Petition for Writ of Certiorari — Ibrahim McCants, Petitioner v. United States

No.

IN THE

Supreme Court of the United States

October Term 2020

IBRAHIM MCCANTS,

PETITIONER,

v.

UNITED STATES OF AMERICA,

RESPONDENT.

ON PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD

CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

RICHARD COUGHLIN

Federal Public Defender for the

District of New Jersey

Louise Arkel*

Assistant Federal Public Defender

1002 Broad Street

Newark, New Jersey

07102 (973) 622-7535

Counsel for Petitioner Ibrahim McCants

* Counsel of Record

QUESTIONS PRESENTED

1.

Does an anonymous tip providing minimal physical and location descriptors and

alleging ongoing domestic violence that is not corroborated when police respond

within minutes of the call suffice to support a stop and frisk based on

“circumstances common to domestic violence calls”?

3.

Whether the Third Circuit’s approach to determining that New Jersey’s second

degree robbery statute is divisible is contrary to Mathis v. United States when it

ignores state law sources and relies on the layout of the statute and the fact

that different subsections require different proof?

i

PARTIES TO PROCEEDING

The parties to the proceeding in the court whose judgment is sought to be

reviewed are as follows:

1.

United States of America

2.

Ibrahim McCants

ii

TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................. i

PARTIES TO PROCEEDING ....................................................................................... ii

TABLE OF CONTENTS ............................................................................................... iii

APPENDIX ................................................................................................................... iv

TABLE OF AUTHORITIES .......................................................................................... v

DECISION AND ORDERS BELOW ............................................................................. 1

JURISDICTION............................................................................................................. 2

RELEVANT STATUTORY PROVISIONS ................................................................... 2

STATEMENT OF THE CASE ....................................................................................... 4

A. Background ............................................................................................................... 4

B. Stipulated trial ......................................................................................................... 6

C. Sentencing ................................................................................................................ 6

D. Appeal ....................................................................................................................... 7

E. Post-Appeal ............................................................................................................... 7

REASONS FOR GRANTING THE WRIT .................................................................... 8

I. THIS COURT SHOULD GRANT CERTIORARI BECAUSE THE THIRD CIRCUIT’S

REASONING IMPROPERLY PERMITS AN EXCEPTION FOR ANONYMOUS TIPS

ALLEGING DOMESTIC VIOLENCE WITHOUT REQUIRING RELIABLE INDICIA OF

ILLEGALITY, CONTRARY TO THE FOURTH AMENDMENT OF THE

CONSTITUTION OF THE UNITED STATES .................................................................... 8

II. CERTIORARI IS WARRANTED BECAUSE THE THIRD CIRCUIT’S APPROACH TO

DETERMINING THAT NEW JERSEY’S SECOND DEGREE ROBBERY STATUTE IS

DIVISIBLE IS CONTRARY TO MATHIS V. UNITED STATES, 136 S. CT. 2243

(2016)… .................................................................................................................... 13

CONCLUSION............................................................................................................. 18

iii

APPENDIX

Judgment and Opinion,

United States Court of Appeals for the Third Circuit,

United States v. McCants, No. 17-3103 (3d Cir. December 18, 2018) ......... 1–24

Sur Petition for Rehearing,

United States Court of Appeals for the Third Circuit,

United States v. McCants, No. 17-3103 (3d Cir. April 5, 2019) ................. 25–26

Judgment and Opinion,

United States Court of Appeals for the Third Circuit,

United States v. McCants, No. 17-3103 (3d Cir. April 5, 2019) ................. 27–51

Order,

United States Supreme Court

Granting Petition for Writ of Certiorari, Vacating Judgment,

And Remanding Case to the United States Court of Appeals

for the Third Circuit for further consideration in light of

Rehaif v. United States,

588 U.S. ___, 139 S.Ct. 2191, 204 L.Ed.2d 594 (2019) ..................................... 52

Order,

United States Court of Appeals for the Third Circuit,

Granting Appellant’s Motion to Voluntarily Withdraw His

Challenge to His Convictions Based on Rehaif v. United States,

139 S.Ct. 219 (2019), and directing Clerk to reissue the Court’s

April 15, 2019 precedential opinion and judgment as of the

date of this order (3d Cir, Mar. 12, 2020) ......................................................... 53

