Friday, June 22, 2018

Second-degree aggravated assault with a deadly weapon (Pa) is categorically a crime of violence based on the elements clause of the career offender guideline.


United States v. RamosAppeal No. 17-2720 (3d Cir. June 15, 2018), 2018 WL 2994410

On the government’s appeal, the Third Circuit found that second-degree aggravated assault with a deadly weapon, 18 Pa. CS § 2702(a)(4), 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). Pennsylvania’s aggravated assault statute is divisible because it sets forth two alternate degrees of the offense and, within those degrees, the subsections “criminalize different conduct and set[ ] forth different (albeit overlapping) elements.” Thus, because the statute is divisible, the Court was able to consult a limited set of extra-statutory materials to establish Ramos's offense of conviction with certainty: second-degree aggravated assault with a deadly weapon. The minimum conduct sufficient to sustain that conviction was attempting to cause another person to experience substantial pain with a device capable of causing serious bodily injury. The Court concluded, “as a practical and legal matter,” an offender can "only do so by attempting to use physical force against another person.” (citing United States v. Chapman, 866 F.3d 129, 133 (3d Cir. 2017)). The Third Circuit reversed the district court’s finding that Ramos was not a career offender, and remanded for resentencing.

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