United States v. Shiheem Amos

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

__________

No. 20-3298

__________

UNITED STATES OF AMERICA

v.

SHIHEEM AMOS,

Appellant

__________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(District Court Criminal No. 2-18-cr-00571-001)

District Judge: Honorable Gerald J. Pappert

Argued: January 23, 2023

BEFORE: BIBAS, NYGAARD, and FUENTES,

Circuit Judges

(Filed: December 14, 2023)

Anthony J. Carissimi

Timothy M. Stengel

Robert A. Zauzmer [Argued]

Office of United States Attorney

615 Chestnut Street

Suite 1250

Philadelphia, PA 19106

Counsel for Appellee

Abigail E. Horn [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

__________

OPINION OF THE COURT

__________

NYGAARD, Circuit Judge.

Shiheem Amos appeals the District Court’s denial of his

motion to suppress and his criminal sentence. He first argues

that the court erred when it denied his motion to suppress a

firearm because he was seized without reasonable suspicion.

Second, he argues that the court erred when it included a

United States Sentencing Guidelines’ crime of violence en-

hancement for a previous state court conviction and sentenced

him to 62 months’ imprisonment. We will affirm the denial of

the motion to suppress, but because Amos’s prior conviction is

not a crime of violence, we will remand for resentencing.

2

I. Background

On September 26, 2018, police officers Hugo Lemos

and Nicholas Mastroianni were working the overnight shift as

patrol officers in southwest Philadelphia. At about 2:00 a.m.,

they received a radio call for a person screaming at the inter-

section of 65th Street and Dicks Avenue outside Eddie’s Café

and a man assaulting a woman on the highway. The officers

were nearby and arrived at Eddie’s Café within two minutes.

No one was outside Eddie’s Café.

The officers continued driving past the café on 65th

Street and Officer Lemos saw one pedestrian, later discovered

to be Shiheem Amos, walking alone in an alleyway across the

street. Amos was walking toward 64th Street and was “stomp-

ing [his] feet, and kind of throwing his arms around,” accord-

ing to Officer Lemos. App’x 85. The officers drove around the

block to cut Amos off, driving the wrong way down a one-way

street with the overhead lights on. The officers parked midway

in the entrance to the alleyway and Amos continued to walk

toward them. Officer Lemos got out of the vehicle and told

Amos to stop and put his hands up. 1 Officer Lemos testified

that Amos placed his hands at a “halfway point” and stopped

1

There is some discrepancy about where Officer Lemos was

when he asked Amos to stop. At the preliminary hearing, he

testified that he was out of the car. At the suppression hearing,

he testified that he was still in the car and yelled out the win-

dow. He testified that the earlier testimony was probably accu-

rate. The District Court explained that any discrepancy did not

impact its assessment of Officer Lemos’s credibility or alter its

legal analysis.

3

for “[m]aybe a second.” App’x 89, 91. Amos then ran diago-

nally and reached about three car lengths away from the offic-

ers. Officer Mastroianni quickly caught up with Amos and

handcuffed him. At that time, a handgun fell from Amos’s

pocket, a firearm he was not permitted to carry due to his pre-

vious conviction of a felony punishable by a term of imprison-

ment exceeding one year.

Amos was charged with one count of possession of a

firearm by a felon under 18 U.S.C. § 922(g). He filed a motion

to suppress the gun and argued that he was seized pre-flight

without reasonable suspicion. After an evidentiary hearing, the

District Court denied the motion, finding no pre-flight seizure

occurred. Amos then pleaded guilty pursuant to a plea agree-

ment. 2

At sentencing, the parties disputed the applicability of a

sentencing enhancement under Sentencing Guidelines

§ 2K2.1(a)(4)(A) which applies to defendants previously con-

victed of a felony “crime of violence.” The Government argued

that Amos’s 2008 Pennsylvania state conviction for aggravated

2

Amos’s plea agreement waived appellate and collateral chal-

lenges with only a few exceptions, including that he could chal-

lenge the denial of his motion to suppress and he could raise

ineffective assistance of counsel. As such, Amos originally

couched his crime of violence argument in ineffective assis-

tance of counsel. However, the Government agreed to waive

the appellate waiver so we can exercise ordinary review of the

guideline challenge. Amos confirms this, explaining that the

ineffective assistance claim is no longer necessary, and the

Court can review the issue squarely.

