United States of America, at No. 95-2086 v. Anthony Cornish, A/K/A Jerjuan Mitchall, at No. 95-2101

America, UNITED STATES

Appellant at No.

Anthony CORNISH, Jerjuan a/k/a

Mitchall, Appellant at No.

95-2101. 95-2086, 95-2101.

Nos. Appeals, States Court

United

Third Circuit.

Argued June 1996.

Decided Jan. 1997. Rehearing for Jan.

Sur Petition Stiles, Attorney,

Michael R. Jr., Batty, S. Walter Assistant United States McGovern, (ar- Attorney, J. III Clement gued), Special Assistant United States Attor- PA, ney, Philadelphia, Appellant/Cross- Appellee. Kearney Rowley,

Maureen Chief Federal Defender, DeMasse, Appellate Senior Elaine Counsel, Epstein (argued), Robert Assistant Defender, PA, Philadelphia, Ap- Federal pellee/Cross-Appellant. ROTH,

BEFORE: SCIRICA Circuit RESTANI, Judges, Judge, Court of International Trade.* THE OPINION OF COURT RESTANI, Judge. appeal by

This court on action is before the cross-appeal by the United deten- States * tion. Restani, Judge, Honorable Jane A. Trade, by designa- sitting Court of International Jerjuan sentencing hearing, Mitehall Anthony Cornish the district court

dant held a/k/a (“Cornish”). prior The contests the that Cornish’s conviction for third de- gree robbery felony” pursu- court’s determination that Cornish’s is not a “violent district 924(e) (1994)2 not a degree third conviction is ant to 18 U.S.C. and U.S. (“USSG”) enhancement Sentencing for sentence Guidelines Manual challenges purposes, 16,1995, while Cornish the dis- 4B1.4 On November jury regard trict instructions with to court’s nish was sentenced to 108 months incarcera- stipulated prior felony tion, fact years release, the of Cornish’s supervised five and a $50 find in special conviction. We no error the district assessment. instructions, jury

court’s but find that the failing in court did err to the district STANDARD OF REVIEW by penalties provided 18 U.S.C. enhanced object As Cornish did not to the 924(e) and 4B1.4 and remand for USSG below, district court’s our instructions resentencing. plain to review is limited error under Fed. 52(b). Retos, R.Crim.P. See United States v. BACKGROUND (3d Cir.1994). 25 F.3d 1228-29 We 16, 1994, police April On two officers were plenary review over the district court’s patrol police on routine a marked vehicle interpretation application and of the sentenc they being operated when observed a car ing guidelines to the facts found. See United (Supp.App.50a-52a) (3d reckless manner. Collado, Cir. vehicle, attempted stop 1992). to the officers They vehicle reversed its direction and fled. vehicle, lights