Judgment and Opinion,

United States Court of Appeals for the Third Circuit

United States v. McCants, No. 17-3103 (3d Cir. March 12, 2020) ............ 54–77

iv

TABLE OF AUTHORITIES

Cases

Apprendi v. New Jersey,

530 U.S. 466 (2000) ........................................................................................... 15

Blockburger v. United States,

284 U.S. 299 (1932) ........................................................................................... 15

Descamps v. United States,

570 U.S. 254 (2013) ............................................................................................. 14

Mathis v. United States,

136 S. Ct. 2243 (2016) ............................................................. 7, 13, 14, 15, 16, 17

Navarette v. United States,

572 U.S. 393 (2014) ....................................................................... 8, 9, 10, 12, 13

Rehaif v. United States,

139 S. Ct. 2191 (2019) ............................................................................. 1, 2, 7, 8

Terry v. Ohio,

392 U.S. 1 (1968) ................................................................................................. 9

United States v. Blair,

734 F.3d 218 (3d Cir. 2013) .............................................................................. 16

United States v. Brown,

765 F. 3d 185 (3d Cir. 2014) .............................................................................. 14

United States v. Henderson,

841 F.3d 623 (3d Cir. 2016) ........................................................................ 16, 17

United States v. McCants,

920 F.3d 169 (3d Cir. 2019) ............................................................................ 1, 8

United States v. McCants,

911 F.3d 127 (3d Cir. 2018) ............................................................................... 17

United States v. Peppers,

899 F.3d 211 (3d Cir. 2018) .............................................................................. 16

v

United States v. Steiner,

847 F.3d 103 (3d Cir. 2017) .............................................................................. 16

United States v. Wooden,

551 F.3d 647 (7th Cir. 2008) ....................................................................... 11, 12

Constitutional Provisions

U.S. CONST. AMEND. IV ................................................................................................... 3

Statutes

18 U.S.C. § 922(g)(1) ........................................................................................................ 6

18 U.S.C. § 924(e) .......................................................................................................... 14

18 U.S.C. § 3231 .............................................................................................................. 2

18 U.S.C. § 3742(a) ......................................................................................................... 2

21 U.S.C. § 841(a) ............................................................................................................ 6

21 U.S.C. § 841(b)(1)(c) .................................................................................................... 6

28 U.S.C. § 1254(1) ......................................................................................................... 2

28 U.S.C. § 1291 .............................................................................................................. 2

N.J.S.A. 2C:15-1 ........................................................................................ 3, 6, 13, 16, 17

United States Sentencing Guidelines

U.S.S.G. § 4B1.1 .............................................................................................................. 6

U.S.S.G. § 4B1.2 ............................................................................................................ 14

U.S.S.G. § 4B1.2(a) .............................................................................................. 6, 13, 14

vi

NO:____________________

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2019

IBRAHIM McCANTS,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

Petitioner Ibrahim McCants respectfully petitions for a writ of certiorari to

review the judgment of the United States Court of Appeals for the Third Circuit

in this case.

DECISION AND ORDERS BELOW

The United States Court of Appeals for the Third Circuit initially affirmed

Petitioner’s conviction and sentence in a precedential opinion issued on December 18,

2018. See Petitioner’s Appendix (“Appx.) 1–24. Following the grant of Mr. McCants’s

petition for rehearing, see Appx. 25–26, the panel vacated the initial opinion and

issued a new opinion on April 5, 2019. See Appx. 27–51. The opinion is available at

920 F.3d 169 (3d Cir. 2019).

After the Third Circuit’s judgment and opinion were issued, this Court decided

Rehaif v. United States, 588 U.S. __, 139 S.Ct. 2191, 204 L.Ed.2d 594 (2019). 920 F.3d

169 (3d Cir. 2019). Mr. McCants filed a petition for writ of certiorari that raised, inter

1

alia, a challenge to his conviction based on Rehaif. The Supreme Court granted Mr.

