United States v. Ishmael Abdullah , 905 F.3d 739 ( 2018 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 18-1082
_____________
UNITED STATES OF AMERICA
v.
ISHMAEL ABDULLAH,
a/k/a Ish, a/k/a Gangsta, a/k/a Papi
Appellant
_____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 3-17-cr-00316-001)
District Judge: Hon. Freda L. Wolfson
_______________
Submitted Under Third Circuit LAR 34.1(a)
September 11, 2018
Before: JORDAN, VANASKIE, and NYGAARD, Circuit
Judges
(Opinion Filed: October 2, 2018)
_______________
David E. Schafer, Esq.
3131 Princeton Pike
Building 3D, Suite 2
Lawrenceville, NJ 08648
Counsel for Appellant
Craig Carpenito, Esq.
Steven G. Sanders, Esq.
Office of United States Attorney
970 Broad Street, Suite 700
Newark, NJ 07102
Counsel for Appellee
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
Ishmael Abdullah pled guilty to two federal offenses,
one for conspiring to distribute and possess with intent to
distribute heroin, and the other for being a felon in possession
of a firearm. When he was sentenced, the District Court
concluded that he was subject to sentencing enhancements
for, among other things, being a career offender under
§ 4B1.1 of the United States Sentencing Guidelines
(“U.S.S.G.” or “the guidelines”). That conclusion was based
in part on Abdullah’s 2015 conviction for third-degree
aggravated assault with a deadly weapon under § 2C:12-
1(b)(2) of the New Jersey Statutes Annotated (“N.J.S.A.”).
Abdullah now appeals his sentence, arguing that the career-
offender enhancement does not apply to him because his New
Jersey conviction for third-degree aggravated assault is not a
2
“crime of violence” under the guidelines. We disagree and,
for the reasons that follow, will affirm the sentence.
I. BACKGROUND
Abdullah was involved in a drug-trafficking organization that
distributed heroin in New Jersey. He was arrested by federal
agents and charged in a two-count information with
knowingly and intentionally conspiring to distribute and
possess with intent to distribute 100 grams or more of heroin,
in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B), and 21
U.S.C. § 846, and with illegally possessing a firearm as a
convicted felon, in violation of 18 U.S.C. § 922(g)(1). He
pled guilty to both counts.
In preparation for recommending how the guidelines
should apply at sentencing, a probation officer prepared a
Presentence Investigation Report (“PSR”). The PSR reflected
a base offense level of 28, after concluding that Abdullah had
been supplied with, and was thus responsible for, at least 700
grams of heroin. The PSR then recited a number of
enhancements and adjustments in calculating the total offense
level. One enhancement was for Abdullah’s career offender
status under U.S.S.G. § 4B1.1,1 which was determined on the
1
Section 4B1.1(a), known as the career-offender
enhancement, applies:
if (1) the defendant was at least eighteen years
old at the time the defendant committed the
instant offense of conviction; (2) the instant
offense of conviction is a felony that is either a
crime of violence or a controlled substance
3
basis of two earlier felony convictions, one of which was a
2015 conviction in New Jersey state court for third-degree
aggravated assault with a deadly weapon,2 in violation of
N.J.S.A. § 2C:12-1(b)(2).3 Another adjustment was made
pursuant to U.S.S.G. § 3B1.1(a) for Abdullah’s role as an
organizer or leader of a conspiracy that involved at least five
participants.4 Abdullah objected to the attribution of at least
offense; and (3) the defendant has at least two
prior felony convictions of either a crime of
violence or a controlled substance offense.
U.S.S.G. § 4B1.1(a). For statutory offenses carrying a
maximum term of imprisonment of 25 years or more, the
offense level must be at least 34, if the enhancement is to
apply. Id. § 4B1.1(b).
2
The other was a 2010 conviction in New Jersey state
court for the manufacture or distribution, or intent to
manufacture or distribute, a controlled dangerous substance.
3
That New Jersey statute provides that “[a] person is
guilty of aggravated assault if he … [a]ttempts to cause or
purposely or knowingly causes bodily injury to another with a
deadly weapon[.]” N.J.S.A. § 2C:12-1(b)(2). It is a crime of
the third degree. Id. § 2C:12-1(b).
4
Section 3B1.1(a), known as the organizer-or-leader
enhancement, states that a defendant’s offense level should be
increased by four levels “[i]f the defendant was an organizer
or leader of a criminal activity that involved five or more
4
700 grams of heroin to him and to application of the
organizer-or-leader and career-offender enhancements.
