PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________
No. 17

- 3103

___________
UNITED STATES OF AMERICA

v.

IBRAHIM McCANTS,

Appellant

__________ On Appeal from the United States District Court for the District of New Jersey ( D.C . No. 2

- 15

- c r

- 00 551

- 001 ) District Ju dge: Honorable Esther Salas

___________ Argued September 6, 2018 Before: HARDIMAN, KRAUSE, and BIBAS

,

Circuit Judges

(Filed: December 18, 2018 )2 Leticia Olivera [Argued] Office of Federal Public Defender 1002 Broad Street Newark, NJ 07102 Attorney for Appellant

Mark E. Coyne Richard J. Ramsay [Argued] Office of United States Attorney 970 Broad Street, Room 700 Newark, NJ 07102 Attorney s for Appell ee

____________
OPINION OF THE COURT

____________
HARDIMAN

, Circuit Judge

. Ibrahim McCants appeals his judgment of conviction and sentence. McCants argues he was wrongly convicted based

on evidence that was found during an unconstitutional search. He also claims his sentence cannot stand because he was wrongly designated a career offender under the United St ates Sentencing Guidelines

. For the reason s that follow, we will affirm

.
I

On the afternoon of June 28, 2015, a New Jersey woman dialed 911 to report an ongoing domestic dispute. Here’s how the call went:3 CALLER : Can I have the number to East Orange Police Department.

DISPATCHER: Y ou need where?

C ALLER : East Orange Police Department. It’s [ sic ] emergency.
DISPATCHER: What’s the problem?

CALLER : This guy is out here beating up his girlfriend. He’s about to kill her.

DISPATCHER: Where’s this at?

CALLER : It’s on Grove Street in East Orange.

DISPATCHER: Grove and

— where on Grove?

CALLER : Grove and, and, and like Williams Street.
DISPATCHER: What is he wearing?

CALLER : He’s wearing a red hat, with braids and he’s beating her up really bad right now I wanna break

— I wanna b reak it up but, I don’t wanna do nothing.

DISPATCHER: No

— you don’t want to do that. Stay

— hold on a second, ma’am.

United States v. McCants , No. 15

- 551, 2016 WL 4705452, at *1 (D.N.J. Sept. 7, 2016) . As the operator was preparing to dispatch police to the scene of the altercation, the caller repeated “he is beating her up really badly” and stated, “I think4 he has a gun.” Id. The caller then hung up and t he operator dispatched the call in this way :
Grove and William, Gro ve and William, right now from a caller, it’s a male beating a female really badly, male has braids with a red hat

. . . . Again, it’s going to be Grove and William. Male, female. Male beating a female. Male has braids red hat

— at this time, I am advising t he caller not to intervene

. . . . Now she is saying she believes he has a gun

. . . . Red hat and braids. Alright, the caller disconnected.

Id.

East Orange police were in the area at the time the call was dispatched and they found a man matching the description near 146 Grove Street within one minute. Officer Moses Sangster was th e first to arrive on the scene. He “noticed a male with dreads and a red hat” walking north on Grove Street with

a woman. App. 76. The couple was later iden tified as Appellant Ibra him McCants and Chelsea Fulton. Two other officers

— Stephen Rochester and Cory Patterson

— also arrived on the scene within minutes after hearing the call

. Before they approached the couple, Officer Rochester confirmed with the dispatc her that “the male actor involved had dreadlocks.” App. 78. Officers Rochester and Patterson then “immediately
engage d” McCants and frisked him due to the “nature of the call for service.” Id. During the pat down, Officer Rochester found a loaded handgun i nside a fanny pack McCants was wearing

. The officers placed McCants under arrest and recovered distributable q uantities of heroin

.5 Several written police reports described the interactions between McCants and Fulton when the officers arrived at the

scene . Officer Rochester reported that he observed McCants “speaking with a black female.” Id. 1 Both McCants and Fulton confirmed in separate interviews they had been arguing

, though Fulton said, “at no point did the argument get physical.” App. 82. Officer Cry stal Singleton and Detective Jaleesa Wreh reported that Fulton showed no s igns of injur y

