*1 UNITED STATES America CHAPMAN, Appellant
Shaun
No. 16-1810 Court of Appeals,
Third Circuit.
Argued November
(Filed: August *2 Hickton, Esq., J. Ross
David Rebecca [ARGUED], Haywood, Esq. Office of the Street, Attorney, 700 Grant 15219, PA Pittsburgh, Suite Attor- neys Appellee for JORDAN, GREENAWAY, JR., Before: RENDELL, Judges. and Circuit OPINION GREENAWAY, JR., Judge. Circuit Chapman appeals Shaun the District Court’s of the career offender to his sentence calculation Sentencing under the United States Guide- n (the “Guidelines”). Chapman lines con- convictions-pursuant tends that his to 18 qualify U.S.C. do as crimes appeal requires violence. This tous deter- 876(c)—which proscribes mine whether mailing a communication- containing a threat to of the address- violence, ee or of another —is crime by defined the Guidelines. we Because agree District Chap- Court that .the man’s crimes violence convictions meaning Guidelines, of the within we will affirm. Background
I. and Factual Procedural History Background A. Factual serving a prison While sentence in state Chapman wrote letter—eventu- ally intercepted prison staff—threaten- W; ing to kill George President Bush. after, Shortly in an interview with Secret agents, Chapman Service admitted that he to kill the wanted President and went on to make additional threats. A few months later, grand jury federal returned Wade, Krauss, Esq., James Ronald A. charging Chapman V. with threat- indictment [ARGUED], Esq. President, Office of ening the Federal violation Defender, Street, 871(a). Public Chapman pled guilty Chestnut Harrisburg, Suite PA Attor- imprison- was sentenced 30 months’ neys Appellant ment. sentencing, Comm’n shortly
In his [hereinafter after government also Manual]. mailed a letter dis- noted that Chapman federal adopted other circuits the same judge, posi- which contained threats had trict court 876(c). Meanwhile, tion as to other staff. judge court *3 876(c) argued § time, is not grand jury a a crime This federal that. returned require violence it Chapman does “vio- charging indictment because an .not communication, force,” physical in lent it mailing threatening a and therefore does 876(c). use, § “have as element the Chapman attempt- violation of 18 not an U.S.C. use, or App. ed use of force.” threatened] to an 48 months’ was sentenced additional 49-52. imprisonment. rejected The District Court Chapman’s from
Chapman was released federal cus- argument after, that a conviction April he and concluded tody Soon violated crime, 876(c) § under is a supervised terms of his release and violence. The District impris- “express Court noted lan- of months’ received sentence sentence, guage and the semantic structure of serving [§ ] this onment. While 876(c) Chapman’s U,S. argument. to Attor- Chapman refute[d]” mailed a letter App. Applying offender en- career ney’s Office for the Middle' District hancement, District sentenced Pennsylvania. The letter contained threats Chapman to prosecutor imprisonment, who han- 70 months’ against the federal which is at the bottom of the proceedings, as Chapman’s dled revocation range. timely appeal This followed. probation as the officer involved with well put Chap- actions Chapman’s case. These II. AND JURISDICTION STANDARD in his predicament. man current OF REVIEW History B. Procedural jurisdiction District Court had § pursuant to 18 3231. This Court May grand jury In a federal re- U.S.C. jurisdiction has pursuant count of mail- 18 U.S.C. turned an indictment one 3742(a) § § communication, and 28 1291.'“Whether threatening in viola- ... 876(c). conviction constitutes a crime pled § tion of 18 U.S.C. count, purposes violence for of the career offend plea to the one guilty without question er is a law over Guideline agreement. plenary which we review.” exercise sentencing hearing, At March 2016 Brown, 185, 188 (3d States v. District Court considered omitted). (internal marks quotation (“PSR”). presentence investigation report PSR, government Based on the recom- III. ANALYSIS that Chapman mended receive the career conviction here Chapman argues that his his “instant offender enhancement because qualify previous and a conviction do felony that is offense conviction [was] crimes of violence under Guidelines. ... a crime of violence” and he “ha[d] disagree.1 We prior felony of ... a least two convictions Guidelines, designated Sentencing crime of violence.” U.S. Guide- one is Under the (U.S. 4Bl.l(a) § Sentencing lines Manual a career if: Chapman's argument 1. The thrust of focuses the President the United States”—is 876(c)' Appel- § on whether 18 U.S.C. crime of crime of violence is left to a footnote. violence; 871(a)—which (abstaining § from whether 18 U.S.C. lant’s Br. at 9 n. 5 discussion 871(a) mailing punishes "any is a crime of violence but take the life whether of, kidnap, bodily upon noting "would seem or to inflict harm that the (1)[he] law, eighteen years punishable by imprisonment at least old state committed the instant year, [he]- at the time exceeding term that ... has as conviction; (2) instant of- úse, offense of use, attempted element is a fense of conviction threatened use or a either a crime violence controlled Guidelines Manual another.” offense; (3) has at [he] substance 4B1.2(a)(l).2 discussing It bears of ei- prior felony convictions least two meaning “physical of “use” and force.” of violence or a controlled ther a crime offense.
