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United States v. Abdullah

United States Court of Appeals, Third Circuit

October 2, 2018

UNITED STATES OF AMERICA
v.
ISHMAEL ABDULLAH, a/k/a Ish, a/k/a Gangsta, a/k/a Papi Appellant

          Submitted Under Third Circuit LAR 34.1(a) September 11, 2018

          On 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

          David E. Schafer, Esq. Counsel for Appellant

          Craig 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.

         Ishmael 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.

         I. BACKGROUND

         Abdullah 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.

         In 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, [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, [2] in violation of N.J.S.A. § 2C:12-1(b)(2).[3] 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.[4] 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.

         At 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.

         This timely appeal followed.

         II. DISCUSSION[5]

         Abdullah 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.[6]

         Under 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."[7] 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 another.

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 elements clause.[8]

         To 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).

         Under 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.

         Therefore, 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.

         1. New Jersey's Aggravated Assault ...


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