UNITED STATES of America v. Ricardo MARRERO, Appellant.
No. 11-2351.
United States Court of Appeals, Third Circuit.
Arguеd Jan. 26, 2012. Submitted Pursuant to Third Circuit LAR 34.1(a) July 26, 2013. Filed: Feb. 19, 2014.
743 F.3d 389
Lisa B. Freeland, Karen S. Gerlach, Office of Federal Public Defender, Pittsburgh, PA, for Defendant-Appellant.
OPINION OF THE COURT
HARDIMAN, Circuit Judge.
Ricardo Marrero appeals his judgment of sentence after pleading guilty to two counts of bank robbery. Marrero claims the District Court erred in classifying him as a “career offender” under
I
In December 2010, Marrero pleaded guilty to two counts of bank robbery in violation of
The PSR described Marrero‘s third-degree murder conviction as follows. In 1997, a man named Guy Prange approached Marrero and others outside a house in Coatesville, Pennsylvania, and asked for drugs. He was told they did not have any drugs. When Prange began walking away, Marrero ran up and hit him from behind, knocking him to the ground. Marrero then kicked Prange numerous times. Prange died in the hospital twenty-five days later from complications from a ruptured spleen. In September 2002, Marrero pleaded guilty to murder in the third degree.
The PSR also indicated that Marrero pleaded guilty to simple assault following two attacks on his wife in 2004. The transcript of Marrero‘s guilty plea colloquy states, in relеvant part:
[Assistant District Attorney]: Your Honor, the defendant is charged with two separate incidents of simple assault. On Information 2804-04, the date of May 29 of 2004 ... the defendant was seen placing his hands on the victim‘s neck. The victim‘s name is Lucy Marrero. And he did, at that time, threaten serious bodily injury. On Information 38—
The Court: Do you admit those facts?
The Defendant: Yes, Sir.
[Assistant District Attorney]: On Information 3839-04, the date was April 27, 2004, ... the defendant grabbed Mrs. Marrero by the neck, attempting to drag her upstairs to the second floor. When she tried to make a phone call, he ripped the phone cord out of the wall as she was attempting to call 911.
The Court: Do you admit those facts?
The Defendant: Yes, Sir.
The Probаtion Office concluded that Marrero‘s convictions for third-degree murder and simple assault constituted “crimes of violence” under the Guidelines. Accordingly, the PSR classified Marrero as a career offender, which increased his offense level from 21 to 32. After a threepoint reduction for acceptance of responsibility, Marrero‘s total offense level was 29. The career offender enhancement also increased his criminal history category from IV to VI. See
Marrero objected to the career offender classification, arguing that under Pennsylvania law neither third-degree murder nor simple assault qualifies as a crime of violence because “a conviction for mere recklessness cannot constitute a crime of violence.” The District Court disagreed, holding that he was a career offender under
Having found the career offender designation appropriate in Marrero‘s case, the District Court agreed with the Probation Office that his applicable Guidelines range was 151 to 188 months’ imprisonment. Marrero sought a below-Guidelines sentence, and the Government opposed that request. Applying the factors set forth in
Marrero timely appealed and has raised one issue: his classification as a career offender. If either of his prior offenses is not a crime of violence, Marrero‘s sentence, which was based in part on his career offender designation, cannot stand. See, e.g., United States v. Keller, 666 F.3d 103, 109 (3d Cir.2011); United States v. Friedman, 658 F.3d 342, 359 (3d Cir.2011). We affirmed the sentence in United States v. Marrero, 677 F.3d 155 (3d Cir.2012), and Marrero filed a petition for writ of certiorari. The Supreme Court granted the petition, vacated our judgment, and remanded for further consideration in light of its recent decision in Descamps v. United States, — U.S. —, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). Marrero v. United States, — U.S. —, 133 S.Ct. 2732, 186 L.Ed.2d 930 (2013).1 Following remand, we requested, and the parties submitted, letter briefs regarding the impact of Descamps on Marrero‘s appeal. Having reviewed Descamps and the parties’ arguments, this appeal is ripe again.
II
The District Court had jurisdiction pursuant to
III
Our legal analysis begins with the text оf the relevant Guidelines. Under
(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 ei-
ther a crime of violence or a controlled substance offense.