pursued using their and DISCUSSION attempt stop in an to the vehicle. sirens (Supp.App.53a) fleeing police, While I. vehicle, driver of the later identified as Cor- Cornish claims that the district court vio- nish, gun threw a out of the driver’s side rights protected by lated his constitutional window, vehicle, jumped out of the and fled the Fifth and Sixth Amendments to United (Supp.App.54a) contin- on foot. The vehicle States Constitution when it instructed the ued forward a short distance and came to “accept” stipulated fact of his hitting rest (Supp.App.54a) after fence. felony By instructing conviction. so weapon, cali- One officer recovered the a .38 jury, argues im- Cornish the court handgun, appre- ber Colt while two others properly removed element of the crime away hended Cornish several blocks as he jury’s from the consideration. attempted (Supp. to climb over a fence. a) App.54a-55a, 187 guarantees Fifth Amendment in- September deprived liberty On Cornish was that no one will be “with law,” by grand jury single process dicted a federal on a out due and the Sixth that, possession by count of of a firearm a Amendment ensures all criminal “[i]n convict- pursuant 922(g) prosecutions, enjoy ed felon to 18 U.S.C. accused shall (1994).1 trial, trial, Following right speedy, public and an guilty February impartial jury.” found on 1995. At the U.S. Const. amend. V & VI. 922(g) provides part, person 1. 18 U.S.C. in relevant In the case of a who [18 violates any person (1) 922(g) previous shall be who "[i]t unlawful and has ] U.S.C. three — of, any has been convicted in court a crime by any court referred to U.S.C. [18 victions punishable by imprisonment for a term ex- 922(g)(1) felony ] for violent ... committed ceeding year; ship transport one ... or another, on occasions different from one such commerce, foreign possess interstate $25,000 person shall be fined more than commerce, affecting any firearm or ammu- imprisoned years, the not less than fifteen nition. ...” of, suspend court shall not the sentence to, grant person probationaiy sentence such 924(e)(1) respect provides [18 2. 2 to the conviction under U.S.C. 18 U.S.C. in relevant part 922(g)], evidence, you also as know into “these received has held Supreme Court by stipulation facts criminal convictions certain were require provisions by you accepted the de are therefore to be upon a determination rest every (Supp.App.308a) guilty evidence.” fendant without counsel, charged, beyond a he is suggestion crime with which defense After Gaudin, reasonable doubt.” charge concluded its with: 2310, 2313, 132 -U.S.-,-, course, jury, gave I of the members Of (1995). corollary necessary to A L.Ed.2d accepting the' Gov- you a choice of either that, judge prohibited “a trial is this rule is evidence, but or the defendant’s ernment’s entering judgment of conviction a from reject you you can I instructed also jury with such directing the to come forward you-really have in anybody’s So evidence. verdict, overwhelmingly how regardless of a accept can a third choice. You that sense may point in that direction.” the evidence reject anyone’s testimony, any of the Co., Supply Linen v. Martin (Supp.App.312a) evidence. 430 U.S. omitted). (citations contends that the district Cornish L.Ed.2d 642 error when it effective- committed reversible trial, parties into two Prior to the entered government on ly directed a verdict for the stipulation provided stipulations. The first felony of the conviction element the testify, agent from the if to an called on 922(g)(1) offense. Cornish relies the Alcohol, Tobacco & Firearms Bureau of opinion in reasoning in the Sixth Circuit’s question would state that the firearm Mentz, F.2d transported interstate com- shipped or (6th Cir.1988), in the defendant was which (Supp.App.l87a-88a) The second merce. robbery. A of two counts of bank convicted previ- provided that Cornish was stipulation security bank testified that officer from each punishable ously convicted of a crime Id. federally insured. the banks were year. exceeding one imprisonment for a term held that Sixth Circuit stipulations were (Supp.App.188a) These feder- jury instruction that both banks were formally into evidence at the close introduced ally improperly insured directed verdict (Supp.App.189a) government’s case. of the government on an essential ele- favor of the deliberations, jury the district Prior judge’s conclu- ment of the crime because the jury as follows: court instructed the jury left no room for the sive statement required prove is The Government Id. at 320 & n. 8. Cor- otherwise. believe every essential beyond a reasonable doubt case, present the argues nish the charged ... in order to of a crime similarly erred' when it in- district court three justify guilty____ a verdict of jury “accept” the that it must the structed necessary parts of elements or essential felony stipulated fact of Cornish’s fol- charge criminal or offense are as viction. offense, First, at the time of the lows: jury claims that because a has the Cornish previously been convicted of defendant had reject stipulation, appropriate power to the punishable by imprisonment of a crime jury regarding stipulations is to instruction year. than a And here it’s more jury may, is not the effect that 16th, 1994, had April that on defendant to, required accept stipulation as evi- previously convicted of such crime____ proved. that fact dence and consider as the Devitt and Blackmar model nish cites defen- The second element is charge provides which knowingly possessed dant firearm interstate or gun, and the third is stipu- attorneys on both sides When the foreign was affected to some commerce fact, agree as to the existence of late degree____ (Supp.App.304-05a) may stipulation you accept the as evidence regard proved. that fact as You are jury as court also instructed the The district so, however, you required to since “Evidence is do types of evidence: to various witnesses, judge of the facts. testimony exhibits are the sole of the Devitt, B. Id. at 679. Edward J. Hon. Charles reasonable doubt.” The court Hon. Wolff, Blaekmar, concluded that: A. and Kevin F. Michael O’Malley, Jury Practice and In special evidentiary Federal In view of the charac- structions, Criminal, 12.03, stipulation potent Civil and ter of a an than —more argues that the district “guilty admission but less draconian than a similarly plea” power failure to instruct “acquit court’s —and trial, reason,” developing proper a structural defect lan- constituted reversal, guage irrespective regarding of the evi instruction requiring objec stipulations contemporaneous effect of as to an element of a or whether a dence requires criminal offense a trial court to made. tion was walk a careful line. The government counters that the district entitled to have the court inform the jury instruction did not amount to a court’s powerful stipulation effect of a but a government of the directed verdict favor verdict, partial court cannot direct a even a of the crime as the on an essential element verdict, against the defendant. jury the to not district court never instructed (citation omitted). noting Id. While prior felony the conviction element. consider appellate prop that no case has set forth the government that contends the court sim- language jury er instruction jury of three ply informed the the elements situation, approvingly the court cited the required proof beyond a that reasonable jury Eighth model instructions for the accurately parties that doubt and stated the language Ninth Circuits which both include agreed prior felony to the existence of a had that, given stipulation, jury the “should ... government distinguishes conviction. stipulated] having treat [the facts as opinion in Mentz from the the Sixth Circuit’s proved.” Id. The court then held that the ease, in present that Mentz did not involve jury district court’s instruction to the that it stipulation by parties to an the must “consider” the elements and that it crime, but court’s the the district assessment “should” find the estab sufficiency presented, of the evidence through stipula lished those elements the on an element of the crime. tions was not erroneous. Id. Appeal the We note Courts The Tenth Circuit took a somewhat differ- recently Mason, Fourth and Tenth Circuit have ad approach. ent United States v. Muse, (10th Cir.1996). Mason, dressed this issue United States v. F.3d 471 In the — (4th denied, Cir.), 83 F.3d 672 cert. U.S. prosecuted defendant was under 18 U.S.C. -, (1996), § 117 S.Ct. 136 L.Ed.2d 186 922(g) parties stipulated to the Mason, prior felony and United States v. 85 F.3d 471 conviction and interstate com- (10th Cir.1996).3 Muse, the defendant merce elements of the crime. Id. at 471-72. prosecuted argued also under 18 appeal, U.S.C. On Mason the district 922(g)(1). improperly 673-74. ar court invaded the province 83 F.3d at Muse gued erroneously jury by removing stipulated in the elements that the district consideration, jury’s relying from jury the on the effect of certain the on the structed opinion in v. stipulations, stipulations in Sixth Circuit’s similar to the the (6th Cir.1995). Jones, 65 F.3d 520 85 F.3d at present case. Id. at 677. The Fourth Cir “[wjhile Finding no error in the district court’s stipulation cuit found a valid instructions, jury the Tenth Circuit reasoned prosecution the relieves the burden producing any other evidence in order to stipulated, jury

