United States District Court, W.D. Pennsylvania
OPINION AND ORDER SYNOPSIS
Donetta W. Ambrose, U.S. District Court Senior Judge
matter, on August 21, 2011, Defendant was convicted of
violating 18 U.S.C. 922(g)(1), which generally carries a
mandatory minimum sentence of ten years. On February 9, 2012,
Defendant was sentenced to a term of imprisonment of 180
months. His sentence was based, in part, on the
Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e). Before the Court is Defendant's Amended
Motion pursuant to 28 U.S.C. § 2255, in which he
contends that his sentence is invalid in light of Johnson
v. United States, __ U.S. __, 135 S.Ct. 2551, 192
L.Ed.2d 569 (2015). For the following reasons,
Defendant's Motion will be granted, and this matter
transferred to Judge Cercone for further proceedings.
is available under Section 2255 only under exceptional
circumstances, when the claimed errors of law are "a
fundamental defect which inherently results in a complete
miscarriage of justice, " or "an omission
inconsistent with the rudimentary demands of fair
procedure." Hill v. United States, 368 U.S.
424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962). A district
court need not hold an evidentiary hearing on a Section 2255
motion if the motion, files, and records show conclusively
that the defendant is not entitled to relief. United
States v. Ritter, 93 Fed.Appx. 402 (3d Cir. 2004). In
this case, a hearing is unnecessary, and the Motion will be
disposed of on the record.
argues that several of his predicate convictions - fleeing
and eluding, resisting arrest, and aggravated assault - no
longer qualify as valid predicates. Defendant does not
challenge the Court's reliance on two prior drug
offenses, but contends that aggravated assault no longer
supports his enhanced sentence. In response, the Government
does not argue that fleeing and eluding or resisting arrest
are valid predicates. Instead, it argues that Defendant's
two prior drug offenses and aggravated assault conviction
support the ACCA enhancement.
the parties' positions, the outcome of Defendant's
Motion depends on whether Defendant's aggravated assault
conviction remains a valid predicate. The parties agree that
the conviction arose under 18 Pa.C.S. § 2702. Section
2702 has been held divisible and subject to a modified
categorical approach, and I will proceed under that
assumption. See United States v. Lewis, No. 15-368,
2017 U.S. Dist. LEXIS 10129, at *5 (E.D. Pa. Jan. 25, 2017).
A modified categorical approach, in turn, permits the court
to consider documents approved by Shepard v. United
States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205
(2005), and Taylor v. United States, 495 U.S. 575,
109 L.Ed.2d 607, 110 S.Ct. 2143 (1990), in order to determine
whether a conviction qualifies as a predicate offense.
the parties further agree that the conviction arose under
either Section 2702(a)(1) or (a)(4). A conviction under
Section 2702(a)(4) has been deemed a qualifying offense under
the force clauses of both ACCA and the Sentencing Guidelines.
United States v. Gorny, 655 F. App'x 920, 925
(3d Cir. 2016) (nonprecedential); Peppers, 2016 U.S.
Dist. LEXIS at *2. In contrast, it has been held that a
violation of Section 2702(a)(1) is not a qualifying
predicate, because it criminalizes reckless conduct and can
be committed by an act of omission. United
States v. Harris, No. 6-268, 2016 U.S. Dist. LEXIS
117070, at **42-43 (M.D. Pa. Aug. 31, 2016). Albeit in a
different context, our Court of Appeals has emphasized that
only “knowing and intentional assaults” qualify
as crimes of violence. United States v. Doe, 810
F.3d 132, 147 (3d Cir. Pa. 2015). Thus, the statutory
subsection under which Defendant was convicted will determine
the outcome of the Motion at bar. In this situation, the
Government bears the burden of demonstrating that career
offender status is proper. United States v. Smith,
No. 92-146, 2016 U.S. Dist. LEXIS 113484, at *6 (W.D. Pa.
Aug. 25, 2016).
Government contends that Defendant pleaded guilty to
violating Section 2702(a)(1), and has submitted an online
docket sheet from the Court of Common Pleas of Fayette County
as support. It has also submitted a Police Criminal
Complaint lodged against Defendant, which states as follows:
AGGRAVATED ASSAULT, (1 count) CC/2702(a)(1), (a)(4). Did
attempt to cause serious bodily injury to one [victim] and
intentionally, knowingly causes bodily injury to [victim]
with a deadly weapon, being a .22 caliber pistol.
the Police Criminal Complaint seems to eliminate reckless
conduct as a possibility, the information filed against
Defendant leaves open that possibility. The information does
not specify a statutory subsection. It charges that Defendant
“unlawfully did attempt to cause, or intentionally,
knowingly, or recklessly did cause bodily injury to another,
” and that Defendant “did unlawfully and
recklessly engage in conduct which placed or may have placed
another person in danger of death or serious bodily
injury.” Finally, Defendant's Plea Bargain
indicates that he pleaded guilty to aggravated assault, but
again, no statutory subsection is specified. There is no
suggestion, in any of the documents submitted by the
Government, that Defendant actually pleaded guilty to Section
2701(a)(4); and if I were to accept the docket sheet as a
valid Shepard document, along with the
Government's contention that Defendant pleaded guilty to
2701(a)(1), that conviction would not serve as a valid ACCA
predicate. This record, according to applicable law, does not
support an ACCA enhancement. Defendant's Motion must be
conclusion, the record does not demonstrate that
Defendant's ACCA sentence was supported by three valid
predicate offenses. Therefore, his sentence will be vacated,
and the matter transferred to Judge ...