Under the Guidelines, “crime of violence” means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—
(1) has as an element the use, attempted use, or threatened use of physiсal force against the person of another, or
(2) 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.
A
The first question presented is whether Marrero‘s Pennsylvania simple assault conviction is a qualifying offense for purposes of the сareer offender Guideline. See
As we noted in Johnson, the Supreme Court‘s decision in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), altered the analytical framework for residual clause cases.2 587 F.3d at 207. Reasoning that the residual clause must be interpreted with reference to the enumerated crimes that precede it—namely, burglary, arson, extortion, and crimes involving the use of explosives—the Supreme Court concluded that the residual clause “covers only similar crimes, rather than every crime that ‘presents a serious potential risk of physical injury to another.‘” Begay, 553 U.S. at 142, 128 S.Ct. 1581 (quoting
To determine whether Marrero‘s case satisfies the residual clause, we first apply the categorical approach prescribed by the Supreme Court in Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). This approach requires us to ask “whether the elements of the offense are of the type that would justify its inclusion within the residual provision, without inquiring into the specific conduct of this particular offender.” James v. United States, 550 U.S. 192, 202, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007); accord Johnson, 587 F.3d at 208. In Begay, the Court concluded that the offense of driving under the influence of alcohol did not meet these residual-clause criteria. 553 U.S. at 144-48, 128 S.Ct. 1581. After Begay, “a conviction for mere recklessness cannot constitute a crime of violence” under the residual clause. United States v. Lee, 612 F.3d 170, 196 (3d Cir.2010). As we have explained, the Begay Court‘s “repeated invocation of ‘purposefulness,’ and the contrast the Court drew between that state of mind and negligence or recklessness, suggest that a crime committed recklessly is not a crime of violence.” Johnson, 587 F.3d at 210 n. 8. Our sister circuits that have considered this question have reached the same conclusion. See id. (listing cases).
We have previously applied Begay and Taylor to determine whether a conviction for simple assault under Pennsylvania law qualifies as a crime of violence under the residual clause of
Whether Marrero‘s prior conviction was for intentional or knowing simple assault, rather than merely reckless or negligent iterations of the crime, depends on the statutory elements of which Marrero was actually convicted. Id. at 208; accord United States v. Stinson, 592 F.3d 460, 462 (3d Cir.2010). To make this determination, we apply a modified categorical approach, in which we are “generally limited to examining the statutory definition, 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, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). Whether one of these Shepard-approved documents “contains sufficient information to permit a conclusion about the character of the defendant‘s previous conviction will vary from case to case.” Johnson, 587 F.3d at 213.
Marrero contests the applicability of the modified categorical approach, arguing that Pennsylvania‘s simple assault statute is “indivisible.” This definitional argument is essential to Marrero‘s appeal because Descamps held that “sentencing courts may not apply the modified cate-
In the alternative, Marrero argues that the District Court‘s inquiry was limited to determining only the elements of
Our inquiry under Shepard‘s modified categorical approach is not as constrained as Marrero suggests. It is well-established that where a statute sets forth “multiple, alternative versions of the crime,” Descamps, 133 S.Ct. at 2284, the sentencing court may resort to Shepard-approved documents to “determine whiсh statutory phrase (contained within a statutory provision that covers several different generic crimes) covered a prior conviction.” Nijhawan v. Holder, 557 U.S. 29, 37, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009); accord Descamps, 133 S.Ct. at 2284; Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 1273, 176 L.Ed.2d 1 (2010); Chambers v. United States, 555 U.S. 122, 126, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009). In Nijhawan, the Supreme Court expounded upon the proper inquiry in these cases, explaining:
[S]ometimes a separately numbered subsection of a criminal statute will refer to several different crimes, each described separately. And it can happen that some of these crimes involved violence while others do not. A single Massachusetts statute section entitled “Breaking and Entering at Night,” for example, criminalizes breaking into a “building, ship, vessel or vehicle.”
Mass. Gen. Laws, ch. 266, § 16 (West 2006) . In such an instance, we have said, a court must determine whether an offender‘s prior conviction was for the violent, rather than the nonviolent, break-ins that this single five-word phrase describes (e.g., breaking into a building rather than a vessel), by examining “theindictment or information and jury instructions,” or, if a guilty plea is at issue, by examining the plea agreement, plea colloquy, or “some comparable judicial record” of the factual basis for the plea.