establish the fact it does not re need not resolve the existence [T]he prosecution stipu- from parties lieve the the burden of an element when the have every beyond that ele- ‘proving element of the crime’ lated to the facts which establish jury regard 3. We also note that Sixth Circuit Court of instruction with stipulation previously Appeal that Jones was a has considered this issue in United States Jones, error, (6th Cir.), reh'g 65 F.3d vacated and victed felon constituted reversible v. (6th Cir.1995). yet opinion granted, Circuit has not issued its en en banc 73 F.3d 616 Sixth Although originally the Sixth Circuit held that banc. ment____ (1985)). 15, 105 84 L.Ed.2d judge removed has not [T]he Kibbe, jury; also Henderson v. U.S. of an issue from the See consideration 1730, 1736-37, specifically, by 52 L.Ed.2d More parties have. (“It im facts, case in which an a defendant is the rare stipulating to elemental justify of a jury proper will reversal right trial on that instruction waives objection has when no criminal conviction element. court.”). trial been made rejected what it Tenth Circuit also Id. The premise in underlying Here, Jones— deemed the no that Cornish was there is doubt 473. The court jury nullification. Id. at prior on three occasions. convicted of although in a criminal satisfy reasoned conviction element These practical power to render a case has the 922(g). is there doubt 18 U.S.C. Nor law, evidence or the stipulation verdict at odds with the vol- entered into the that Cornish power to not have the lawful untarily. does to the Apparently power, reject stipulated hearing facts because such from stipulation to shield the exercised, jurors’ with the background if would conflict of his the factual facts, circumstances, duty law to the sworn this set of convictions. Under (citing regardless of outcome. court’s instruction could the district (11th Trujillo,. fairness, integrity seriously affected Cir.1983)). conclusion, the court stated judicial proceed- public reputation of the that a de- holding “simply Therefore, reaffirms exercising that its our ings. discretion right 52(b), deter- may may fendant waive this we affirm the district under Rule particular it is in mination on a issue when court. to do so.” Id. at 474.

