Petition for Writ of Certiorari — Martin Racioppi, Petitioner v. United States
Supreme Court briefAug 28, 2020
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NO:_____________________
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 2020
MARTIN RACIOPPI,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
APPENDIX
Opinion of the United States Court of Appeals for the Third Circuit: United
States v. Racioppi, Docket No. 19-2591 (not precedential)……….…….. App. 1
Petition for Certiorari: Ibrahim McCants v. United States, Docket No.
20-5338………………………………………………….………………………..App. 8
Case: 19-2591
Document: 43
Page: 1
Date Filed: 04/01/2020
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 19-2591
_____________
UNITED STATES OF AMERICA
v.
MARTIN RACIOPPI,
Appellant
____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 3-18-cr-00131-001)
District Judge: Honorable Michael A. Shipp
_____________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
January 28, 2020
_____________
Before: CHAGARES, RESTREPO, and BIBAS, Circuit Judges
(Filed: April 1, 2020)
_____________
OPINION*
_____________
*
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not
constitute binding precedent.
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Date Filed: 04/01/2020
CHAGARES, Circuit Judge.
In 2019, Martin Racioppi pleaded guilty to bank robbery. The District Court
concluded that his prior convictions for robbery constituted crimes of violence under the
United States Sentencing Guidelines (the “Guidelines” or “U.S.S.G.”) and sentenced
Racioppi as a career offender. Racioppi appeals his sentence, claiming that he was
wrongly classified as a career offender under the Guidelines because the New Jersey
robbery statute, N.J. Stat. Ann. § 2C:15-1, is not divisible and, therefore, cannot support
application of the career offender enhancement. For the following reasons, we will
affirm.
I.
We write for the parties and so recite only the facts necessary to our disposition.
On July 20, 2017, Racioppi entered Investors Bank in Navesink, New Jersey, approached
a bank teller, and demanded all the money in the bank teller’s drawer. The bank teller
handed Racioppi approximately $1,600, and Racioppi left with the money. Racioppi was
arrested the next day for this crime, and he later pleaded guilty to one count of bank
robbery, in violation of 18 U.S.C. § 2113(a).
On May 31, 2018, the U.S. Probation Office prepared a draft Presentence
Investigation Report that calculated Racioppi’s adjusted offense level as 22 and found his
criminal history category to be III. However, because Racioppi had one prior conviction
for bank robbery under 18 U.S.C. § 2113(a) and one prior conviction for second-degree
robbery in violation of N.J. Stat. Ann. § 2C:15-1(a)(2), the Probation Office determined
that Racioppi was a career offender pursuant to U.S.S.G. § 4B1.1, the career offender
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Guideline. This raised his base offense level to 32 and placed him in criminal history
category VI.
Racioppi objected to the career offender determination, arguing that his conviction
for second-degree robbery under New Jersey law is not a crime of violence under the
Guidelines. Racioppi contended that under the categorical approach, second-degree
robbery is broader than “generic” robbery and does not require the use of physical force.
The District Court stayed Racioppi’s sentencing pending this Court’s decision in
United States v. McCants, in which the Court was considering whether a conviction
under § 2C:15-1 is a crime of violence as defined by the career offender Guideline. 911
F.3d 127 (3d Cir. 2018), superseded on reh’g, 920 F.3d 169 (3d Cir. 2019), vacated, 140
S. Ct. 375 (Mem.) (2019). On April 5, 2019, the Court resolved McCants, holding, as
relevant here, that (1) § 2C:15-1 is divisible according to its three subsections; and
(2) robbery in violation of § 2C:15-1(a)(2) categorically qualifies as a crime of violence
under the Guidelines. See 920 F.3d at 177–81.
On June 25, 2019, Racioppi appeared before the District Court for sentencing. He
again objected to the Probation Office’s Guidelines calculation, arguing that he is not a
career offender. Racioppi claimed that McCants was wrongly decided because § 2C:15-1
is not divisible and second-degree robbery under the statute is broader than generic
robbery because it can be committed without force or violence. The District Court
explained that it was bound to follow this Court’s precedent in McCants, which held that
a violation of § 2C:15-1(a)(2) is considered a crime of violence under the Guidelines.
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Applying McCants, the District Court determined that Racioppi was a career
offender. The District Court found Racioppi’s resulting Guidelines range to be 151 to
188 months of imprisonment. The District Court varied downward, however, citing
Racioppi’s significant mental health issues and long history of substance abuse, and
sentenced Racioppi to 120 months of imprisonment and three years of supervised release.
Racioppi timely appealed.
II.
The District Court had jurisdiction under 18 U.S.C. § 3231, and we have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). “Whether a prior
conviction constitutes a crime of violence for purposes of the career offender Guideline is
a question of law over which we exercise plenary review.” United States v. Brown, 765
F.3d 185, 188 (3d Cir. 2014) (quotation marks omitted).
III.
