Harvey Bartle J.
Defendant Anthony Ransom has filed a motion under 28 U.S.C. § 2255 to vacate, set aside or correct his sentence.
On February 11, 2011 defendant pleaded guilty to four counts of bank robbery under 18 U.S.C. § 2113(a) and was sentenced on August 8, 2011 to 163 months in prison. On appeal, defendant had argued that this court erroneously classified him as a "career offender" under § 4B1.1 of the advisory Sentencing Guidelines. The Court of Appeals rejected his argument. It explained that the Presentence Report identified defendant as a career offender and that his counsel in his sentencing memorandum agreed with that finding, although counsel pressed for a downward departure on the ground that defendant's guideline range overstated his criminal history since the assault was simply a "fight between two individuals who knew each other." Nonetheless, the Court vacated his sentence and remanded for this court to rule on defendant's pro se letter motion for a downward departure or to determine whether it was out of order since defendant was represented by counsel. On remand, this court decided that the motion was out of order and reinstated the sentence imposed on August 8, 2011. See Nov. 28, 2012 Order (Doc. #48). No further appeal was filed.
Defendant now maintains that his counsel was ineffective for not arguing against his status as a career offender. Without career offender status, his guideline range would have been 110-137 months.
The Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), set forth the requirements for an ineffective assistance of counsel claim. Under the Strickland standard, defendant bears the burden of proving that: (1) his counsel's performance was deficient; and (2) he suffered prejudice as a result. Id.; United States v. Nino, 878 F.2d 101, 103 (3d Cir. 1989). Our scrutiny of counsel's performance is highly deferential in that we presume counsel's actions were undertaken in accordance with professional standards and as part of a "sound trial strategy." Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
The first prong requires that "[counsel's] performance was, under all the circumstances, unreasonable under prevailing professional norms." United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). Under the second prong, defendant must show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. A "reasonable probability" is one that is "sufficient to undermine confidence in the outcome." Id. When ruling on a § 2255 motion, the court may address the prejudice prong first "and reject an ineffectiveness claim solely on the ground that the defendant was not prejudiced." Rolan v. Vaughn, 445 F.3d 671, 678 (3d Cir. 2006).
Section 4B1.1(a) of the advisory Guidelines provides:
A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
Section 4B1.2(a)(1) of the advisory Guidelines reads:
(a) The term "crime of violence" means 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, ...
Defendant had a previous conviction for robbery which is not in issue here. While he does not dispute that his prior state court conviction for assault was a felony punishable by a term of imprisonment exceeding one year,  he asserts that it was not a crime of violence. If he is correct, he would not be a career offender under the advisory Guidelines since he would have only one, not two, prior felony convictions. See § 4B1.1(a)(3) of the Sentencing Guidelines.
Initially, the court must look to the statutory definition of the underlying offense and not to the particular facts on which the conviction was based. Taylor v. United States, 495 U.S. 575, 600 (1990); United States v. Mahone, 662 F.3d 651, 652-53 (3d Cir. 2011). This is known as the categorical approach. See, e.g., United States v. Tucker, 703 F.3d 205, 209 (3d Cir. 2012). However, if the statute describes the offense in the disjunctive, such that it can be violated in more than one way, the court applies the modified categorical approach. In that situation, the court may rely on the charging document, a written plea agreement or "some comparable judicial record." Shepard v. United States, 544 U.S. 13, 20, 21, 26 (2005); Mahone, 662 F.3d at 654.
In Pennsylvania, the definition of assault is in the disjunctive. A person is guilty of assault who "attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another." (emphasis added). 18 Pa. Cons. Stat. Ann. § 2701(a)(1). "Pure" recklessness, that is, where the perpetrator does not run the risk of intentionally using force in committing the crime, does not constitute a crime of ...