At sentencing, he reiterated those objections and the
District Court overruled them. It concluded then and in a
detailed post-hearing opinion that Abdullah was responsible
for at least 700 grams of heroin and that application of the
four-level organizer-or-leader enhancement under § 3B1.1(a)
was appropriate. It also determined that Abdullah’s
conviction under N.J.S.A. § 2C:12-1(b)(2) for third-degree
aggravated assault with a deadly weapon categorically
qualified as a “crime of violence” under the guidelines. Thus,
the Court applied the career-offender enhancement as
provided in § 4B1.1, which put Abdullah’s offense level at
34. After other adjustments for acceptance of responsibility,
the total offense level was 31, and his criminal history
category was VI. The resulting recommended guidelines
sentencing range was 188 to 235 months’ imprisonment, two
to five years of supervised release, and $30,000 to $5 million
in fines. The Court ultimately sentenced Abdullah to 176
months’ imprisonment and five years of supervised release on
the controlled substance charge, and a concurrent 120
months’ imprisonment and three years of supervised release
on the firearm charge. It waived any fine but ordered him to
forfeit his firearm and associated ammunition, and it imposed
special assessments totaling $200.
This timely appeal followed.
participants or was otherwise extensive[.]” U.S.S.G.
§ 3B1.1(a).
5
II. DISCUSSION5
Abdullah challenges his sentence on the same three
grounds he pressed before the District Court: first, that he is
not a career offender because his conviction under New
Jersey law for third-degree aggravated assault does not
categorically qualify as a crime of violence under the
guidelines; second, that the organizer-or-leader enhancement
does not apply to him; and third, that it was factually
erroneous to hold him responsible for 700 grams or more of
heroin. None of those arguments is persuasive, but only the
one regarding the career offender question needs
consideration. Because Abdullah is a career offender, his
other sentencing complaints are of no consequence.6
Under the guidelines, a defendant is a career offender
if, among other things, he “has at least two prior felony
convictions of either a crime of violence or a controlled
5
The District Court had jurisdiction under 18 U.S.C.
§ 3231. We have jurisdiction pursuant to 18 U.S.C. § 3742(a)
and 28 U.S.C. § 1291.
6
“Whether a … conviction constitutes a crime of
violence for purposes of the career offender [g]uideline is a
question of law over which we exercise plenary review.”
United States v. Chapman, 866 F.3d 129, 131 (3d Cir. 2017)
(first alteration in original) (quoting United States v. Brown,
765 F.3d 185, 188 (3d Cir. 2014)).
6
substance offense.”7 U.S.S.G. § 4B1.1(a). In 2015, the
guidelines defined 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, or
threatened use of physical force against the
person of another, or
(2) is burglary of a dwelling, arson, or
extortion, involves use of explosives, or
otherwise involves conduct that presents a
serious potential risk of physical injury to
another.
Id. § 4B1.2(a) (2015). We refer to the first subsection as the
“elements clause.” The first part of the second subsection is
the “enumerated offenses clause,” and the latter part of that
subsection is the “residual clause.” Our focus here is solely
on the elements clause.8
7
There is no dispute that Abdullah’s 2010 drug
conviction qualifies as a “controlled substance offense” for
purposes of the career-offender enhancement.
8
No one disputes that Abdullah’s third-degree
aggravated assault conviction under New Jersey law is for an
offense punishable by imprisonment for more than one year.
See N.J.S.A. § 2C:43-6(a)(3) (stating that the term of
imprisonment for a person convicted of a crime of the third
degree “shall be between three years and five years”).
Furthermore, because we ultimately conclude that Abdullah’s
aggravated assault conviction is a crime of violence under the
elements clause, we need not consider the applicability of
7
To determine whether a previous conviction is a
predicate offense pursuant to the elements clause of the
career-offender enhancement in § 4B1.2(a)(1), we must
undertake what is called the “categorical approach,” which is
an analysis comparing the guidelines’ definition of “crime of
violence” to the elements of the statute under which the
defendant was previously convicted. United States v. Wilson,
880 F.3d 80, 83 (3d Cir. 2018). “If the statute forming the
basis of the defendant’s conviction necessarily has” as an
element “the use, attempted use, or threatened use of physical
force against another person[,]” then that “statute proscribes a
predicate crime of violence within the meaning of the
[g]uidelines.” United States v. Ramos, 892 F.3d 599, 606 (3d
Cir. 2018).