.
II

A grand jury charged McCants with unlawful possession of a firearm by a co nvicted felon in violation of 18 U.S.C. § 922(g)(1) and possession with intent to distri bute heroin in violation of 21 U.S.C. §§ 841(a) and (b)(1)(C). McCants filed a pretrial motion to suppress the firearm and drugs and requested an evidentiary hearing on the motion, arguing the officers did not have reasonable suspicion that he
was engag ed in criminal ac tivity before they frisked him. The Governm ent opposed the motion, and t he District Court denied it without oral argument

. The C ourt found that the stop was based on reasonable suspicion because the caller’s “anonymous tip bore sufficient in dicia of reliability.” McCants , 2016 WL 4705452, at *7.

1 Although the parties largely agree d on the facts, they dispute d whether McCants and Fulton were arg uing when the officers arrived. The Government claimed they were “yelling at each other

. ” McCants , 2016 WL 4705452, at *2. B ut McCants argued in his motion to suppress they were not and Fulton corroborated McCants’s account in an affidavit. The District Court did not make any factual findings regarding this dispute.6 The District Court then con ducted a stipulated bench trial, and McCants was found guilty as charged o n both counts

. The United States Probation Office prepared a Presentence Investigation Report (PSR ) in which it designated McCants a career offender. McCants objected to the PSR, arguing that his two previous second

- degree rob bery convictions in New Jersey did not qualify as crimes of violence under § 4B1. 2 of the Sentencing Guidelines

. Had the convictions not qualified as crimes of violence, his advisory range would have been lowered from 1 68

– 210 months to 63

– 78 months under Guidelines § 2K2.1. The District Court overruled McCants’s objection, concluding that his two prior robbery conviction s qualified as crimes of violence

. At sentencing , t he Court varied downward, imposing a sentence of 120 months’ imprisonment followed by three years of supervised release

. McCants timely appealed.

II I
The District Court had jurisdiction under 1 8 U.S.C. § 3231 and we have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). McCants argues that the District Court erred in denying his motion to suppress and in finding that his prior robbery convictions qualified as crimes of violence under Guidelines § 4B1.2 . We review the D istrict C ourt’s factual findings for clear error and its le gal conclusions de novo

. United States v. Lowe , 791 F.3d 424, 427 (3d Cir. 2015). We review de novo the Court’s determination that a conviction constitutes a “cri me of violence” under the Guideline s

. United States v. Chapman , 866 F.3d 129, 131 (3d Cir. 2017).7 IV
We begin by addressing McCants’ s argument that he was wrongly convicted because the District Court admitted into evidence the fruits (drugs and a gun) of a n unco nstitutional search. The dispositive question underlying this argument is whether the anonymous 911 tip provide d sufficient indicia of reliability for reasonable suspici on of ongoing criminal activity.
The Fourth Amendment prohibits “unreasonable searches and seizures

. ” U.S. C ONST

. amend. IV. Although searches generally require warrants supported by probable

cause , officers may conduct brief investigatory stops under Terry v. Ohio , 392 U.S. 1 (1968), if they have “reasonable, articulable suspicion that criminal activity is afoot.” Illinois v. Wardlow , 528 U.S. 119, 123 (2000). Such r easonable suspicion requires “at least a minimal level of objective justification for making the stop” and more than an “ inchoate and unparticularized suspicion or ‘ hunc h ’” of criminal activity

. Id. at 123

– 24 (internal quotation marks omitted) (quoting Terry
, 392 U.S. at 27). We evaluate the totality of the circumstances in considering “whether a reasonable, trained officer standing in [the officer’s] shoes could articula te specific reasons justifying [the] detention.” United States v. Brown , 448 F.3d 239, 246

– 47 (3d Cir. 2006) (internal quotation marks omitted) (quoting Johnson v. Campbell , 332 F.3d 199, 206 (3d Cir. 2003) )

. A body of caselaw has developed over the years involving anonymous reports to police of criminal activity. These tips can provide reliable information helpful to investigations and can create reasonable suspicion of ongoing criminal activity. Navarette v. California , 572 U.S. 393, 3978 (2014) . Whether an anonymous tip provides enough information for reasonable suspicion depends “upon both the content of information possessed by police and its degree of reliability.” Alabama v. White , 496 U.S. 325, 330 (1990)

.
Our Court has identified five factors that indicate reliability for anonymous tips:
(1) The tip information was relayed from the informant to the officer in a face

- to

- face interaction such that the officer had an opportunity to appraise the witness’s cr edibility through observation.
(2) The person providing the tip can be held responsible if her allegations turn out to be fabricated.

