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United States v. Ramos

United States Court of Appeals, Third Circuit

June 15, 2018

UNITED STATES OF AMERICA, Appellant
v.
JUAN H. RAMOS

          Argued on May 15, 2018

          On Appeal from the United States District Court for the Eastern District of Pennsylvania (E.D. Pa. No. 2-08-cr-00695-001) District Judge: Honorable Michael M. Baylson

          Louis D. Lappen Acting United States Attorney Robert A. Zauzmer [ARGUED] Assistant United States of Attorney Chief of Appeals Bernadette A. McKeon Jeffery W. Whitt Office of the United States Attorney Counsel for Appellant

          Leigh M. Skipper Chief Federal Defender Brett Sweitzer Chief of Appeals Alexander C. Blumenthal Assistant Federal Defender Arianna J. Freeman [ARGUED] Andrew J. Dalack Counsel for Appellee.

          Before: SMITH, Chief Judge, HARDIMAN and ROTH, Circuit Judges.

          OPINION

          ROTH, CIRCUIT JUDGE.

         INTRODUCTION

         The government appeals the District Court's determination at sentencing that Juan Ramos is not a "career offender" under Section 4B1.1 of the U.S. Sentencing Guidelines. That determination was based on the conclusion that Ramos's prior state court conviction for aggravated assault is not a predicate "crime of violence, " as that term is defined in the Guidelines. We disagree with that conclusion. Applying the modified categorical approach to

         Pennsylvania's divisible aggravated assault statute, we hold that Ramos's prior conviction for second-degree aggravated assault with a deadly weapon, in violation of 18 Pa. C.S. § 2702(a)(4), is categorically a crime of violence. Because the District Court did not designate Ramos a career offender for sentencing purposes, we will vacate the judgment of sentence and remand for resentencing.

         BACKGROUND

         Ramos's status as a career offender is dictated by his criminal record, which includes several prior felony convictions. First, in July 1998, Ramos "threw a brick at the nose of a 10-year-old child, " who then required medical treatment at a local hospital.[1] As a result, Ramos pled guilty to aggravated assault in the Philadelphia County Common Pleas Court.[2] Second, in October 1999, Ramos was apprehended with 2.76 grams of heroin and subsequently convicted in state court for manufacturing, delivering, or possessing with intent to manufacture or deliver a controlled substance, and knowingly possessing a controlled substance.[3]And third, in August 2001, Ramos broke into a furniture store and stole "several futons"; he later pled guilty to burglary in state court.[4]

         The instant offense conduct occurred in January 2008, when Philadelphia police officers observed Ramos selling crack cocaine out of a truck.[5] The police arrested Ramos and recovered a loaded handgun from the vehicle. A federal grand jury indicted Ramos for various drug and weapons offenses in November 2008.[6] One year later, Ramos pled guilty to each of the charged offenses, stipulating in his plea agreement that he was a career offender.[7]

         At sentencing, the District Court concluded that Ramos had three predicate drug or violent felony convictions under the Armed Career Criminal Act (ACCA)-the three state court convictions set out above-and was thus subject to a 15-year mandatory minimum sentence. Factoring in Ramos's acceptance of responsibility, the District Court determined that Ramos's effective Guidelines range was 248-to-295 months' imprisonment-i.e., an advisory Guidelines range of 188-to-235 months' imprisonment combined with a mandatory, consecutive 60-month sentence under 18 U.S.C. § 924(c).[8] After granting the government's motion for a downward departure, the court sentenced Ramos to a 180-month term of imprisonment.

         In May 2016, Ramos sought post-conviction relief pursuant to 28 U.S.C. § 2255, arguing that, under Johnson v. United States (Johnson II), [9] his prior burglary conviction was no longer a career offender predicate and, therefore, his career-offender designation and sentence were invalid. Both the government and the District Court agreed that Ramos's sentence was invalid under Johnson II.[10] Accordingly, the District Court vacated Ramos's sentence and held a resentencing hearing in July 2017.

         Although the government conceded that Ramos was not a career offender under the ACCA, it nonetheless took the position at resentencing that Ramos remained a career offender under the Guidelines-which require only two predicate drug or violent felony convictions, as opposed to the three convictions required by the ACCA.[11] The government thus recommended that the court again impose a 180-month sentence. Ramos countered that he was not a career offender under the Guidelines because his prior aggravated assault conviction was not a predicate crime of violence. Proceeding from that premise, Ramos contended that his effective Guidelines range was 97-to-106 months' imprisonment.[12] The District Court adopted Ramos's proposed Guidelines calculation, ruling from the bench that Ramos was not a career offender because there was doubt as to whether aggravated assault under Pennsylvania law qualifies as a crime of violence.[13] Having concluded that Ramos was not a career offender, the District Court sentenced Ramos to a 105-month term of imprisonment-more than six years less than his initial sentence and the sentence recommended by the government.

         In September 2017, the government appealed the District Court's conclusion that Ramos was not a career offender under the Guidelines. Several days after the government filed its opening brief, the District Court issued a memorandum, reiterating its position that Ramos was not a career offender on the ground that his aggravated assault conviction was not a crime of violence, but disavowing its earlier rationale for that conclusion.[14]

         DISCUSSION[15]

         The sole issue we must resolve on appeal is whether Ramos is a career offender under Section 4B1.1 of the Guidelines. Ramos argues that he is not a career offender-a designation that applies only to defendants with at least two predicate drug or violent felony convictions[16]-because only one of his prior felony convictions (i.e., his 1999 drug conviction) qualifies as a career offender predicate.[17]According to Ramos, his 1998 aggravated assault conviction cannot qualify as a career offender predicate since it is not a "crime of violence" within the meaning of the Guidelines. The government, by contrast, argues that Ramos is a career offender because his aggravated assault conviction was for a crime of violence. To resolve this appeal, we must determine whether Ramos's 1998 aggravated assault conviction qualifies as a predicate crime of violence under the Guidelines.