substance The word “use” means “the inten force, employment generally tional of ... 4Bl.l(a). Both the Guidelines Manual Gonzales, end.” Tran some obtain previous and the convic- instant conviction *4 2005). violating tion at were 470 word “[T]he issue here Cir. 876(c), prohibits mailing § which ‘use’ the conveys' thing U.S.C. idea that used the kidnap any person any to or “any threat ... has been the made user’s instrument.” person to the of the address- Castleman, U.S. —, United v. States or of ee another.” 1405, 1415, 134 S.Ct. 426 (2014) (some quotation marks internal
To determine whether con- omitted). § ca- could serve victions under as offenses, will predicate reer we force,” Turning to the “physical Su
first
the
examine
definition
“crime
preme
has
phrase
Court
this
to
defined
violence,”
by
as
defined
force,”
words,
“violent
4B1.2(a)(l).
mean
in.
Then,
compare
§
other
this
we will
capable
causing physical
.of
“force
or
pain
definition to the
the statute
elements
forming
of Chapman’s
v.
injury
the basis
convic-
to
Johnson
person.”
another
tions.
133, 140,
559
U.S.
1265, 176
(2010).3
important
It is
L.Ed.2d
of “Crime of
A. Definition
Vio-
to
physical
note that
use of
force does
the
lence,”
the Career
Pursuant
to
require
person employing
not
that
Enhancement
Offender
to—ie.,
directly apply
force
harm
strike—
'
principle
from
of vio-
victim.
derive this
Guidelines define “crime
We
Castleman,
United States v.
lence” as
“any offense under federal
where
Memorandum,
apply’’);
Sentencing
Chapman
dispute
to
see
2.
does not
also
that he was con-
Chapman,
United States v.
No. 15-cr-094
im-
punishable
offenses
victed
that
(M.D.
2016),
ECF No.
at n.
Pa. Feb.
exceeding
year.
prisonment for
term
same,
agree
analysis
We
that the
is the
will therefore
Court's
affirm District
hold
Although
en
involved
Johnson
871(a)
that a violation of
is a crime of
hancement under the Armed Career Criminal
Santos,
violence. See
States v.
(ACCA),
924(e),
Act
rather than
(1st
1997)
871(a)
(holding
that
Guideline,
the career offender
Johnson still
“has as an
[
element the
threatened use of
J
analysis.
Hopkins,
binds our
United States v.
(inter
physical
against
person”
force
another
(3d Cir. 2009)
(“[T]he
omitted));
quotation
nal
marks
.
a violent
under the ACCA
definition
McCaleb,
sufficiently
is
similar to the definition of
(“No semantical contrivance can avoid the
of,
Sentencing
crime
violence under
simple conclusion
the conduct
that
involved
authority interpreting one
Guidelines [so] that
871(a)]
[§
is ...
the 'threatened use of
”
...,
(foot
generally applied
other
to the
physical
person
[ ]
anoth
omitted)).
note
”).
er.’
Supreme
rejected
the contention
But
to
sufficiently explain
fails
knowingly
intentionally poisoning why
Castleman’s
not -ap-
should
ply
employing
here. If
device
cause
not
another
does
constitute a use
harm indirectly (e.g., pulling
trigger
force:
gun)
meets the definition of “physical
[Respondent’s]
The “use of
ex-
force” in
force,” as used in misdemeanor
“sprinkl[ing]”
is not
ample
the act of
violence, then
it stands
reason-that
poison;
employing poison
is the act of
it
same action
“physi-
meets
definition
knowingly
device
cause
as
force,”
cal
in felony
as
crime of
used
vio-
indirectly,
That the harm
harm.
occurs
4B1.1(a)(1)
Otherwise, §
lence.
only
would
(as
directly
rather than
a kick or
apply
require
explicitly
to.offenses that
punch),
not
does
matter. Under
[Re- punch, kick, or some
form of touch-
-other
all,
logic,
spondent’s]
say
after
one could
ing, that is more than offensive.
there-
We
trigger on
pulling
gun
not a
force,”
fore
of “physical
find that
“use”
bullet,
“use of force”
it is
because
4B1.2(a)(l),
used in
the inten-
involves
trigger,
actually
strikes the
employment
tional
something capable
victim.
causing physical pain or
injury
another
person, regardless of whether the perpe-
at 1415.