4

assault, a second-degree felony, qualified as a predicate crime

of violence.

The state court records did not identify the specific

second-degree subsection of the aggravated assault statute, 18

Pa. Cons. Stat. § 2702(a)(3)–(7), under which Amos was con-

victed. Accordingly, the Government had to prove that all five

subsections qualified as a crime of violence. The District Court

found that the Government met its burden and applied the en-

hancement. This resulted in a base offense level of twenty,

from which the court deducted two levels for acceptance of re-

sponsibility, making it eighteen. Combined with Amos’s crim-

inal history category of six, he was subject to an advisory

Guidelines’ range of 57 to 71 months’ imprisonment. Without

the enhancement, Amos’s range would have been 30 to 37

months’ imprisonment. The court imposed a sentence of 62

months’ imprisonment followed by three years of supervised

release. Amos timely appealed. 3

II. Motion to Suppress

We review the District Court’s denial of a motion to

suppress for clear error as to the underlying factual findings

and exercise plenary review over questions of law. United

States v. Coward, 296 F.3d 176, 179 (3d Cir. 2002).

3

The District Court had jurisdiction under 18 U.S.C. § 3231

and we have jurisdiction pursuant to 28 U.S.C. § 1291 and 18

U.S.C. § 3742.

5

A. The Fourth Amendment Suppression

Analysis

The Fourth Amendment prohibits “unreasonable

searches and seizures….” U.S. Const. amend. IV. Unless an

exception applies, a seizure “must be effectuated with a war-

rant based on probable cause” in order to be reasonable under

the Fourth Amendment. United States v. Robertson, 305 F.3d

164, 167 (3d Cir. 2002). One such exception to the warrant re-

quirement was established in Terry v. Ohio, 392 U.S. 1 (1968).

When a police officer has a “reasonable, articulable suspicion

that criminal activity is afoot,” he may conduct a brief, inves-

tigatory stop without a warrant, i.e., a “Terry stop.” Illinois v.

Wardlow, 528 U.S. 119, 123 (2000). “[R]easonable suspicion

is a less demanding standard than probable cause and requires

a showing considerably less than preponderance of the evi-

dence.” Id. However, an officer must “articulate more than an

‘inchoate and unparticularized suspicion or “hunch”’ of crimi-

nal activity” to establish reasonable suspicion. Id. at 124 (quot-

ing Terry, 392 U.S. at 27). If a Terry stop is conducted without

reasonable suspicion of criminal activity, any evidence ob-

tained must be suppressed as “fruit of the poisonous tree.”

Wong Sun v. United States, 371 U.S. 471, 487–88 (1963) (in-

ternal quotation marks omitted).

Reasonable suspicion is evaluated at the moment of a

seizure, so the first step in a suppression analysis is to deter-

mine when the seizure occurred. United States v. Smith, 575

F.3d 308, 312 (3d Cir. 2009). When determining whether a sei-

zure occurred, we must consider “all the circumstances sur-

rounding the encounter.” Id. (quoting Florida v. Bostick, 501

U.S. 429, 439 (1991)). If a seizure occurred pre-flight, then the

6

flight “plays no role in the reasonable suspicion analysis.”

United States v. Brown, 448 F.3d 239, 245 (3d Cir. 2006).

A seizure can occur in two ways: 1) “a laying on of

hands or application of physical force to restrain movement,

even when it is ultimately unsuccessful,” or 2) “submission to

a ‘show of authority.’” Id. (quoting California v. Hodari D.,

499 U.S. 621, 626 (1991)). There is no dispute that the police

officers did not touch Amos before he tried to flee, so a seizure

could only have occurred pre-flight if Amos 1) submitted 2) to

a show of authority. The absence of either element is fatal to

his appeal.

B. The Police Officers Showed Authority

Because No Reasonable Person in

Amos’s Position Would Have Felt Free to

Leave

We first address whether the police officers showed au-

thority when they encountered Amos in the alleyway. The Dis-

trict Court found no show of authority by the officers because

they did not communicate to Amos that he was not free to

leave. The court relied on the facts that the officers did not ac-

tivate the police car’s lights or sirens, brandish their weapons,

block Amos’s path, come into contact with Amos, or make any

threats or intimidating movements.

