Case Information
*1 Before: AMBRO and BARRY, Circuit Judges, and RESTANI, [*] Judge (Opinion filed: September 2, 2014)
*2 Thomas W. Patton (Argued)
Assistant Federal Public Defender Office of Federal Public Defender 1001 State Street
1111 Renaissance Centre
Erie, PA 16501
Counsel for Appellant Rebecca Ross Haywood (Argued) Assistant U.S. Attorney
Office of the United States Attorney 700 Grant Street, Suite 4000
Pittsburgh, PA 15219
Counsel for Appellee
________________ OPINION OF THE COURT ________________
AMBRO, Circuit Judge
Gregory Garrett Brown appeals the decision of the
District Court enhancing his sentence on a finding that he is a
career offender. For that finding, the Court followed the
approach set out by our Court in
United States v. Mahone
,
I. Background
In 2010, while serving time in state custody for another offense, Brown mailed a threatening letter to Magistrate Judge Susan Baxter. Judge Baxter presided over the earlier dismissal of Brown’s habeas petition. In the letter, Brown intimated that upon his release from custody he planned to kill Judge Baxter and former District Judge Sean McLaughlin. Following an investigation, Brown pled guilty to mailing a threatening communication in violation of 18 U.S.C. § 876(c).
A presentence investigation report (“PSR”) recommended, among other things, that Brown be sentenced pursuant to the career offender enhancement in the United States Sentencing Guidelines. That enhancement applies to a defendant convicted under § 876(c) if he 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). The PSR’s recommendation was based on four prior offenses in Brown’s criminal history: (1) a 1986 conviction for aggravated assault, in violation of 18 Pa. Cons. Stat. § 2702; (2) a 2004 conviction for making terroristic threats, in violation of 18 Pa. Cons. Stat. § 2706; (3) a 2005 conviction also for making terroristic threats, in violation of § 2706; and (4) a 2005 conviction for retaliating against a judicial officer, in violation of 18 Pa. Cons. Stat. § 4953.1. The two 2005 convictions arose from the same conduct.
A pair of concessions by the parties limited the dispute at sentencing and similarly limits the breadth of our review on appeal: Brown concedes that his 1986 conviction qualifies as *4 a crime of violence for purposes of the enhancement, and the Government does not contend that the 2005 retaliation conviction so qualifies. Thus the parties’ arguments at sentencing focused on whether either of Brown’s two convictions for making terroristic threats in violation of § 2706 counted as qualifying (called predicate) offenses for purposes of the enhancement.
The definitional part of the Pennsylvania statute
divides violations into three categories, only the first of
which—§ 2706(a)(1)—can be a predicate offense. That
Brown’s convictions, the Government contended, were
predicate offenses was conclusively decided by an earlier
case,
United States v. Mahone
,
Before the sentencing hearing, Judge Cohill issued tentative findings rejecting Brown’s argument. Relying on Mahone , he concluded that a violation of subsection (a)(1) was a crime of violence (thus a predicate offense under the Guidelines) and that the documents underlying Brown’s conviction demonstrated that he was convicted under that subsection in 2004. He also determined that the 2005 terroristic threats conviction did not qualify as a predicate offense because the documents supporting that conviction did not definitively establish under which subsection of the statute Brown was convicted. Addressing the effect of , Judge Cohill explained that Mahone was at most *5 “overruled in its analysis of the FACTS of the case for making a determination of career offender, not the case’s determination of (a)(1) as a crime of violence.” App. at 10 n.5 (emphasis in original). He thus applied the career offender enhancement based on Brown’s 1986 aggravated assault conviction and his 2004 terroristic threats conviction. The enhancement raised Brown’s offense level and his criminal history category, more than doubling his recommended Guidelines’ sentence from 30-37 months to 77- 96 months. The Court sentenced Brown to 84 months’ imprisonment. This timely appeal followed.
II. Jurisdiction and Standard of Review
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We exercise appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. “Whether a prior conviction constitutes a crime of violence for purposes of the career offender Guideline is a question of law over which we exercise plenary review.” United States v. Marrero , 743 F.3d 389, 393 (3d Cir. 2014).
