United States v. Terell Crump ( 2023 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 22-3379
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UNITED STATES OF AMERICA
v.
TERELL CRUMP,
Appellant
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-17-cr-00150-001)
District Judge: Honorable Paul S. Diamond
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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
October 17, 2023
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Before: CHAGARES, Chief Judge, PHIPPS, and CHUNG, Circuit Judges.
(Filed: November 6, 2023)
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OPINION*
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PHIPPS, Circuit Judge.
While on parole for convictions under Pennsylvania law for robbery and
aggravated assault, Terell Crump – during a Facebook livestream on October 27, 2016 –
fired a gun out the window of a rowhome in a densely populated Philadelphia
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
neighborhood. The video feed also captured Crump handing a second firearm to the
gun’s owner, who later told an ATF agent that it had an obliterated serial number.
On those facts, Crump pleaded guilty to being a felon in possession of a firearm
under 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Crump’s plea agreement, which the District
Court accepted, had an appellate waiver subject to specific exceptions. One of those
allowed him to appeal the District Court’s rulings that robbery and aggravated assault
each qualified as a “crime of violence” under the United States Sentencing Guidelines.
U.S.S.G. § 4B1.2(a).
In calculating Crump’s sentence, the District Court concluded that both offenses
constituted crimes of violence. That led to a twelve-point increase in Crump’s base
offense level – eight points for the first crime of violence and four additional points for
the second. See id. § 2K2.1(a) (setting the base offense level for classes of firearms
convictions, including those under 18 U.S.C. § 922(g), at 24 if the defendant had
previously been convicted of two or more crimes of violence, at 20 if the defendant had
been convicted of one prior crime of violence, and at 12 if the defendant had no prior
convictions for crimes of violence). The District Court also increased Crump’s offense
level by another eight points for two specific offense enhancements – four for possession
of a firearm with an obliterated serial number, see id. § 2K2.1(b)(4)(B), and four for
using a firearm in connection with felony reckless endangerment of another person, see
id. § 2K2.1(b)(6)(B). In aggregate, those values, after a three-point deduction for
Crump’s acceptance of responsibility, yielded a total offense level of 29. That score,
when combined with his Category IV criminal history, resulted in a sentencing range of
121 to 151 months in prison for Crump. See U.S.S.G. ch. 5, pt. A. But at the time of his
offense, the statutory maximum sentence for a felon-in-possession conviction was 120
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months. See 18 U.S.C. § 924(a)(2) (2012) (amended by the Bipartisan Safer
Communities Act, Pub. L. No. 117-159, 136 Stat. 1313, 1329 (2022), which removed the
ten-year statutory maximum for 18 U.S.C. § 922(g)). In sentencing Crump on
September 20, 2022, the District Court did not vary the sentence downward from the
Guidelines range but imposed that statutory maximum sentence.
Crump appealed his sentence and invoked this Court’s appellate jurisdiction. See
18 U.S.C. § 3742; see also 28 U.S.C. § 1291. He now disputes all of the determinations
that increased his total offense level, each of which had a significant consequence on his
Guidelines range. If Crump is correct as to one of his challenges, then his total offense
level would have been four points lower, at 25. And with a Category IV criminal history,
the Guidelines range would have been 84 to 105 months – below the statutory maximum
of 120 months. See U.S.S.G. ch. 5, pt. A. If he prevails on one of his crime-of-violence
challenges and one of his other attacks, then his total offense level would drop by eight
points, to 21, which would result in a Guidelines range of 57 to 71 months. See id. If he
succeeds on both of his crime-of-violence challenges or one crime-of-violence challenge
and both of his other challenges, then Crump’s total offense level would decrease by 12
points to 17, generating a Guidelines range of 37 to 46 months. See id. If he is correct
about both of his crime-of-violence challenges and one of his other contentions, then his
total offense level would be 13, with an accompanying Guidelines range of 24 to 30
months. See id. And if Crump wins on all four of his challenges, then his total offense
level would be 9, which would result in a Guidelines range of 12 to 18 months. See id.By rule, to raise these challenges, Crump had fourteen days to file a notice of
appeal, see Fed. R. App. P. 4(b)(1)(A), but he did not do so until 83 days after the
judgment was entered. Because that deadline is not jurisdictional for criminal cases, it
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does not automatically bar Crump’s appeal. See Gov’t of V.I. v. Martinez, 620 F.3d 321,
328 (3d Cir. 2010). But upon a party’s objection, a court “must dismiss the appeal,” id. at
329. And here, the Government objects – but only partially. Following the same
dividing line as the appellate waiver in the plea agreement, the Government objects to
Crump’s challenges to the four-point enhancements under § 2K2.1(b)(4)(B) for the
obliteration of a serial number and § 2K2.1(b)(6)(B) for felony reckless endangerment of
another person. But the Government does not object to the timeliness of Crump’s appeal
of his two crime-of-violence challenges. Accordingly, Crump’s challenges to the four-
point enhancements imposed under § 2K2.1(b)(4)(B) and § 2K2.1(b)(6)(B) will be
dismissed, but his two crime-of-violence arguments, which, if both successful, would
yield a Guidelines range of 37 to 46 months, remain for consideration on appeal.