An objective test determines whether there has been a

show of authority; we must ask whether a reasonable person

would have believed he was not free to leave based on the of-

ficer’s words and actions. Hodari D, 499 U.S. at 628. Factors

such as “the threatening presence of several officers, the dis-

play of a weapon by an officer, some physical touching of the

7

person of the citizen, or the use of language or tone of voice

indicating that compliance with the officer’s request might be

compelled” may indicate a show of authority occurred. United

States v. Mendenhall, 446 U.S. 544, 554 (1980) (plurality opin-

ion).

The Government hardly protests that the officers did not

show authority. See Appellee Br. 12 (“In this matter, whether

or not there was a show of authority in the officer’s command

to stop, there is no question that Amos did not comply before

running on foot.”); see also id. at 15 (“Assuming Officer

Lemos’ single request that the defendant stop and raise hands

was a show of authority, the defendant never submitted to it.”).

In a footnote, the Government notes that the District Court did

not find a show of authority and says, “that conclusion alone

resolves this case.” Id. at 16 n.3.

Amos argues that the police officers’ show of authority

was strong. He asserts that late at night, he was pursued by two

uniformed officers in a marked patrol car. The officers

emerged the wrong way out of a one-way street and parked in

the mouth of the alleyway from where Amos was emerging.

He argues that based on our caselaw, the officers showed au-

thority because no reasonable person would have felt free to

leave.

We agree with Amos that the officers displayed a show

of authority. Under the circumstances of the encounter between

Amos and the officers, a reasonable person would have be-

lieved he was not free to leave. While the District Court is right

that the officers did not brandish their weapons or make any

threats, the record shows that at 2:00 a.m. a marked police car

8

parked against the flow of traffic midway in the entrance to the

alleyway from where Amos was walking. The car was parked

in Amos’s direct forward path and inside were two uniformed

officers. One officer immediately got out and approached

Amos, commanding him to stop and show his hands.

Additionally, the record indicates the officers arrived in

a hurried manner as they drove the wrong way against traffic

with their lights on initially to get in Amos’s path. Similar facts

were presented in United States v. Lowe, 791 F.3d 424 (3d Cir.

2015). In Lowe, multiple marked police cars, which used their

lights and sirens en route to their destination, arrived at a resi-

dence in the middle of the night. Id. at 428. Multiple uniformed

officers approached the defendant and commanded that he

show his hands. Id. at 431–32. Based on the record, we found

that “the officers’ approach constituted a show of authority, as

a reasonable person in Lowe’s position would not have felt free

to decline the interaction or leave.” Id. at 432.

We think that under the circumstances presented to

Amos, a reasonable individual would have understood that the

officers were exercising control and showing authority. No rea-

sonable person who is commanded to stop and show their

hands in the middle of the night by uniformed officers with a

marked police car would feel free to ignore the command and

walk away. We have previously found a “clear show of author-

ity” when an officer informed two robbery suspects that the

“victim was being brought over to identify them as possible

suspects and, if they were not identified, they would be free to

go—necessarily implying that they were not free to leave.”

Brown, 448 F.3d at 245. We went on to say that the officer’s

demand that the suspects submit to a pat-down “would have

9

conveyed … to a reasonable person” that “he was being or-

dered to restrict his movement.” Id. (quoting Hodari D., 499

U.S. at 628). And we have assumed a show of authority when

officers instruct a defendant to place his hands on their vehicle.

See Smith, 575 F.3d at 314. Today, we confirm that assump-

tion. When a uniformed officer approaches an individual in the

middle of the night in a marked police car and commands that

person to stop and raise his or her hands, that is a show of au-

thority.

C. Amos Did Not Submit to the Officer’s

Show of Authority

We next consider submission to authority. Although

Amos is correct that the officers displayed a show of authority,

he must have also submitted to that display in order to have

been seized. “A police officer may make a seizure by a show

of authority and without the use of physical force, but there is

no seizure without actual submission; otherwise, there is at

most an attempted seizure, so far as the Fourth Amendment is

concerned.” Brendlin v. California, 551 U.S. 249, 254 (2007).

When Officer Lemos told Amos to stop and put his

hands up, Amos placed his hands at a “halfway point” and

stopped for “[m]aybe a second” before he ran. App’x 89, 91.