(3) The content of the tip is not information that

wou ld be available to any observer

. . . . (4) The person providing the information has recently witnessed the alleged criminal activity.
(5) The tip predicts what will follow, as this provides police the means to test the informant’s knowledge or credibility [

. ]

United States v. Torres , 534 F.3d 207, 211 (3d Cir. 2008) (ellips is in original)

. In assessing the reliability of a tip, courts within the Third Circuit must consider t hese factors with reference to the totality of the circumstances presented in each

case

. Id.9 Here, the District Court found that “the [c]aller’s anonymous tip bore sufficient indicia of reliability,” which provided the officers with reasonable suspicion to stop and frisk McCants consistent with Terry

. McCants , 2016 WL 4705452, at *7. In t he District Court ’s view, the tip sufficed b ecause the caller used the 911 system to report firsthand knowledge of ongoing domestic violence

, and she gave an accurate description that was quickly co nfirmed by the police

. McCants argues that the 911 call could not have provided the officers with reasonable suspicion to justify the stop for two main reasons: (1) the tip was vague and did not demonstrate sufficient indicia of reliability ; and (2) the officers did not find corroborating evidence of domestic violence at the

scene. T hese arguments are unpersuasive in light of controlling precedent.

First, McCants contends that the 911 call was unreliable because it was akin to the bare

- bones tip deemed inadequate by the Supreme Court in Florida v. J.L. , 5 2 9 U.S. 266 (2000). In J.L.
, the police received an anonymous call “ that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun.” Id. at 268. The Supreme Court held that this “bare report of an unknown, unaccountable informant ” who did not explain the basis for his tip lacked sufficient indicia of reliability. Id. at 271. But t he facts of McCants’s appeal differ from J.L. in important respects. Here, the 911 caller gave a firsthand account of ongoing criminal activity, as well as a highly sp ecific and accurate description of the suspect ’s location, clothing, and hair . In J.L. , the informant reported significantly fewer details and described potentially innocuous behavior without explaining why the informant thought the subject was committing (or was about to commit) a crime. Because of these differences, we disagree with10 McCants that the 911 call mirrors the limited and vague report in J.L.
As the Government argues , t he indicia of reliability in McCants’ s case are like those in Navarette v. California

. The Supreme Court there concluded that a tip created reasonab le suspicion of drunk driving because it was highly specific, based on substantially contemporaneous eyewitness knowledge, and reported over the 911 system. Navarette , 572 U.S. at 399

– 401. T he Court explained that the eyewitness’s firsthand knowledge of ongoing criminality “lends significant support to the tip’s reliability.” Id. at 399. So too here

, where
p olice were able to co nfirm the detailed descripti on of the suspect within minut es of the call. In fact, McCants was engaged by police much more quickly than was Navarette, who wasn’t stopped until eighteen minutes after the dispatcher’s call. Id. In Navarette , the Supreme Court also reasoned that the 911 call bolstered the tip’s credibility because the system ’s ability to identify callers is a safeguard against false reports. Id. at 400. Although 911 calls are not per se reliable and the police in this case did not identify the caller , the informant ’ s use of the 911 system here adds to the tip’s reliability in the same way it did in Navarette

. Relatedly, McCants argu es that the District Court did not give adequate consideration to three of the reliability factors we identified in Torres : the lack of face

- to

- face interaction betw een the informant and police; the absence of predictive information in the call; and the fact that the content of the caller’s tip was available to any observer. Although it is true that the 911 call here does not present all of the reliabilit y factors , th is deficiency does not preclude a finding of reasonable suspicion because, as we have explained, “a tip need not bear all of the indicia

