United States District Court, E.D. Pennsylvania
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
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
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.”
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.
Sentencing Guidelines define a “crime of
violence” as “any offense under federal or state
law, punishable by imprisonment for a term exceeding one
(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).
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 ...