Under the categorical approach, we “ignore the actual
manner in which the defendant committed the prior offense”
and “presume that the defendant did so by engaging in no
more than ‘the minimum conduct criminalized by the state
statute.’” Id. (quoting Moncrieffe v. Holder, 569 U.S. 184,
191 (2013)). But, if the statute of conviction is divisible
because it sets out alternative criminal offenses, we may
apply what is called the “modified categorical approach.” Id.
at 606-08. Under that approach, we are permitted to look
beyond the statute of conviction to documents such as “the
other clauses in the “crime of violence” definition. See
U.S.S.G. § 4B1.2(a)(2) (2015). Thus, we do not need to
analyze the government’s alternative argument that a
conviction under New Jersey’s § 2C:12-1(b)(2) categorically
qualifies as a crime of violence under the residual clause.
8
‘charging document, written plea agreement, transcript of
plea colloquy, and any explicit factual finding by the trial
judgment to which the defendant assented’” to identify the
specific statutory provision that served as the basis for the
defendant’s earlier conviction. Id. at 607 (quoting United
States v. Brown, 765 F.3d 185, 189-90 (3d Cir. 2014)
(quoting Shepard v. United States, 544 U.S. 13, 16 (2005))).
Once the specific provision is identified, the categorical
approach is then applied to that provision.
Therefore, whether Abdullah is a career offender
requires us to address three questions. See Ramos, 892 F.3d
at 607. First, is New Jersey’s aggravated assault statute
divisible? See id. Second, if so, can we identify the specific
subsection under which Abdullah was convicted? See id.
Finally, “if so, does that specific aggravated assault offense
categorically qualify as a predicate crime of violence under
the [g]uidelines?” Id. We answer yes to each of those
questions and thus conclude that the career-offender
enhancement applies.
1. New Jersey’s Aggravated Assault Statute
Is Divisible
The parties do not dispute that New Jersey’s
aggravated assault statute, N.J.S.A. § 2C:12-1(b),9 is
9
In 2015, § 2C:12-1(b) provided as follows:
Aggravated assault. A person is guilty of
aggravated assault if he:
9
(1) Attempts to cause serious bodily injury to
another, or causes such injury purposely or
knowingly or under circumstances manifesting
extreme indifference to the value of human life
recklessly causes such injury; or
(2) Attempts to cause or purposely or
knowingly causes bodily injury to another with
a deadly weapon; or
(3) Recklessly causes bodily injury to another
with a deadly weapon; or
(4) Knowingly under circumstances manifesting
extreme indifference to the value of human life
points a firearm, as defined in section 2C:39-1f.,
at or in the direction of another, whether or not
the actor believes it to be loaded; or
(5) Commits a simple assault as defined in
subsection a. (1), (2) or (3) of this section upon:
[subsections omitted – listing
classes of persons including,
among others, law enforcement
officers, emergency responders,
educators, and judges]; or
(6) Causes bodily injury to another person while
fleeing or attempting to elude a law
enforcement officer in violation of subsection b.
10
of N.J.S.2C:29-2 or while operating a motor
vehicle in violation of subsection c. of
N.J.S.2C:20-10. Notwithstanding any other
provision of law to the contrary, a person shall
be strictly liable for a violation of this
subsection upon proof of a violation of
subsection b. of N.J.S.2C:29-2 or while
operating a motor vehicle in violation of
subsection c. of N.J.S.2C:20-10 which resulted
in bodily injury to another person; or
(7) Attempts to cause significant bodily injury
to another or causes significant bodily injury
purposely or knowingly or, under circumstances
manifesting extreme indifference to the value of
human life recklessly causes such significant
bodily injury; or
(8) Causes bodily injury by knowingly or
purposely starting a fire or causing an explosion
in violation of N.J.S.2C:17-1 which results in
bodily injury to any emergency services
personnel involved in fire suppression
activities, rendering emergency medical
services resulting from the fire or explosion or
rescue operations, or rendering any necessary
assistance at the scene of the fire or explosion,
including any bodily injury sustained while
responding to the scene of a reported fire or
explosion. For purposes of this subsection,
“emergency services personnel” shall include,
11
but not be limited to, any paid or volunteer
fireman, any person engaged in emergency
first-aid or medical services and any law
enforcement officer. Notwithstanding any other
provision of law to the contrary, a person shall
be strictly liable for a violation of this paragraph
upon proof of a violation of N.J.S.2C:17-1
which resulted in bodily injury to any
emergency services personnel; or
(9) Knowingly, under circumstances
manifesting extreme indifference to the value of
human life, points or displays a firearm, as
defined in subsection f. of N.J.S.2C:39-1, at or
in the direction of a law enforcement officer; or
(10) Knowingly points, displays or uses an
imitation firearm, as defined in subsection f. of
N.J.S.2C:39-1, at or in the direction of a law
enforcement officer with the purpose to
intimidate, threaten or attempt to put the officer
in fear of bodily injury or for any unlawful
purpose; or
(11) Uses or activates a laser sighting system or
device, or a system or device which, in the
manner used, would cause a reasonable person
to believe that it is a laser sighting system or
device, against a law enforcement officer acting
in the performance of his duties while in
uniform or exhibiting evidence of his authority.