McCants’s petition for a writ of certiorari, vacated the judgment, and remanded the

case to the Third Circuit for further consideration in light of Rehaif. See Appx. 52.

On remand, Mr. McCants moved to voluntarily withdraw his challenges to his

convictions based on Rehaif and requested the Third Circuit to reissue the

precedential opinion issued on April 5, 2019 in order to allow him to pursue the other

issues he raised in his initial petition for a writ of certiorari. The Third Circuit

granted this motion, see Appx. 53, and the opinion was reissued as of the date of the

order. See Appx. 54–77. The opinion is available at United States v. McCants, 952

F.3d 416 (3d Cir. Mar. 12, 2020).

JURISDICTION

The United States District Court for the District of New Jersey (D.N.J. No. 15CR-551) exercised jurisdiction over this federal criminal case pursuant to 18 U.S.C.

§ 3231. The Third Circuit Court of Appeals (No. 17-3103) had jurisdiction pursuant to

28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). The United States Court of Appeals for the

Third Circuit entered judgment on March 12, 2020. Appx. 54. This Court has

jurisdiction pursuant to 28 U.S.C. § 1254(1). This petition is timely filed within 150

days of the entry of judgment.

RELEVANT STATUTORY PROVISIONS

The Fourth Amendment to the Constitution of the United States provides:

The right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated,

and no Warrants shall issue, but upon probable cause, supported by Oath

2

or affirmation, and particularly describing the place to be searched, and

the persons or things to be seized.

U.S. CONST. AMEND. IV.

The New Jersey robbery statute provides:

a. Robbery defined. A person is guilty of robbery if, in the course of committing a

theft, he:

(1) Inflicts bodily injury or uses force upon another; or

(2) Threatens another with or purposely puts him in fear of immediate bodily

injury; or

(3) Commits or threatens immediately to commit any crime of the first or second

degree.

....

b. Grading. Robbery is a crime of the second degree, except that it is a crime of

the first degree if in the course of committing the theft the actor attempts to kill

anyone, or purposely inflicts or attempts to inflict serious bodily injury, or is

armed with, or uses or threatens the immediate use of a deadly weapon.

N.J.S.A. 2C:15-1.

3

STATEMENT OF THE CASE

A. Background

Around 2:30 p.m. on June 28, 2015, an unknown woman called 911, asked for the

number to the East Orange Police Department, and said, “[i]t’s [an] emergency.” Joint

Appendix (“JA”) 13–14.1 After the operator asked what the problem was, the caller

said, “[t]his guy is out here beating up his girlfriend. He’s about to kill her.” JA14. She

said the man was on “Grove and, and, like Williams Street” and described him as

wearing “a red hat, with braids.” Id. She told the operator “he is beating her up really

bad right now” but never explained exactly what he was doing or asked for an

ambulance. Id. The caller repeated, “he’s beating her up really badly.” Id. As the

operator began broadcasting the message to police, the caller said, “I think he has a

gun” and hung up. Id.

The operator dispatched the following message:

Grove and William, Grove and William, right now from a caller, it’s a male

beating a female really badly, male has braids with a red hat . . . . Now

she is saying she believes he has a gun . . . Alright, the caller disconnected.

Id. Within seconds, the responding officers determined Mr. McCants was the man

described in the tip and detained him. JA25. They stopped and frisked him and

recovered a firearm and drugs. JA15.

What the officers did not find, according to their six different incident reports,

The Joint Appendix refers to the appendix filed in the United States Court of Appeals

for the Third Circuit.

4

1

was any evidence corroborating the caller’s claim of a violent altercation or beating.

JA74–92. Officers Cory Patterson, Stephen Rochester, and Moses Sangster were the

first to notice Mr. McCants. JA15, 76. Rochester reported that “[u]pon arrival to 146 N.

Grove St. [he] observed a black male with dreads, wearing a red baseball hat . . .

speaking with a black female.” JA78 (emphasis added). Sangster said he saw Mr.