The District Court found that Amos did not submit to the of-

ficers when he fled before his hands were all the way up.

When determining whether an individual has submitted

to a show of authority, we consider both the nature of the show

of authority and the individual’s conduct at that moment. See

Lowe, 791 F.3d at 430. “Thus, while ‘a fleeing man is not

seized until he is physically overpowered, … one sitting in a

10

chair may submit to authority by not getting up to run away.’”

Id. at 431 (quoting Brendlin, 551 U.S. at 262).

Amos focuses on three cases to argue that he submitted

to the officers’ authority, but his reliance on those cases is mis-

placed. Amos asserts that in Lowe, the defendant “submitted

even though he took several steps backward into a fence, and

even though he failed to comply with the officers’ commands

to show his hands.” Appellant Br. 19. But we explained that

Lowe stayed put where he was when the officers converged

and was described by officers as “frozen” and “shocked.”

Lowe, 791 F.3d at 433. We explicitly held that “when a station-

ary suspect reacts to a show of authority by not fleeing, making

no threatening movement or gesture, and remaining stationary,

he has submitted under the Fourth Amendment and a seizure

has been effectuated.” Id. at 434 (emphasis added). Amos was

not a stationary suspect and did not remain stationary. In fact,

we distinguished such a circumstance in Lowe when we

pointed out that “[o]ther courts have found no submission

when a suspect already in motion refuses to stop when ap-

proached by an officer.” Id. at 433 (collecting cases).

Amos also relies on Brown, which bears closer resem-

blance to the situation at hand but just misses the mark. As de-

scribed above, the officer in Brown demanded that robbery sus-

pects submit to a pat-down. 448 F.3d at 245. We explained that

one suspect “clearly submitted” when he “turned to face the

police car and placed his hands on the vehicle in response to

[the officer’s] demand.” Id. at 246. Amos points out that we

said that “conclusion is not meaningfully contradicted by [the

officer’s] testimony that Brown had begun to move his hands

to the vehicle, but did not complete the action.” Id. True

11

enough, but we also explained that “Brown demonstrated more

than ‘momentary compliance’” with the officer’s demands and

distinguished a situation where a defendant did not. Id. (distin-

guishing United States v. Valentine, 232 F.3d 350, 359 (3d Cir.

2000)).

For its seizure analysis, we found Brown similar to

United States v. Coggins, 986 F.2d 651 (3d Cir. 1993), which

Amos also relies on. Coggins, who was sitting down, attempted

to terminate an encounter with a Drug Enforcement Admin-

istration agent at an airport. Id. at 652. When he stood up and

said he had to use the bathroom, the agent told him to wait. Id.

Coggins then sat back down. Id. We explained that Coggins

submitted to the agent’s authority by sitting down. Id. at 654.

He made a clear request to leave, the agent ordered him to stay,

and Coggins complied with the order by sitting down. Id. Such

a clear affirmative submission is missing from Amos’s encoun-

ter with the officers.

Instead, Amos’s actions were like those in Valentine

and Smith, where we found no submission and thus no seizure.

In Valentine, police officers approached a man who matched

the description of a tip for a gunman and told him to place his

hands on their police car. 232 F.3d at 352–53. The man re-

sponded, “Who, me?” and then ran toward the officers before

being grabbed and wrestled to the ground. Id. at 353. Although

we found that, under the totality of the circumstances, the of-

ficers had reasonable suspicion to stop and frisk Valentine, we

went on to address whether a seizure occurred prior to his at-

tempt to flee. Id. at 357–59. Valentine argued that when the

officer ordered him to place his hands on the car, he momen-

tarily complied with the order when he stopped and gave his

12

name, which in turn triggered a seizure. Id. at 359. But we ex-

plained that Valentine’s momentary “compliance” was not a

submission to authority. Id. “Even if Valentine paused for a

few moments and gave his name, he did not submit in any re-

alistic sense to the officers’ show of authority, and therefore

there was no seizure until [the officer] grabbed him.” Id.