12
divisible. To determine whether “an alternatively phrased
statute” is divisible, we ask “whether its listed items are
elements or means.” Mathis v. United States, 136 S. Ct.
2243, 2256 (2016). As we recently explained in another
opinion applying the modified categorical approach,
“[e]lements are the constituent parts of a criminal offense that
a jury must find beyond a reasonable doubt to convict[,]”
As used in this paragraph, “laser sighting
system or device” means any system or device
that is integrated with or affixed to a firearm
and emits a laser light beam that is used to
assist in the sight alignment or aiming of the
firearm.
Aggravated assault under subsections b. (1) and
b. (6) is a crime of the second degree; under
subsections b. (2), b. (7), b. (9) and b. (10) is a
crime of the third degree; under subsections b.
(3) and b. (4) is a crime of the fourth degree;
and under subsection b. (5) is a crime of the
third degree if the victim suffers bodily injury,
otherwise it is a crime of the fourth degree.
Aggravated assault under subsection b. (8) is a
crime of the third degree if the victim suffers
bodily injury; if the victim suffers significant
bodily injury or serious bodily injury it is a
crime of the second degree. Aggravated assault
under subsection b. (11) is a crime of the third
degree.
N.J.S.A. § 2C:12-1(b) (2015).
13
while “[m]eans … are merely the factual ways that a criminal
offense can be committed” and do not need to “be found by a
jury[.]” Ramos, 892 F.3d at 608. A “statute on its face may
resolve the issue[,]” such as “[i]f statutory alternatives carry
different punishments,” which suggests those alternatives are
elements, not means. Mathis, 136 S. Ct. at 2256.
Here, the New Jersey aggravated assault statute,
§ 2C:12-1(b), is divisible on its face because it proscribes
three alternative degrees of conduct, each subject to different
maximum sentences. See N.J.S.A. § 2C:12-1(b) (classifying
various subsections as crimes of either the second, third, or
fourth degree); id. § 2C:43-6(a) (providing the different
maximum terms of imprisonment for crimes of the second,
third, and fourth degree). The second-degree, third-degree,
and fourth-degree aggravated assault offenses are thus
separable forms of aggravated assault under New Jersey law.
The statute is further divisible into a number of
different third-degree aggravated assault offenses. New
Jersey used disjunctive language to establish alternative
elements of third-degree aggravated assault, including
subsection (b)(2).10 “[E]ach subsection … criminalizes
different conduct and sets forth different (albeit overlapping)
10
Aggravated assault under subsections (b)(5) and
(b)(8) are crimes of the third degree only if the victim
suffered bodily injury. N.J.S.A. § 2C:12-1(b). Also, we note
that we are looking to the 2015 statute under which Abdullah
was convicted rather than the current statute, which is
identical in all material respects for purposes of this case.
Compare id. § 2C:12-1(b) (2015), with id. § 2C:12-1(b)
(2017) (adding subsections (b)(12) and (b)(13)).
14
elements that must be proven beyond a reasonable doubt.”
Ramos, 892 F.3d at 609; see also New Jersey Model Jury
Charges (Criminal), “Aggravated Assault” (N.J.S.A. § 2C:12-
1(b)) (detailing the different elements for various aggravated
assault subsections). Section 2C:12-1(b) is thus divisible and
resort to the modified categorical approach is appropriate.