         I. Legal Framework: Career Offender Status, Crimes of Violence, and the Categorical and Modified Categorical Approaches

         A. The Career Offender and Crime of Violence Provisions of the Guidelines

         Under the Guidelines, a defendant is designated a "career offender" and thus subject to enhanced sentencing exposure if, as relevant here, "the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense."[18] Because the parties agree that Ramos's 1999 drug conviction is a predicate controlled substance offense, Ramos is a career offender so long as his prior aggravated assault conviction is a predicate crime of violence.

         Section 4B1.2 of the Guidelines sets out two separate definitions of the term "crime of violence." Any federal or state offense, punishable by a term of imprisonment exceeding one year, is a crime of violence if the offense:

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c).[19]

         The first definition is known as the "elements clause, " and the second definition is known as the "enumerated offenses clause."[20]

         B. The Categorical and Modified Categorical Approaches

         To determine whether a prior conviction qualifies as a predicate crime of violence, courts use the categorical approach or, when applicable, the modified categorical approach. Both approaches require us to "compare the elements of the statute under which the defendant was convicted to the [G]uidelines' definition of crime of violence."[21] When conducting that analysis under the elements clause, as here, we ask whether the use, attempted use, or threatened use of physical force against another person is categorically an element of the offense of conviction.[22] If the statute forming the basis of the defendant's conviction necessarily has such an element, then the statute proscribes a predicate crime of violence within the meaning of the Guidelines.[23] But if the statute of conviction lacks such an element, it "sweeps more broadly" than the Guidelines' definition, and a prior conviction under the statute cannot serve as a career offender predicate-even if the defendant actually committed the offense by using, attempting to use, or threatening to use physical force against another person.[24]

         It may appear counterintuitive that a defendant who actually uses physical force against another person when committing a felony does not, by definition, commit a violent crime under the elements clause. But that outcome is dictated by the categorical approach, which is concerned only with the elements of the statute of conviction, not the specific offense conduct of an offender.[25] In fact, the categorical approach requires courts not only to ignore the actual manner in which the defendant committed the prior offense, but also to presume that the defendant did so by engaging in no more than "the minimum conduct criminalized by the state statute."[26] This academic focus on a hypothetical offender's hypothetical conduct is not, however, an "invitation to apply legal imagination" to the statute of conviction.[27] Rather, there must be legal authority establishing that there is "a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct" falling outside of the Guidelines' definition of a crime of violence.[28]

         This elements-only analysis is confined to the statute of conviction. If, however, that statute is "divisible, " a court may resort to the "modified categorical approach."[29] Serving as a tool that "merely helps implement the categorical approach, " the modified categorical approach allows a court to look beyond the statute of conviction for a limited purpose, but "is not meant to supplement the categorical approach."[30]In the case of a "divisible" statute, the court may consult a specific set of extra-statutory documents to identify the specific statutory offense that provided the basis for the prior conviction. These materials include the "charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented."[31] This approach permits the court to assess whether that offense categorically qualifies as a crime of violence.[32] While the modified categorical approach allows courts to look beyond the text of a divisible statute for that limited purpose, it does not permit courts to scour the record to ascertain the factual conduct giving rise to the prior conviction.[33]

         II. Ramos Is a Career Offender Because His Aggravated Assault Conviction Is Categorically a Crime of Violence Under the Guidelines

         In light of the foregoing legal framework, we can resolve whether Ramos is a career offender by answering three questions. Is Pennsylvania's aggravated assault statute divisible? If so, does the limited set of extra-statutory materials that we may consult under the modified categorical approach establish with certainty which subsection of Pennsylvania's aggravated assault statute provided the basis for Ramos's conviction? And, if so, does that specific aggravated assault offense categorically qualify as a predicate crime of violence under the Guidelines? Because we answer each of those questions in the affirmative, we conclude that Ramos is a career offender.

         A. Pennsylvania's Aggravated Assault Statute Is Divisible

         The presentence investigation reports (PSRs) state that, in 1998, Ramos pled guilty in Pennsylvania court to aggravated assault, without specifying the aggravated assault offense that he committed.[34] Accordingly, we must begin our categorical analysis by examining the text of Pennsylvania's aggravated assault statute, 18 Pa. C.S. § 2702, which at the time of Ramos's guilty plea provided as follows:

(a) Offense defined.-A person is guilty of aggravated assault if he:
(1) attempts to cause serious bodily injury to another or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life;
(2) attempts to cause or intentionally, knowingly or recklessly causes serious bodily injury to any of the officers agents, employees or other persons enumerated in subsection (c) [listing twenty-six protected classes of individuals, including police officers, firefighters, judges, prosecutors, and other public officials], or to an employee of an agency, company or other entity engaged in public transportation, while in the performance of duty.
(3) attempts to cause or intentionally or knowingly 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 knowingly causes bodily injury to another with a deadly weapon;
(5) attempts to cause or intentionally or knowingly causes bodily injury to a teaching staff member, school board member, or other employee or student of [various educational institutions]; or
(6) attempts by physical menace to put any of the officers, agents, employees or other persons enumerated in subsection (c), while in the performance of duty, in fear of ...

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