UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
November 18, 2009
UNITED STATES OF AMERICA
JAMES HENRY JOHNSON, APPELLANT
On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 08-cr-00082-001) District Judge: Honorable Donetta W. Ambrose.
The opinion of the court was delivered by: Fisher, Circuit Judge.
Submitted Pursuant to Third Circuit LAR 34.1(a) October 29, 2009
Before: SMITH, FISHER and NYGAARD, Circuit Judges.
OPINION OF THE COURT
James Henry Johnson pled guilty to one count of unlawful possession of a firearm by a person previously convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). The United States Probation Office assigned Johnson a base offense level of 20 under the United States Sentencing Guidelines based on his 2002 conviction under the Pennsylvania simple assault statute ("PSAS"), 18 Pa. Cons. Stat. § 2701. Johnson challenged that calculation, arguing that his simple assault conviction did not constitute a "crime of violence" under the Guidelines. The District Court rejected that argument and sentenced Johnson to 77 months' imprisonment. Johnson appeals, arguing that the District Court's determination that his simple assault conviction is a crime of violence cannot be reconciled with the Supreme Court's decision in Begay v. United States, 553 U.S. __, 128 S.Ct. 1581 (2008). For the reasons that follow, we will vacate Johnson's sentence and remand for resentencing.
The facts giving rise to this case are relatively straightforward. On November 1, 2006, Johnson was sitting in a car parked in a grocery store parking lot in Pittsburgh, Pennsylvania. Pittsburgh police officers received a tip regarding Johnson's whereabouts and arrested him pursuant to an outstanding warrant issued in connection with unrelated charges. Inside the car, the officers found a loaded firearm with an obliterated serial number. Thereafter, Johnson was charged in the Western District of Pennsylvania with one count of unlawful possession of a firearm by a person convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). Johnson subsequently pled guilty to that charge.
Before sentencing, the Probation Office prepared a Presentence Report ("PSR"). Pursuant to U.S.S.G. § 2K2.1(a)(4)(A), the Probation Office calculated Johnson's base offense level as 20 based on his 2002 simple assault conviction in the Allegheny County Court of Common Pleas, which the Probation Office designated as a "crime of violence" pursuant to U.S.S.G. § 4B1.2(a)(2). After giving Johnson a four-level increase because the firearm he unlawfully possessed had an obliterated serial number, and a three-level decrease to reflect his acceptance of responsibility and his timely notification of his intention to plead guilty, the Probation Office calculated Johnson's total offense level as 21. The PSR also detailed Johnson's criminal history. It noted that Johnson had the following five prior convictions: a 2001 conviction for fleeing or attempting to elude a police officer, possession or distribution of marijuana, and a failure to yield to traffic signs; a 2002 simple assault conviction; a 2002 conviction for possession of a firearm without a license, unauthorized use of an automobile and other vehicles, and driving without a license; a 2002 conviction for possession of a firearm without a license and unauthorized use of an automobile; and a 2004 conviction for simple assault.*fn1 The Probation Office assigned Johnson a total of 11 criminal history points to reflect these prior convictions. Three more points were added because Johnson's felon-in-possession conviction arose while he was on parole for a previous offense and within two years of his release from parole for another previous offense. Accordingly, Johnson was assigned a total of 14 criminal history points, resulting in a criminal history category of VI. Johnson's total offense level of 21 and criminal history category of VI resulted in an advisory Guidelines range of 77 to 96 months' imprisonment.*fn2
At sentencing, Johnson objected to several aspects of the PSR. In pertinent part, Johnson objected to the application of U.S.S.G. § 2K2.1(a)(4)(A) in the calculation of his base offense level. He asserted that his 2002 simple assault conviction did not qualify as a "crime of violence" under U.S.S.G. § 4B1.2(a)(2) in light of Begay. He pointed out that count one of the criminal information in the simple assault case charged him with intentional, knowing and reckless conduct, and that, aside from the information, the government had introduced no other evidence on the basis of which to determine his particular mens rea when he committed that crime. Johnson contended that reckless conduct could never constitute a crime of violence in light of Begay because such conduct, by definition, is not purposeful. The government urged the District Court not to make a blanket ruling to that effect, and asked the Court to infer from the criminal information alone that Johnson's simple assault conviction evinced the sort of conduct that could be considered a violent crime under Begay. The government noted that while a sentencing court could consider the plea agreement and the plea colloquy, among other things, to determine a defendant's actual mens rea, in Johnson's case the former was "not particularly helpful" and the latter was "not available[.]" (App. 100.) After hearing the parties' respective positions, the District Court ruled as follows:
I do not read or see Begay as broadly as the defense does. I do not believe that Begay instructs that this type of underlying offense can never be a crime of violence. A crime is violent if it presents a serious risk of injury to another person. In this case, Mr. Johnson's plea to simple assault demonstrates from the charging document and the statute itself that it presented a serious risk of injury to another person. And I do believe that it is similar in kind as well as in the degree of risk posed by the commission of other crimes. And it's similar in kind because it involves purposeful, violent and aggressive behavior. So, that is my ruling in this case. It would keep the offense level at a 21.