2. Abdullah Was Convicted of Third-
Degree Aggravated Assault with a
Deadly Weapon Pursuant to New
Jersey’s § 2C:12-1(b)(2)
The parties also agree that the specific third-degree
aggravated assault subsection under which Abdullah was
convicted is readily identifiable. He pled guilty to third-
degree aggravated assault with a deadly weapon in violation
of subsection (b)(2) of the statute, as stated in the PSR
without objection, confirmed by the judgment of conviction,
and admitted by Abdullah through counsel. Under the
modified categorical approach, then, it is established with
certainty that the offense of conviction was the conduct
proscribed by § 2C:12-1(b)(2) of the New Jersey Code.
3. Third-Degree Aggravated Assault with a
Deadly Weapon, in Violation of New
Jersey’s § 2C:12-1(b)(2), Is a Crime of
Violence
The issue thus becomes whether a conviction under
§ 2C:12-1(b)(2) is categorically a crime of violence under the
guidelines. More specifically, we must determine whether
that subsection demands proof of “the use, attempted use, or
threatened use of physical force against the person of
15
another,” as is required by the elements clause of the crime of
violence definition in the guidelines. U.S.S.G. § 4B1.2(a)(1).
We agree with the District Court that it does.
The term “physical force” has been interpreted by the
Supreme Court to mean “force capable of causing physical
pain or injury to another person.” Johnson v. United States,
559 U.S. 133, 140 (2010). 11 Thus, under § 4B1.2(a)(1) of the
guidelines, a crime of violence is one that has as an element
the use, attempted use, or threatened use of force capable of
causing physical pain or injury to the person of another.
Chapman, 866 F.3d 129, 133 (3d Cir. 2017). “That remains
true regardless of whether an offender could be convicted
under the statute for applying force directly (e.g., hitting a
victim with a bat) or applying force indirectly (e.g., throwing
a brick at a victim).” Ramos, 892 F.3d at 611 (citing
Chapman, 866 F.3d at 132-33).
Section 2C:12-1(b)(2) forbids “[a]ttempt[ing] to cause
or purposely or knowingly caus[ing] bodily injury to another
with a deadly weapon[.]” New Jersey law defines “bodily
injury” as “physical pain, illness or any impairment of
physical condition[,]” N.J.S.A. § 2C:11-1(a), and “deadly
weapon” as “any firearm or other weapon, device, instrument,
material or substance … known to be[, or fashioned in a way
that would lead the victim reasonably to believe it to be,]
11
The Armed Career Criminal Act’s (“ACCA”)
definition of “violent felony” is sufficiently similar to the
guidelines’ definition of “crime of violence” that
interpretations of one are generally applicable to the other.
Chapman, 866 F.3d at 132 n.3 (citing United States v.
Hopkins, 577 F.3d 507, 511 (3d Cir. 2009)).
16
capable of producing death or serious bodily injury[,]” id.§ 2C:11-1(c). The minimum conduct sufficient to convict a
defendant under § 2C:12-1(b)(2), then, is conduct attempting
to cause any impairment of physical condition with an
instrument or substance that, as fashioned, would lead the
victim reasonably to believe it was capable of producing
serious bodily injury. “As a practical and legal matter, an
offender can do so only by attempting to use physical force
against another person.” Ramos, 892 F.3d at 611. In other
words, as a matter of course, the minimum conduct that
supports a conviction under § 2C:12-1(b)(2) inherently
involves proving beyond a reasonable doubt an element of
physical force that satisfies the elements clause of the “crime
of violence” definition in the guidelines’ § 4B1.2(a)(1).
That conclusion comports with our recent decision in
United States v. Ramos, in which we considered a conviction
under a Pennsylvania statute that is practically identical to the
New Jersey statute at issue here. 892 F.3d at 610-12. In
Ramos, we said that a conviction under 18 Pa. Cons. Stat.
§ 2702(a)(4), which criminalizes “attempt[ing] to cause or
intentionally or knowingly caus[ing] bodily injury to another
with a deadly weapon[,]” id. at 611 (quoting 18 Pa. Cons.
Stat. § 2702(a)(4)), “is categorically a crime of violence under
the elements clause of the [g]uidelines[,]” id. at 612. We
noted that that “conclusion is dictated by the Supreme Court’s
recent decision in United States v. Castleman[, 134 S. Ct.