— or even any particular11 indicium

— to supply reasonable suspicion.” Torres , 534 F.3d at 213. Accordingly, the District Court did not err when it concluded that the tip was sufficiently reliable because it met two of the factors: the informant “recently witnessed the alleged criminal activity

, ” McCants

, 2016 WL 4705452, at * 5 (quoting Brown , 448 F .3d at 249

– 50), and can be “ held responsible if her allegations turn out to be fabricated

, ” i d. at *6 (quoting Brown , 448 F.3d at 249 )

.
McCants next argues that “ [ n ] o reasonable officer would have stopped and frisked” him based on an allegation of ongoing domestic violence when Fulton, the putative victim

, showed no signs of injury. McCants Br. 30. This argument too is contrary to the Supreme Court’s decision in Navarette
, where the officers followed Navarette’s car for five minutes without noticin g any sign of drunk driving. The absence of corroborative evidence, the Court held, did not negate the reasonable suspicion created by the 911 call. Navarette , 572 U.S. at 403

– 04. In the Court’s opinion, “[o]nce reasonable suspicion of drunk driving ar ises

, ‘ [ t ] he reasonableness of t he officer’s decision to stop a suspect does not turn on the availability of less intrusive investigatory techniques.’” Id. at 404 (quoting United States v. Sokolow , 490 U.S. 1, 11 (1989)).
In considering the officers’ reasonab le inferences about Fulton’s demeanor, we note that we have given “ considerable deference to police officers’ determinations of reasonable suspicion given their own experience and specialized training to make inferences from and deductions about the cumula tive information available to them that might well elude an untrained person.” United States v. Graves , 877 F.3d 494, 499 (3d Cir. 2017) (internal quotation marks omitted) (quoting United States v. Brown , 7 65 F.3d 278, 290 (3d Cir. 2014))

, cert. denied

, 139 S. Ct. 159 (2018)

. And as the District Court noted,12 the Seventh Circuit addressed the circumstances common to domestic violence calls while upholding a Terry stop under facts similar to those presented in this appeal

. See United States v. Wooden , 551 F.3d 647 (7th Cir. 2008).

In Wooden , t he police responded to an anonymous report that a tall, black male wearing a black jacket and blue jeans was arguing with his girlfriend and had drawn a gun at a specific location. Id. at 648. The police conducted a p at

- down even though the couple was chatting amicably when the officers arrived. Id. at 648, 650. In upholding the stop, the Seventh Circ uit recognized that the report implied the need for a hasty response. Id. at 650. The court observed, along with other factors supporting reasonable suspicion , that “domestic violence comes and goes” and there is a “risk that an armed man may threaten the woman with him” with future violence if she does not remain calm when police arrive. Id.
McCants’s argume nt regarding Fulton’s demeanor does not give proper weight to law enforcement officer s ’
exp eriences and training regarding domestic violence. He contends that while it was “plausible that the suspect car in Navarette was observed driving normally after running

someone off the road,” no officer could have reasonable suspicion of ongoing domestic violence after approaching Fulton, who was composed and unscathed. McCants Br. 32. This comparison to Navarette is unpersuasive : considering officers’ experiences, it might be less plausible that a drunk

driving suspect could drive normally for five minutes than that Fulton might appear calm and uninjured during her interaction with the police. See Wooden , 551 F.3d at 650. For these

reasons , the District Court did not err in def erring to the officers’ reasonable inferences regarding Fulton’s demeanor in light of the 911 call

.13 In sum, viewing all the circumstances, the anonymous tip bore sufficient indicia of reliability and provided the officers with reasonable suspicion that justif ied the Terry stop. The caller used the 911 system to report an eyewitne ss account of domestic violence and provided the officers with a detailed description of the suspect and location , both of which were quickly co nfirmed by the police. Accordingly

, we hold that the District Court did not err in denying McCants’s motion to suppress the evidence collected during the Terry stop

.
V
We turn next to the sentence imposed upon McCants. The District Court agreed with the Probation Office that McCants is a career offender because two of his prior convictions for second