III. Discussion
On appeal, Brown contends that the career offender enhancement did not apply to him because he has only one predicate “crime of violence” in his criminal history (the 1986 aggravated assault conviction) and the Guidelines require two predicate offenses for the enhancement to apply. The Government responds that either the 2004 or the 2005 terroristic threats conviction supplies the necessary second predicate offense. Brown asserts that his convictions under the Pennsylvania terroristic threats statute are not “crimes of violence” as defined by the Guidelines.
We conclude that, in light of the Supreme Court’s explanation in , Brown’s convictions under 18 Pa. Cons. Stat. § 2706 are not “crimes of violence” for purposes of the Guidelines’ career offender enhancement. In effect, Descamps abrogated the portion of Mahone that held otherwise.
A. The Career Offender Enhancement Under the Guidelines, the career offender enhancement applies to a defendant if:
(1) [he] was at least eighteen years old at the time [he] 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 offense; and (3) [he] 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). The issue here is the third criterion— whether the 2004 (or 2005) conviction is a “crime of violence.” How we go about deciding that issue, and what we can consider in doing so, takes up much of what follows.
The Guidelines define a “crime of violence” in
relevant part as any crime punishable by more than a year of
imprisonment that “has as an element the use, attempted use,
or threatened use of physical force against the person of
another.” U.S.S.G. § 4B1.2(a)(1).
[1]
Sentencing courts
*7
examining a prior conviction to determine whether it is a
federally defined “crime of violence” must apply a
categorical approach.
United States v. Abbott
,
[2] Although
Abbott
and involved sentencing
enhancements under the ACCA, rather than the career
offender enhancement in the Guidelines, they nonetheless
bind our analysis. “Precedent . . . requires the application of
case law interpreting ‘violent felony’ in [the] ACCA to ‘crime
of violence’ in U.S.S.G. § 4B1.2[ ] because of the substantial
similarity of the two sections.”
Marerro
,
of the statute forming the basis of the defendant’s conviction
with the elements of the ‘generic’ crime—
i.e.
, the offense as
commonly understood. The prior conviction qualifies as an
ACCA predicate only if the statute’s elements are the same
as, or narrower than, those of the generic offense.”
,
However, there is a “narrow range of cases” whereby a
court can look beyond the fact of conviction and examine
certain record evidence from the conviction to determine
whether the prior offense is a crime of violence.
Taylor
, 495
U.S. at 602. In
Descamps,
the Supreme Court explained that when a statute is “divisible”—
i.e.
, “comprises multiple,
alternative versions of the crime”—a sentencing court may
look to a limited class of extra-statutory documents to
determine which version of the offense was the basis of
conviction. 133 S. Ct. at 2284. This is known as the
*9
“modified categorical approach.”
Id.
at 2283. Under this
approach, if a statute is divisible, a court may consult “the
charging paper and jury instructions” when the conviction
resulted from a jury trial,
Taylor
, 495 U.S. at 602, or, when
the conviction resulted from a guilty plea, “the charging
document, written plea agreement, transcript of plea colloquy,
and any explicit factual finding by the trial judge to which the
defendant assented.”
Shepard v. United States
,
It bears repeating that the modified categorical approach is “applicable only to divisible statutes.” Id. ; accord id. at 2285 (“[T]he modified approach merely helps implement the categorical approach when a defendant was convicted of violating a divisible statute.”). In , for example, the Supreme Court held that the modified approach could not be applied to the California burglary statute at issue because it had a “single, indivisible set of elements.” Id. at 2282. To explain the difference between a divisible and indivisible statute, and why the modified categorical approach may be used only with the former, the Court imagined a hypothetical assault statute that simply required the “use of a ‘weapon,’” as opposed to a specific list of weapons. Id. at 2289 (internal quotation marks omitted). Including a “weapon” as an element of the crime makes the statute indivisible because it creates only an “ implied list” of the ways the offense may be committed rather than an explicit list of ways to commit the crime. Id. (emphasis in original). A sentencing court should not examine extra-statutory documents (such as a charging document or guilty plea) and *10 find that a defendant committed a predicate gun crime based on a conviction under such an indivisible statute because,
[a]s long as the statute itself requires only an indeterminate “weapon,” that is all the indictment must (or is likely to) allege and all the jury instructions must (or are likely to) mention. And most important, that is all the jury must find to convict the defendant. The jurors need not all agree on whether the defendant used a gun or a knife or a tire iron (or any other particular weapon that might appear in an imagined divisible statute), because the actual statute requires the jury to find only a “weapon.” And even if in many cases[] the jury could have readily reached consensus on the weapon used, a later sentencing court cannot supply that missing judgment. Whatever the underlying facts or the evidence presented, the defendant still would not have been convicted, in the deliberate and considered way the Constitution guarantees, of an offense with the same (or narrower) elements as the supposed generic crime (assault with a gun).