The District Court accepted the PSR's calculations and was unpersuaded by Johnson's other objections. The Court sentenced Johnson to 77 months' imprisonment and three years of supervised release.
This timely appeal followed. Johnson argues that:
(1) his 2002 simple assault conviction is not a "crime of violence" under U.S.S.G. § 4B1.2(a)(2); (2) his sentence is procedurally unreasonable; and (3) his sentence is substantively unreasonable.
The District Court had jurisdiction under 18 U.S.C. § 3231. This Court has jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We exercise plenary review over the legal question whether a particular crime constitutes a crime of violence. United States v. McQuilkin, 97 F.3d 723, 727 (3d Cir. 1996). In interpreting the Guidelines, we look to their "plain and unambiguous language[,]" United States v. Swan, 275 F.3d 272, 279 (3d Cir. 2002) (quotation marks and citation omitted), but commentary to the Guidelines "is authoritative unless it violates the Constitution or federal statute or is inconsistent with or is a plainly erroneous reading of that provision[.]" United States v. Remoi, 404 F.3d 789, 795 (3d Cir. 2005) (per curiam) (citing Stinson v. United States, 508 U.S. 36 (1993)). We review the District Court's sentence for reasonableness under the abuse-of-discretion standard. See Gall v. United States, 552 U.S. __, 128 S.Ct. 586, 594, 597 (2007); United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc).
The Guidelines provide that a defendant's base offense level is 20 if the defendant "committed any part of the instant offense subsequent to sustaining one felony conviction of . . . a crime of violence[.]" U.S.S.G. § 2K2.1(a)(4)(A). The Guidelines define a "crime of violence" as any offense . . . 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.
U.S.S.G. § 4B1.2(a) (emphasis supplied). The commentary to § 4B1.2 offers a list of crimes that constitute crimes of violence, including "murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling." U.S.S.G. § 4B1.2 cmt. 1. In this case, we consider only the portion of § 4B1.2(a)(2) italicized above, which we have referred to as the "residual clause." United States v. Hopkins, 577 F.3d 507, 510 (3d Cir. 2009).*fn3
In United States v. Dorsey, 174 F.3d 331 (3d Cir. 1999), we held that a conviction under the PSAS is a crime of violence under § 4B1.1 of the Guidelines. Id. at 333. As both parties recognize, the analytical framework we employed in Dorsey has been altered by the Supreme Court's decision in Begay.*fn4 Post-Begay, to qualify as a crime of violence the crime in question "must (1) present a serious potential risk of physical injury and (2) be 'roughly similar, in kind as well as degree of risk posed, to the examples [burglary, arson, extortion, or use of explosives] themselves.'" United States v. Polk, 577 F.3d 515, 518 (3d Cir. 2009) (emphasis and alteration in original) (quoting Begay, 128 S.Ct. at 1585-86). A crime is similar in kind to one of the enumerated examples if it "typically involve[s] purposeful, violent, and aggressive conduct." Begay, 128 S.Ct. at 1586 (internal quotation marks and citations omitted).*fn5 "If the crime of conviction is materially different in terms of these characteristics, it does not come within the residua[l] clause." Hopkins, 577 F.3d at 514 (internal quotation marks omitted).