Racioppi’s sole argument on appeal is that he was wrongly classified as a career
offender under the Guidelines because N.J. Stat. Ann. § 2C:15-1 is not divisible and,
therefore, is broader than generic robbery under the categorical approach.1 As a result,
Racioppi claims, his prior New Jersey robbery conviction cannot qualify as a crime of
violence under the Guidelines and he is not subject to the career offender enhancement.
As Racioppi concedes, however, our precedential opinion in McCants squarely
forecloses this argument. See United States v. Ausburn, 502 F.3d 313, 315 n.1 (3d Cir.
1
Racioppi does not dispute that his prior conviction for federal robbery under 18 U.S.C.
§ 2113(a) qualified as a crime of violence under the Guidelines.
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2007); 3d Cir. I.O.P. 9.1 (2018). Under this Court’s precedential decision in McCants,
N.J. Stat. Ann. § 2C:15-1 is divisible, and a conviction under § 2C:15-1(a)(2) qualifies as
a crime of violence under the Guidelines. See United States v. McCants, -- F.3d --, No.
17-3103, 2020 WL 1181515, at *6–7 (3d Cir. Mar. 12, 2020).2
Still, Racioppi argues that the New Jersey robbery statute is not divisible because
the subsections in § 2C:15-1 “do not require juror unanimity and thus are means, not
elements.” Racioppi Br. 12. We previously rejected this argument in McCants, holding
that § 2C:15-1 is divisible because in its subsections (a)(1)–(3), the statute “sets out
alternative elements for sustaining a conviction rather than the means of committing the
offense.” 2020 WL 1181515, at *6. As we explained, the statute “lists in the disjunctive
three separately enumerated, alternative elements of robbery” and “does not identify an
individual element of which subsections (a)(1)–(3) are mere examples.” Id.
Racioppi also takes issue with our reasoning in McCants that “[s]ubsections
(a)(1)–(3) are elements because each requires different proof beyond a reasonable doubt
to sustain a second-degree robbery conviction.” Id. Racioppi contends that this
“different proof” requirement flows from the double jeopardy test announced in
Blockburger v. United States, 284 U.S. 299, 304 (1932), and thus “has no bearing on the
divisibility analysis set out” in the Supreme Court’s decision in Mathis v. United States,
136 S. Ct. 2243 (2016). Racioppi Br. 11. Not so.
2
The Supreme Court vacated the McCants decision in a memorandum opinion in light of
its holding in Rehaif v. United States, 139 S. Ct. 2191 (2019). See McCants v. United
States, 140 S. Ct. 375 (Mem.) (2019). However, on March 12, 2020, the Court reissued
the McCants decision after the defendant in that case waived his Rehaif claim.
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Date Filed: 04/01/2020
In Mathis, the Supreme Court explained that “[a]t a trial,” elements “are what the
jury must find beyond a reasonable doubt to convict the defendant, and at a plea hearing,
they are what the defendant necessarily admits when he pleads guilty.” 136 S. Ct. at
2248 (citation omitted). We applied this reasoning in McCants, concluding that
subsections (a)(1)–(3) are elements because “each requires different proof beyond a
reasonable doubt” of a fact essential to the offense — that is, an element. 2020 WL
1181515, at *6. Under (a)(1), “the prosecutor must prove that the defendant inflicts
injury or uses force upon another person”; under (a)(2), “the defendant need only threaten
or place another person in fear of immediate bodily injury”; and under (a)(3), the
defendant need only “threaten to commit another first- or second-degree crime.” Id.
Applying Mathis, therefore, § 2C:15-1 “list[s] elements in the alternative, and thereby
define[s] multiple crimes.” 136 S. Ct. at 2249 (emphasis added).3
Accordingly, as we held in McCants, § 2C:15-1 is divisible because it lays out
alternative elements upon which prosecutors can sustain a second-degree robbery
conviction. And “a panel of this Court cannot overrule an earlier binding panel decision;
only the entire court sitting en banc can do so.” Chester ex rel. NLRB v. Grane
Healthcare Co., 666 F.3d 87, 94 (3d Cir. 2011).
The Blockburger test similarly turns entirely on elements, not means, as it “inquires
whether each offense contains an element not contained in the other.” United States v.
Dixon, 509 U.S. 688, 696 (1993). It thus asks the same question that we are faced with
here: “whether each [statutory] provision requires proof of a fact which the other does
not.” Blockburger, 284 U.S. at 304.
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Racioppi does not dispute that if § 2C:15-1(a) is divisible, his prior conviction
falls properly under § 2C:15-1(a)(2) and a conviction under this subsection categorically
qualifies as a crime of violence. The District Court, therefore, did not err in designating
Racioppi as a career offender based on its determination that his prior conviction for
second-degree robbery in New Jersey qualified as a crime of violence under the
Guidelines.
IV.
For these reasons, we will affirm the District Court’s judgment of sentence.
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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
8
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
9
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
10
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
11
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
12
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
13
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
14
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
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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
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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.
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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.
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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.
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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
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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
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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.
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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
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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
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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
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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
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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.
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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).
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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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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.