United States v. Samuel Jenkins ( 2023 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 18-2222
____________
UNITED STATES OF AMERICA
v.
SAMUEL JENKINS,
Appellant
____________
On Appeal from the United States District Court
For the Eastern District of Pennsylvania
(D.C. No. 2-08-cr-00392-001)
District Judge: Honorable Eduardo C. Robreno
____________
Argued on January 25, 2023
Before: HARDIMAN, KRAUSE, and MATEY, Circuit
Judges.
(Filed: May 18, 2023)
Abigail E. Horn [Argued]
Brett G. Sweitzer
Helen A. Marino
Federal Community Defender Office for the Eastern District of
Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
Counsel for Appellant
Jacqueline C. Romero
Bernadette A. McKeon
Robert A. Zauzmer [Argued]
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
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OPINION OF THE COURT
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HARDIMAN, Circuit Judge.
This appeal requires us to answer a legal question: is
second-degree aggravated assault of a protected individual in
violation of 18 Pa. Cons. Stat. § 2702(a)(3) a “violent felony”
under the Armed Career Criminal Act (ACCA)? We hold it is
not.
I
In 2008, Samuel Jenkins pleaded guilty to possession of
a firearm by a felon in violation of 18 U.S.C. §§ 922(g)(1) and
924(e). He was sentenced to a mandatory minimum under
2
ACCA because he had three prior convictions “for a violent
felony or a serious drug offense.” 18 U.S.C. § 924(e). Those
offenses included two prior drug convictions and a conviction
for aggravated assault under 18 Pa. Cons. Stat. § 2702(a)(3).
Section 2702(a)(3) applies to one who “attempts to cause or
intentionally or knowingly causes bodily injury” to certain
persons “in the performance of duty.” Jenkins was sentenced
to 15 years’ imprisonment and 5 years’ supervised release. He
did not appeal.
While Jenkins was serving his sentence, the Supreme
Court breathed life into his case in Johnson v. United States,
576 U.S. 591 (2015). At the time of Jenkins’s sentencing, a
conviction was for a “violent felony” under ACCA if the crime:
(1) had “as an element the use, attempted use, or threatened use
of physical force against the person of another” (the elements
clause); (2) was “burglary, arson, or extortion, [or] involve[d]
the use of explosives” (the enumerated-offense clause); or
(3) “otherwise involve[d] conduct that present[ed] a serious
potential risk of physical injury to another” (the residual
clause). 18 U.S.C. § 924(e)(2)(B). In Johnson (2015), the
Supreme Court held that the residual clause is
unconstitutionally vague. 576 U.S. at 597. The Court later
made Johnson (2015) retroactive on collateral review. Welch
v. United States, 578 U.S. 120, 135 (2016). So Jenkins’s
Section 2702(a)(3) conviction for a non-enumerated offense
qualifies as a predicate violent felony only if it satisfies the
elements clause.
Citing Johnson (2015), Jenkins moved to correct his
sentence under 28 U.S.C. § 2255. He argued that because
Section 2702(a)(3) can be violated without the use, attempted
use, or threatened use of physical force, it is not a “violent
3
felony” under ACCA’s elements clause, so his enhanced
sentence under ACCA was unlawful. 1
The District Court rejected this argument and denied
Jenkins’s motion. Recognizing room for disagreement, the
District Court granted a certificate of appealability. Jenkins
timely appealed.
II 2
A
When determining whether a prior conviction was for a
“violent felony” under ACCA, our review is plenary, see
United States v. Peppers, 899 F.3d 211, 220 (3d Cir. 2018),
and we apply the familiar categorical approach, Descamps v.
United States, 570 U.S. 254, 261 (2013). We look only to the
elements of the offense, not the defendant’s actual conduct, and
1
Jenkins’s sentence was unlawful only if it was based on the
unconstitutional residual clause. He can “demonstrate that his
sentence necessarily implicates the residual clause,” by
showing that “he could not have been sentenced under the
elements or enumerated offenses clauses based on current case
law.” United States v. Peppers, 899 F.3d 211, 235 n.21 (3d Cir.
2018). In other words, if Jenkins can show that his Section
2702(a)(3) conviction satisfies neither the elements nor the
enumerated offense clause, he has proven that the only
statutory basis for the sentence was the unconstitutional
residual clause.
2
The District Court had jurisdiction under 18 U.S.C. § 3231and 28 U.S.C. § 2255. We have jurisdiction under 28 U.S.C.
§§ 1291 and 2253(a).
4
evaluate the minimum conduct criminalized by the statute.