McCants “walking . . . with a female.” JA76 (emphasis added). Patterson and Rochester

“immediately engaged” Mr. McCants and “[d]ue to the nature of the call for service”

conducted a “pat down for weapons.” JA15, 78. Officer Crystal Singleton arrived

around the same time. JA85. When she noticed Mr. McCants and a woman, later

identified as Chelsea Fulton, they were “approaching the driveway of 146 N. Grove St.”

JA85. She questioned Ms. Fulton while Patterson and Rochester frisked Mr. McCants.

JA86. Singleton observed that Ms. Fulton “did not have any signs of injuries.” JA85–86.

Detective Jalessa Wreh also spoke to Ms. Fulton and confirmed “she did not display

any signs of injuries or pain.” JA82. Although Ms. Fulton admitted to both Singleton

and Wreh that she and Mr. McCants were arguing, she said, “at no point did the

argument get physical.” JA70, 82, 86. After arresting Mr. McCants, the officers

checked Ms. Fulton for active warrants and released her. JA75. In short, the

responding officers, some of whom decided within seconds that Mr. McCants matched

the minimal description provided by the caller, observed Mr. McCants and Ms. Fulton

walking and talking, not arguing, much less fighting. And despite numerous officers

arriving within minutes of this purportedly violent altercation, they observed no

evidence that Ms. Fulton had suffered any injury or was in pain.

5

Mr. McCants was indicted on two counts: possession with intent to distribute

heroin, in violation of 21 U.S.C. § 841(a) and (b)(1)(C), and unlawful possession of a

firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). JA38–39. He filed a

motion to suppress the firearm and drugs because the officers did not reasonably

suspect he was engaging in criminal activity before stopping and frisking him. JA42–

61, 128–139. The district court denied Mr. McCants’s request for an evidentiary

hearing and motion to suppress in a written opinion. JA13–30.

B.

Stipulated trial

Mr. McCants proceeded to a stipulated bench trial. Mr. McCants was found

guilty of both charges in the indictment. JA169–193.

C.

Sentencing

Mr. McCants objected to the PSR’s determination that his advisory guideline

range was 168 to 210 months under the career offender guideline, U.S.S.G. § 4B1.1.

PSR ¶32. Mr. McCants argued that he did not qualify as a career offender because the

two alleged career offender predicates—second degree robbery under N.J.S.A. 2C:151—did not qualify as crimes of violence under U.S.S.G. § 4B1.2(a). Sealed Appendix

(“SA”) 2–12.

Mr. McCants argued that N.J.S.A. 2C:15-1 is an indivisible statute and cited

state court decisions demonstrating that N.J.S.A. 2C:15-1 sets out a single offense with

two elements: (1) theft and (2) injury/force, which can be satisfied by any of the factual

means listed in subsections (a)(1)–(3) of the statute. SA5–7, 79. Applying the

categorical approach, Mr. McCants argued that the elements of N.J.S.A. 2C:15-1 swept

6

more broadly than the United States Sentencing Guidelines’ (the “Guidelines”)

definition of a crime of violence. SA7–10.

The district court concluded that his prior robbery offenses were crimes of

violence subjecting him to the career offender enhancement. JA270.

D.

Appeal

On December 18, 2018, a panel of the United States Court of Appeals for the

Third Circuit (Hardiman, Krause, and Bibas, J.J.), issued a precedential opinion

affirming the judgment and conviction. Appx. 1–24. Specifically, the panel affirmed the

denial of the motion to suppress and the determination that the prior robbery

convictions were crimes of violence under the career offender guideline. Id. On the

crime of violence issue, the panel concluded that the New Jersey robbery statute is

divisible because each subsection requires different proof to sustain a conviction and

because the statute is clearly laid out into three subsections. Appx. 17–18.

Mr. McCants sought rehearing on the basis that this “different proof”

requirement conflicted with Mathis v. United States, 136 S. Ct. 2243 (2016). The panel

granted the petition for rehearing, Appx. 25–26, and on April 5, 2019 issued a new

opinion reaching the same conclusion. Appx. 44–45.

