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Mailing Threatening Communications is a Crime of Violence and a Judicial Proposal for Reform of the Categorical Approach

In United States v. Chapman, __F.3d__, No. 16-1810, 2017 WL 3319287 (3d Cir. Aug. 4, 2017), the Third Circuit held that mailing a letter containing any threat to injure the recipient or another person in violation of 18 U.S.C. § 876(c) qualifies as a crime of violence for the purposes of the career offender enhancements of the Sentencing Guidelines Manual § 4B1.1(a).  The Court acknowledged in a footnote that the analysis is the same for a violation of 18 U.S.C. § 871, threats against the president.


The Court began its analysis by reviewing the definition of “crime of violence” and specifically the meaning of the words “use” and “physical force.”  Quoting United States v. Castleman, 134 S. Ct. 1405 (2014), and Tran v. Gonzales, 414 F.3d 464 (3d Cir. 2005), it defined “use” as “the intentional employment of force, generally to obtain some end,” which conveys the notion that the thing used “has become the user’s instrument.” The Court confirmed the definition of “physical force” as “force capable of causing physical pain or injury to another person” as set forth in Johnson v. United States, 559 U.S. 133 (2010).  The Court concluded that the “use of physical force” as used in the Sentencing Guidelines “involves the intentional employment of something capable of causing physical pain or injury to another person, regardless of whether the perpetrator struck the victim’s body.”


Next, because Section 876(c) is a divisible statute, containing alternative versions of the crime, the Court applied the modified categorical approach.  Based on Chapman’s indictment, the Court focused on the second of the two versions of the crime, which has two elements: (1) “the defendant knowingly mailed a threatening communication;” and (2) “the communication contained a threat to injure the person of the addressee or another.”  The Court noted that the “threat to injure” element closely tracks the language in the force clause of the Sentencing Guidelines.  The Court rejected the argument that a threat to injure does not necessarily require the threat to use violent physical force.  The Court relied on Castleman and also concluded that beyond “the slightest offensive touching” which does not qualify as “physical force,” there is no minimum quantum of force necessary to satisfy Johnson’s definition of physical force.


Judge Jordan’s concurring opinion is significant.  He argues that the unfettered growth of the categorical approach is leading to a host of problems and not achieving its intended goal.  He is troubled by the requirement that judges must ignore real world facts.  He joins other judges who have urged that the categorical approach be reconsidered.  He proposes that judges be permitted to consider the facts of a previous conviction when those “facts are beyond fair dispute.”

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