557 U.S. at 33, 129 S.Ct. 2294. Moreover, Shepard authorizes sentencing courts to look to “any explicit faсtual finding by the trial judge to which the defendant assented,” which includes far more than merely the precise statutory provision to which the defendant pleaded guilty. See Shepard, 544 U.S. at 16, 125 S.Ct. 1254 (emphasis added).
Applying these principles to Marrero‘s case, we conclude that the District Court properly examined Marrero‘s simple assault plea colloquy transcript—a Shepard-approved document—to determine whether he pleaded guilty to intentional, knowing, or reckless assault. Pennsylvania‘s simple assault statute expressly lists those three different ways of violating
B
Because Marrero could not properly be designated a career offender unless both of his state convictions were “crimes of violence,” we now consider whether his third-degree murder convictiоn so qualified. Under Pennsylvania‘s general homicide statute,
(a) Murder of the first degree—A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing.
(b) Murder of the second degree—A criminal homicide constitutes murder of the second degree while defendant was engaged as a principal or an accomplice in the perpetration of a felony.
(c) Murder of the third degree—All other kinds of murder shall be murder of the third degree. Murder of the third degree is a felony of the first degree.
“wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured,” [and] malice may be found where the defendant consciously disregarded an unjustifiable and extremely high risk that his actions might cause serious bodily injury.
Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa.Super.Ct.2001) (quoting Commonwealth v. Cottam, 420 Pa.Super. 311, 616 A.2d 988, 1004 (1992)); see also Commonwealth v. Kling, 731 A.2d 145, 148 (Pa.Super.Ct.1999) (“A defendant must display a conscious disregard for almost certain death or injury such that it is tantamount to an actual desire to injure or kill; at the very least, the conduct must be such that one could reasonably anticipate death or serious bodily injury would likely and logically result.“).
Based on this definition, Marrero cites Begay to argue that third-degree murder cannot be a crime of violence because malice, the essential mens rea, might entail recklessness only. Marrero‘s reliance upon Begay is misplaced, however, because Begay‘s prohibition on counting reckless crimes as crimes of violence applies only in residual clause cases. See, e.g., Sykes v. United States, — U.S. —, 131 S.Ct. 2267, 2275-76, 180 L.Ed.2d 60 (2011) (describing Begay as a decision “concerning the reach of ACCA‘s residual clause“); United States v. Angiano, 602 F.3d 828, 829 (7th Cir.2010) (finding Begay “inapposite” to a case involving the enumerated offense of burglary of a dwelling under
Application Note 1 expressly states that the term “[c]rime of violence” includes murder.” Consistent with the categorical approach prescribed by Taylor for predicate offenses expressly listed as “crimes of violence,” we previously held that “no inquiry into the facts of the prеdicate offense is permitted when a predicate conviction is enumerated as a ‘crime of violence’ in [then-]Application Note 2 to
First, basic interpretative principles and a plain reading of Application Note 1 compel the same conclusion now as we reached in McQuilkin. “[C]ommentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.” Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993); accord Johnson, 587 F.3d at 207. Application Note 1 does not conflict with federal law and is not an erroneous reading of
Furthermore, several of our sister circuits have concluded or suggested that the ten offenses listed in Application Note 1 are “enumerated” for purposes of the crime-of-violence analysis. See United States v. Lockley, 632 F.3d 1238, 1242 (11th Cir.2011) (finding that robbery is an enumerated offense); Peterson, 629 F.3d at 436-37 (treating “manslaughter” in
Consistent with these precedents, we reaffirm that offenses listed in Application Note 1 are “enumerated” for purposes of the crime-of-violence analysis. The District Court reached the same conclusion, but erred when it held that the enumeration of “murder” was alone sufficient to render third-degree murder under Pennsylvania law a crime of violence. As we shall explain, the Court should have proceeded to apply the additional steps set forth by the Supreme Court in Taylor.