E.

Post-Appeal

After the Third Circuit issued its decision, but before Mr. McCants’s petition

for a writ of certiorari was due, this Court issued its opinion in Rehaif v. United

States, 139 S. Ct. 2191 (2019). Mr. McCants filed a petition for a writ of certiorari on

the suppression issue and the crime of violence issue and added a challenge to his

7

convictions based on Rehaif. The Supreme Court granted Mr. McCants’s petition for a

writ of certiorari, vacated the judgment, and remanded the case to the Third Circuit

for further consideration in light of Rehaif v. United States, 588 U.S. __, 139 S.Ct.

2191, 204 L.Ed.2d 594 (2019). 920 F.3d 169 (3d Cir. 2019).2 See Appx. 52.

On remand, Mr. McCants moved to voluntarily withdraw his challenges to his

convictions based on Rehaif and requested the Third Circuit to reissue the precedential

opinion issued on April 5, 2019 in order to allow him to pursue the other issues he

raised in his initial petition for a writ of certiorari. The Third Circuit granted this

motion, see Appx. 53, and the opinion was reissued as of the date of the order. See

United States v. McCants, 952 F.3d 416 (3d Cir. Mar. 12, 2020). See Appx. 54–77.

REASONS FOR GRANTING THE WRIT

I.

THIS COURT SHOULD GRANT CERTIORARI BECAUSE THE THIRD

CIRCUIT’S REASONING IMPROPERLY PERMITS AN EXCEPTION FOR

ANONYMOUS TIPS ALLEGING DOMESTIC VIOLENCE WITHOUT

REQUIRING RELIABLE INDICIA OF ILLEGALITY, CONTRARY TO THE

FOURTH AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES.

Improperly extending Navarette v. California, 572 U.S. 393 (2014), a panel of the

United States Court of Appeals for the Third Circuit fashioned an “anonymous report of

domestic violence” exception to the Fourth Amendment and approved a stop and frisk

despite an utter absence of indicia that the allegation of illegality was reliable.

Six years ago, the dissent in Navarette v. California characterized the majority

opinion as a “freedom-destroying cocktail consisting of two parts patent falsity[.]” 572

2

Rehaif was issued on June 21, 2019, after the Third Circuit issued its initial opinion.

8

U.S. 393, 413 (2014) (Scalia, J., dissenting). The first part—“that anonymous 911

reports of traffic violations are reliable so long as they correctly identify a car and its

location”—is relevant to the instant case. Id. (Scalia, J. dissenting). And the dissent’s

concern about erosion of the standard for evaluating reasonable suspicion based on

anonymous tips is even more pronounced than it was in Navarette.

In Navarette, an anonymous informant described the make, model, license plate,

and location of a truck. Id. at 399. The anonymous caller also alleged that the truck had

driven her car off the road. Id. Responding police officers found a truck matching the

description, but despite following the car for five minutes, observed no indicia of

reckless or intoxicated driving. Id. at 403. Nevertheless, police stopped the truck. Id. at

396. The majority found the “claimed eyewitness knowledge of the alleged dangerous

driving,” the detailed description of the truck, the timeline of the call and the

confirmation of the truck’s location, and the caller’s use of the 911 system, “taken

together, justified the officer’s reliance on the information reported in the 911 call.” Id.

at 399–401.

Having reviewed these indicia of reliability regarding the tip, the Court still

needed to evaluate whether the tip “create[d] reasonable suspicion that ‘criminal

activity may be afoot.’” Id. at 401 (quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)). The

Court concluded the allegation itself was sufficiently specific that the Court could not

“say that the officer acted unreasonably under these circumstances in stopping a driver

whose alleged conduct was a significant indicator of drunk driving.” Id. at 403. The

absence of any independent observations by the officer to support the suspicion of

9

drunk driving did nothing to “dispel” that reasonable suspicion. Id.