United States v. Abdullah, 905 F.3d 739, 744 (3d Cir. 2018)
(citation omitted). 3 Pennsylvania’s aggravated assault statute
is divisible, so we apply the modified categorical approach to
determine whether the subsection under which Jenkins was
convicted, 18 Pa. Cons. Stat. § 2702(a)(3), categorically
proscribes a violent felony. United States v. Ramos, 892 F.3d
599, 609 (3d Cir. 2018). If the state-law statute sweeps more
broadly than the federal comparator—that is, if Section
2702(a)(3) criminalizes any conduct that is not a violent felony
under ACCA—no conviction under the statute is a predicate
offense, regardless of the underlying facts. See id. at 606.
Because Jenkins’s aggravated assault conviction was
indisputably not for an enumerated offense, this appeal turns
on ACCA’s elements clause. Under that clause, a violent
felony is one that has “as an element the use, attempted use, or
threatened use of physical force against the person of another.”
18 U.S.C. § 924(e)(2)(B)(i). “Physical force” in this context
“means violent force—that is, force capable of causing
physical pain or injury to another person.” Johnson v. United
States, 559 U.S. 133, 140 (2010). 4
3
Because the elements clauses of ACCA’s definition of
“violent felony” and of the Sentencing Guidelines’ definition
of “crime of violence” are interpreted consistently, we cite
cases interpreting either. See United States v. Brown, 765 F.3d
185, 189 n.2 (3d Cir. 2014).
4
We use “physical force” to have the meaning given it by
Johnson (2010) in reference to ACCA’s definition of “violent
felony,” unless otherwise indicated.
5
Section 2702(a)(3) applies to one who “attempts to
cause or intentionally or knowingly causes bodily injury to any
of the officers, agents, employees or other persons enumerated
in subsection (c), in the performance of duty.” Section 2702(c)
in turn lists categories of people—many of them government
employees—ranging from student workers to police officers to
the Pennsylvania Governor.
Jenkins argues Section 2702(a)(3) does not have as an
element the use or attempted use of physical force because it
can be violated by: (1) offensive touching, like spitting or
throwing urine, or (2) a failure to act, like withholding food or
medical care. The Pennsylvania Supreme Court’s decision in
United States v. Harris, 289 A.3d 1060 (Pa. 2023), supports
Jenkins’s claim that Section 2702(a)(3) can at least be violated
by a failure to act, so it is not a violent felony. 5
B
We have held that “the use of physical force required by
the ACCA cannot be satisfied by a failure to act.” United States
v. Mayo, 901 F.3d 218, 230 (3d Cir. 2018). 6 Applying that rule
5
We hold that Section 2702(a)(3) is not a violent felony
because it can be violated by omission, so we take no view on
whether it also can be violated by a mere offensive touching.
6
The Government has argued here and in United States v.
Harris, No. 17-1861, that this holding from Mayo is contrary
to Supreme Court precedent, so panels of this Court are not
bound to follow it. That argument relies primarily on United
States v. Castleman, and more specifically the Supreme
Court’s statement that “a ‘bodily injury’ must result from
‘physical force.’” 572 U.S. 157, 170 (2014). But Mayo
6
to Pennsylvania’s aggravated assault statute, we held in Mayo
that first-degree aggravated assault in violation of 18 Pa. Cons.
Stat. § 2702(a)(1) is not a violent felony because it can be
violated by omission. 901 F.3d at 230. That provision applies
to a person who “attempts 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.” 18 Pa. Cons. Stat.
§ 2702(a)(1). But in United States v. Ramos, we held that
second-degree aggravated assault in violation of 18 Pa. Cons.
Stat. § 2702(a)(4) is a crime of violence (and thus a violent
felony, see supra n.3). 892 F.3d at 612. Section 2702(a)(4)
applies to a person who “attempts to cause or intentionally or
knowingly causes bodily injury to another with a deadly
weapon.” We reasoned that Section 2702(a)(4)’s bodily-injury
and deadly-weapon elements, “[t]aken together,” indicate that
the provision can be violated only through the use or attempted
use of physical force, not by omission. Ramos, 892 F.3d at611–12. Jenkins claims his case is more like Mayo, while the
Government likens it to Ramos.
The Pennsylvania Supreme Court has provided key
guidance on this question. See United States v. Taylor, 142 S.
analyzed and distinguished Castleman. Mayo, 901 F.3d at 228–
30. In the rare cases where we have disregarded a prior panel’s
holding based on Supreme Court precedent that predated the
panel, the prior panel opinion “did not either explicitly or
implicitly decide the impact of [the Supreme Court precedent]
on the issues raised in that appeal.” United States v. Tann, 577
F.3d 533, 542 (3d Cir. 2009) (citation omitted). That is not the
case here, so we are bound by Mayo absent en banc
intervention or additional clarification from the Supreme
Court.