- degree robbery in New Jersey qualify as crime s of violence under the Sentencing Guidelines. The Guidelines define a “crime of violence” as any felony offense under state or federal law that:
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another [the “elements ” clause]

, or
(2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extor tion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined i n 18 U.S.C. § 841(c) [the “enumerated offense ” clause]

.
Guidelines § 4B1.2(a).14 A
We use the categorical approach to determine whether

a prior conviction is a predicate offense for a crime

- of

- violence sentencing enhancement. United States v . Ramos , 892 F.3d 599, 606 (3d Cir. 2018). In doing so , we “compare the elements of the statute under which t he defendant was convicted to the [G]uidelines’ definition of crime of violence.” Id. (quoting United States v. Wilson , 880 F.3d 80, 83 (3d Cir. 2018)).

McCants’s designation as a career offender was based on two convictions under N.J. S TAT

. A NN

. § 2C:15

- 1, which provides:
a. Robbery defined. A person is guilty of robbery if, in the course of committing a theft, he:
(1) Inflicts bodily injury or uses force upon another; or
(2) Threatens another with or purposely puts him in fear of immediate bodily injury; or
(3) Commits or threatens immediately to commit any crime of the first or second degree.

. . . . b. Grading. Robbery is a crime of the second degree, except that it is a crime of the first degree if in the course of committing the theft the actor attempt s to kill anyone, or purposely inflicts or attempts to inflict serious bodily injury, or is15 armed with, or uses or threatens the immediate use of a deadly weapon.

N.J. S TAT

. A NN

. § 2C:15

- 1.

We can look beyond the elements of the statute for this comparis on only if it is “divisible” and lists “elements in the alternative, and thereby define[s] multiple crimes.” Mathis v. United States , 136 S. Ct. 2243, 2249 (2016). The statute is phrased disjunctive ly, using “or” to offset subsections (a)(1) through (a)(3). Such a statute is divisible if it lists “elements” of the offense and not “means” of committing that offense. Id. at 2248. “‘Elements’ are the ‘constituent parts’ of a crime’s legal definition

— the th ings the ‘prosecution must prove to sustain a conviction.’” Id. (quoting Elements of Crime

, B LACK ’ S L AW D ICTIONARY (10th ed. 2014)). “Means,” on the other hand, are “various factual ways of committing” a single element. Id. at 2249.

McCants insists the N ew Jersey robbery statute is indivisible because the alternatives in subsections (a)(1)

– (3)

a re means, rather than elements. He contends that under Mathis , alternatively

- phrased statutes contain elements only when each subsection carries different punishments , which is
not true of the New Jersey robbery statute

. We disagree. I n Mathis

, the Supreme Court explained that “the statute on its face may resolve the issue” of characterizing alternatives

. Id. at 2256. In doing so, t he Court used differences in punishment as an example of a clear statutory clue, not as the only permissible textual analysis. See id.
We agree with the Government that the New Jersey robbery statute sets out alternative elements for sustaining a conviction rather than the means of committing the offense.16 Subsections (a)(1)

– (3) are elements because each require s different proof to sustain a second

- degree robbery conviction. Under (a)(1), the prosecutor must prove that the defendant inflict s injury or use s force upon another person . However, the defendant need only threaten or place another person in fear of immediate bodily injury under (a)(2)

, or threaten to commit another first

- or second

- degree crime under (a)(3)

. This analysis parallels our decision in U nited S tates v. Blair

, 734 F.3d 218 (3d Cir. 2013)

, where we held t hat Pennsylvania’s similar robbery statute was divisible because of its “clearly laid out alternative elements. ” Id. at 225. McCants argues that our reasoning in Blair has been abrogated by Mathis

. But this argument is a nonstarter because earlier this year we reaffirmed that the Pennsylvania robbery statute is divisible. United States v. Peppers

, 899 F.3d 211, 232 (3d Cir. 2018) (citing Mathis , 136 S. Ct. at 2256 ; Blair , 734 F.3d at 225)

. 2 Because N.J. S TAT

. A NN

. § 2C:15

- 1 lays out alternative

2 We held that this Pennsylvania robbery statute, which was alternatively

- phrased

, is divisible:

(1) A person is guilty of robbery if, in the course of committing a theft, he: (i) inflicts serious bodily injury upon another; (ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury; (iii) commits or threatens immediately to commit any felony of the first or second degree;17 elements upon which prosecutors can sustain a second

- degree robbery conviction, we hold that the statute is divisible.

