United States v. Samuel Jenkins, 68 F.4th 148

In 2008 Samuel Jenkins pleaded guilty to being a felon in possession of a firearm and received an ACCA-enhanced sentence based on three prior convictions, one of which was Pennsylvania aggravated assault under 18 Pa. Cons. Stat. § 2702(a)(3).
After Johnson v. United States (2015) invalidated ACCA’s residual clause, Jenkins moved under 28 U.S.C. § 2255 arguing § 2702(a)(3) is not an ACCA "violent felony" under the elements clause.
The District Court denied relief and granted a certificate of appealability; Jenkins appealed to the Third Circuit.
The Third Circuit applies the categorical (and where appropriate modified categorical) approach to ask whether the statute’s elements necessarily meet ACCA’s elements-clause definition of a violent felony (use/attempted use/threatened use of physical force).
The Pennsylvania Supreme Court in Harris interpreted § 2702(a)(1) to allow convictions based on omissions; the Third Circuit treated that reasoning as applicable to § 2702(a)(3).
The court concluded § 2702(a)(3) can be violated by omission, omissions do not satisfy ACCA’s requirement of "physical force," and therefore § 2702(a)(3) is not a violent felony; the court reversed and remanded to correct Jenkins’s sentence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 2702(a)(3) is a "violent felony" under ACCA’s elements clause	§ 2702(a)(3) can be violated without physical force, so it is not a violent felony	§ 2702(a)(3) requires proof of causing bodily injury, which necessarily involves physical force, so it is a violent felony	Not a violent felony — statute can be violated by omission and thus falls outside ACCA’s elements clause
Whether § 2702(a)(3) can be violated by omission (failure to act)	Yes; Pennsylvania law (Harris) shows omissions can cause bodily injury under the statute	No; statute targets causing bodily injury and thus requires active force	Yes; Harris controls and shows omissions are possible under (a)(3)
Whether an omission counts as "physical force" under ACCA	Omissions do not constitute physical force for ACCA purposes	Government urged that causing bodily injury (even by omission) satisfies physical force	Omission does not satisfy ACCA’s "physical force" requirement (Mayo binding)
Whether the realistic-probability test must be applied	Not necessary because the statutory elements themselves are broader than ACCA’s definition	Argued courts should require realistic probability that statute is applied in overly broad way	Not applied; textual mismatch alone sufficed to reject ACCA predicate status

Johnson v. United States, 576 U.S. 591 (2015) (ACCA residual clause void for vagueness)
Welch v. United States, 578 U.S. 120 (2016) (Johnson retroactive on collateral review)
Descamps v. United States, 570 U.S. 254 (2013) (categorical approach for prior-conviction predicates)
Johnson v. United States, 559 U.S. 133 (2010) ("physical force" means violent force under ACCA)
Castleman v. United States, 572 U.S. 157 (2014) ("bodily injury" must result from physical force in common-law assault context)
United States v. Mayo, 901 F.3d 218 (3d Cir. 2018) (omissions cannot satisfy ACCA physical-force requirement)
United States v. Ramos, 892 F.3d 599 (3d Cir. 2018) (§ 2702(a)(4) with deadly weapon is a crime of violence)
United States v. Peppers, 899 F.3d 211 (3d Cir. 2018) (discussion of categorical approach and ACCA predicates)
Commonwealth v. Harris, 289 A.3d 1060 (Pa. 2023) (Pa. Supreme Court: § 2702(a)(1) may be violated by omission; relied on here for (a)(3))