7
Ct. 2015, 2025 (2022) (“[S]tate courts [are] the final arbiters of
state law in our federal system . . . .”). In United States v.
Harris, 289 A.3d 1060, after granting our petition to certify a
question of state law, id. at 1061, the Supreme Court
interpreted Section 2702(a)(1)—the provision at issue in
Mayo. It held that “the use or attempted use of physical force
is not an element of the crime of aggravated assault under
Section 2702(a)(1), and thus the Commonwealth need not
prove physical force to sustain a conviction for that offense.”
Id. at 1074. The Court rightly stressed that the meaning of
“physical force” under ACCA is a question of federal law, so
it decided “only whether Section 2702(a)(1) requires some use
of physical force,” not whether it is a violent felony under
ACCA. Id. at 1068–69. The Court explained that “the exercise
of direct or indirect physical force is a means by which serious
bodily injury can be inflicted [under the statute], but it is not
the exclusive means.” Id. at 1074. Critical to this appeal, the
Supreme Court clarified that “serious bodily injury may be
caused or attempted under Section 2702(a)(1) by acts of
omission.” Id.The Court reasoned that “there is no express element in
Section 2702(a)(1) requiring the use or attempted use of
physical force, or any reference to force at all.” Id. at 1070. It
then turned to the Government’s contention that the statute
requires causing or attempting to cause serious bodily injury,
which necessarily entails the use of physical force. The Court
disagreed: “there is no reference in the definition of ‘serious
bodily injury’ to the manner by which an injury must be
inflicted, i.e., by force of a physical nature, by psychological
or emotional force, by an act of omission, or by other means.”
Id. The Court contrasted subsection (a)(1) with two other
subsections of Section 2702 that do “codify the manner of
8
causing a particular bodily injury as an element of the crime.”
Id. at 1070–71 (citing 18 Pa. Cons. Stat. § 2702(a)(4) (“with a
deadly weapon”), (a)(6) (“by physical menace”)). If the
legislature wanted to similarly limit the way subsection (a)(1)
can be violated, it would have done so explicitly. See id.Harris requires us to conclude that Section 2702(a)(3)
can also be violated by omission. Subsection (a)(3) shares two
key features with subsection (a)(1) on which the Harris court
relied. First, the statutory language makes no mention of force.
See Harris, 289 A.3d at 1070. Second, there is no reference in
Section 2702(a)(3) itself, or in the definition of “bodily injury,”
“to the manner by which an injury must be inflicted.” Id.
Unlike these similarities, none of the subsections’ three
differences meaningfully distinguishes subsection (a)(3) from
(a)(1) as to whether it can be violated by a failure to act.
First, subsection (a)(1) requires “serious bodily injury”
rather than just “bodily injury.” But if one can cause serious
bodily injury by omission, it follows that bodily injury can be
caused in that way. Indeed, “serious bodily injury” is bodily
injury; the statute defines it as a particularly harmful subset of
“bodily injury.” See 18 Pa. Cons. Stat. § 2301.
Second, subsection (a)(1) has a broader mens rea
requirement than subsection (a)(3). It encompasses acts
committed “recklessly under circumstances manifesting
extreme indifference to the value of human life,” 18 Pa. Cons.
Stat. § 2702(a)(1)—sometimes referred to as extreme
recklessness, see United States v. Brasby, 61 F.4th 127, 133
(3d Cir. 2023). Subsection (a)(3), on the other hand, applies
only to knowing or intentional conduct. Though the
Government highlights this difference, it does not explain why
9
the mens rea element affects whether the statute can be violated
by a failure to act. An omission can be knowing or intentional,
just as it can be reckless. For example, one can intentionally
starve a child. See Mayo, 901 F.3d at 227–28 (relying on
convictions involving starvation to conclude Section
2702(a)(1) can be violated by a failure to act). This also
explains why we must reject the Government’s proposed
bright-line rule that “requiring proof of the intentional or
knowing infliction of (or attempt to inflict) ‘bodily injury’
categorically requires proof as an element of the use of
‘physical force.’” Gov’t Br. 12. In Mayo, we rejected the
Government’s similar contention that “causing or attempting
to cause serious bodily injury necessarily involves the use of
physical force.” 901 F.3d at 228. The mens rea modifier added
to the Government’s proposed rule here provides no
meaningful distinction to the proposed rule we rejected in
Mayo. 7
Third, subsection (a)(1) lacks a victim-status element,
whereas subsection (a)(3) applies only to assaults on particular
people in the performance of duty. But Harris indicated that
additional elements are relevant only if they specify how a
defendant must cause or attempt to cause bodily injury. 289
7
The Government’s rule admittedly finds some support in the
Supreme Court’s statement that “a ‘bodily injury’ must result
from ‘physical force.’” Castleman, 572 U.S. at 170. But as
explained above, we distinguished Castleman in Mayo by
explaining that Castleman addressed common-law force and
“expressly reserved the question of whether causing ‘bodily
injury’ necessarily involves the use of ‘violent force’ under the
ACCA.” Mayo, 901 F.3d at 228 (citing Castleman, 572 U.S. at
170). And contrary to the Government’s argument, we are
bound by Mayo.