*5
body.4
trator struck the victim’s
that the
in Castle-
We understand
Comparing
B. The
applied
man
of
Framework for
common-law -definition
Chapman’s
to the
by
Convictions
“force”—which is satisfied
offensive
of
Definition
“Crime of Violence”
touching—to
meaning
“physical
of
force,” as
in
crime of
used
“misdemeanor
To
whether a conviction
determine
violence,”
and
violence,
qualifies as
crime of
courts use
;the
requires
analyze
in
this case
us
categorical-approach,
which calls for a
force,”
meaning
“physical
of
as used in comparison of “the elements of the statute
“crime
violence.”
ar-
forming
of
of the
con
basis
defendant’s
gues
persuasive
lacks
Castleman
val-
with the
of
viction”
definition
crime of
—
States,
ue
this reason.
Descamps
violence.
v. United
violence);
Waters,
similarly
of
4. A number
other circuits have
crime of
United States v.
denied,
Cir.),
1062,
(7th
apply to fel
Castleman's
823 F.3d
1066
extended
cert.
—
violence,"
—,
569,
ACCA,
ony
of
"crime
as used in the
U.S.
S.Ct.
196
137
U.S.C,
4B1.2,
(2016)
(holding
18
and
448
L.Ed.2d
that a statute
Winston,
924(c)(3).
punishing
battery—which
See
v.
845
domestic
has as
876,
(8th Cir.),
denied, —
part
F.3d
878
element
bodily
cert
U.S.
of an
“causes
harm”—is
—,
2201,
violence);
(2017)
137 S.Ct.
198
265
L.Ed.2d
crime
see
States
United
v.
of
but
McNeal,
141,
(4th
(holding
Cir.),
punishing battery—
statute
818
156
F.3d
n.10
—
denied,
U.S. —,
164,
part
phys
of
which has as
an element "causes
cert.
137 S. Ct.
196
violence);
(2016)
injury”—is
(observing
ical
crime of
United
L.Ed.2d 138
that Castleman
Redrick,
478,
(D.C.
"abrogate[
v.
841 F.3d
484
]
States
Cir.
does not
distinction ... be
2016),
—,
denied,
U.S.
cert.
use
force
137 S.Ct.
tween the
and the causation
2204,
(2017)
463,
(holding
Lynch,
injury”); Whyte
267
v.
807
471
(1st
2015)
robbery
deadly weapon—even
(holding
punish
if
with
Cir.
that a statute
flame,”
weapon
"poison,”
“open
part
has
of an
element
assault—which
violence);
[physical] injury”—is
bacteria”—is a crime of
"lethal
"causes
not a crime of
Hill,
violence);
Gatson,
832
United States v.
142-43
States
v.
2016)
(holding
(limiting
holding
that Hobbs Act rob
411
bery—which
accomplished by
means of
the context Pf “misdemeanor
Castleman to
violence”).
injury”—is
putting the
in "fear of
victim
crime of
domestic
(1)
knowingly
are:
—,
186 2284.5 Those versions
S.Ct.
U.S.
(2013).
containing any
approach, mailing any
Under this
communication
L.Ed.2d
(2)
statutory
to the
only
kidnap
person;
“‘look
defini
know-
any
we
and
threat
tions’—i.e.,
a defendant’s
any
the elements—of
ingly mailing
communication contain-
],
particular
not ‘to the
and
prior offense[
person of the
ing any
injure
threat to
” Id. at
underlying
conviction[ ].’
th[e]
facts
of another. To determine
addressee or
original) (quoting Taylor
(emphasis
was the basis
which version
575, 600,
U.S.
convictions,
statutory
can consider “the
we
(1990)).
2143, 109
L.Ed.2d
definition,
document,
charging
plea
written
agreement,
plea colloquy,
transcript
determining
In the context
any
finding by the trial
explicit factual
violence,
conviction is
crime
whether a
assented”—
judge to which the defendant
4B1.2(a)(l),
ask
we
wheth
as defined
this is
as the modified
known
er “the use
threat
States, 544
approach. Shepard v. United
is an ele
[against
another]”
13, 16,
L.Ed.2d
U.S.