In Smith, officers were patrolling during the night when

they encountered Smith on the street and asked him to talk. 575

F.3d at 311. He briefly complied, walking toward the officers’

car and answering questions about his identification and desti-

nation. Id. He then provided nonresponsive answers to contin-

ued questioning, so one of the officers asked him to place his

hands on the hood of the car. Id. Smith took two steps toward

the vehicle, at which point the officers opened their car doors

and Smith ran. Id. We relied on Valentine for the finding that

“momentary compliance was not enough to trigger a seizure”

and found that Smith’s two steps towards the officers’ vehicle

did not indicate submission to the show of authority. Id. at 315–

16. “[S]ubmission to authority under Hodari D., ‘requires at

minimum, that a suspect manifest compliance with police or-

ders.’” Id. at 316 (quoting United States v. Waterman, 569 F.3d

144, 146 n.3 (3d Cir. 2009)). Smith’s two steps and non-

responsive answers did not represent manifest compliance. Id.

We distinguished Brown by explaining that the defendant there

submitted to the officer’s orders to stay put prior to turning to

face the car, and thus his submission was manifested at that

point. Id. at 315.

Amos’s situation is most analogous to Smith. Id. at 311.

Like the officer in Smith who directed the suspect to put his

hands on the vehicle, the officer here told Amos to stop and put

13

his hands up. Just as Smith did not comply by taking two steps

forward before running, Amos’s brief hesitation and raising of

his hands halfway before running was not “manifest compli-

ance.” Id. at 316. Similarly, even though Valentine paused for

a few moments and gave his name, he did not submit in a real-

istic sense to the officers’ show of authority. Valentine, 232

F.3d at 359. The same can be said for Amos.

We conclude that as in Valentine and Smith, Amos’s ac-

tions were not a submission to authority. In the cases where we

found such a submission, the compliance was more definite

than Amos’s display. Amos’s one- or two-second pause and

halfway hand raise is clearly different than affirmatively sitting

down after being told to or complying with an officer’s order

for more than a moment. Instead, it was more akin to the “ex-

traordinarily brief” compliance we have recognized as insuffi-

cient submission to authority. See United States v. Hester, 910

F.3d 78, 86 (3d Cir. 2018) (referring to Valentine and Smith).

Accordingly, because submission “would seem to re-

quire something more than a momentary pause,” Amos’s brief

pause and halfway hand raise was not a submission to the of-

ficers’ show of authority. Waterman, 569 F.3d at 146. As

Amos did not submit to the show of authority, no seizure oc-

curred at that time. Thus, reasonable suspicion is not evaluated

at that point. See Smith, 575 F.3d at 312.

When Amos ran and attempted to flee, the officers

caught him and put him into handcuffs—a classic seizure. See

Hodari D., 499 U.S. at 624. Amos concedes that if he was not

seized until after he fled, then there was reasonable suspicion

14

at that point to seize him based on his headlong flight. 4 See

Wardlow, 528 U.S. at 124; Appellant Br. 6.

In sum, Amos’s one- or two-second pause and halfway

hand raise did not manifest submission to the officer’s show of

authority. Because Amos did not submit to the show of author-

ity and was not seized until the officers put him in handcuffs

based on reasonable suspicion, the District Court did not err in

denying his motion to suppress.

III. Crime of Violence Sentencing Enhancement

We next consider Amos’s challenge to his sentence. He

has challenged only one aspect of his sentencing: the crime of

violence enhancement. Whether an offense qualifies as a crime

of violence is a question of law subject to plenary review. See

United States v. Wilson, 880 F.3d 80, 83 (3d Cir. 2018).

A. The Elements of Force Clause

The “crime of violence” enhancement to the firearm

guideline applies where “the defendant committed any part of

the instant offense subsequent to sustaining one felony convic-

tion of either a crime of violence or a controlled substance of-

fense.” U.S.S.G. § 2K2.1(a)(4)(A). A crime of violence is any

federal or state offense, punishable by imprisonment for more

than a year, that “(1) has as an element the use, attempted use,

or threatened use of physical force against the person of

4

Because Amos was not seized until he was grabbed and hand-

cuffed by the officers, we need not decide whether the officers

had reasonable suspicion at an earlier time based on the anon-

ymous tip.