1405 (2014), in which] … the Supreme Court explained that a
conviction under a statute proscribing ‘the knowing or
intentional causation of bodily injury’ is a conviction that
17
‘necessarily involves the use of physical force.’”12 Id. at 611-
12 (quoting Castleman, 134 S. Ct. at 1414). That explanation
in Castleman was enough for us to conclude in Ramos that
“aggravated assault with a deadly weapon, which similarly
requires proving the attempted, knowing, or intentional
causation of bodily injury, is categorically a violent crime.”
Id. at 612.
Abdullah makes several arguments aimed at avoiding
that logical conclusion. First, he contends that, because the
New Jersey legislature has distinguished between “bodily
injury” and “use of force” in its criminal statutes, those two
phrases must be understood as mutually exclusive. (Opening
Br. at 10.) Specifically, because New Jersey makes a person
12
Although we have recently questioned whether the
Supreme Court’s broad language in that regard holds true in
all scenarios, see United States v. Mayo, 901 F.3d 218, __ ,
slip op. at 221-22 (3d Cir., Aug. 22, 2018) (citing and quoting
United States v. Middleton, 883 F.3d 485, 491 (4th Cir. 2018)
for the proposition that “Castleman does not support the
[g]overnment’s argument that any form of bodily injury
requires violent force”), it certainly holds true and is binding
upon us in situations expressly considered by the Supreme
Court in Castleman (i.e., bodily injury resulting from a
situation necessarily involving the affirmative use, attempted
use, or threatened use of physical force). Although
Castleman did not consider “[w]hether or not the causation of
bodily injury necessarily entails violent force” because it only
addressed common-law force, Castleman, 134 S. Ct. at 1413,
we think the “deadly weapon” requirement in § 2C:12-1(b)(2)
is enough to bridge any potential gap that may give cause for
concern.
18
“guilty of robbery if, in the course of committing a theft, he
… [i]nflicts bodily injury or uses force upon another[,]” in
Chapter 15 of its criminal code, its use of the words “bodily
injury” in Chapter 12 was a purposeful attempt to exclude the
use of force from the definition of third-degree aggravated
assault with a deadly weapon. (Opening Br. at 10 (quoting
N.J.S.A. § 2C:15-1(a)(1))). That speculation about legislative
intent, however, fails to undercut the force of our reasoning in
Ramos that the causation of bodily injury, or threat thereof,
with a deadly weapon necessarily entails a use, attempted use,
or threatened use of violent physical force. Ramos, 892 F.3d
at 612.
Second, Abdullah cites a number of non-precedential
district court cases for the argument that “‘bodily injury,’ as
compared to ‘serious bodily injury’ and ‘significant bodily
injury’,” is insufficient to satisfy the physical force required
in the definition of “crime of violence” under the guidelines.
(Opening Br. at 13.) Relying particularly on United States v.
Knight, No. 15-004, 2016 WL 223701 (D.N.J. Jan. 19, 2016),
he contends that “mere ‘physical discomfort, or a sensation
caused by a kick’ is sufficient bodily injury for purposes of
proving assault under the New Jersey statute[, but is
insufficient] to qualify as ‘serious bodily injury’ under the
federal generic definition.” Id. at *6 n.6. Assuming without
deciding that that were true, Abdullah ignores that the court in
Knight was analyzing aggravated assault under a different
provision, § 2C:12-1(b)(5)(a), and that the bodily injury
referenced in § 2C:12-1(b)(2), the provision that is at issue
here, must have been caused or attempted “with a deadly
weapon[.]” That kind of injury naturally involves the use,
attempted use, or threat to use the type of violent physical
force contemplated by the guidelines’ definition of “crime of
19
violence.” See Ramos, 892 F.3d at 612 (noting that it
stretches the imagination to think “a person could knowingly
or intentionally injure, or attempt to injure, another person
with a deadly weapon without engaging in at least some
affirmative, forceful conduct”).