S.Ct
Brown,
ment of the offense.
(2005).
(internal
(alteration
original)
quota
omitted). If the statute has this
tion marks
Here,
charged Chapman
the indictment
element,
the crime more nar
or “defines
containing
mailing a communication
can serve as
rowly,” then the conviction
individuals,
injure”
“to
two
we
threats
so
Descamps,
predicate offense. See
injure
version
turn toward
sweeps
if
“statute
more
at 2283. But
876(c).6
This
has two elements:
version
than
broadly
[Guidelines-defined
(1)
knowingly mailed a
the defendant
violence],
[that
a conviction under
stat
communication;
(2)
threatening
predicate
not a career offender
even
ute] is
a threat to
communication contained
*6
actually
if the defendant
committed
person of
or another.
the addressee
(or
way
that involved the use
offense
a
use)'
against
of
force
physical
threatened
thp
Injure”
Comparing
C.
“Threat to
(internal
Brown,
another.”
189
876(c)
§
Defini-
to the
Version
omitted).
quotation marks
tion of “Crime of Violence”
into the
Before we launch
neces
-
Next, we examine the element
an
there is
additional
sary comparison,
injure
ad
person
“threat
to take
that
step
because
statute
outset,'it
or of
At the
convictions,
dressee
another.”
Chapman’s
18 U.S.C.
formed
mentioning
plain language
876(c),
meaning
§
it worth
that
statute,
is a divisible
closely
of this element
tracks Guidelines
multiple, alternative versions
“comprises
4B1.2(a)(l)’s
§
Descamps,
“threatened
of the crime.”
133 S.Ct. at
requirement
hand,
modified
On
other
statute is indivisible if
6. Our
5.
a
holding
approach
with our
doés not conflict
single set of
it sets out a
elements to define a
Muniz,
Fed.Appx.
65
United States v.
single
Mathis United
U.S.
crime.
v.
There,
2016) (unpublished opinion).
Cir.
2248-49,
—,
panel
whether
of this Court addressed
(2016).
example of an
An
indivisible stat
876(c)
injure”
§
version of
“threat
entry
criminalizes
of a
ute: a statute that
"the
'
-
rea, concluding
by-its
divisible
that
it
mens
By
premises with the intent
to steal.”
con
Thus,
Id.' at 68.
did not ad-
was not.
Muriiz
trast,
"entry”
if
that statute would be divisible
876(c)
'§
is divisible because it
dress whether
entry,
swapped
or in the alter
with "lawful
provides
for two
versions of
alternative
native,
entry.”
unlawful
crime.
Thus,
876(c)
physical
against
person
qualifies
force.
physical
as
use
force
violence,
by
crime of
as
this
support
point.
Dictionaries
another.”
defined
4B1.2(a)(l).7
International Dictio-
Third New
Webster’s
“injure”
bodily
“to inflict
nary
as
defines
counterargument
can be
Interna-
hurt on.”
Third New
Webster’s
follows;
summarized as
“The
threat
(1993).
Dictionary
Black’s Law
tional
[vjictim,
physically injuring
even
[a]
[the]
“injure” as
do
Dictionary
“[t]o
defines
death,
bodily injury
threat of serious
or
to,
To
damage,
impair.
hurt or
harm
necessarily require
does
threat
wound,
person.”
Law Dictio-
as the
Black’s
person
use- violent
force
(6th
1990).
“person,”
nary
And
ed.
[vjictim.”
(inter-
Appellant’s
[the]
Br. at
or of
“of the addressee
by
when followed
omitted).
nal
For
quotation
support,
marks
another,”
to mean “the
be read
should
body
to a
points,
he
law from other
distinguished
body
being'
of a human
addressing criminal
circuits
stat-
In-
from
mind.”
Third New
Webster’s
presents
imaginative
utes
four
hypo-
(1993). For
Dictionary
essence,
ternational
In
Chapman argues
theticals.
that
reasons,
knowingly
that
these
we conclude
of physical
the threatened use
re-
threatening
thus,
mailing
quires striking
person;
ap-
communication
indirect
or of
plications
of the addressee
harm fall
of the
outside
Guide-
disagree
lines’ ambit.9 We
reasons.
necessarily
the' use
two
another
threatens
Torres-Miguel,
(holding
701 F.3d at
We are not the first court to conclude that
876(c)
accomplished by "willfully
violence. The
is a
crime of
that an offense
Fourth, Fifth, Eighth,
threatening]
Ninth Circuits have
to commit
which will
States
all
the same conclusion. United
great bodily injury”
reached
result in death or
did not
(5th
Guevara, 408
259-60
Cir.