In the instant case, the Third Circuit improperly extended Navarette to

anonymous allegations of domestic violence. The caller in this case provided a bare

minimum of physical descriptors—man and woman, red hat and braids on the man—

and a physical location. She claimed the man was “beating [the woman] up really

badly.” JA14. She then added that she thought the man had a gun, but she provided no

basis for that latter “thought.” JA14.

When the first police officer arrived “within one minute,” and two more arrived

“within minutes after hearing the call,” they saw a man who matched this bare-bones

description and “‘immediately engaged’ McCants and frisked him due to the ‘nature of

the call for service.’” Appx. 58 (citation to record omitted).

Not a single officer reported seeing any signs of the beating the caller alleged to

have seen. One officer “reported that he observed McCants ‘speaking with a black

female.’” Appx. 59. Two other officers “reported that Fulton showed no signs of injury.”

Id. Again, these observations were made within one and several minutes after the

officers heard the dispatched call.

Under the Third Circuit’s gaze, the bare-bones description became “a highly

specific and accurate description of the suspect’s location, clothing, and hair.” Appx. 63.

The panel also cited the caller’s use of the 911 system, the speed with which the officers

responded to the call, and the corroboration of this “detailed description” in support of

its conclusion. Appx. 64.

Most significantly, however, the panel employed Navarette to excuse the absence

10

of any corroboration of the substance of the caller’s report—the allegation of illegal

activity—by reference to the highly general considerations of “circumstances common

to domestic violence calls.” Appx. 66. Specifically, the panel cited a Seventh Circuit

opinion involving a police response “to an anonymous report that a tall, black male

wearing a black jacket and blue jeans was arguing with his girlfriend and had drawn a

gun at a specific location.” Appx. 66 (citing United States v. Wooden, 551 F.3d 647, 648

(7th Cir. 2008)). When the police arrived, they found the couple “chatting amicably” but

“conducted a pat-down” anyway. Id. (citing Wooden, 551 F.3d at 648, 650). The Seventh

Circuit upheld the stop on the ground that “the report implied the need for a hasty

response” and on its understanding of the nature of domestic violence. Id. (citing

Wooden, 551 F.3d at 650). Specifically, the Third Circuit panel noted the Wooden

Court’s observation that “‘domestic violence comes and goes’ and there is a ‘risk that an

armed man may threaten the woman with him’ with future violence if she does not

remain calm when police arrive.” Id. (quoting Wooden, 551 F.3d at 650).

This reasoning turns the value of corroboration and predictive information

upside down. First, it dismisses the fact that the couple was “chatting amicably” when

the police arrive did not support the allegation of domestic violence. See Wooden, 551

F.3d at 650. Then, it affirmatively supplies utter speculation that the amicable chatting

could be masking the woman’s duress caused by the man’s threat of future violence

should she reveal the abuse to the police. See id. The Seventh Circuit’s framework

allows the absence of corroboration to support rather than dispel reasonable suspicion.

The Third Circuit followed and applied this reasoning. In the panel’s view, at

11

least with respect to anonymous allegations of domestic violence, it was not the

presence of indicia of domestic violence that supported the officers’ determination of

reasonable suspicion. Indeed, it couldn’t be, because there was none. The officers saw

Mr. McCants and Ms. Fulton walking and speaking, not fighting. And, mere minutes

after the report, Ms. Fulton showed no signs of injury from the claimed beating, and

she explicitly denied any assault. Nevertheless, as in Wooden, the Court used the very

absence of any indicia of domestic violence, and the supplied speculation that this

absence masked the violence, to support its conclusion that the officers acted

reasonably.

When both the presence and the absence of indicia of domestic violence are used

to support the reliability of an allegation of domestic violence, it is difficult to know

what would not have justified a stop and frisk in this case. A hat of a different color?

Differently styled hair? If the man and woman had walked a block away in the minute

between the call and the first officer’s arrival? This approach comes as close as it could

possibly get to making an anonymous caller’s purportedly contemporaneous report of

domestic violence per se sufficient to justify a stop and frisk, and it raises the same

concerns that Justice Scalia expressed in Navarette. As Justice Scalia wrote, “[T]he

issue is not how [the caller] claimed to know, but whether what she claimed to know

was true.” Navarette, 572 U.S. at 407 (Scalia, J., dissenting). The panel in this case

ignored that issue, supplying speculation about “circumstances common to domestic

violence calls” to support the officers’ actions. Appx. 66.