his interest were reach the same conclusion We would Although possible it is to waive constitu- error standard be apply we to a harmless Supreme prece- rights, tional neither Court instruction did not cause the district court’s Pro- nor the Federal Rules of Criminal dent rights and affect the defendant’s1substantial guidance on how to provide cedure clear beyond á reasonable doubt. .was harmless partial accomplish properly a waiver 18, 24, California, 386 U.S. 87 Chapman v. right by jury. not resolve to trial We need (1967); 824, 828, 28 17 L.Ed.2d 705 S.Ct. however, issue, in this case.4 that 52(a). 2111; Fed.R.Crim.P. U.S.C. noted, object to the As Cornish did not Muse, the Fourth Circuit As noted Therefore, trial. we re instruction at circuits the model instructions some plain error. United States v. Soko view require the district court to instruct the (3d Cir.1996); low, 396, Fed. they accept proven that “should” as the facts 52(b). Supreme has R.Crim.P. The Court See, stipulated. parties to which the have plain defined error: Jury e.g., Manual Model Criminal In of “plain” be an “error” that is There must the District Courts structions substantial rights.” “affect[s] and (1992) (“The govern Eighth 2.03 Circuit 52(b) Moreover, the decision to Rule leaves stipulated— ment and the have defendants within the sound correct the forfeited error is, they agreed facts have certain —that Appeals, discretion of the Court just as counsel have stated. You should are that discretion court should not exercise having been therefore treat those facts as “seriously affect[s] unless the error Model proved.”); Ninth Circuit Manual of fairness, public reputation of integrity or (1995) § 2.04 Jury Criminal Instructions judicial proceedings.” (“The parties to certain facts Olano, 725, 732, you. to You should that have been stated v. 507 U.S. 1776, having 1770, treat these facts as 123 L.Ed.2d 508 therefore 113 S.Ct. 1, haz- Young, proved.”). These formulations avoid the (quoting 470 U.S. United reaching Cemetery requires constitutional Lyng Prot. that courts avoid v. Northwest Indian See 445-46, 1319, Assn., 439, deciding necessity questions in advance of the 485 U.S. 884, 1323-24, (1988) (''fundamental them”); Breyer, 41 F.3d United States v. 99 L.Ed.2d 534 (3d Cir.1994) (same). longstanding principle judicial restraint not, ard, directing a verdict on district court apparent or did not consider Cor degree robbery and would be shielded from nish’s conviction for a factual issue third challenge. felony” pursuant constitutional “violent to 18 U.S.C. 924(e)(2)(B)(i) thus, calculated Cor nish’s level offense as 23 with a criminal

