

13

an oppositional meaning because the language “another with”

introduces an intended target, not a mere recipient of the threat

by happenstance.

Pennsylvania courts, which are “the ultimate

expositors” of Pennsylvania law, support this interpretation of

“threatens another” in subsection (ii). Mullaney v. Wilbur, 421

U.S. 684, 691 (1975); see also Jackson v. Virginia, 443 U.S.

307, 324 n.16 (1979) (recognizing that States have the power

to define the substantive elements of criminal offenses). Under

Pennsylvania law, the “common and approved usage” of a

word dictates how it is construed within a statute. 1 Pa. Cons.

Stat. § 1903(a). See also Commonwealth v. Griffin, 207 A.3d

827, 830 (Pa. 2019) (“[T]he plain language of the statute itself

provides the clearest indication of legislative intent.”). When

determining a word’s common meaning, Pennsylvania law

directs us to consult a dictionary. See e.g., Chamberlain v.

Unemployment Comp. Bd. of Rev., 114 A.3d 385, 394 (Pa.

2015) (“It is well-established that the common and approved

meaning of a word may be ascertained from an examination of

its dictionary definition.”). Black’s Law Dictionary defined

“threat” at the time § 3701 was enacted as “[a] declaration of

intention or determination to inflict punishment, loss, or pain

on another . . . [; a] declaration of one’s purpose or intention to

work injury to the person, property, or rights of another.” See

Threat, Black’s Law Dictionary (4th ed. 1968). Thus,

interpreting the “threatens another” language to convey an

intentional act, where the perpetrator knowingly states his

intent to harm his victim, is consistent with directives found

within Pennsylvania law.7

7

We acknowledge that the word “threat” alone has

been viewed as an actus reus and does “not carry its own

14

Pennsylvania case law further supports this

interpretation of subsection (ii). In Commonwealth v. Thomas,

546 A.2d 116 (Pa. Super. Ct. 1988), appeal denied, 554 A.2d

509 (Pa. 1989), the state court explained that a defendant

violates subsection (ii) if his threat “was calculated to inflict

fear of serious bodily injury.” Id. at 118. The court’s use of

the word “calculated” suggests that, to commit a violation of

subsection (ii), a defendant must intend to inflict fear of serious

bodily injury on the victim. Id. at 119.

Thus, the clause “threatens another with . . . immediate

serious bodily injury” conveys an intentional act because the

threat must be directed toward another person with the intent

of causing the victim to fear serious bodily injury. See Borden,

141 S. Ct. at 1827; Thomas, 546 A.2d at 119; see also United

States v. Stanford, No. 22-1272, 2023 WL 4835133 (3d Cir.

July 28, 2023) (holding that Delaware robbery, 11 Del. C.

§ 831(a), qualifies as a crime of violence under the elements

clause because it “requires the intentional use or threatened use

of immediate force ‘upon another person,’” and thus involves

force that is “consciously directed” toward a victim (quoting

implicit mens rea,” Larios v. Att’y Gen., 978 F.3d 62, 71 (3d

Cir. 2020) (citing Bovkun v. Ashcroft, 283 F.3d 166, 170 (3d

Cir. 2002)); see also Counterman v. Colorado, 143 S. Ct. 2106,

2117-18 (2023) (recognizing that a threat is an act that does not

embody a particular mens rea and acknowledging that a threat

may be committed recklessly), but here, where “threatens” is

coupled with a word of directionality, such as “another,” the

phrase “threatens another” provides insight into the state of

mind with which that threat occurs. Thus, our consideration of

the dictionary definition of “threat” is not inconsistent with

Larios.

15

Borden, 141 S. Ct. at 1826)).8 Because the “plain language of

the statute is the best indication of the legislature’s intent,” In

re B.W., 250 A.3d 1163, 1171 (Pa. 2021), and the language of

subsection (ii) requires intentional conduct, we need not rely

on the Pennsylvania Criminal Code’s default mens rea

provision to identify the applicable state of mind for violating

subsection (ii). We therefore conclude that subsection (ii)

embodies an intentional mens rea.

Because subsection (ii) involves the requisite force and

mens rea to qualify as a crime of violence under § 4B1.2’s

elements clause, we need not decide whether it is also one of

the crimes listed in the enumerated offenses clause. 9

8

Henderson asserts that reading a mens rea of intent into

the first clause of subsection (ii) would render the word

“intentionally” in the second clause superfluous. However, the

first clause’s use of the phrase “threatens another” addresses a

specific type of act, namely a communication that conveys an

intent to harm, and therefore the legislature did not need to use

the word “intentionally” to convey a knowing or intentional

mens rea. The second clause uses the phrase “intentionally

puts him in fear.” Without the use of the word “intentionally,”

conduct that “puts another in fear” could cover reckless

actions. Thus, unlike the first clause, the inclusion of the word

“intentionally” in the second clause is necessary to

demonstrate the legislature’s intent to punish only knowing or

intentional conduct.

9

Pennsylvania courts have viewed § 3701(a)(1)(ii) as

“substantially identical in nature and definition” to federal

bank robbery under 18 U.S.C. § 2113(a), Commonwealth v.

Taylor, 831 A.2d 661, 665-66 (Pa. Super. Ct. 2003), and we

have held § 2113(a) to be a crime of violence under

16

III

For the foregoing reasons, we will affirm.

§ 4B1.2(a)(1), United States v. Wilson, 880 F.3d 80, 85 (3d

Cir. 2018). This provides further support for the view that

subsection (ii) qualifies as a § 4B1.2(a) crime of violence.

17