The panel’s decision improperly extends Navarette, raises precisely the concerns

12

set forth in Justice Scalia’s dissent in Navarette, and is contrary to the Fourth

Amendment of the Constitution of the United States. This Court’s review is necessary

to safeguard the protections of the Fourth Amendment.

II.

CERTIORARI IS WARRANTED BECAUSE THE THIRD CIRCUIT’S

APPROACH TO DETERMINING THAT NEW JERSEY’S SECOND

DEGREE ROBBERY STATUTE IS DIVISIBLE IS CONTRARY TO

MATHIS V. UNITED STATES, 136 S. CT. 2243 (2016).

The Third Circuit found that two of Mr. McCants’s prior convictions for second-

degree robbery in New Jersey qualified as crimes of violence under Section 4B1.2(a)

(the career offender provision) of the Sentencing Guidelines. Appx. 67–87. In reaching

this determination, the panel found the New Jersey robbery statute divisible. Appx.

69–73. Certiorari is warranted because the Third Circuit’s approach to making the

divisibility determination is contrary to the analytical framework set forth

in Mathis v. United States, 136 S. Ct. 2243 (2016).

The robbery statute provides:

a. Robbery defined. A person is guilty of robbery if, in the course of

committing a theft, he:

(1)

Inflicts bodily injury or uses force upon another; or

(2)

Threatens another with or purposely puts him in fear of immediate

bodily injury; or

(3) Commits or threatens immediately to commit any crime of the first or

second degree.

....

b. Grading. Robbery is a crime of the second degree, except that it is a

crime of the first degree if in the course of committing the theft the actor

attempts to kill anyone, or purposely inflicts or attempts to inflict serious

bodily injury, or is armed with, or uses or threatens the immediate use of

a deadly weapon.

N.J. STAT. ANN. § 2C:15-1.

13

In Mathis, the Supreme Court announced the analytical framework courts must

use to determine whether a conviction under an alternatively phrased statute is a

predicate offense for the Armed Career Criminal Act.3 136 S. Ct. at 2256. The same

analysis is required to determine whether a prior conviction is a crime of violence

under the career offender definition, U.S.S.G. § 4B1.2. See United States v. Brown, 765

F.3d 185, 189 & n.2 (3d Cir. 2014) (noting Third Circuit has “consistently applied the

categorical approach to determinations under the career offender enhancement”). The

first step when faced with an alternatively phrased statute is “to determine whether its

listed items are elements or means.” Mathis, 136 S. Ct. at 2256. Elements are the

constituent parts of an offense that a jury must unanimously find beyond a reasonable

doubt to convict the defendant. Id. at 2248. Means are merely the factual ways in which

in which a crime can be committed, and they need not be unanimously found by the

jury. Id. at 2249.

If a statute’s alternatives are merely means of committing a unitary offense, the

statute is indivisible and courts use the categorical approach to compare the offense of

conviction to the requirements of the ACCA or the Guidelines. Id. at 2253. In contrast,

if the statute lists alternative elements, it defines multiple offenses and the sentencing

court must use the “modified categorical approach” to determine which of the multiple

offenses was the offense of conviction. Id. at 2249; Descamps v. United States, 570 U.S.

254, 257 (2013).

3 Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e).

14

Sometimes the “threshold inquiry—elements or means?”—is easy because a state

court decision definitively answers the question. Mathis, 136 S. Ct. at 2256. The

inquiry is also easy when statutory alternatives carry different punishments, making

them elements under Apprendi v. New Jersey, 530 U.S. 466 (2000). Id. If state law

provides no clear answer to the inquiry, the court may “peek” at the Shepard

documents of a prior conviction for “the sole and limited purpose of determining

whether the listed items are elements” or means. Mathis 136 S. Ct. at 2256-2257

(alterations and citation omitted)).

