Monday, November 07, 2011

Court finds PA Terroristic Threats Prior to be Crime of Violence

United States v. Mahone, 2011 WL 5153699 (Nov. 1, 2011).

Mahone pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Mahone objected to the base offense level in the PSR, calculated under U.S.S.G. § 2K2.1(a)(2) at 24 because he had "at least two felony convictions of either a crime of violence [ (COV) ] or a controlled substance offense." Mahone asserted that one of his priors, a 1994 Pennsylvania conviction for making terroristic threats in violation of 18 Pa. Cons.Stat. § 2706, did not qualify as a COV.

At the time Mahone incurred the prior conviction, the statute made it unlawful for a person to:

"threaten[ ] to commit any crime of violence with intent to terrorize another or to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or in reckless disregard of the risk of causing such terror or inconvenience."

18 Pa. Cons.Stat. § 2706 (1972).

Application of the formal categorical approach showed the offense to be broader than the definition of COV under U.S.S.G. § 4B1.2(a)(1). However, § 2706 is phrased in the disjunctive, and the court applied the modified approach, outlining § 2706 to determine if there was a variation that could constitute a COV. (Since Mahone’s conviction, the PA legislature has rewritten the statute into three distinct subsections, because the Court found the statute has always been divisible into the three enumerated offenses, the analysis is the same).

The court next concluded that the subsection prohibiting a threat to commit a crime of violence with intent to terrorize another person, of which Mahone was convicted, may qualify. Next the Court re-employed the modified approach to determine whether the underlying state crime of violence could satisfy the requirements for a federal COV.

The charging document and colloquy in this case showed that the predicate PA "crime of violence" was "criminal homicide," a statutory provision states that prohibits "intentionally, knowingly, recklessly or negligently cause[ing] the death of another human being." Despite the fact that the PA crime of violence contained reckless and negligent mens reas which would not satisfy the federal COV standard, the Court concluded that the only variations of the criminal homicide statute that could serve as the predicate crime of violence for purposes of § 2706 is the act of intentionally or knowingly causing the death of another, because a person cannot threaten to terrorize another with a reckless act.

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