United States v. Samuel Jenkins
In United States v. Harris, -- F.4th --, 2023 WL 3494771 (3d Cir. May 17, 2023), the Third Circuit held that because first degree aggravated assault, 18 Pa. Con. Stat. § 2702(a)(1), requires proof that the defendant inflicted serious bodily injury upon his victim, but does not require proof that the injury result from a defendant’s “use of force,” it is not categorically a violent felony under the ACCA elements clause.
The decision was
controlled by the Court’s decision in United States v. Mayo, 901 F.3d
218, 230 (3d Cir. 2018) which decided that (a)(1) is not categorically a
violent felony. Since Mayo, the Third Circuit petitioned the
Pennsylvania Supreme Court for a controlling decision on 18 Pa. Con. Stat. §
2702(a)(1), which that Court granted. The Pennsylvania Supreme Court held that attempted
or actual infliction of serious bodily injury is a required element, but the
perpetrator need not use force to inflict such an injury. Criminal liability is
not tethered “to the use or attempted use of physical force but, instead, to
the infliction of a specified harm, i.e., serious bodily injury, regardless of
the means by which the harm is inflicted.” United States v. Harris, 289 A.3d 1060,
1074 (Pa. 2023). Thus, the Third Circuit’s decision in Mayo was correct
and would be applied to Harris. Note that the opinion called the outcome
“counterintuitive”: “Although excluding aggravated assault under Section
2702(a)(1) from ACCA’s scope may be counterintuitive, it is the consequence of
the Act’s restricted, and perhaps sometimes under-inclusive, application.”
In United States v. Jenkins, -- F.4th --, 2023 WL 3516086 (3d Cir. May 18, 2023), the Third Circuit held that because 18 Pa. Cons. Stat. § 2702(a)(3), second-degree aggravated assault of a protected individual, can be violated by a “failure to act” (the minimum conduct criminalized by the statute), convictions under this sub-section are not categorically “violent felonies” under the ACCA elements clause. The Court took no position on if section (a)(3) can be violated by offensive touching. Because the state statute was overbroad, the realistic probability test—which requires defendants to show “a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime” – did not apply. See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). Note that the final section of the opinion discusses the “bizarre” results that the categorical approach necessitate: “The categorical approach requires this upside-down result even though criminal sentences should be governed by justice and fairness, not formalism.”
A recap of other decisions regarding PA aggravated assault:
Not a violent felony:
First-degree aggravated
assault, 18 Pa. Cons. Stat. § 2702(a)(1), “attempts to cause serious bodily
injury to another, or causes such injury intentionally, knowingly or recklessly
under circumstances manifesting extreme indifference to the value of human life
(can be violated by omission). United States v. Mayo, 901 F.3d 218, 230
(3d Cir. 2018).
Categorically a crime of
violence under the Sentencing Guidelines:
Second-degree aggravated
assault, 18 Pa. Cons. Stat. § 2702(a)(4), “attempts to cause or intentionally
or knowingly causes bodily injury to another with a deadly weapon”
(bodily-injury + deadly-weapon elements indicates that the provision can be
violated only through the use or attempted use of physical force, not by
omission). United States v. Ramos, 892 F.3d 599, 611–12 (3d Cir. 2018).