As its first step in determining whether Mr. McCants’s second degree robbery

convictions qualified as career offender predicates, the panel endeavored to analyze

whether the statute was divisible. The panel concluded that “[s]ubsections (a)(1)–(3)

are elements” based on the structure of the statute and “because each [subsection]

requires different proof beyond a reasonable doubt to sustain a second-degree robbery

conviction.” Appx. 70. It then proceeded to apply the modified categorical approach.

Appx. 73–75.

The “different proof” test is not part of the Mathis analysis. It is the Blockburger

test for double jeopardy analysis, and it has no bearing on the divisibility analysis set

out in Mathis. See Blockburger v. United States, 284 U.S. 299, 304 (1932). Whenever a

statute includes a disjunctive list (whether elements or means), each item requires

proof of something that the others do not, but that does nothing to distinguish means

from elements. Mathis made clear that courts must distinguish elements from means

and that the test for doing so is juror unanimity, not Blockburger. Mathis, 136 S. Ct. at

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2249.

After citing “different proof” as a basis for divisibility, the panel invoked one of

this Court’s pre-Mathis decisions in support of its divisibility analysis:

This analysis parallels our decision in United States v. Blair, 734

F.3d 218 (3d Cir. 2013), where we held that Pennsylvania’s similar

robbery statute was divisible because of its “clearly laid out alternative

elements.” Id. at 225. . . . Because N.J. STAT. ANN. § 2C:15-1 lays out

alternative elements upon which prosecutors can sustain a second-degree

robbery conviction, we hold that the statute is divisible.

Appx. 71–73.

The panel rejected Mr. McCants’s argument that Blair had been abrogated by

Mathis, noting that the Court “reaffirmed that the Pennsylvania robbery statute is

divisible” earlier this year in United States v. Peppers, 899 F.3d 211, 232 (3d Cir. 2018),

which cited both Mathis and Blair. Appx. 71. But to the extent that Peppers

“reaffirmed” Blair, it did so only in dictum. Moreover, Peppers cannot trump Mathis’s

guidance that that disjunctive phrasing and statutory layout are not the criteria for

divisibility. Both means and elements are listed disjunctively in statutes, and courts

must look to juror unanimity to determine whether the alternatives are elements.

The Third Circuit has employed Mathis correctly, i.e., by considering state law

and, if necessary, the record of a prior conviction to determine whether statutory

alternatives are elements or means. Mathis, 136 S. Ct. at 2256–57. In United States v.

Steiner, for example, the Court considered model jury instructions and state court

precedent to determine that a Pennsylvania burglary statute listed alternative means,

not elements. 847 F.3d 103, 119 (3d Cir. 2017). See also United States v. Henderson,

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841 F.3d 623, 628–29 (3d Cir. 2016) (considering state case law and model jury

instructions in determining divisibility of statute). Consistent with Mathis and this

Third Circuit precedent, Petitioner pointed to state case law, charging documents, and

Model Jury Instructions showing that the alternatives in N.J. STAT. ANN. §2C:15-1 do

not require juror unanimity and thus are means, not elements. Brief for Appellant at

38–41, United States v. McCants, 911 F.3d 127 (3d Cir. 2018) (No. 17-3103) (citing state

cases, the fact that subsections (a)(1)–(3) all carry the same punishment, and the model

jury instructions in support of argument that subsections are means rather than

elements). The panel failed to consider any of these sources, relying instead on the

different proof test and the layout of the statute—neither of which is consistent with

Mathis.

Review by this Court is warranted here so that the Court can properly compare

Petitioner’s convictions to the requirements of the career offender guideline. If the

statute is indivisible, the most innocent conduct supporting a conviction does not

qualify under the career offender guideline’s force clause or its enumerated offenses

clause. Id. at 46–48 (arguing breadth of subsection (a)(3) precludes finding that statute

constitutes crime of violence). Moreover, review by this Court is necessary because of

the critical importance of divisibility analysis in determining criminal sentences.

Petitioner therefore respectfully requests that the Court grant certiorari in this matter.

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