In Taylor the Court concluded that Congress did not intend for offenses enumeratеd as crimes of violence to take on whatever meaning state statutes ascribe to them; rather, Congress sought to use “uniform, categorical definitions ... regardless of technical definitions and labels under state law.” Taylor, 495 U.S. at 590, 110 S.Ct. 2143. The Court reasoned that it was “implausible that Congress intended the meaning of ‘burglary’ for purposes of [ACCA‘s]
The Taylor analysis must be applied in enumerated-offense cases like this one. “Where, as here, the Guidelines specifically designate a certain offense as a ‘crime of violence,’ we compare the elements of the crime of conviction to the generic form of the offense as defined by the States, learned treatises, and the Model Penal Code.” Lockley, 632 F.3d at 1242; accord Peterson, 629 F.3d at 435-37; United States v. Ramon Silva, 608 F.3d 663, 665 (10th Cir.2010); Walker, 595 F.3d at 443-44; United States v. Watkins, 54 F.3d 163, 166 (3d Cir.1995) (comparing a Pennsylvania burglary statute to the “generic” definition of burglary announced in Taylor). In other words, “[f]irst, a court must distill a ‘generic’ definition of the predicate offense based on how the offense
In Marrero‘s case, we begin by adopting a generic definition for “murder.” The goal of a generic definition of an enumerated offense is to capture the “offense as envisioned by the Guidelines’ drafters,” Lockley, 632 F.3d at 1242, by looking to the Model Penal Code (MPC), state laws, and learned treatises. See, e.g., Taylor, 495 U.S. at 598, 110 S.Ct. 2143; Lockley, 632 F.3d at 1242; Peterson, 629 F.3d at 436; Walker, 595 F.3d at 446. As far as we аre aware, no federal court has yet adopted a generic definition of murder for the crime-of-violence analysis.
The MPC is an ideal starting point. Section 210.2 of the MPC provides that criminal homicide constitutes murder when:
(a) it is committed purposely or knowingly; or
(b) it is committed recklessly under circumstances manifesting extreme indifference to the value of human life. Such recklessness and indifference are presumed if the actor is engaged or is an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape.
Similarly, Black‘s Law Dictionary defines “murder” as “[t]he killing of a human being with malice aforethought.” Id. at 1114 (9th ed.2009). “Depraved-heart murder” is “a murder resulting from an act so reckless and careless of the safety of others, that it demonstrates the perpetrator‘s complete lack of regard for human life.” Id. “Unintentional murder” is “[a] killing for which malice is implied because the person acted with intent to cause serious physical injury or knew that the conduct was substantially certain to cause death or serious physical injury.” Id. at 1114-15.
As with burglary in Taylor, 495 U.S. at 598, 110 S.Ct. 2143, state-law definitions of murder vary widely but share a common, definitional strand. The majority of state murder statutes criminalize at least three types of murder: (1) intentional killing; (2) killing during the commission of a felony; and (3) killing that, although unintentional, occurs in the course of dangerous conduct that demonstrates a reckless or malignant disregard for serious risks posed to human life.4 We incorporate each of these pervasive aspects of
We further hold that the meaning of third-degree murder under Pennsylvania law “substantially corresponds” to the third prong of this generic definition. In Pennsylvania, third-degree murder is “an unlawful killing with malice but without specific intent to kill.” Dunphy, 20 A.3d at 1219. Malice, in turn, involves “hardness of heart, cruelty, and rеcklessness of consequences.” DiStefano, 782 A.2d at 582. Malice exists “where the defendant consciously disregarded an unjustifiable and extremely high risk that his actions might cause serious bodily injury.” Id. Pennsylvania courts have held that the “reckless disregard for consequences” essential to malice requires that the defendant “display a conscious disregard for almost certain death or injury such that it is tantamount to an actual desire to injure or kill; at the very least, the conduct must be such that one could reasonably anticipate death or serious bodily injury would likely and logically result.” Kling, 731 A.2d at 148. This mens rеa requirement for third-degree murder mirrors the “reckless and depraved indifference to the serious dangers posed to human life” in the generic definition we have identified. Thus, third-degree murder under Pennsylvania law is equivalent to the enumerated offense of “murder” and therefore qualifies as a crime of violence under the Guidelines.
Because Marrero‘s third-degree murder and simple assault convictions both qualify as crimes of violence under