A Traffic Stop Followed by a Summons is not an Intervening Arrest for Sentencing Guidelines Purposes

In United States v. Ley, __ F.3d __, 2017 WL 5618617 (3d Cir., Nov. 22, 2017), the Third Circuit held that a traffic stop, followed by the issuance of a summons, is not an intervening arrest for the purpose of calculating a defendant’s prior convictions under USSG § 4A1.2(a)(2).   Defendant John Francis Ley received two speeding tickets on two consecutive days.  After writing each ticket, the police released Ley and informed him that the matter would proceed via summons.  No arrest was made and Ley was sentenced for both matters on the same day. The District Court, however, held that the issuance of the summons constituted an intervening arrest for the purposes of the Guidelines and each ticket therefore merited an individual criminal history point.  Ley appealed.  Looking at the ordinary meaning of both “arrest” and “summons,” as well as the Supreme Court’s history of distinguishing arrests from other interactions with law enforcement, the Third Circuit, joining three other circuits and splitting with the Seventh, held that “a traffic stop, followed by the issuance of a summons, is not an arrest.”  The court also rejected the government’s argument that defendant waived the issue by failing to object to a supplemental PSR addendum.

Court upholds search under "plain feel" doctrine and expands generic robbery definition

In United States v. Graves, No. 16-3995 (3d Cir. Dec. 13, 2017), the Court affirmed Shaun Graves's 100-month sentence for a single count of unlawful firearm possession.  In doing so, the Circuit rejected Graves's claims that he was subject to an unreasonable investigatory search.  More significantly, the Court held that Graves's two prior North Carolina robbery convictions qualified as "crimes of violence" under the Sentencing Guidelines, see U.S.S.G. 4B1.2(a)(2), because they were not broader than generic robbery, as defined by an overwhelming majority of states.

Harrisburg Police Officer Dennis Simmons stopped, handcuffed, and frisked Graves based on suspicion that he had participated in a nearby shooting.  Prior to the stop, Simmons observed Graves walking in a high crime neighborhood at night with another man, both of whom matched descriptions of the shooting suspects.  And when Simmons first saw Graves from his unmarked car, Graves lifted his hands above his head in a manner befitting "a drug dealer or someone who sells something illegal in the street," or someone inviting a physical challenge.  In the course of patting down Graves, Simmons felt several small hard objects in his Graves's pockets.  Based on his training and experience, Simmons suspected those items might be crack-cocaine.  Simmons removed the objects from Graves's pants and discovered they were a bullet and several packets of Depakote, a legal antidepressant.  Simmons and backup officers then placed Graves in a police vehicle, advised him of his Miranda rights, and questioned him.  Graves admitted that he had a firearm in his boot, which Simmons had missed in his patdown search.

The Court concluded that Officer Simmons had reasonable suspicion to stop and frisk Graves.  (Simmons's use of handcuffs, and the probable cause to arrest Graves after the patdown, were not challenged.)  Graves's presence in a high crime neighborhood, physical similarity with the suspect in a recent nearby shooting, and purportedly suspicious reaction to Simmons's unmarked vehicle established a reasonable basis to believe that Graves was armed.  Further, the Court held that, although Simmons was ostensibly searching for a weapon, he was permitted to search the inside of Graves's pocket upon detecting several objects that felt like illegal drugs.  Under the "plain feel" doctrine, because Simmons was still in the process of determining whether Graves was armed, he was free to remove this contraband from Simmons's pocket, despite knowing that it could not be a firearm.  Simmons would have been prohibited from searching Graves's pocket only if he had already completed the patdown for weapons.

Next, the Court affirmed Graves's sentence by concluding that North Carolina robbery qualifies as a predicate crime of violence under the career offender guideline.  In North Carolina, robbery can be committed by using or threatening de minimis force -- for example, by merely swiping a person's hand away from his or her belonging.  Presumably, this offense would not qualify as a crime of violence under the career offender guideline's force clause, U.S.S.G. 4B1.2(a)(1), because it can be committed without violent force capable of causing physical pain or injury to another.  United States v. Chapman, 866 F.3d 129, 132 (3d Cir. 2017).  The Court, however, determined that Graves's prior offenses qualify as crimes of violence because they are not broader than generic robbery, one of the offenses enumerated in U.S.S.G. 4B1.2(a)(2). 

To reach this result, the Court first had to settle upon the generic definition of robbery.  Graves urged the court to adopt the version in the Model Penal Code ("MPC"), a source the Circuit previously identified as "an ideal starting point" for generic-crime analysis.  United States v. Marrero, 677 F.3d 155, 165 (3d Cir. 2014).  Under the MPC's robbery definition, Graves's sentence would have to be vacated: unlike in North Carolina, where robbery may committed with minimal force, the MPC limits robbery to thefts involving the infliction or threatened infliction of serious bodily injury.  Graves's convictions, then, were broader than MPC robbery.

The Court, however, determined that the Model Penal Code ("MPC") does not control robbery's generic definition.  Instead, the Court embraced the government's argument: that the generic version should be the one adopted by the majority of the states.  Indeed, for the first time in its crime-of-violence jurisprudence, the Court held that state legislation is the "most important factor" for identifying a crime's generic definition.  That was especially so here, where a supermajority of 38 states, including North Carolina, do not condition a robbery conviction upon the use or threatened use of violent force.  The Court did note in a footnote that state statutes may not be dispositive where the states are closely divided on a crime's definition or legislative history indicates that Congress or the Sentencing Commission favored a particular generic result.  But in cases, such as this, where the MPC has been embraced by only a small minority of states, the majority state definition will control.     
     
Graves's sentencing holding may have long-term implications.  Most obviously, under Graves, many, if not most, prior robbery convictions will qualify as crimes of violence under the career offender guideline.  Graves also undermines defendants' reliance on the MPC for generic definitions of crimes, at least where the MPC diverges from the majority of state legislation.  All in all, Graves will make it harder for defendants in the Circuit to avoid career offender enhancements.