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Third Circuit: Pennsylvania Conviction for First-Degree Aggravated Assault Does Not Require Physical Force so Is Not Qualifying Predicate for ACCA Purposes

by Douglas Ankney

The U.S. Court of Appeals for the Third Circuit held that because a conviction under Pennsylvania’s first-degree aggravated assault statute, 18 Pa. Cons. Stat. § 2702(a)(1), does not require the element of physical force, such a conviction cannot serve as a qualifying predicate for purposes of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(g), and thus, the defendant did not have three violent felony convictions necessary to trigger the sentence enhancement.

In 2010, Marc James Harris pleaded guilty to possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e), which ordinarily carries a maximum sentence of 10 years in prison. But Harris’ presentence report indicated that he had at least three predicate offenses under the ACCA: a serious drug conviction and at least two violent felonies. Because of the ACCA enhancement, Harris was sentenced to the 15-year mandatory minimum term of imprisonment.

In 2016, Harris moved, pursuant to 28 U.S.C. § 2255, to correct his sentence, arguing that the decision of Johnson v. United States, 576 U.S. 591(2015) (“Johnson 2015”), rendered his ACCA enhancement inapplicable. The U.S. District Court for the Eastern District of Pennsylvania denied Harris’ § 2255 motion.

The Third Circuit granted Harris a certificate of appealability “on the question [of] whether [his] due process rights were violated by the use of his Pennsylvania robbery and aggravated assault convictions to enhance his sentence under” the ACCA. While Harris’ appeal was pending, two intervening cases were decided: Borden v. United States, 142 S. Ct. 1817 (2021) [See Aug. 2021 issue of CLN for full coverage], and United States v. Mayo, 901 F.3d 218 (3d Cir. 2018). The Court ordered additional briefing in light of the Borden and Mayo decisions.

In its post-Borden briefing, the Government conceded that two of Harris’ Pennsylvania robbery convictions no longer qualified as ACCA predicate offenses because the relevant Pennsylvania statutes allow robbery convictions with a mens rea of recklessness. However, the Government argued that Harris still qualified for the ACCA enhancement because he had qualifying predicate convictions for a third robbery offense and a first-degree assault under Pennsylvania law as well as a serious drug offense under § 924(e)(2)(a).

Harris countered by contending that the Pennsylvania convictions were not violent felonies in light of Borden. But Harris further contended that the Court need not address the effect of Borden because Mayo is dispositive of his appeal. In Mayo, the Third Circuit held that a Pennsylvania conviction for first-degree aggravated assault “does not categorically require the use of physical force against another.” Consequently, Harris argued that his conviction cannot constitute a violent felony under the ACCA.

The Government rebutted by consistently arguing “that Mayo was wrongly decided and should be overturned because it improperly relied on a ‘single intermediate appellate court’ decision in concluding that Pennsylvania first-degree aggravated assault can be committed without the use of physical force.” Mayo cited Commonwealth v. Thomas, 867 A.2d 594 (Pa. Super. 2005), in which a mother starved her four-year-old son to death, to support its holding that use of force is not an element of assault under § 2702(a)(1).

Recognizing that Thomas is not a decision issued by the Pennsylvania Supreme Court, the Court sent a certified question of law to the Pennsylvania Supreme Court, asking whether the use of force is an element of first-degree aggravated assault. (As the Court noted: “The interpretation of a state statute is a question of state law, and federal courts are bound by a state’s highest court’s interpretation.” United States v. Johnson, 559 U.S. 133 (2010) (“Johnson 2010”)).

The Pennsylvania Supreme Court upheld the Thomas decision, interpreting § 2702(a)(1) to mean that criminal liability is not tethered “to the use or attempted use of physical force but, instead, to the infliction of a specified harm, i.e., serious bodily injury, regardless of the means by which the harm is inflicted.” United States v. Harris, 289 A.3d 1060 (Pa. 2023). Given this confirmation by the Pennsylvania Supreme Court, the Court then turned to whether Mayo correctly interpreted the ACCA in holding that a conviction under § 2702(a)(1) cannot qualify as a predicate offense.

Prior to the holding of Johnson 2015, the ACCA defined “violent felony” as any crime punishable by a term of imprisonment exceeding one year that “(i) has as an element the use, attempted use, or threatened use of physical force against the person of another” [the ‘element of force’ clause]; “(ii) is burglary, arson, or extortion, [or] involves the use of explosives” [the ‘enumerated offenses clause’]; or “otherwise involves conduct that presents a serious potential risk of physical injury to another” [the ‘residual clause’]. § 924(e)(2)(B). The holding in Johnson 2015 struck down the residual clause for unconstitutional vagueness. Consequently, Harris’ ACCA enhancement could stand only if his § 2702(a)(1) first-degree aggravated assault conviction satisfied the element of force clause.

The Court stated that courts employ the “categorical approach” in order “to identify the elements of aggravated assault and determine whether ‘the use, attempted use, or threatened use of physical force against another person is categorically an element of the offense of conviction.’” United States v. Ramos, 892 F.3d 599 (3d Cir. 2018).

Courts identify “the least culpable conduct hypothetically necessary to sustain a conviction under the statute” and presume the defendant engaged in that hypothetical conduct when committing the prior offense to determine whether the element of force exists. Hernandez-Cruz v. Att’y Gen., 764 F.3d 281 (3d Cir. 2014). “If the statute underlying the prior conviction is divisible, meaning it encompasses ‘multiple, alternative versions of the crime’” then the courts employ the modified categorical approach “to determine which version ‘formed the basis of the defendant’s conviction.’” Descamps v. United States, 570 U.S. 254 (2013). This requires courts to examine the “Shepard documents,” which are “the terms of the charging document, the terms of the plea agreement or transcript of the plea colloquy between the judge and defendant in which the factual basis for the plea was confirmed by the defendant, or some comparable judicial record of this information.” Shepard v. United States, 544 U.S. 13 (2005). Courts do not review the Shepard documents to determine if the defendant’s conduct in the particular case had an element of force; rather, they review only to determine under which statutory subsection the defendant was convicted. Id.

Section 2702(a) is a divisible statute. At the time of Harris’ conviction, a person commits first-degree aggravated assault if he: “(1) attempt[ed] to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; [or] (2) attempt[ed] to cause or intentionally, knowingly or recklessly causes serious bodily injury to any of the officers, agents, employees or other persons enumerated in subsection (c) or to any employee of any agency, company or other entity engaged in public transportation, while engaged in the performance of a duty.”

In the present case, nothing in the Shepard documents indicated Harris was convicted of assaulting any person identified in subsection (2); therefore, the Court concluded that Harris was convicted under subsection (1).

Consequently, the Court was bound by the holding of Mayo. Even if the Court believed Mayo had been wrongly decided, only the Third Circuit sitting en banc could overturn it – something the Third Circuit does not lightly undertake. Al-Sharif v. United States Citizenship & Immigration Servs., 734 F.3d 207 (3d Cir. 2013) (en banc). Because Harris’ § 2702(a)(1) conviction was not a qualifying predicate offense, he no longer had the requisite three violent felony convictions for the ACCA enhancement. As such, the Court did not need to decide his challenge to the robbery offense.

Accordingly, the Court vacated the order denying Harris’ motion to correct his sentence and remanded to the District Court with instructions to resentence Harris consistent with the Court’s opinion. See: United States v. Harris, 68 F.4th 140 (3d Cir. 2023).   

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