(iv) inflicts bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury; or (v) physically tak es or removes property from the person of another by force however slight.

Peppers
, 899 F.3d at 231 (quoting 18 P A

. C ONS

. S TAT

. § 3701(a) (June 24, 1976 to May 16, 2010)). U nlike the New Jersey statute, a few subsections of the Pennsylvania statute carried different penalties. Robbery under subsection (a)(1)(iv)

was a second

- degree felony

, while subsection (a)(1)(v) was a third

- degree felon y. Otherwise, robber ies under the other subsections were first

- degree felonies. Id.

I n Ramos , we explained that a simi larly

- structured Pennsylvania assault statute is divisible two ways. 892 F.3d at 606. First, the statute “proscribes two alternative degrees of aggravated assault, which are subject to different maximum sentences.” Id. at 609. Second, we found “the statute is further divisible into four, alternative second

- degree aggravated assault offenses” because the statute uses disjunctive language to list alternative elements

— rather than alternative factual means for committing the offense

— in each subsection. Id. Accordingly, disjunctive language setting out elements that must be proved beyond a reasonable doubt can independently show the statute is divisible on its face.18 B
Having determined that the relevant statute is divisible,
we must ascertain whether McCants’s Ne w Jersey robbery convictions were predicate offenses that render him a career offender. For divisible statutes, we use the modified categorical approach to decide whether the defendant was convicted of a qualifying offense under the Guidelines. Shepard v. United States , 544 U.S. 13, 19

– 20, 26 (2005). This gives us recourse to the “ Shepard documents”

— which include the charging document, guilty plea allocution, jury instructi ons, and judgment of conviction

— t o determine the subsection upon which the conviction was based

. United States

v. Brown , 765 F.3d 185, 189

– 90 (3d Cir. 2014)

. Although the charging documents do not state explicitly which subsection of the statute McCants was convicted under

, they do indicate that McCants was charged with violent crimes. 3 An d a review of McCants’s plea colloquy leads necessarily to the conclusion that he plead ed guilty to violating subsection (a)(2) of the New Jersey robbery statute. Therein

, McCants acknowledged using force in committing both robberies

. Regarding the first robbery offense on December 13, 2003, the court asked McCants: “On that day did you attempt or succeed by the use of threat of force, in taking some items from an individual in the City of N ewark?” App. 266. He responded, “Yeah.” App. 267. Regarding the se cond robbery offense on April 28, 2004, the court asked McCants: “ And on that occasion did you take or attempt to take from an individual

3 The first robbery indictment charges that McCants used or threate ned the use of what the vict i m perceived as a deadly weapon. The second indictment charges that he threatened the use of a deadly weapon

.19 by the threat of force some items?” Id. He again responde d, “Yes .” Id. We agree with the Government that McCants’s adm issions that he threatened or attempted to threaten another with force is evidence of guilt under subsection (a)(2), which requires that a defendant “ [ t ] hreaten [] another with or purposely put [] him in fear of immediate bodily injury.”

Although McCants concedes that the colloquy shows he did not plead guilty under subsection (a)( 1), which requires the use of force, he makes two semantic arguments that his admissions do not fall under subsection (a)(2) . First, he contends the colloquy does not address inj ury or fear, which he believ es are required by the statute. Second, he argues his admissions regarding force do not equate to thre ats of immediate bodily injury. Taken together, he claims the colloquy allows for the possibility that he was convicted under subsection (a)(3), which does not require violent force.

