United States v. McCants, 920 F.3d 169 (3d Cir. Apr. 5,
2019).
The Third Circuit affirmed the defendant’s 120-month career offender sentence for being a felon in possession of a firearm and possession with intent to distribute heroin. The court held that the defendant’s two prior state convictions in New Jersey for second-degree robbery qualify as crimes of violence under §4B1.2. It stated that they are predicate offenses under both the elements clause of §4B1.2, because the state definition of “bodily injury” falls within the definition of crime of violence, and under the enumerated offenses clause, because the state statute requires the threat of bodily injury.
The Guidelines define a “crime of violence” as any felony offense under state or federal law that:(1) has as an element the use, attempted use, or threatened use of physical force against the person of another [the “elements” clause], or(2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c) [the “enumerated offense” clause].Guidelines § 4B1.2(a).
The Categorical Approach: Determining Whether An Enhancement Is Applicable.
The Third Circuit uses the categorical approach to determine whether a prior conviction is a predicate offense for a crime-of-violence sentencing enhancement. United States v. Ramos, 892 F.3d 599, 606 (3d Cir. 2018). In doing so, we compare the elements of the statute under which the defendant was convicted to the Guidelines’ definition of crime of violence. (quoting United States v. Wilson, 880 F.3d 80, 83 (3d Cir. 2018)).10McCants’s designation as a career offender was based on two convictions under New Jersey STAT. ANN. § 2C:15-1, which provides:a. Robbery defined. A person is guilty of robbery if, in the course of committing a theft, he:(1) Inflicts bodily injury or uses force upon another; or(2) Threatens another with or purposely puts him in fear of immediate bodily injury; or (3) Commits or threatens immediately to commit any crime of the first or second degree.
The sentencing court must look beyond the elements of the statute for this comparison only if it is “divisible” and lists “elements in the alternative, and thereby define[s] multiple crimes.” Mathis v. United States, ––– U.S. ––––, 136 S.Ct. 2243, 2249, 195 L.Ed.2d 604 (2016). The statute in this case was phrased disjunctively, using “or” to offset subsections (a)(1) through (a)(3). Such a statute is divisible if it lists “elements” of the offense and not “means” of committing that offense. Elements’ are the ‘constituent parts’ of a crime’s legal definition—the things the ‘prosecution must prove to sustain a conviction. Means,” on the other hand, are “various factual ways of committing” a single element.
The Third Circuit Court of Appeals found that subsections (a)(1)–(3) are elements because each requires different proof beyond a reasonable doubt to sustain a second-degree robbery conviction. Under (a)(1), the prosecutor must prove that the defendant inflicts injury or uses force upon another person. However, the defendant need only threaten or place another person in fear of immediate bodily injury under (a)(2), or threaten to commit another first- or second-degree crime under (a)(3).
Because New Jersey STAT. ANN. § 2C:15-1 lays out alternative elements upon which prosecutors can sustain a second-degree robbery conviction, we hold that the statute is divisible and, therefore, the crime of violence sentencing enhancement is applicable.