Id. at 2290.
By contrast, a statute is “divisible” when it “list[s] potential offense elements in the alternative.” Id. at 2283. For example, continuing with the Supreme Court’s hypothetical, it considered for analysis an assault statute that prohibits assault with a “gun, axe, sword, baton, slingshot, knife, machete, bat,” “grenade[], pipe bomb[], spear[], tire iron[], BB gun[], nunchucks, [or] crossbow[].” Id . at 2289-90 (internal quotation marks omitted). Under such a statute, if assault with a gun is categorically (that is, always) a predicate *11 offense, then a sentencing court may examine the documents underlying a defendant’s conviction to see whether he was charged with and convicted of using a gun. Id. at 2290.
Furthermore, a sentencing court should apply the
modified approach to a divisible statute and examine extra-
statutory documents only when “at least one, but not all” of
the separate versions of the offense is, by its elements, a
predicate offense.
Id.
at 2285. As the Fourth Circuit has
explained, “[g]eneral divisibility . . . is not enough; a statute is
divisible for purposes of applying the modified categorical
approach only if at least one of the categories into which the
statute may be divided constitutes,
by its elements
, a crime of
violence.”
United States v. Cabrera-Umanzor
,
The modified categorical approach is perhaps best explained by a generic example. Imagine a defendant previously convicted for violating Statute X. In considering whether that prior conviction is a predicate offense, a sentencing should first determine whether a violation of X is, no matter the circumstances of the particular crime, always a crime of violence. If so, it is a predicate offense under the regular categorical approach and there is no need to analyze the statute any further. If, on the other hand, the court determines that X is overbroad ( i.e. , it covers some conduct that is a crime of violence and some that is not), the court should then inquire whether X is divisible. If the court determines that X is generally divisible into, say, three versions of the offense—subsections a, b and c—it should next determine whether any of these subsections (for example, X(a)) is, by its particular elements, always a federally defined crime of violence. If so, then the court may apply the modified categorical approach to determine whether *12 the defendant was convicted under X(a). That is the typical way in which the modified categorical approach operates.
This case probes how far the modified categorical
approach logically extends if a statute is divisible into
subparts but no version of the offense (a, b or c) is in all
circumstances a crime of violence. May a sentencing court
nonetheless look to extra-statutory documents to see whether
the particular offense a defendant committed was a crime of
violence? Or must the Court halt its analysis and find that the
conviction is not a predicate offense? , which took
a hard line on how the modified categorical approach
operates, requires the latter. If a statute is generally divisible
into multiple versions, but each version is overbroad (covers
at least some conduct that is not a crime of violence) and
indivisible (cannot be further divided into sub-versions
based
on the elements
), the extra-statutory documents are irrelevant
and a sentencing court’s analysis has reached a dead-end: the
prior conviction is not a predicate offense.
See Descamps
,
We now turn to the particular statute—the Pennsylvania terroristic threats statute, 18 Pa. Cons. Stat. § 2706—underlying Brown’s 2004 and 2005 convictions.
B. The Terroristic Threats Statute Descamps instructs that we focus on the elements of the offense rather than Brown’s particular conduct in committing the offense. Section 2706 prohibits
communicat[ing], either directly or indirectly, a threat to:
(1) commit any crime of violence with intent to terrorize another; *13 (2) cause evacuation of a building, place of assembly or facility of public transportation; or
(3) otherwise cause serious public inconvenience, or cause terror or serious public inconvenience with reckless disregard of the risk of causing such terror or inconvenience.