We generally use a categorical approach to classify a prior conviction. See Taylor v. United States, 495 U.S. 575, 600-02 (1990). Under that approach, a court must ask "whether the elements of the offense are of the type that would justify its inclusion within the residual provision, without inquiring into the specific conduct of this particular offender." James v. United States, 550 U.S. 192, 202 (2007) (emphasis omitted). Where a statute criminalizes different kinds of conduct, some of which would constitute crimes of violence while others would not, a court may look beyond the statutory elements to determine the particular part of the statute of which the defendant was actually convicted. See Evanson v. Attorney Gen. of the United States, 550 F.3d 284, 290-91 (3d Cir. 2008); Singh v. Ashcroft, 383 F.3d 144, 147-48 (3d Cir. 2004); see also United States v. Smith, 544 F.3d 781, 786 (7th Cir. 2008) ("Such an examination . . . is 'only to determine which part of the statute the defendant violated.'" (emphasis in original and other citation omitted) (quoting United States v. Howell, 531 F.3d 621, 623 (8th Cir. 2008))). In conducting such an inquiry, a court is "generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented." Shepard v. United States, 544 U.S. 13, 16 (2005). "This rule is not meant to circumvent the categorical approach by allowing courts to determine whether the actual conduct of the individual defendant constituted a purposeful, violent and aggressive act." Smith, 544 F.3d at 786 (citations omitted).
To determine categorically whether a conviction under the PSAS qualifies as a crime of violence, we begin with the statutory text. See United States v. Siegel, 477 F.3d 87, 91 (3d Cir. 2007). However, under the categorical approach we must first determine how broadly to read that statute. See Chambers v. United States, 555 U.S. __, 129 S.Ct. 687, 690 (2009) ("Th[e] categorical approach requires courts to choose the right category. And sometimes the choice is not obvious."). It is undisputed that Johnson pled guilty only to subsection (a)(1) of the PSAS. As a consequence, we focus our analysis on that subsection alone.
Subsection (a)(1) of the PSAS imposes criminal liability on an individual "if he . . . (1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another[.]" 18 Pa. Cons. Stat. § 2701(a)(1).*fn6 The statute plainly criminalizes distinct types of conduct, all of which could constitute simple assault. Under these circumstances, we may resort to the materials outlined in Shepard to determine, not the factual circumstances of Johnson's conduct, but the specific part of § 2701(a)(1) to which Johnson in fact pled guilty. See, e.g., Siegel, 477 F.3d at 92 ("Clearly, the statute invites inquiry into the underlying facts of the case because we are unable to determine from the face of the statute which crime or crimes Siegel pleaded guilty to. . . . Commonly, the best way to resolve the question raised by a conviction under a statute phrased in the disjunctive, or structured in outline form, will be to look to the charging instrument or to the plea colloquy." (citation omitted)).
Here, the criminal information filed against Johnson charged, in relevant part, as follows:
The actor attempted to cause or intentionally, knowingly or recklessly caused bodily injury to Pamela Hall, that is to say the actor struck and/or choked and/or otherwise assaulted the victim, in violation of . . . 18 Pa. C.S. § 2701(a)(1).
As the parties both acknowledge, the subsection of the PSAS to which Johnson pled guilty criminalizes intentional, knowing and reckless conduct. On appeal, Johnson renews his position that, because the criminal information does not specify his mens rea when he committed simple assault, and because the government presented no other evidence, such as his plea colloquy, to establish his mens rea, the District Court erred in concluding that his simple assault conviction constituted a crime of violence. He restates his view that a crime committed recklessly cannot be considered a crime of violence. In its brief, the government initially argued that Johnson's particular mens rea when he violated the PSAS is not relevant because all three states of mind enumerated in the statute satisfy Begay. The government urged us to find that the crime of which Johnson was convicted is "typically" committed intentionally. (Appellee's Br. 28.) However, in a letter submitted pursuant to Federal Rule of Appellate Procedure 28(j), the government tells us it has changed course:
[S]ince the filing of the government's brief, the Department of Justice has clarified its position that reckless conduct, standing alone, is not the type of purposeful conduct that can constitute a crime of violence under § 4B1.2(a)(2)'s residual clause. Thus, to the extent that the government has argued that reckless conduct is sufficient to satisfy this standard, the government no longer rests on this position.
(Appellee's Rule 28(j) letter, Sept. 16, 2009.)
In light of the government's new position that reckless conduct does not qualify as a crime of violence, we have no occasion to consider whether Johnson's simple assault conviction is a crime of violence to the extent he acted recklessly .*fn8 Accordingly , our categorical assessment of the PSAS focuses only on whether an intentional or knowing violation of subsection (a)(1) of that statute may qualify as a crime of violence "in the ordinary case." James, 550 U.S. at 208. We have no trouble concluding that such a violation would qualify.
