Friday, September 19, 2014

Convictions Under Pennsylvania’s Terroristic Threat Statute Are not Crimes of Violence.

Applying the holding in Descamps v. United States, 133 S.Ct. 2276 (2013), the Third Circuit held in United States v. Brown (13-4442) that convictions for making terroristic threats (18 Pa. Cons. Stat. §2706) were not categorically crimes of violence for purposes of the career offender sentence enhancement (U.S.S.G. § 4B1.1).

While incarcerated on a separate state offense, Appellant Gregory Garett Brown mailed a letter threatening both a federal magistrate judge and a federal district court judge.  He pled guilty to mailing threatening communications in violation of 18 U.S.C. §876(c).  The PSR recommended Brown be sentenced as a career offender under §4B1.1(a), which had the effect of doubling his guideline range from 30 to 37 months, up to 77 to 96 months. The PSR identified four prior Pennsylvania state convictions that allegedly triggered the enhancement including: one conviction for aggravated assault, one conviction for retaliating against a judicial officer, and two convictions for making terroristic threats.  Mr. Brown agreed the aggravated assault was a qualifying offense, and the Government conceded that the retaliation offense did not qualify, so the dispute in this matter was whether the convictions for making terrorist threats qualified as predicate offenses under the career offender enhancement guideline. 

The Third Circuit found that the relevant Pennsylvania statue, 18 Pa. Cons. Stat. §2706, is an “overbroad” statute that criminalizes both conduct that qualifies as a crime of violence and conduct that would not be considered a crime of violence under federal law.  Because the state statute applies to such a broad range of conduct, under the precedent set in Descamps, §2706 is not categorically a crime of violence.  Moreover, the modified categorical approach for reviewing predicate offenses is not applicable when a statute provides for multiple versions of an offense but none of those variations is categorically a crime of violence.  Accordingly, the two state convictions under this statute did not qualify as predicate offenses and the enhancement could not be applied to Brown’s sentencing calculation. Therefore the circuit court vacated the sentence and remanded the case.

The holding in this case has the effect of superseding and overturning part of holding in United States v. Mahone, 662 F.3d 651 (3d Cir. 2011).

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