Finally, Abdullah argues that the conclusion in Ramos
with respect to aggravated assault with a deadly weapon
under 18 Pa. Cons. Stat. § 2702(a)(4) cannot be extended to
the New Jersey statutory provision at issue here. He says
that, “whereas Pennsylvania’s definition of a deadly weapon
is strictly subjective to the perpetrator …, New Jersey’s
‘deadly weapon’ can alternatively be subjective to the
victim[.]” (Opening Br. at 15-16.) He points to no authority,
though, and we can find none, suggesting that merely because
one takes the perspective of the victim rather than of the
defendant, the use of a deadly weapon to cause or attempt to
cause bodily injury does not involve at least a threat of violent
physical force. Cf. Damaso-Mendoza v. Holder, 653 F.3d
1245, 1250 (10th Cir. 2011) (“There is a threatened use of
physical force against the person … of another whether the
object used by the perpetrator is a true deadly weapon or just
looks like one.” (citation, emphasis, and internal quotation
marks omitted)). To the extent Abdullah argues that the New
Jersey statute criminalizes conduct using a mens rea
requirement less than that necessary for generic aggravated
assault because the focus is placed on the victim’s state of
mind rather than the defendant’s state of mind with respect to
the deadly weapon element, we disagree. Section 2C:12-
1(b)(2) requires proving that the defendant purposely or
knowingly used an instrument or substance in a way that
“would lead the victim reasonably to believe it to be capable
20
of producing death or serious bodily injury[.]”13 N.J.S.A.
§ 2C:11-1(c).
At the end of the day, “it is [still] nearly impossible to
conceive of a scenario in which a person could knowingly or
intentionally injure, or attempt to injure, another person with
a deadly weapon without engaging in at least some
affirmative, forceful conduct.” Ramos, 892 F.3d at 612. We
therefore hold that a conviction for third-degree aggravated
assault with a deadly weapon under New Jersey law, § 2C:12-
1(b)(2), is categorically a crime of violence under the
elements clause of the guidelines.14 That means Abdullah’s
13
Abdullah also relies on the decision of the United
States Court of Appeals for the Fifth Circuit in United States
v. Martinez-Flores, 720 F.3d 293 (5th Cir. 2013), for its
“detailed and relevant analysis of the New Jersey legislature’s
intent in drafting its aggravated assault statute.” (Opening Br.
at 19.) That case is inapposite because it addressed a
different aggravated assault provision (i.e., N.J.S.A. § 2C:12-
1(b)(7)), under a different clause (i.e., the enumerated
offenses clause), of a different guideline (i.e., U.S.S.G.
§ 2L1.2). Martinez-Flores, 720 F.3d at 295, 300. Nor is his
reliance on our decision in United States v. Remoi, 404 F.3d
789 (3d Cir. 2005), helpful. In that case, we addressed a
provision in New Jersey’s sexual assault statute, N.J.S.A.
§ 2C:14-2(c)(2), Remoi, 404 F.3d at 793, not a provision in
New Jersey’s aggravated assault statute, let alone one that
involves the use of a deadly weapon.
14
Because we do not conclude that N.J.S.A. § 2C:12-
1(b)(2) is ambiguous, we need not consider Abdullah’s
argument that the rule of lenity applies. See United States v.
21
conviction under that statute qualifies as a crime of violence
and the career-offender enhancement is applicable. We thus
affirm the District Court’s decision to apply it.
Abdullah also argues that the District Court erred
when it found by a preponderance of the evidence that at least
700 grams of heroin were attributable to him, which set his
base offense level at 28, and that he was an organizer or
leader of the drug-trafficking organization, which raised his
offense level by four points pursuant to U.S.S.G. § 3B1.1(a).
Those issues are moot, however, because we have concluded
that the career-offender enhancement applies. Even if four
points were subtracted from his offense level due to an
alleged error in calculating the drug quantity and another four
were subtracted for misapplication of the organizer-or-leader
enhancement, Abdullah’s final offense level would remain
unaffected because the career-offender enhancement requires
that his minimum offense level be 34. See U.S.S.G.
§ 4B1.1(b) (instructing that a career offender facing a
statutory maximum term of imprisonment of 25 years or more
must be given an offense level of at least 34). We therefore
need not consider those arguments. See PAAC v. Rizzo, 502
F.2d 306, 309 (3d Cir. 1974) (noting that resolution of some
issues in an appeal can moot other issues that were raised);
see also Wilson, 880 F.3d at 88 n.11 (stating that the threat-
of-death sentencing enhancement did not need to be
Savani, 733 F.3d 56, 66 (3d Cir. 2013) (stating that the rule of
lenity applies to the sentencing guidelines only when “there is
a ‘grievous ambiguity or uncertainty in the statute’” (quoting
Barber v. Thomas, 560 U.S. 474, 488 (2010))).
22
considered in light of the holding with respect to the career-
offender enhancement).
III. CONCLUSION
For the foregoing reasons, we will affirm the sentence
imposed by the District Court.
23