18 Pa. Cons. Stat. § 2706(a).
Because § 2706(a) is phrased in the disjunctive—
“describing three variations of the same offense”—the statute
is divisible into subsections (a)(1), (a)(2), and (a)(3),
Mahone
,
662 F.3d at 654,
[3]
and we apply the modified categorical
approach to discern which of the three versions of the offense
a defendant was convicted of if at least one of the versions by
its elements is a crime of violence in all instances.
Descamps
,
But a determination that a defendant was previously convicted under § 2706(a)(1) does not end the inquiry. The subsection prohibits threatening to “commit any crime of violence with intent to terrorize another,” yet it does not define what is a “crime of violence.” Though we might think Pennsylvania’s definition matches the definition in the Guidelines, thereby making any violation of § 2706(a)(1) a predicate offense, we cannot conclude that without further application of the categorical approach. See Mahone , 662 F.3d at 655 (“We cannot conclude at this step in our analysis that the statutory variation in § 2706(a)(1) categorically qualifies as a [crime of violence] . . . because this variation of the statute contains the undefined term ‘crime of violence.’”).
As we observed in Mahone , another Pennsylvania statute defines a “crime of violence” for purposes of sentencing. 42 Pa. Cons. Stat. § 9714(g); Mahone, 662 F.3d at 655 (citing United States v. Ortiz-Gomez , 562 F.3d 683, 685-86 (5th Cir. 2009)). Included within that definition is a version of arson that does not necessarily “ha[ve] as an element the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G. § 4B1.2(a)(1); see Ortiz-Gomez , 562 F.3d at 686 (citing 18 Pa. Cons. Stat. §§ 3301(a)(1) and 9714(g)) (observing that in Pennsylvania arson can be committed by “start[ing] a fire for the purpose of damaging a structure . . . regardless of whether a person is present”). Because in Pennsylvania arson can exist “regardless of whether a person is present,” that crime would not be included in the Guidelines’ definition of a “crime of violence.” Mahone , 662 F.3d at 655-56 (quoting Ortiz- Gomez , 562 F.3d at 686). Hence a threat to commit arson with intent to terrorize another—a violation of § 2706(a)(1)— *15 would not be a predicate offense under § 4B1.2(a) of the Guidelines. Id. at 655-56. [4]
A violation of § 2706(a)(1) thus may sometimes be a
“crime of violence” as defined by the Guidelines (for
example, threatening to commit murder) and sometimes not
(for example, threatening to commit arson).
See id.
at 656.
Moreover, unlike the hypothetical assault statute from
Descamps
that listed each type of weapon, § 2706(a)(1) does
not list each crime of violence, and thus it is also indivisible.
See Descamps
, 133 S. Ct. at 2290.
Because the
categorization of a § 2706 offense depends on a
fact
underlying
the conviction (the crime
the defendant
threatened) that is not an element of the offense,
Descamps
instructs that the statute is overbroad and indivisible as to
(a)(1) and thus fails as a predicate offense under the
categorical approach.
See
*16 Mahone , which was decided before , applied precisely the sort of “modified factual” approach the Supreme Court has since disavowed. In Mahone , the criminal record of the defendant included a conviction under a nearly identical predecessor to the current Pennsylvania terroristic threats statute. 662 F.3d at 653. He was charged with “threaten[ing] to commit the violent crime of criminal homicide with intent to terrorize [the victim].” Id. at 656. The plea colloquy’s factual recitation included the allegation that Mahone threatened to kill the victim, which he admitted by pleading guilty. Id.
Mahone appealed the sentencing judge’s application of the enhancement, and we affirmed. Id. at 652. We concluded that, although subsection (a)(1) covered some conduct that would not be a “crime of violence” under the Guidelines, because Mahone was in fact charged with, and thus convicted of, threatening a federally defined “crime of violence,” criminal homicide, his § 2706 conviction qualified as a predicate offense under the career offender enhancement. Id. at 657.