II. IV, history category of resulting in a sentenc trial, government ing range Prior to filed a of 100 to months and an actual of Defendant’s Prior Convictions for Notice sentence of 108 months incarceration. Unit 18, Sentencing Cornish, Enhanced United 2, Under Title ed v. States No. 924(e) Code, (Supp.App.314a (E.D.Pa. 1996). Section 29, WL 144426 Mar. Had 15a) copies attached certified of the de Cornish been classified as an armed career contending convictions5 fendant’s pursuant 924(e), criminal to 18 U.S.C. they constituted felonies” as defined “violent offense level would have been 33 924(e)(2)(B).6 Cornish filed 18 U.S.C. resulting sentencing range of 235 to 293 Investigation objections to the Presentence subject year months and mandatory a 15 e challenging Report the United States Proba Id.; minimum. se also USSG subject tion conclusion that he was Office’s 4B1.4(b)(3)(B). chal 924(e). pursuant an sentence enhanced lenges ruling that Cor conceded that his convictions for degree felony robbery nish’s third conviction 30, July robbery on November 1983 and felony” was not a “violent and failure to were felonies” “violent penalties the enhanced 924(e)(2)(B), objected to the inclusion Supreme Court has considered the degree robbery of his October 1984 third meaning “burglary” of a as a felony.” (SuppApp. conviction as a “violent 924(e) 317a-18a) instance, in Taylor under 18 U.S.C. Cornish was States, robbery, degree felony 495 U.S. convicted of a third pursuant Taylor, 18 Pa. Cons.Stat. Ann. 109 L.Ed.2d (West 1983).7 3701(a)(1)(v) § Court was asked to determine whether a copies presents potential of 5. The submitted certified duct that a serious risk of physical injury prior robbery Cornish's three convictions to es- another. following record of convictions: tablish Pennsylvania robbery provides: 7.The statute (a) 28, 1983, Offense defined.— 1. On or about November in Phila- (1) if, person guilty robbery A is of in the Court, delphia Common Pleas case # 8306- theft, committing of a course he: 2147, degree Cornish was convicted of second bodily injury upon inflicts serious anoth- felony robbery charges and sentenced to a er; imprisonment. term of (ii) intentionally threatens another with or 25, 1984, 2. On or about October in Philadel- puts bodily him in fear of immediate serious Court, 8312-2836, phia Common Pleas case # injury; degree felony Cornish was convicted of third (iii) immediately commits or threatens robbery charges and sentenced to a term of felony of the first or second commit degree; imprisonment. July Philadelphia 3. On or about (iv) bodily upon injury inflicts another or Court, Pleas # Common case intentionally puts threatens another with or degree felony nish was convicted of second bodily injury; him in fear of immediate charges robbery and sentenced to a term of (v) physically property takes or removes imprisonment. person of however from slight. another force 314a-15a; 14a-21a) App. (Supp.App. (2) An act shall be deemed "in the course of 924(e)(2)(B) § a 6. 18 U.S.C. Code defines "vio- attempt committing a theft” if it occurs in an felony” lent as: flight attempt to commit theft or in after the [A]ny punishable by imprisonment crime commission. (b) exceeding Grading. Robbery year, under subsection term one ... that— — use, use, (a)(l)(iv) (i) attempted felony degree; of the second rob- has as an element the is (a)(l)(v) physical against bery felony use of under subsection is a of or threatened force another; otherwise, degree; felony person is a of the third it arson, extortion, (ii) burglary, degree. is involves first explosives, § 18 Pa.Cons.Stat.Ann. 3701. use of or otherwise involves 308 along with the certi burglary prior under in the conviction- second-degree