10
A.3d at 1070–71. This is why subsection (a)(4), which requires
causing or attempting to cause bodily injury “with a deadly
weapon,” cannot be violated by omission. See Ramos, 892 F.3d
at 612; Harris, 289 A.3d at 1070–71. The victim-status
element of Section 2702(a)(3) does not relate to the manner of
causing injury. So subsection (a)(3) is analogous to (a)(1) and
dissimilar to (a)(4) in this respect.
In sum, subsection (a)(3) is similar to subsection (a)(1)
in the relevant respects, and different only in ways immaterial
to ACCA’s elements clause. Under Harris’s reasoning, injury
under Section 2702(a)(3) can be inflicted by forcible or non-
forcible means, including by a failure to act. Harris, 289 A.3d
at 1070–71, 1074 n.19.
The Government stresses that Jenkins cannot point to a
single conviction under Section 2702(a)(3) for a failure to act.
But he need not do so. The realistic probability test—which
requires defendants to show “a realistic probability, not a
theoretical possibility, that the State would apply its statute to
conduct that falls outside the generic definition of a crime,”
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)—does
not apply “where the elements of the offense, whether as set
forth in a statute or case law, do not match the generic federal
crime,” Zhi Fei Liao v. Att’y Gen., 910 F.3d 714, 723 n.9 (3d
Cir. 2018); see also Cabeda v. Att’y Gen., 971 F.3d 165, 176
(3d Cir. 2020) (“[O]nce we conclude that the textual breadth of
a statute is more expansive than the federal generic crime . . . a
petitioner need not show that there is a realistic chance that the
statute will actually be applied in an overly broad manner.”).
In other words, the realistic probability test is implicated only
when “the relevant state and federal offenses clearly
overlap[].” Taylor, 142 S. Ct. at 2025.
11
In this case, they don’t overlap. The Pennsylvania
Supreme Court made clear that Section 2702(a)(1)—and by
implication Section 2702(a)(3)—can be violated by omission
as a matter of state law. And under our binding precedent, an
omission cannot constitute the use of physical force under
ACCA as a matter of federal law. Mayo, 901 F.3d at 230. So
Section 2702(a)(3) does not overlap with ACCA’s definition
of a violent felony. The realistic probability test thus plays no
role, even if, “as a matter of common sense, it is scarcely
conceivable that one could, as a factual matter,” violate the
statute in the overly broad manner. Cabeda, 971 F.3d at 175.
In sum, second-degree aggravated assault in violation of
18 Pa. Cons. Stat. § 2702(a)(3) can be committed by a failure
to act, so it is not a “violent felony” under ACCA. At the time
of his 18 U.S.C. § 922(g)(1) violation, Jenkins did not have the
three predicate offenses necessary to trigger ACCA’s penalty
provision, § 924(e). So we must reverse the District Court’s
order denying Jenkins’s motion to correct his sentence and
remand for further proceedings consistent with this opinion.
* * *
We acknowledge the bizarre result in this case. We’ve
now held that a type of first-degree aggravated assault in
Pennsylvania and one type of second-degree aggravated
assault are not violent felonies under ACCA even though
another type of second-degree aggravated assault is a violent
felony. The categorical approach requires this upside-down
result even though criminal sentences should be governed by
justice and fairness, not formalism. The problems created by
the categorical approach have been well documented. See, e.g.,
United States v. Scott, 14 F.4th 190, 200–02 (3d Cir. 2021)
(Phipps, J., dissenting) (collecting judicial criticisms of the
12
approach); Harris, 289 A.3d at 1075 & n.2 (Mundy, J.,
concurring). It is possible, perhaps even likely, that no
defendant will ever be convicted under Section 2702(a)(3) for
an act of omission. But since the legislature drafted the statute
in a way that does not foreclose that possibility, we are
constrained to hold that every Section 2702(a)(3) violator—
individuals convicted of assaulting teachers, nurses, and police
officers—did not commit a violent felony under ACCA. “What
a world.” Cabeda, 971 F.3d at 176.
13