At the first step of our inquiry under Begay, we ask whether intentional or knowing simple assault presents a serious potential risk of physical injury. We easily answer that question in the affirmative. In the ordinary case, a violation of the PSAS poses a degree of risk of physical injury because the defendant must cause or attempt to cause bodily injury to the victim. In other words, the statute itself contemplates bodily harm to the victim as a prerequisite to conviction. See Commonwealth v. Smith, 848 A.2d 973, 976 (Pa. Super. Ct. 2004) ("Bodily injury is an element of Simple Assault[.]"). In short, we cannot imagine a scenario in which simple assault under Pennsylvania law could not present a risk of physical injury. Cf. James, 550 U.S. at 207-08 ("[The Armed Career Criminal Act] does not require metaphysical certainty. . . . One can always hypothesize unusual cases in which even a prototypically violent crime might not present a genuine risk of injury. . . . But that does not mean that [such an] offense . . . [is] categorically nonviolent.").
We likewise find that the other requirements articulated in Begay -- that the defendant's crime must present a degree of risk similar to that presented by the enumerated crimes and also be similar in kind to those offenses -- are readily satisfied in this case. As noted above, the PSAS predicates criminal liability on a finding that the defendant caused or attempted to cause bodily injury to the victim. Pennsylvania law defines " bodily harm" as "[i]mpairment of physical condition or substantial pain." 18 Pa. Cons. Stat. § 2301. A conviction under that statute therefore poses a risk of injury that is more or less comparable to the enumerated crimes. See James, 550 U.S. at 199 (holding that attempted burglary is a "violent felony" under the Armed Career Criminal Act because, like the enumerated crimes, it "create[s] significant risks of bodily injury or confrontation that might result in bodily injury" (emphasis added)). Indeed, a conviction under the PSAS in most instances poses a greater risk of bodily injury than that presented by extortion, for instance, one of the enumerated crimes.
Simple assault under Pennsylvania law is also similar in kind to the enumerated crimes.*fn9 That crime, to the extent it is committed intentionally or knowingly, is by definition purposeful. Cf. United States v. Harrison, 558 F.3d 1280, 1295 (11th Cir. 2009) (finding that Florida's "Willful Fleeing Statute" requires conduct that is "purposeful and intentional"), cited with approval in Hopkins, 577 F.3d at 514-15; see also Begay, 128 S.Ct. at 1587 (equating "crimes involving intentional or purposeful conduct"); see also, e.g., United States v. Wilson, 568 F.3d 670, 674 (8th Cir. 2009) (concluding that Missouri's child abuse statute "satisfies Begay's purposeful conduct requirement based on the offense's mens rea of knowingly inflicting cruel and inhuman punishment" (emphasis in original) (citation omitted)); United States v. Almenas, 553 F.3d 27, 34 (1st Cir. 2009) (concluding that "[t]he purposefulness requirement is easily met" by Massachusetts' resisting arrest statute because "[b]oth methods of resisting arrest require the offender to act knowingly"); United States v. Rooks, 556 F.3d 1145, 1151 (10th Cir. 2009) ("Begay's instruction that the proscribed conduct be purposeful is easily satisfied here, as the statute on its face requires knowing and intentional conduct by the defendant.").
Finally, there can be no doubt that simple assault is at least as violent and aggressive as the enumerated crimes because a defendant who intentionally or knowingly commits that offense intends to impair the victim's physical condition or cause her substantial pain, while no such objective is required by the enumerated crimes. Cf. Begay, 128 S.Ct. at 1586 ("[B]urglary is an unlawful or unprivileged entry into a building or other structure with intent to commit a crime. . . . [A]rson is causing a fire or explosion with the purpose of, e.g., destroying a building of another or damaging any property to collect insurance. . . . [E]xtortion is purposely obtaining property of another through threat of, e.g., inflicting bodily injury[.]" (other alterations, internal quotation marks and citations omitted)).
In sum, an intentional or knowing violation of the PSAS is a crime of violence under U.S.S.G. § 4B1.2(a)(2). Accordingly, Johnson is subject to U.S.S.G. § 2K2.1(a)(4)(A)'s base offense level calculation so long as one of the materials authorized by Shepard establishes that he admitted to acting with one of those intents.
