64 F.4th 111
3rd Cir.2023Background
- Henderson pleaded guilty to possession with intent to distribute fentanyl; no plea agreement.
- At sentencing the District Court applied the career-offender enhancement under U.S.S.G. § 4B1.1 based on: a 2015 Pennsylvania controlled-substance conviction and a 2005 Pennsylvania conviction for conspiracy to commit robbery, treating the latter as a "crime of violence."
- The career-offender finding raised Henderson’s Guidelines range from 70–87 months to 188–235 months; the court nonetheless imposed a 120-month sentence (below the Guidelines) citing mental-health issues but adopted the PSR’s career-offender determination.
- Henderson appealed the career-offender ruling and an order requiring polygraph testing as a supervised-release condition; the panel considered whether Preston v. United States remained controlling after intervening Supreme Court precedents.
- The Third Circuit held that Preston is effectively overruled by later Supreme Court decisions and precedent (e.g., Kisor, Mathis, Taylor, Nasir, Abreu), concluded Pennsylvania conspiracy to commit robbery is not a "crime of violence" under § 4B1.2(a), vacated Henderson’s sentence, and remanded for resentencing with instructions about individualized findings for any polygraph condition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Pennsylvania conspiracy to commit robbery qualifies as a "crime of violence" for career-offender purposes | Henderson: Conspiracy is not a crime of violence; Preston is inconsistent with Mathis/Kisor/Taylor and Abreu; any failure to object was forfeiture, not waiver | Government: Defendant acquiesced to PSR and relied on Preston; no error at sentencing under then-controlling law | Court: Forfeiture (plain-error) review applies; District Court plainly erred. Under current Supreme Court and Third Circuit precedent, conspiracy does not qualify; Preston overruled; vacate and remand for resentencing. |
| Whether Henderson waived the challenge by not objecting at sentencing | Henderson: Failure to object constituted forfeiture; could not knowingly waive a right not yet recognized | Government: Argument that Henderson invited/waived the error by accepting PSR career-offender designation | Court: No waiver; mere acquiescence is forfeiture. Applied plain-error review and found error plain and prejudicial. |
| Whether requiring submission to polygraph testing as a supervised-release condition was permissible | Henderson: Polygraph condition was imposed without individualized findings and is inappropriate here | Government: Court routinely imposes polygraphs and prior sex-offense and some drug-case precedent supports it | Court: Polygraph testing can be permissible but District Court gave no individualized justification; on remand the court must analyze and record a specific rationale if it re-imposes the condition. |
Key Cases Cited
- United States v. Abreu, 32 F.4th 271 (3d Cir. 2022) (concluding conspiracies are excluded from the Guidelines' crime-of-violence definition)
- Preston v. United States, 910 F.2d 81 (3d Cir. 1990) (earlier panel holding Pennsylvania conspiracy to commit robbery was a violent felony)
- Kisor v. Wilkie, 139 S. Ct. 2400 (2019) (limits deference to agency interpretations and requires traditional tools of construction)
- Mathis v. United States, 579 U.S. 500 (2016) (categorical approach and elements analysis for determining crime-of-violence status)
- United States v. Taylor, 142 S. Ct. 2015 (2022) (attempted Hobbs Act robbery does not qualify as a crime of violence under categorical approach)
- United States v. Nasir, 17 F.4th 459 (3d Cir. 2021) (en banc) (applied Kisor to conclude inchoate offenses are excluded where text is unambiguous)
- Rosales-Mireles v. United States, 138 S. Ct. 1897 (2018) (discussing plain-error appellate-review standard)