United States v. Mahone
2011 U.S. App. LEXIS 22066
| 3rd Cir. | 2011Background
- Mahone pleaded guilty to felon in possession of a firearm under 18 U.S.C. § 922(g)(1).
- PSR calculated base offense level at 24 under § 2K2.1(a)(2) for at least two felony convictions of a crime of violence (COV) or a controlled substance offense.
- Mahone admitted one prior controlled substance offense but argued §2706 terroristic threats did not qualify as a COV.
- District Court held that §2706 could be a COV and sentenced Mahone to 80 months in prison with a 3-year supervised release.
- On appeal, Third Circuit analyzes whether §2706 is a COV under the guidelines using the formal categorical and, if necessary, modified categorical approach due to a divisible statute.
- Court ultimately holds Mahone’s conviction under §2706, as charged and pleaded, constitutes a COV because the predicate offense (criminal homicide) requires the threatened use of physical force against a person.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §2706 is a COV under §4B1.2(a)(1). | Mahone: §2706 lacks a universal COV element. | Government: discrete predicate could satisfy COV under modified approach. | Partially suitable under modified approach; inquiry into predicate necessary. |
| Whether the divisible nature of §2706 permits a modified categorical approach. | Disjunctive structure allows inquiry into underlying crime. | Disjunctive statute requires examining the specific predicate. | Yes; modified categorical approach applies to §2706(a) due to divisibility. |
| What is the predicate crime of violence for Mahone’s §2706 conviction. | Predicate could be any subsection that is a COV. | Only certain predicate crimes (e.g., intentional homicide) qualify. | Predicate is criminal homicide committed intentionally/knowingly, which satisfies COV. |
| Does the charging document and plea colloquy establish the predicate crime. | Conviction pleaded as threatening to commit criminal homicide. | Plea and charging document specify the predicate as criminal homicide. | Yes; charging document and plea colloquy show the predicate offense for COV. |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (1990) (formal categorical approach; focus on statutory elements)
- Leocal v. Ashcroft, 543 U.S. 1 (2004) (elements-focused inquiry for violent offenses)
- Shepard v. United States, 544 U.S. 13 (2005) (use of plea colloquy and charging document in modified approach)
- Singh v. Gonzales, 432 F.3d 533 (3d Cir. 2006) (disjunctive statute requires modified approach for COV)
- Ortiz-Gomez v. United States, 562 F.3d 683 (5th Cir. 2009) (disjunctive §2706 analysis; predicate crime consideration relevance)
- Johnson v. United States, 559 U.S. 133 (2010) (defines physical force in context of violent felonies; intent required)
- Otero v. United States, 502 F.3d 331 (3d Cir. 2007) (categorical COV requires intentional conduct, not recklessness)
- Bovkun v. Ashcroft, 283 F.3d 166 (3d Cir. 2002) (Pennsylvania statute definition and 'crime of violence' term context)