v.
requiring
"contain an element
the use or
876(c)—violated
by
(concluding
(first quote
use of
force”
(cid:127)threatened
judge
mailing
defendant
to a federal
letter
422(a)));
from Cal. Penal Code
Perez-Var
containing
mimick
a threat and a substance
(holding
gas,
the ACCA
on
based
those
feasible
I
the
believe that
the
fashion.
first
“categorical
the Act a
ap-
step
achieving
Court
into
goal
permit
read
to
is to
proach”
designation
predicate
judges,
discretion,
to the
in
rely
to
their
on the
offenses, whereby
past
the elements
a rele-
facts underlying
convictions when
vant
compared
state statute are
to
those
readily
the
facts
ascertainable from
elements of
generic
government
the
Doctor,
version
See
reliable
records.
as it
Id.
(Wilkinson, J.,
stood under common
at
law.
F.3d at
concurring)
Taylor
("District
explicitly
S.Ct. 2143.
Courts should
apply
be free to
approach
its
no
categorical
directed that
left
room for
approach] as the
[the
default
“to
particular
courts to look
inquiry,
facts un-
should retain
but
the discretion to
derlying
at
convictions.” Id.
[the]
the defendant’s
consider
actual conduct
S.Ct. 2143.
when
clearly
it can be
derived from the
record.”),
reform,
In the absence of some
In the
context
federal court examin
problems
persist.
several
will
convictions,
approach
state court
First,
appeal, particularly
categorical
has intuitive
when a
approach is often
back-up
state conviction
lacks
an impediment
old and
to uniformity. See Mathis
detail;
States,
But,
provide
U.S. —,
to
v.
records
historical
in
United
(Ali
practice,
2243, 2267-88, 195
has often
approach
(2016)
made the
L.Ed.2d 604
See,
to, J.,
courts
job
district
more' difficult.
dissenting) (recognizing that the Ma
Perez-Silvan,
e.g., United
861 jority
disqualifies
States
burglary
v.
decision
convic
2017) (Owens, J.,
many
counting
tions in
states from
as
(referring
“sentencing
to
concurring)
predicate
“Congress
though
offenses even
ad;
complicated
ventures
than
indisputably
more
recon
burglary
wanted
to count” for
states).
in
structing'the
Map
The.Supreme
Ra
Room all
Staff
Court identified
Souls”);
to
locate the
approach
Well
as
an answer
sentences,
Mayer,
problem
States v.
1095 the
F.Supp.3d
of inconsistent
but
(D.
2016) (labeling
approach
Or.
it can
the opposite
“a
lead to
For
outcome.
'
framework”);
who,
Byzantine analytical
Murray
example,
in
two defendants
their
(RJB),
past,
independently
No. 15-cv-5720
committed identical
(W.D.
at *5
2015 WL
Wash. Nov.
criminal acts
two
states
different
and
19, 2015) (describing the approach as “a have
criminal
essentially the
history
same
hopeless tangle”).
making
Rather
applicability
than
will find
that the
ACCA
things
straightforward,
categori
more
to their
cases
depends
current
their
o,n
cal approach
judges
phrasing
has
past
caused
criminal conduct but
“simply
inquiries
] factual
for an
criminal
swap[
the different state
-statutes.
gauntlet
legal
“arbitrary
endless
abstract
This
ques
inequitable resultf]
Doctor,
(Wilkinson,
Congress’
tions.”
F.3d at 313
in
...
could not have been
J.,
(Kenne
Mathis,
And
concurring).
operating at that level
tent[.]”
dy, J., concurring).,
“can
abstraction
lead courts
reach
results,
arbitrary
counterintuitive”
Second,
in-
categorical approach
has
Faust,
J.,
“crime violence” as under law, punishable by impris-
federal state exceeding year, a term
onment for. use, ... has as an element the at- use,
tempted use threatened another[,]” second, § 4B1.2(a)(l);
U.S.S.G. requiring
was convicted a crime injure person[,]”
“threat [a] 876(c); third, record shows un-
equivocally that he threaten to did
person.
Forcing judges eyes tó close their promotes inefficiency is obvious
what difficult-to-explain
guarantees sentences. cases, easy
In the we should let our sen-
tencing judges eyes open. work with their HASKELL, Appellant
Vance SCI;
SUPERINTENDENT GREENE
Attorney Pennsylvania; General Attorney County Erie
District
No. 15-3427 of Appeals,
United States Court
Third Circuit.
Argued March
(Opinion August filed