conviction for conviction, inquiry qualify sufficient to as fied record of Missouri law was 578, at felony.” beyond Id. at 110 S.Ct. “violent not extend these documents.” should rejected (citation omitted). the view of the 2147 - 18. The Court holding Id. appeals Congress intended the court of robbery conspiracy to commit was crime of “burglary” under meaning meaning of felony” within the “violent 924(e)(2)(B)(ii) dependent on the defi be 924(e)(2)(B)(i), that rob the court noted Id. adopted the state of conviction. nition felony” purposes of bery a “violent for is 590, at 2154. Such a definition at 110 S.Ct. 924(e). (citing at States v. Id. United 924(e)’s sentence enhance lead to would (fed (3d Cir.)) Palmer, F.2d inconsistently applied for the ment to be attempted robbery conviction eral bank prosecuted in by defendants same conduct felony” “clearly” under is burglary differently. that define states denied, 924(e)), 493 U.S. cert. 590-91, 110 at 2154. The Court at S.Ct. (1989); 233, 107 L.Ed.2d 185 United found that: (7th Dickerson, F.2d interpretation only plausible [T]he Cir.1990) (conviction under state 924(e)(2)(B)(ii) like the rest of felony for per constitutes a se violent statute statute, generally it re- the enhancement 924(e)). purposes Because the court only to the quires the trial court to look conspira of criminal found that the elements statutory defini- fact of conviction cy to commit subsume the elements categorical tion of the offense. This robbery, held the use of the' court however, may permit the sen- approach, part force was a of McAl physical threat or beyond tencing go court to the mere fact for the crime of con lister’s conviction range in a narrow of cases conviction Preston, robbery. spiracy to commit a actually required to find where a F.2d at 86-87. generic burglary. all the elements of government further claims that (footnote omit- Id. at Pennsylvania rob circuit ruled on whether ted). conclusion, that, “an the Court held bery a “violent conviction constitutes ‘burglary’ purposes offense constitutes 924(e) dealing a more recent case 924(e) if either its sentence enhancement required proof is to demonstrate with what substantially corresponds statutory definition necessary prior convictions the fact of charging paper ‘generic’ burglary, or the Watkins, actually required instructions Cir.1995). (3d Watkins, In the defen 163 generic jury to find all the elements of bur- argued per dant se rule that certified Id. glary in order to convict the defendant.” judgments should copies of the of conviction has addressed the issue of This circuit every sentencing a required be ease before felony” pursuant constitutes a “violent what may the defendant’s court determine 924(e)(2)(B) § in United States to 18 U.S.C. “violent felonies.” Id. convictions are (3d Preston, Cir.1990), F.2d 81 cert. 910 at 168. The court noted that Watson was 498, denied, 1002, 112 U.S. argument because forced to make this broad (1991). Preston, In the court L.Ed.2d 1085 presentence report the information whether the defendant’s considered clearly the district court to ascertain enabled conspiracy criminal to commit conviction for conviction, Pennsylvania’s the statutes of felony” pur robbery constituted a “violent statutes, robbery encompass burglary and 924(e). § Id. at 84. The suant to 18 U.S.C. scope only that falls within the of conduct categorical approved of the use of a court (ii). 924(e)(2)(B)(i) § court Id. The prior convic approach to determine which that, previously held “[w]e stated by sentencing may tions be considered Pa. Ann. 924(e). [18 conviction under Cons.Stat. Id. at 85. The court court under “[wjhen 3701]"necessarily involves the ‘use or that, necessary, sentencing noted physical qualifies force’ which threat of may to the relevant indictment or court refer ” felony.’ as a ‘violent Id. papers instructions ACCA treatment information