Descamps
overrode that conclusion. Like the burglary
statute there that criminalized simple shoplifting and
“define[d] burglary more broadly than the generic offense”
under the ACCA,
C. Application of the Career Offender Enhancement to Brown Returning to our case, the District Court, relying on Mahone , analyzed the facts underlying Brown’s conviction, rather than focusing on the legal elements of the alleged predicate offense, to determine that Brown’s 2004 terroristic threats conviction qualified for the career offender enhancement. No doubt, given the facts surrounding Brown’s 2004 and 2005 convictions, they would appear to be “crimes of violence” to a layperson. The PSR explains that in 2004 Brown repeatedly threatened to harm two correctional officers at the Erie County Prison, including threats to murder the officers. The charging document for the 2004 offense alleges that Brown stated, among other things, “When I get out of here, I’m gonna murder you bitch.” In 2005, much like the current offense of conviction, Brown apparently sent a letter to a state court judge in Erie, Pennsylvania, in which he threatened to kill the judge.
But Descamps rejects that approach; the factual circumstances of the conviction are not what matter, the key is the elements of the crime. As we explained above and in Mahone , subsection (a)(1) of the Pennsylvania terroristic threats statute (the subsection under which Brown concedes he was convicted) is overbroad because, in using the undefined term “crime of violence,” it covers at least one factual circumstance—threatening to commit arson—that does not meet the Guidelines’ definition of a “crime of violence.” “The modified [categorical] approach . . . has no role to play[,]” , 133 S. Ct. at 2285, because no single subsection of § 2706, by its elements , can be categorized exclusively as a crime of violence and thus may not qualify as a predicate offense for the enhancement.
Other Circuit Courts that have examined a statute that contains multiple versions of an offense, none of which is categorically a crime of violence by its elements, have similarly concluded that the modified categorical approach does not apply to those statutes. In Cabrera-Umanzor , the Fourth Circuit was faced with a Maryland child abuse statute that was “ generally divisible” into two categories: physical abuse and sexual abuse. 728 F.3d at 352 (emphasis in original). The plea agreement demonstrated that the defendant was convicted of committing sexual abuse, but that category “d[id] not, by its elements, constitute any of the potentially applicable crimes of violence enumerated in the Guidelines Commentary.” Id. at 350, 352-53. The Court concluded that the Maryland statute is “therefore not divisible in the manner necessary to warrant application of the modified categorical approach.” Id. at 353. Similarly, the Sixth Circuit, while examining a Tennessee robbery statute, applied Descamps ’ categorical approach as follows:
Descamps may give the false impression that the presence of a divisible statute of conviction alone confers on a court the ability to turn to certain approved, extra-statutory documents. However, that is not so. The Supreme Court in Descamps , in analyzing a defendant’s conviction for burglary, repeated the caveat that “[o]ur decisions authorize review of the plea colloquy or other approved extra-statutory documents only when a statute defines burglary . . . alternatively, with one statutory phrase corresponding to the generic crime and another not. ”
United States v. Mitchell
,
While the above speaks of other Circuits, the Government, as it should, cites to our recent decision in United States v. Blair , 734 F.3d 218 (3d Cir. 2013), and argues that, where a statute is divisible at some level (here, into subsections (a)(1), (a)(2), and (a)(3)), a sentencing court may look to the extra-statutory documents to identify not only the subsection of conviction but also to determine whether the particular circumstances of the offense within that subsection comprise a “crime of violence.” See Gov’t Br. at 39-40 (citing Blair , 734 F.3d at 224-25). We agree that, at first blush, Blair appears to condone the analysis applied by the District Court here. But a careful reading of that opinion, which dealt with a different statute (18 Pa. Cons. Stat. § 3701), leads us to conclude that the portion of Blair on which the Government relies does not apply to our case.
Blair’s prior robbery convictions resulted in his
sentence as a career offender under the ACCA. On appeal we
decided whether a robbery conviction in Pennsylvania that
did not reference the applicable subsection of the statute was
a violent felony under the ACCA. As here, three alternative
versions of the offense were at issue. We considered whether
the modified categorical approach could be used to determine
that Blair was convicted under the “least culpable” of those,
§ 3701(a)(1)(iii).
