United States District Court, E.D. Pennsylvania
LEGROME D. DAVIS, J.
and July 2015, Defendant Andre S. Lewis robbed a Wells Fargo
bank branch and then attempted on two subsequent occasions to
rob a second branch. During these robberies, Lewis handed
threatening notes to the tellers, informing one teller that
Lewis knew where she lived and had an associate waiting in
her house, and representing to another teller that he was
carrying a bomb. Lewis was arrested following the third
incident. On April 25, 2016, he pleaded guilty to a
three-count indictment charging with him bank robbery and
attempted bank robbery in violation of 18 U.S.C §
Presentence Investigation Report was created by a United
States Probation Officer, and both parties were given the
opportunity to object to its contents. The probation officer
determined that Lewis was a career offender under section
4B1.1 of the sentencing guidelines, which increased
Lewis's offense level by four points and increased his
criminal history category to VI. The officer calculated a
total offense level of 29 and a criminal history category of
VI, resulting in a guideline range of 151 to 188 months.
Absent the enhancement, Lewis's guideline range would
have been 100 to 125 months.
filed a sentencing memorandum objecting to the enhancement.
Def.'s Sentencing Mem. (Doc. No. 19). At sentencing, both
parties agreed that the probation officer's mathematical
calculations of the sentencing guidelines were correct, but
Lewis again objected to the application of the enhancement.
After hearing argument, the Court denied Lewis's
objection. Following the sentencing presentations of both
parties and after consideration of all of the 18 U.S.C §
3553(a) factors, the Court applied the enhancement but varied
below the guidelines and imposed a sentence of 120 months
incarceration to be followed by a three-year term of
supervised release. This opinion sets forth the reasons for
the Court's denial Lewis's objection to the career
Career Offender Enhancement
challenged the recommendation that he be categorized as a
career offender under the guidelines, arguing that one of his
predicate convictions, aggravated assault, was not a crime of
violence. Def.'s Sentencing Mem., at 1. Lewis's
objection fails because his conviction for aggravated assault
necessarily involved “the use, attempted use, or
threatened use of physical force against the person of
another.” U.S. Sentencing Guidelines Manual §
4B1.2 (U.S. Sentencing Comm'n 2014).
federal sentencing guidelines include an enhancement for
career offenders. U.S. Sentencing Guidelines Manual §
4B1.1(b) (U.S. Sentencing Comm'n 2014). Career offender
status under the guidelines requires, inter alia,
that the defendant has two or more predicate felony
convictions that are either a crime of violence or a drug
offense. Id. § 4B1.1(a). A crime of violence is
any state or federal offense punishable by more than one year
in prison that either:
(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).
inquiry into whether a predicate offense is a crime of
violence generally requires a categorical approach, which
focuses not on the specific conduct of that offense but
instead on its elements. Mathis v. United States,
136 S.Ct. 2243, 2251 (2016). Under this approach, a court must
consider “the least culpable conduct necessary to
sustain conviction under the statute.” Aguilar v.
Attorney Gen. of United States, 663 F.3d 692, 695 (3d
Cir. 2011). One limited alternative to this categorical
approach applies when a defendant has a prior conviction for
a statute that is divisible, that is, when the statute
“comprises multiple, alternative versions of the
crime.” Descamps v. United States, 133 S.Ct.
2276, 2284 (2013). In that situation, a court may look to the
charging document, the plea agreement and colloquy, or to
other “comparable judicial record[s]” to
determine what the elements of the crime of conviction were.
Shepard v. United States, 544 U.S. 13, 26 (2005).
But these documents can only be used to identify the
elements; the focus must remain there, rather than on the
facts of the crime. Descamps, 133 S.Ct. at 2285.
modified approach does not apply if a statute lists different
factual means of committing a single element, rather than
different versions of the crime, each with their own
elements. United States v. Henderson, 841 F.3d 623,
628 (3d Cir. 2016). To determine whether a list in an
alternatively-phrased statute consists of elements or means,
a court can look to the decisions of ...