309 Preston, thereby (citing qualifying felony” 910 F.2d at 86- as a “violent at 168 n. under 924(e). 87). Id. at 410. Supreme Pennsylvania The Court of has argues that Preston Watkins held that: inapposite as neither involved a convic- are robbery degree. third [A]ny applied tion for amount of person force that both Preston and Watkins committing nish states brings while a theft that act robberies, necessarily which involved armed scope robbery within the of under Pa. [18 bodily inju- gave to a risk of substantial 3701(l)(a)(v)____ rise Ann.] Cons.Stat. Preston, 84; Watkins, F.2d at ry. See degree immaterial, of actual is force at 164-65. Cornish claims em- 54 F.3d long so as it separate is sufficient to placed on a phasis should instead be case in, property victim from his on or about his which dealt with a from the D.C. Circuit body. closely resembling third crime more de- Brown, Commonwealth v. 506 Pa. gree robbery for which he was convicted. Brown, A.2d the defen Mathis, 963 F.2d 399 See United victim, up quickly dant ran from behind the (D.C.Cir.1992). Mathis, the court held grabbed purse, away. her and ran Id. at 22- that a conviction under section Pennsylvania Supreme 740. The Court not constitute a 2901 of the D.C.Code did by found that the force used Brown awas purposes of 18 U.S.C. touching “harmful person, accompa provi- Id. at 409. The D.C.Code compel nied with sufficient force to the victim provided sion at issue part with the conscious control of her violence, by force or whether Whoever property, supports conviction against by stealthy sudden or resistance Moreover, 3701.” Id. at 742. fear, snatching, by putting in seizure or “[t]his stated conduct substantial person take from the or immediate shall ly differs from the case of the thief who possession anything of another actual merely property takes the of another with value, guilty robbery____ thereof, permanently deprive intent him (citing n. Ann. 22- Id. at 401 D.C.Code using no force or threat of force on the (1973)). defendant, with an accom- pick-pocket (Chapter victim—like 39 of by plice, moving robbed a woman on a bus Code).” the Crimes Id. Unlike the D.C. “sandwiching” her between them and statute, “stealthy seizure” is not included “stealthy through seizure” took from her $30 Pennsylvania’s robbery statute. purse. appeals agreed The court of degree Cornish was convicted of third rob interpretation of the stat- bery pursuant to 18 Pa.Cons.Stat.Ann. utory language and found that the statute 3701(a)(l)(v), requires which specifically had amended to include “an theft, committing person “phys course of taking property person unlawful from the ically property takes or removes from the another, by stealthy sudden seizure slight.” person of another however force fear, snatching, putting in without violence or 3701(a)(1)(v) (empha 18 Pa.Cons.Stat.Ann. only and with the exercise of sufficient force added). reading on a literal sis Based accomplish taking proper- the actual statute, interpretation ty.” (quoting Id. at 408 Turner v. United Court, Pennsylvania Supreme and this cir (D.C.Cir.1926)). States, Preston, cuit’s decisions in Watkins and we “stealthy court then held that seizure” under find that conviction for section 22-2901 is not a “violent with- statute, Pennsylvania robbery regardless 924(e), meaning in the “because the degree, has as an use satisfy proof required to the element of force against person of force another. We in the local statute falls below which 924(e).” hold that Cornish’s conviction for third de Congress enacting intended in however, gree robbery felony” pursuant is a “violent court, at 409. The remanded the 924(e)(2)(B)(i) and the district U.S.C. case to the district court for an examination failing in court erred the enhanced of the record of the defendant’s (i.e., Accordingly, penalties of the case charg- viction instructions and ing resentencing papers) to see whether it satisfies the is remanded for consistent uniform, opinion. of “use of force” federal standard SLOVITER, Judge, Chief

Present: MANSMANN, STAPLETON,

BECKER,

GREENBERG, SCIRICA, COWEN, ALITO, ROTH,

NYGAARD, LEWIS and RESTANI,

McKEE, Judges, Circuit * Judge, Trade Court International PETITION FOR REHEARING

SUR 31, 1997

Jan. by appel- petition rehearing for filed Anthony in the above-entitled

lant having judges to the

case been submitted of this Court participated the decision

who judges of all other available circuit

and to service, regular active and no

the circuit having

judge who concurred the decision majority rehearing, and a

asked for judges regular service

circuit of the circuit petition having rehearing, voted rehearing by panel and the Court

banc, is denied. of America

UNITED STATES MURRAY, Appellant.

Michael

No. 96-7072. Appeals, States Court of

Third Circuit.

Argued Aug. 1996.

Decided Jan. * Restani, tion, panel rehearing only. Judge, Honorable Jane A. as to Trade, by designa- Court of International who sat

Case Details

Case Name: United States of America, at No. 95-2086 v. Anthony Cornish, A/K/A Jerjuan Mitchall, at No. 95-2101

Court Name: Court of Appeals for the Third Circuit

Date Published: Jan 31, 1997

Citation: 103 F.3d 302

Docket Number: 95-2086, 95-2101

Court Abbreviation: 3rd Cir.