United States District Court, W.D. Pennsylvania
OPINION AND ORDER
Donetta W. Ambrose Senior Judge, U.S. District Court.
action, a jury convicted Defendant of two Counts of violating
18 U.S.C. § 922(g). On September 12, 2005, Defendant was
sentenced to a term of imprisonment of 235 months at each
Count, to run concurrently, followed by a term of supervised
release. Defendant's 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, arguing
that his enhanced sentence is invalid. For the following
reasons, Defendant's Motion will be denied, and no
certificate of appealability shall issue.
prisoner in federal custody may move to vacate his or her
sentence under 28 U.S.C. § 2255(a) if such
"sentence was imposed in violation of the Constitution
or laws of the United States." 28 U.S.C. § 2255(a).
"[R]elief under § 2255 is available only when
'the claimed error of law was a fundamental defect which
inherently results in a complete miscarriage of justice, and
... present[s] exceptional circumstances where the need for
the remedy afforded by the writ ... is apparent.'"
United States v. Travillion, 759 F.3d 281, 288 (3d
Cir. 2014) (quoting Davis v. United States, 417 U.S.
333, 346, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974)). 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 F. App'x 402, 404 (3d Cir.
2004). In this case, an evidentiary hearing is unnecessary,
and the Motion will be disposed of on the record.
Motion, Defendant asserts that his prior convictions do not
provide the requisite predicates required under ACCA. In
particular, Defendant challenges the use of his aggravated
assault and robbery convictions as ACCA predicates; he does
not challenge the use of his drug offenses. The Government
bears the burden of demonstrating that armed career criminal
status is proper. See, e.g., United
States v. Evans, No. 2-01, 2015 U.S. Dist. LEXIS 172471,
at *6 (W.D. Pa. Dec. 29, 2015).
presentence investigation report (“PSR”) stated,
“[i]t has been determined that the defendant is an
armed career criminal, pursuant to the provisions of U.S.S.G.
4B1.4(a).” In support of this statement, along with a
robbery conviction in Ohio, the PSR identifies several
convictions in the Allegheny County Court of Common Pleas, at
the following docket numbers: aggravated assault at 199102617
and 199102618; aggravated assault at 199201804; robbery at
199209917; and possession with intent to deliver crack
cocaine at 199315815 and 199315338.
aggravated assault and robbery statutes have been held
divisible, and subject to a modified categorical approach.
United States v. Lewis, No. 15-368, 2017 U.S. Dist.
LEXIS 10129, at *5 (E.D. Pa. Jan. 25, 2017); United
States v. Johnson, No. 99-15, 2015 U.S. Dist. LEXIS
167745, at *7 (E.D. Pa. Dec. 14, 2015). According to
Defendant, at issue here are aggravated assault convictions
under 18 Pa.C.S. §§ 2702(a)(3), (a)(4), and (a)(5),
and robbery convictions under 18 Pa.C.S. § 3701(a)(1)(i)
or (a)(1)(ii). Amended Motion to Correct Sentence, Docket No.
117, at pp. 6, 15. Moreover, pursuant to Shepard v.
United States, 544 U.S. 13 (2005), the Government has
submitted charging and sentencing documents relating to one
aggravated assault conviction. Those documents specifically
identify the crime as arising under Section 2702(a)(4), and
Defendant does not challenge the validity of these documents
or the conviction to which they pertain. I will accept
Defendant's contentions, and assume that his prior
convictions arose under the statutory subsections that he has
under 18 Pa.C.S. §§ 2702(a)(3) and (a)(4), and 18
Pa.C.S. §§ 3701(a)(1)(i) and (a)(1)(ii), have been
held to satisfy ACCA's “force” or
“elements” clause. See, e.g.,
United States v. Pitts, 655 Fed.Appx. 78, 81 (3d
Cir. Pa. July 13, 2016); United States v. Weygandt,
No. 9-324, 2017 U.S. Dist. LEXIS 29251, at *3 (W.D. Pa. Mar.
