Submitted Under Third Circuit LAR 34.1(a) September 11, 2018
Appeal from the United States District Court for the District
of New Jersey (D.C. No. 3-17-cr-00316-001) District Judge:
Hon. Freda L. Wolfson
E. Schafer, Esq. Counsel for Appellant
Carpenito, Esq. Steven G. Sanders, Esq. Office of United
States Attorney, Counsel for Appellee
Before: JORDAN, VANASKIE, and NYGAARD, Circuit Judges
OPINION OF THE COURT
JORDAN, CIRCUIT JUDGE.
Abdullah pled guilty to two federal offenses, one for
conspiring to distribute and possess with intent to
distribute heroin, and the other for being a felon in
possession of a firearm. When he was sentenced, the District
Court concluded that he was subject to sentencing
enhancements for, among other things, being a career offender
under § 4B1.1 of the United States Sentencing Guidelines
("U.S.S.G." or "the guidelines"). That
conclusion was based in part on Abdullah's 2015
conviction for third-degree aggravated assault with a deadly
weapon under § 2C:12-1(b)(2) of the New Jersey Statutes
Annotated ("N.J.S.A."). Abdullah now appeals his
sentence, arguing that the career-offender enhancement does
not apply to him because his New Jersey conviction for
third-degree aggravated assault is not a "crime of
violence" under the guidelines. We disagree and, for the
reasons that follow, will affirm the sentence.
was involved in a drug-trafficking organization that
distributed heroin in New Jersey. He was arrested by federal
agents and charged in a two-count information with knowingly
and intentionally conspiring to distribute and possess with
intent to distribute 100 grams or more of heroin, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B), and 21
U.S.C. § 846, and with illegally possessing a firearm as
a convicted felon, in violation of 18 U.S.C. §
922(g)(1). He pled guilty to both counts.
preparation for recommending how the guidelines should apply
at sentencing, a probation officer prepared a Presentence
Investigation Report ("PSR"). The PSR reflected a
base offense level of 28, after concluding that Abdullah had
been supplied with, and was thus responsible for, at least
700 grams of heroin. The PSR then recited a number of
enhancements and adjustments in calculating the total offense
level. One enhancement was for Abdullah's career offender
status under U.S.S.G. § 4B1.1,  which was determined on the
basis of two earlier felony convictions, one of which was a
2015 conviction in New Jersey state court for third-degree
aggravated assault with a deadly weapon,  in violation of
N.J.S.A. § 2C:12-1(b)(2). Another adjustment was made
pursuant to U.S.S.G. § 3B1.1(a) for Abdullah's role
as an organizer or leader of a conspiracy that involved at
least five participants. Abdullah objected to the attribution of
at least 700 grams of heroin to him and to application of the
organizer-or-leader and career-offender enhancements.
sentencing, he reiterated those objections and the District
Court overruled them. It concluded then and in a detailed
post-hearing opinion that Abdullah was responsible for at
least 700 grams of heroin and that application of the
four-level organizer-or-leader enhancement under §
3B1.1(a) was appropriate. It also determined that
Abdullah's conviction under N.J.S.A. § 2C:12-1(b)(2)
for third-degree aggravated assault with a deadly weapon
categorically qualified as a "crime of violence"
under the guidelines. Thus, the Court applied the
career-offender enhancement as provided in § 4B1.1,
which put Abdullah's offense level at 34. After other
adjustments for acceptance of responsibility, the total
offense level was 31, and his criminal history category was
VI. The resulting recommended guidelines sentencing range was
188 to 235 months' imprisonment, two to five years of
supervised release, and $30, 000 to $5 million in fines. The
Court ultimately sentenced Abdullah to 176 months'
imprisonment and five years of supervised release on the
controlled substance charge, and a concurrent 120 months'
imprisonment and three years of supervised release on the
firearm charge. It waived any fine but ordered him to forfeit
his firearm and associated ammunition, and it imposed special
assessments totaling $200.
timely appeal followed.
challenges his sentence on the same three grounds he pressed
before the District Court: first, that he is not a career
offender because his conviction under New Jersey law for
third-degree aggravated assault does not categorically
qualify as a crime of violence under the guidelines; second,
that the organizer-or-leader enhancement does not apply to
him; and third, that it was factually erroneous to hold him
responsible for 700 grams or more of heroin. None of those
arguments is persuasive, but only the one regarding the
career offender question needs consideration. Because
Abdullah is a career offender, his other sentencing
complaints are of no consequence.
the guidelines, a defendant is a career offender if, among
other things, he "has at least two prior felony
convictions of either a crime of violence or a controlled
substance offense." U.S.S.G. § 4B1.1(a). In 2015, the
guidelines defined a "crime of violence" as
"any offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that[:]"
(1) has as an element the use, attempted use, or threatened
use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves
use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to
Id. § 4B1.2(a) (2015). We refer to the first
subsection as the "elements clause." The first part
of the second subsection is the "enumerated offenses
clause," and the latter part of that subsection is the
"residual clause." Our focus here is solely on the
determine whether a previous conviction is a predicate
offense pursuant to the elements clause of the
career-offender enhancement in § 4B1.2(a)(1), we must
undertake what is called the "categorical
approach," which is an analysis comparing the
guidelines' definition of "crime of violence"
to the elements of the statute under which the defendant was
previously convicted. United States v. Wilson, 880
F.3d 80, 83 (3d Cir. 2018). "If the statute forming the
basis of the defendant's conviction necessarily has"
as an element "the use, attempted use, or threatened use
of physical force against another person[, ]" then that
"statute proscribes a predicate crime of violence within
the meaning of the [g]uidelines." United States v.
Ramos, 892 F.3d 599, 606 (3d Cir. 2018).
the categorical approach, we "ignore the actual manner
in which the defendant committed the prior offense" and
"presume that the defendant did so by engaging in no
more than 'the minimum conduct criminalized by the state
statute.'" Id. (quoting Moncrieffe v.
Holder, 569 U.S. 184, 191 (2013)). But, if the statute
of conviction is divisible because it sets out alternative
criminal offenses, we may apply what is called the
"modified categorical approach." Id. at
606-08. Under that approach, we are permitted to look beyond
the statute of conviction to documents such as "the
'charging document, written plea agreement, transcript of
plea colloquy, and any explicit factual finding by the trial
judgment to which the defendant assented'" to
identify the specific statutory provision that served as the
basis for the defendant's earlier conviction.
Id. at 607 (quoting United States v. Brown,
765 F.3d 185, 189-90 (3d Cir. 2014) (quoting Shepard v.
United States, 544 U.S. 13, 16 (2005))). Once the
specific provision is identified, the categorical approach is
then applied to that provision.
whether Abdullah is a career offender requires us to address
three questions. See Ramos, 892 F.3d at 607. First,
is New Jersey's aggravated assault statute divisible?
See id. Second, if so, can we identify the specific
subsection under which Abdullah was convicted? See
id. Finally, "if so, does that specific aggravated
assault offense categorically qualify as a predicate crime of
violence under the [g]uidelines?" Id. We answer
yes to each of those questions and thus conclude that the
career-offender enhancement applies.
New Jersey's Aggravated Assault ...