15

another, or (2) is murder, voluntary manslaughter, kidnapping,

aggravated assault, a forcible sex offense, robbery, arson, ex-

tortion, 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). There is no assertion

by the parties that subsection two applies to Amos, so our in-

quiry is confined to subsection one, the so-called elements of

force clause. “Physical force” in the elements of force clause

“means violent force—that is, force capable of causing physi-

cal pain or injury to another person.” Johnson v. United States,

559 U.S. 133, 138–40 (2010). 5

B. The Modified Categorical Approach

When determining whether a conviction is a crime of

violence, we must use the categorical approach. This requires

us to “compare the elements of the statute under which the de-

fendant was convicted to the [G]uidelines’ definition of crime

of violence.” United States v. Wilson, 880 F.3d 80, 83 (3d Cir.

2018) (citing United States v. Chapman, 866 F.3d 129, 133 (3d

Cir. 2017)). When conducting the categorical approach analy-

sis under the elements of force clause, we ask whether “the use,

attempted use, or threatened use of physical force against an-

other person is categorically an element of the offense of

5

Johnson addressed whether an offense constituted a “violent

felony” under the Armed Career Criminal Act, 18 U.S.C.

§ 924(e). Because the definition of crime of violence bears

“substantial similarity” to the definition of violent felony in the

ACCA, we apply authority interpreting one definition to the

other. See United States v. Marrero, 743 F.3d 389, 394 n.2 (3d

Cir. 2014) (citation omitted).

16

conviction.” United States v. Ramos, 892 F.3d 599, 606 (3d

Cir. 2018). As stated above, physical force “means vio-

lent force—that is, force capable of causing physical pain or

injury to another person.” Johnson, 559 U.S. at 140. “Accord-

ingly, a crime is a violent one under the elements clause so long

as it has an element that can be satisfied only through the use,

threatened use, or attempted use of force against another per-

son that is capable of causing that person physical pain or in-

jury.” Ramos, 892 F.3d at 611. That is true regardless of

whether an offender could be convicted under the statute for

applying force directly or indirectly. Chapman, 866 F.3d at

132–33.

Thus, if the state statute Amos was convicted under has

an element of violent force capable of causing physical pain or

injury, “then the statute proscribes a predicate crime of vio-

lence within the meaning of the Guidelines.” Ramos, 892 F.3d

at 606. But if the statute does not have such an element, it

“sweeps more broadly” and the state conviction is not a predi-

cate offense for the crime of violence sentencing enhancement.

See United States v. Brown, 765 F.3d 185, 189 (3d Cir. 2014)

(citation omitted).

A court “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. (quoting

Descamps v. United States, 570 U.S. 254, 261 (2013) (empha-

sis in original)). This approach requires that a court both “ig-

nore the actual manner in which the defendant committed the

prior offense” and “presume that the defendant did so by en-

gaging in no more than ‘the minimum conduct criminalized by

17

the state statute.’” Ramos, 892 F.3d at 606 (quoting Moncrieffe

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

However, when a defendant was convicted under a “di-

visible” statute that defines multiple crimes, we apply the

“modified categorical approach.” United States v. Abdullah,

905 F.3d 739, 744 (3d Cir. 2018) (citation omitted). This ap-

proach allows us to look beyond the statute of conviction and

identify the specific statutory provision under which the de-

fendant was previously convicted. Id. We may look to so-

called Shepard documents, including the charging document,

written plea agreement, and plea colloquy transcript. Id.; see

Shepard v. United States, 544 U.S. 13, 16 (2005). If a specific

provision is identified, the categorical approach is applied to

that one provision. Abdullah, 905 F.3d at 744. If the records

are unclear, the Government must “show that all of the stat-

ute’s offenses [meet] the federal definition” of crime of vio-

lence. Pereida v. Wilkinson, 141 S. Ct. 754, 766 (2021) (em-

phasis in original).

C. The Pennsylvania Second-Degree Aggra-

vated Assault Statute

The state court records show that Amos was charged

with and entered a guilty plea to aggravated assault as a felony

in the second-degree generally. In 2008, when Amos commit-

ted the crime, the Pennsylvania aggravated assault statute in-

cluded seven subsections enumerating an aggravated assault.

Subsections one and two are felonies in the first-degree,

whereas subsections three through seven are felonies in the

second-degree. See 18 Pa. Cons. Stat. § 2702(b).

