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United States v. Thorn

United States District Court, E.D. Pennsylvania

October 19, 2017

UNITED STATES OF AMERICA
v.
ROBERT THORN, JR.

          OPINION

          WENDY BEETLESTONE, JUDGE

         This case presents a straightforward but legally complex question in the developing area of federal sentencing law: Was Defendant Robert Thorn, Jr.'s prior conviction for robbery under Pennsylvania law a “crime of violence” as defined by the United States Sentencing Guidelines (“U.S.S.G” or “Sentencing Guidelines”)? The answer requires analyzing Pennsylvania case law; parsing Pennsylvania's robbery statute; examining certain records underlying Defendant's state conviction; and applying what is known as the “categorical approach” to his state conviction. The Court concludes that, given the information available here, Defendant's prior conviction for first-degree robbery in Pennsylvania is not a “crime of violence” under the Sentencing Guidelines. Defendant's request for downward variance shall thus be granted.

         I. BACKGROUND

         In December 2016, Defendant Robert Thorn, Jr. attempted to sell a Glock to a confidential informant from the Bureau of Alcohol, Tobacco, and Firearms (“ATF”). Defendant sent the informant a picture of the Glock with an extended magazine, and the two agreed to meet. During the sale, Defendant took the Glock with an extended magazine from underneath the driver seat, displaying it to the informant and an undercover ATF agent. After receiving the money, Defendant retook possession of the firearm and fled in his car.

         Defendant was charged with possession of a firearm by a convicted felon. 18 U.S.C. § 922(g). Defendant had a previous conviction for robbery under Pennsylvania law in 2006. On June 7, 2017, Defendant pled guilty before this Court. The Presentence Investigation Report determined that the Defendant's prior conviction for robbery was a “crime of violence” as defined by the Sentencing Guidelines. Counsel for Defendant filed an objection, requesting a downward variance and contending that the robbery conviction was not a “crime of violence.”

         II. DISCUSSION

         The applicable Sentencing Guideline for Defendant's violation of Section 922(g) is Section 2K2.1. See United States v. Steiner, 847 F.3d 103, 117 (3d Cir. 2017). Section 2K2.1 “sets out various base offense levels that depend on the circumstances of the offense and the defendant's criminal history.” Id. Under the relevant portion of Section 2K2.1 of the Sentencing Guidelines, if “(A) the offense involves a (i) semiautomatic firearm that is capable of accepting a large capacity magazine . . . and (B) the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of . . . a crime of violence . . ., ” the base offense level is 22. Defendant does not dispute that the Glock was “capable of accepting a large capacity magazine.” However, Defendant does dispute that his prior conviction is a “crime of violence” that warrants a base offense level of 22.

         The Sentencing Guidelines define a “crime of violence” as “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 of physical force against the person of another, or
(2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c).

U.S.S.G. § 4B1.2(a)(1)-(2) (emphasis added).

         The question, then, is whether Defendant's prior robbery conviction under Pennsylvania law qualifies as a “crime of violence” under either Section 4B.1.2(a)(1) (known as the “force clause”) or Section 4B.1.2(a)(2) (known as the “enumerated clause”). As relevant here, the Pennsylvania robbery statute provides:

(a) Offense defined.--
(1) A person is guilty of robbery if, in the course of committing a theft, he: (i) inflicts serious bodily ...

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