Blair
,
Blair argued, among other things, that though § 3701(a)(1) as a whole is divisible into subsections (i), (ii), and (iii), the last, and applicable, subsection is not further divisible by the type of felony committed or threatened. He contended (similar to Brown’s argument here) that § 3701(a)(1)(iii) is overbroad and indivisible because “some felonies of the first and second degree involve no violence.” Id. at 225. We assumed Blair was correct that the subsection was “indivisible and categorically overbroad,” yet rejected his argument. Id. We did so despite conceding that “ Descamps makes it clear that if the relevant statute is indivisible . . . and . . . overbroad . . . , then the sentencing court cannot apply the modified categorical approach,” id . at 224. The Government seizes on the language rejecting Blair’s argument:
There is no precedent for the argument that a sentencing court, having launched on the modified categorical approach, should stop when it gets to a statutory subsection and determine again whether to proceed with that approach and whether it can consider documents it has already reviewed. . . . [T]he documents that the District Court had reviewed as part of the modified categorical analysis plainly state that the felonies associated with [Blair’s] 1991 robbery convictions were “aggravated assault.” The search for the applicable subsection in the relevant statute does not send the sentencing judge into a state of amnesia. To shift the metaphor, the blinders *21 are already off, and there is no requirement to pretend otherwise.
Id. at 225-26 (citation omitted); see also Gov’t Br. at 35-36.
Applying this logic to our case, the Government argues that, because § 2706(a) is broadly divisible into subsections (a)(1), (a)(2), and (a)(3), once the sentencing court looked to the charging document and jury instructions to determine under which of those three subsections Brown was convicted, it was also free to use those documents to determine whether the particular circumstances of Brown’s conviction under § 2706(a)(1) fit the federal definition of a “crime of violence.” Only in that way, the argument goes, are the blinders off.
Though one may question the correctness of the above
excerpt in
Blair
as a general matter,
[5]
it is distinguishable. By
*22
its own terms, a make-believe “state of amnesia” confined
only to textual elements does not apply where the sentencing
court has
already
embarked on a
permitted
use of the
modified categorical approach.
See Blair
, 734 F.3d at 225
(“There is no precedent for the argument that a sentencing
court, having launched on the modified categorical approach,
should stop when it gets to a statutory subsection and
determine again whether to proceed with that approach and
whether it can consider documents it has already reviewed.”);
id.
at 226 (“ does not demand a recursive process
wherein a district court that has already pursued the modified
categorical approach in addressing a divisible statute is
required to ignore the charging documents and guilty pleas it
has just reviewed.”). But where, as is our case, no version of
a terroristic threats offense under § 2706(a) has elements that
fit fully (that is, always) a crime of violence, a sentencing
court may not use the modified categorical approach at all.
See Descamps
,
IV. Conclusion
The Supreme Court’s concluding remarks in Descamps all but decide this case: “[The defendant] may . . . have broken and entered, and so committed generic burglary [under the ACCA]. But [the California burglary statute]—the crime of which he was convicted—does not elements, may look no further no matter how well they understand the actual facts contained in extra-statutory documents.
require the factfinder (whether jury or judge) to make that
determination.”
We make no comment on the correct sentence for Brown. Under 18 U.S.C. § 3553(a), the District Court has the discretion to fashion an appropriate sentence under the factors noted therein and in doing so is free to take into account his pattern of behavior over the years, including his conduct in 2004 and 2005. We hold only that, in light of the Supreme Court’s ruling in , the career offender enhancement is not available in this case. We thus vacate Brown’s judgment of sentence and remand for resentencing.
Notes
[*] Honorable Jane A. Restani, Judge, United States Court of International Trade, sitting by designation.
[1] A prior conviction may also be a “crime of violence” if it “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.” U.S.S.G.
[3] We cite to Mahone frequently in our analysis of § 2706 even though supersedes it. We do so because, as explained below, Mahone was abrogated only in part. Thus much of its analysis of the Pennsylvania terroristic threat statute still guides our analysis here.
[4] One might wonder why a threat to commit arson does not qualify as a predicate offense under § 4B1.2(a)(2) of the Guidelines. See supra note 1. The Government has never argued that it does, perhaps because subsection (a)(2) covers the offense of arson, not the threat to commit arson.
[5] The issue primarily would involve
Blair
’s statement that a
sentencing court can apply the modified categorical approach
to a statutory subsection that is “indivisible and categorically
overbroad.”
Blair
, 734 F.3d at 225. We understand the
instinct that there is an unjust cost for looking away from the
facts of that case. In 1991, Blair pled guilty to four counts of
first-degree robbery, in the process admitting that he
committed or threatened to commit aggravated assault in the
course of a theft.
Blair
,