A person is guilty of aggravated assault if he:

18

(3) attempts to cause or intentionally or know-

ingly causes bodily injury to any of the officers,

agents, employees or other persons enumerated

in subsection (c), in the performance of duty;

(4) attempts to cause or intentionally or know-

ingly causes bodily injury to another with a

deadly weapon;

(5) attempts to cause or intentionally or know-

ingly causes bodily injury to a teaching staff

member, school board member or other em-

ployee, including a student employee, of any el-

ementary or secondary publicly-funded educa-

tional institution, any elementary or secondary

private school licensed by the Department of Ed-

ucation or any elementary or secondary paro-

chial school while acting in the scope of his or

her employment or because of his or her employ-

ment relationship to the school;

(6) attempts by physical menace to put any of the

officers, agents, employees or other persons enu-

merated in subsection (c), while in the perfor-

mance of duty, in fear of imminent serious bodily

injury; or

(7) uses tear or noxious gas as defined in section

2708(b) (relating to use of tear or noxious gas in

labor disputes) or uses an electric or electronic

incapacitation device against any officer, em-

ployee or other person enumerated in subsection

(c) while acting in the scope of his employment.

19

Id. § 2702(a)(3)–(7).

At sentencing, the Government argued that Amos’s

2008 Pennsylvania state aggravated assault conviction quali-

fied as a predicate crime of violence. Under Ramos, the modi-

fied categorial approach applies because the Pennsylvania ag-

gravated assault statute is divisible. See 892 F.3d at 607–10.

Accordingly, the Government provided the District Court with

the state court Certified Records of Conviction. The Govern-

ment conceded that the Shepard documents do not indicate

what subsection of Section 2702(a) Amos was convicted un-

der, except to say it was a felony in the second-degree as listed

on the written guilty plea colloquy. The Government argued

the crime of violence enhancement applied because each of the

possible five subsections is a crime of violence. Amos’s trial

counsel confined his argument in opposition to subsection six.

See App’x 240 (“Your Honor, my argument is limited to § 6.”).

The court agreed with the Government and applied the sentenc-

ing enhancement, which resulted in a sentence of 62 months’

imprisonment followed by three years of supervised release.

D. 18 Pa. Con. Stat. § 2702(a)(3) Is Not a

Crime of Violence 6

As previously stated, the Government must show that

all subsections of Pennsylvania’s aggravated assault statute

6

Because Amos succeeds under subsection three, we need not

address whether the other subsections of aggravated assault in

the second-degree are crimes of violence. Likewise, we need

not address whether the Government waived its right to argue

20

meet the federal definition of crime of violence. See Pereida,

141 S. Ct. at 766. If the Government is unable to do so on even

one subsection, then Amos prevails in his argument that his

conviction under the statute is not a crime of violence, and he

is thus not subject to the sentencing enhancement.

We start and end our analysis by applying our recent

decision in United States v. Jenkins, 68 F.4th 148 (3d Cir.

2023). In Jenkins, we addressed whether 18 Pa. Cons. Stat.

§ 2702(a)(3)—one of the exact subsections at issue here—is a

violent felony under the ACCA. We relied on the Pennsylvania

Supreme Court’s decision United States v. Harris, 289 A.3d

1060 (Pa. 2023), to find “that Section 2702(a)(3) can at least

be violated by a failure to act, so it is not a violent felony.”

Jenkins, 68 F.4th at 152. Like the subsection addressed in Har-

ris, the statutory language in Section 2702(a)(3) makes no

mention of force and there is no reference “to the manner by

which an injury must be inflicted.” Id. at 153 (quoting Harris,

289 A.3d at 1070).

That affirmative holding controls here because of the

“substantial similarity” between the definitions of violent fel-

ony in the ACCA and crime of violence in the Guidelines. See

Marrero, 743 F.3d at 394 n.2 (citation omitted). The Shepard

documents do not rule out that Amos was convicted under sub-

section three of the Pennsylvania aggravated assault statute,

and under Jenkins, subsection three is not a crime a violence.

Accordingly, Amos must be resentenced.

that Amos was not convicted under subsection seven and

whether a closed record on remand is necessary.

21

IV. Conclusion

For the foregoing reasons, we will affirm the District

Court’s order denying Amos’s motion to suppress. Addition-

ally, because Section 2702(a)(3) is not a crime of violence, we

vacate Amos’s sentence and remand for resentencing con-

sistent with this opinion.

22