In its Rule 28(j) letter, the government resubmits its request that we find that Johnson's PSAS conviction constitutes a crime of violence based only on the criminal information. In the government's view, the language of the information makes sufficiently clear that Johnson's conviction was based on intentional as opposed to reckless conduct. We do not see in the information the degree of clarity urged by the government. The information largely tracks the statutory language in § 2701(a)(1), thereby charging Johnson with different types of simple assault. Admittedly, the information's allegation that Johnson "struck and/or choked" his victim strongly suggests that his conduct was intentional and knowing. Under the particular circumstances presented here, however, we do not believe that we can conclusively determine, based on the information alone, whether Johnson actually admitted to acting intentionally or knowingly.*fn10
Accordingly, we must decline the government's invitation to engage in what is, at least in this particular case, a speculative exercise that could implicate the very concerns the Supreme Court has expressed in explaining the prohibition on inquiries into the factual predicates of a defendant's crime under these circumstances. See Shepard, 544 U.S. at 25-26 (explaining that such a factual inquiry risks running afoul of the Sixth and Fourteenth Amendments as interpreted in Jones v. United States, 526 U.S. 227 (1999) and Apprendi v. New Jersey, 530 U.S. 466 (2000)). Of course, the question whether a particular charging document contains sufficient information to permit a conclusion about the character of a defendant's previous conviction will vary from case to case. We do not foreclose the possibility that language of the kind at issue here may suffice in another case.
The government also asks us, in the event we do not find Johnson's simple assault conviction to be a crime of violence based exclusively on the information, to remand this case to the District Court for consideration of Johnson's plea colloquy. The government maintains that the transcript, previously unavailable for logistical reasons, is now ready for review and clarifies the mens rea to which Johnson actually pled guilty.
In his response to the government's Rule 28(j) letter, Johnson objects to the notion of a remand, arguing in essence that the government should not be given the opportunity to present now what it should have presented earlier in these proceedings. He relies on our decision in United States v. Dickler, 64 F.3d 818 (3d Cir. 1995), in which we held that, as a general matter, where the government has the burden of production and persuasion as it does on issues like enhancement of the offense level . . ., its case should ordinarily have to stand or fall on the record it makes the first time around. It should not normally be afforded a second bite at the apple.
Id. at 832 (emphasis supplied and internal quotation marks and citations omitted). We clarified, however, that there is "no constitutional or statutory impediment to the district court's providing the government with an additional opportunity to present evidence on remand if it has tendered a persuasive reason why fairness so requires." Id. (emphasis supplied and citations omitted).
In this case, the government states that its earlier inability to produce the plea colloquy before the District Court was a result of personnel turnover in the office that provides transcription services for the court in which Johnson's simple assault conviction arose. Under the particular circumstances presented here, we believe that the government has tendered an adequate explanation and that it should not be foreclosed from presenting the transcript of Johnson's plea colloquy.
For the foregoing reasons, we will vacate Johnson's sentence and remand for resentencing.*fn11 On remand, the District Court may not inquire into the factual predicate of Johnson's simple assault conviction. Instead, the Court is restricted to considering the materials outlined by the Supreme Court in Shepard for the sole purpose of determining to which part of the PSAS Johnson actually pled guilty.*fn12 See United States v. criminalized both non-purposeful as well as purposeful conduct. Id. The court explained, as we have explained, that in such instances a sentencing court is permitted to review certain records, per Shepard, to ascertain "whether the jury actually convicted the defendant of (or, in the case of a guilty plea, the defendant expressly admitted to) violating a portion of the statute that constitutes a violent felony." Id. (emphasis and citations omitted). The court explained that such an approach could not be followed in that particular case:
As likely will be true in many instances of convictions under a statute that contemplates reckless behavior, the juries that convicted Mr. Smith of criminal recklessness were not asked to determine whether he acted knowingly or intentionally; Mr. Smith also did not admit to acting with that intent. Therefore, under the categorical approach, we cannot look to the facts of his particular convictions to determine for ourselves whether his conduct was knowing or intentional, on the one hand, or merely reckless on the other.
Id. at 787.
For the reasons already discussed, we cannot determine, based on the instant record, whether Johnson admitted to any particular type of intent during his plea colloquy. Therefore, unlike the Smith Court, the District Court in this case may be Woods, 576 F.3d 400, 405 (7th Cir. 2009) ("[T]he additional materials permitted by Shepard may be used only to determine which crime within a statute the defendant committed, not how he committed that crime." (emphasis in original)). In the event those materials do not demonstrate the mens rea to which Johnson pled guilty, his simple assault conviction cannot qualify as a crime of violence in this case in light of the government's representation that it does not seek to define that conviction as a crime of violence to the extent it is premised on reckless conduct.*fn13