2, 2017); Lewis, 2017 U.S. Dist. LEXIS 10129, at
**6-7; United States v. Harris, 205 F.Supp.3d 651,
672, 675 (M.D. Pa. 2016); United States v.
Moldanado, No. 10-288, 2016 U.S. Dist. LEXIS 105356, at
*14 (E.D. Pa. Aug. 9, 2016); Whitfield v. United
States, No. 405-334, 2016 U.S. Dist. LEXIS 111552 (S.D.
Ga. Aug. 22, 2016); United States v. Toomer, No.
1-573, 2017 U.S. Dist. LEXIS 63996 (E.D. Pa. Apr. 27,
2016). The same is true for Ohio's robbery
statute, Ohio Rev. Code § 2911.02. In re Goist,
No. 15-3723, 2016 U.S. App. LEXIS 23724, at *4 (6th Cir. Jan.
28, 2016) (citing United States v. Mansur, 375
Fed.Appx. 458, 464 (6th Cir. 2010)).
Defendant's Section 2702(a)(4) conviction is the only one
accompanied by Shepard documents of record, I
separately address Defendant's challenge to the relevance
of United States v. Gorny, 655 F. App'x 920, 925
(3d Cir. 2016) (nonprecedential). In Gorny, the
Court considered a conviction under Section 2702(a)(4) under
the force clause of U.S.S.G. § 4B1.2(a)(1). In so doing,
the Court observed that Section 2702(a)(4) requires proof
that a defendant caused or attempted to cause bodily injury,
and that “it would not be plain error to determine that
the causation of bodily injury necessarily requires the use
of force capable of causing bodily injury - that is,
‘violent force.'” Id. In addition,
the Court stated as follows: “We conclude that§
2702(a)(4) is a crime of violence because it ‘has as an
element the use, attempted use, or threatened use of physical
force against the person of another.'" Id.
(quoting U.S.S.G. § 4B1.2(a)(1)).
maintains that Gorny's application of the plain
error standard renders the decision unpersuasive here.
Defendant, however, does not explain how that standard of
review strips the case of its usefulness as guidance. The
Gorny Court decided that the District Court's
conclusion that Section 2704(a)(4) required “violent
force” was not “plain error”-
i.e., it was not a clear or obvious deviation from a
legal rule. This viewpoint alone is informative. In addition
to its plain error finding, moreover, the Gorny
court separately stated its affirmative conclusion that
Section 2702(a)(4) fulfills the force clause. Indeed, with or
without independent or additional analysis, courts within
this Circuit have cited Gorny for the proposition
that Section 2702(a)(4) qualifies as a violent felony or
crime of violence. See, e.g.,
Toomer, 2017 U.S. Dist. LEXIS 63996, at **8-9;
United States v. Barfield, No. 9-93, 2017 U.S. Dist.
LEXIS 27558, at **13-14 (W.D. Pa. Feb. 28, 2017). In sum,
Gorny remains both instructive and persuasive in
addition, Defendant's argument based on Commonwealth
v. Thomas, 867 A.2d 594 (Pa. Super. Ct. 2005), merits
separate mention. In that case, the Pennsylvania Superior
Court considered Section 2702(a)(1), which addresses one who
“attempts to cause serious bodily injury to another, or
causes such injury intentionally, knowingly, or recklessly
under the circumstances manifesting extreme indifference to
human life.” Id. at 597. The court observed
that “evidence of the use of force or the threat of
force is not an element of the crime of aggravated assault,
” and thus defendant's conviction under that
statute - for starving her child to death - would stand.
Id. Contrary to Defendant's contention, the mere
fact that the court broadly referred to “aggravated
assault” does not necessarily render its statement
applicable to all sections of Section 2702. Given the
statutory language at issue, it appears that the court's
statement denoted, instead, only the subsection ...