In those two challenges, Crump disputes that the Pennsylvania offenses of robbery
and aggravated assault qualify as crimes of violence under the elements clause or the
enumerated-offense clause of Guideline § 4B1.2(a). As an initial matter, Crump’s
arguments require an assessment of whether the state-law offenses are indivisible or
divisible. See Descamps v. United States, 570 U.S. 254, 257 (2013) (explaining that
unlike an indivisible statute, a divisible statute “sets out one or more elements of the
offense in the alternative”). From there, the application of the elemental matching
process under either the categorical approach (for indivisible offenses) or the modified
categorical approach (for divisible offenses), determines whether Crump’s predicate
state-law offenses qualify as crimes of violence. See Mathis v. United States, 579 U.S.
500, 504–05 (2016).
In this case, that analytical process is aided by Circuit precedent. This Court has
determined that both disputed Pennsylvania predicate offenses – robbery and aggravated
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assault – are divisible. See United States v. Peppers, 899 F.3d 211, 232 (3d Cir. 2018)
(holding that Pennsylvania’s robbery statute, 18 Pa. Cons. Stat. § 3701(a), is divisible);
United States v. Ramos, 892 F.3d 599, 609 (3d Cir. 2018) (holding that Pennsylvania’s
aggravated assault statute, 18 Pa. Cons. Stat. § 2702, is divisible). As divisible offenses,
a court can consider types of external documents to discern which section or subsection
of the statute served as the basis for the conviction. See Mathis, 579 U.S. at 505–06;
Shepard v. United States, 544 U.S. 13, 16 (2005). And here, the guilty plea for Crump’s
prior robbery offenses reveals that he was convicted under § 3701(a)(1)(ii). Similarly,
the charging document coupled with statutory text reveals that Crump was convicted of
second-degree aggravated assault under § 2702(a)(3).1
Circuit precedent – decided after the District Court sentenced Crump – also
answers whether those two offenses constitute crimes of violence under the Guidelines.
In United States v. Henderson, 80 F.4th 207 (3d Cir. 2023), this Court held that a robbery
conviction under § 3701(a)(1)(ii) is a categorical match with the elements clause of
Guideline § 4B1.2 and is thus a crime of violence. Id. at 211–15. Consequently, the
District Court did not err in using that prior offense to determine Crump’s base offense
level. But in United States v. Jenkins, 68 F.4th 148 (3d Cir. 2023), this Court held that
second-degree aggravated assault under § 2702(a)(3) is not a violent felony under the
Armed Career Criminal Act. Id. at 155. Because the term ‘violent felony’ in the ACCA
receives the same meaning as the term ‘crime of violence’ in Guideline § 4B1.2, see
Jenkins, 68 F.4th at 151 n.3, Crump’s conviction for second-degree aggravated assault –
1
The parties dispute which subsection served as the basis for Crump’s aggravated assault
conviction. The Government argues that it was under (a)(3), while Crump argues that it
was (a)(2). But Crump could not have been convicted under subsection (a)(2), which is a
first-degree felony, see 18 Pa. Cons. Stat. § 2702(b) (grading crimes), because the
charging document reveals that Crump was charged, and later convicted, of a second-
degree felony aggravated assault.
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which is not a violent felony under the ACCA, see id. at 155 – should not have been used
to determine Crump’s base offense level.
For that reason, on this de novo review of the legal issues challenged on appeal,
we will vacate Crump’s sentence and remand to the District Court for resentencing.
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