We d isagree that McCants’s colloquy shows he could have been convicted under subsection (a)(3). First, his semanti c arguments are inconsistent with the plea colloquy. His admission s of attempting or successfully using threat of force to take items from individuals most cl osely match subsection (a)(2). Second

, McCants points to nothing in the colloquy permitting even the inference that he pleaded guilty under subsection (a)(3). Had McCant s pleaded guilty to subsection (a) (3), he would have needed to admit that he committed or threat ened to commit another crime. Yet h is plea colloquy makes reference to neither. Because he could not have plead ed guilty to sub section (a)(3) and McCants concedes he was not convicted under subsection (a)(1), the only logical choice is subsection (a)(2). Thus, we have no reason to
overturn the District Court’s finding that the natura l reading of20 the plea colloquy is that McCants’s two prior robbery convicti ons fall under N.J. S TAT

. A NN

. § 2C:15

- 1(a)(2).

C
Finally, we must decide whether McCants’s conviction s under subsection (a)(2) are predicate offense s under either the “elements” clause or the “enumerated offense” clause of § 4B1.2(a) of the Guidelines

. In our view, they satisfy both.

Under the elements clause ( § 4B1.2(a)(1) )

, a conviction qualifies if it “has as an element the use, attempted use, or threatened use of physical force against the person of another .” We have explained that the “use of physic al force

. . . involves the intentional employment of something capable of causing physical pain or injury to another person, regardless of whether the perpetrator struck the victim’s body.” Chapman , 866 F.3d at 133 (internal quotation marks omitted)

. Subs ection (a)(2) of the robbery statute requires that the defendant “ [ t ] hreaten [] another with or purposely put [] him in fear of immediate bodily injury.” N.J. S TAT

. A NN

. § 2C:15

- 1(a)(2). In New Jersey, “bodily injury” is defin ed as “physical pain, illness or any impairment of physical condition.” Id. § 2C:11

- 1(a). Under both the Guidelines and New Jersey definitions , the defendant must place another in fear of physical pain or injury. Because § 4B1.2(a)(1) does not mandate physical contact, New Jersey’s defin ition of “bodily injury” falls within the Guidelines’ definition of “crime of violence

. ” Accordingly, we hold that McCants’s conviction under subsection (a)(2) qualifies as a crime of violence under the elements clause of § 4B1.2(a)(1) of the Guidelines

.
W e reach the same result with regard to the enumerated offense clause ( § 4B1.2(a)(2) ), which lists “robbery” as a crime21 of violence. When the Guidelines specifically list an offense, we “compare the elements of the crime of conviction to the generic form o f the offense as defined by the States, learned treatises, and the Model Penal Code.” United States v. Marrero , 677 F.3d 155, 165 (3d Cir. 2012) (quoting United States v. Lockley , 632 F.3d 1238, 1242 (11th Cir. 2011) )

, vacated on other grounds , 570 U.S. 92 9 (2013). The defendant’s prior conviction qualifies as a crime of violence if “the statutory definition of the prior conviction ‘substantially corresponds’ to the generic definition of the offense.” Id. (quoting Taylor v. United States , 495 U.S. 575, 602 (1990) ).

McCants and the Government agree that “the generic definition of robbery is . . . the taking of property from another person or from the immediate presence of another person by for ce or by intimidation.” App. 199. We held in Graves that “generic robbery requires no more than de minimis force” to meet this def

inition. 877 F.3d at 503. In evaluating whether McCants’s robbery convictions qualify as crimes of violence under the enumerated offense clause, we must determine whether the Ne w Jersey statute is broader than the generic offense.

Subsection (a)(2) requires that the defendant

“ [ t ] hreaten [] another with or purposely put [] him in fear of immediate bodily injury.” N.J. S TAT

. A NN

. § 2C:15

- 1(a)(2). We agree with the Government that s ubsection (a)(2) falls within the definition of generic robbery because the statute requires the threat of bodily injury, which involves more force

— and is th erefore categorically narro wer

— than de minimis force

, Graves , 877 F.3d at 504

. Accordingly , we hold that McCants’s conviction s under subsection (a)(2) qualif y as crime s of violence under the enumerated offense clause of § 4B1.2(a)(2). Therefore, the District Court rightly designated22 McCants a career offender because his two prior convictions fo r second

- degr ee robbery in New Jersey qualified as crimes of violence under the Guidelines.

* * *
The District Court did not err in denying McCants’s motion to suppress or in imposing his sentence. We will affirm the judgment of conviction and sentence.