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-cr-00551-001)

District Judge: Honorable Esther Salas

___________

Argued September 6, 2018

Before: HARDIMAN, KRAUSE, and BIBAS,

Circuit Judges.

(Filed: April 5, 2019)
2

Leticia Olivera [Argued]

Louise Arkel

Office of Federal Public Defender

1002 Broad Street

Newark, NJ 07102

Attorneys for Appellant

Mark E. Coyne 

Richard J. Ramsay [Argued]

Office of United States Attorney

970 Broad Street, Room 700

Newark, NJ 07102

Attorneys for Appellee

Brett G. Sweitzer

Federal Community Defender Office

601 Walnut Street

The Curtis Center, Suite 540 West

Philadelphia, PA 19106

Attorney for Amicus Appellant

____________

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 States 
3

Sentencing Guidelines. For the reasons 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:

CALLER: Can I have the number to East Orange 

Police Department.

DISPATCHER: You need where?

CALLER: 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 break it up but, I don’t 

wanna do nothing.
4

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 think 

he has a gun.” Id. The caller then hung up and the operator 

dispatched the call in this way: 

Grove and William, Grove 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 the 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 the 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 waslater identified as Appellant 

Ibrahim 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 

dispatcher that “the male actor involved had dreadlocks.” App. 

78. Officers Rochester and Patterson then “immediately 
5

engaged” McCants and frisked him due to the “nature of the 

call for service.” Id. During the pat down, Officer Rochester 

found a loaded handgun inside a fanny pack McCants was 

wearing. The officers placed McCants under arrest and 

recovered distributable quantities of heroin. 

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 Crystal Singleton and Detective Jaleesa Wreh 

reported that Fulton showed no signs of injury. 

II

A grand jury charged McCants with unlawful 

possession of a firearm by a convicted felon in violation of 18

U.S.C. § 922(g)(1) and possession with intent to distribute 

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 engaged in criminal activity before they frisked him. The 

 

1 Although the parties largely agreed on the facts, they

disputed whether McCants and Fulton were arguing when the 

officers arrived. The Government claimed they were “yelling 

at each other.” McCants, 2016 WL 4705452, at *2. But

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

Government opposed the motion, and the District Court denied 

it without oral argument. The Court found that the stop was 

based on reasonable suspicion because the caller’s 

“anonymous tip bore sufficient indicia of reliability.” 

McCants, 2016 WL 4705452, at *7. 

The District Court then conducted a stipulated bench 

trial, and McCants was found guilty as charged on 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 robbery 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 168–210 months to 63–78 months under 

Guidelines § 2K2.1. The District Court overruled McCants’s 

objection, concluding that his two prior robbery convictions 

qualified as crimes of violence. At sentencing, the Court varied 

downward, imposing a sentence of 120 months’ imprisonment 

followed by three years of supervised release. McCants timely 

appealed. 

III

The District Court had jurisdiction under 18 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 District Court’s factual

findings for clear error and its legal 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 
7

constitutes a “crime of violence” under the Guidelines. United 

States v. Chapman, 866 F.3d 129, 131 (3d Cir. 2017).

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 an unconstitutional 

search. The dispositive question underlying this argument is 

whether the anonymous 911 tip provided sufficient indicia of 

reliability for reasonable suspicion of ongoing criminal 

activity.

The Fourth Amendment prohibits “unreasonable 

searches and seizures.” U.S. CONST. 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 reasonable suspicion 

requires “at least a minimal level of objective justification for 

making the stop” and more than an “inchoate and 

unparticularized suspicion or ‘hunch’” 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 articulate 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. 
8

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, 397

(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 credibility 

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 

would 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)

(ellipsis in original). In assessing the reliability of a tip, courts 

within the Third Circuit must consider these factors with 
9

reference to the totality of the circumstances presented in each 

case. Id. 

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 the District Court’s view, the tip sufficed 

because the caller used the 911 system to report firsthand 

knowledge of ongoing domestic violence, and she gave an 

accurate description that was quickly confirmed 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. These 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., 529 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 the 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 specific and accurate description of the 

suspect’s location, clothing, and hair. In J.L., the informant

reported significantly fewer details and described potentially 
10

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 with 

McCants that the 911 call mirrors the limited and vague report 

in J.L. 

As the Government argues, the indicia of reliability in 

McCants’s case are like those in Navarette v. California. The 

Supreme Court there concluded that a tip created reasonable 

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. The 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 

police were able to confirm the detailed description of the 

suspect within minutes 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 argues 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 between 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 reliability
11

factors, this 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 particular 

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,” id. 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 noticing 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 arises, ‘[t]he reasonableness of the 

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’ reasonable 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 cumulative 

information available to them that might well elude an 

untrained person.” United States v. Graves, 877 F.3d 494, 499 
12

(3d Cir. 2017) (internal quotation marks omitted) (quoting 

United States v. Brown, 765 F.3d 278, 290 (3d Cir. 2014)), cert. 

denied, 139 S. Ct. 159 (2018). And as the District Court noted,

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, the 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 pat-down 

even though the couple was chatting amicably when the 

officers arrived. Id. at 648, 650. In upholding the stop, the 

Seventh Circuit 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 argument regarding Fulton’s demeanor does 

not give proper weight to law enforcement officers’

experiences 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 drunkdriving 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 
13

reasons, the District Court did not err in deferring to the 

officers’ reasonable inferences regarding Fulton’s demeanor in 

light of the 911 call.

In sum, viewing all the circumstances, the anonymous

tip bore sufficient indicia of reliability and provided the 

officers with reasonable suspicion that justified the Terry stop. 

The caller used the 911 system to report an eyewitness account 

of domestic violence and provided the officers with a detailed 

description of the suspect and location, both of which were 

quickly confirmed 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 crimes 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, extortion, or the use or 

unlawful possession of a firearm described in 26 

U.S.C. § 5845(a) or explosive material as 
14

defined in 18 U.S.C. § 841(c) [the “enumerated 

offense” clause].

Guidelines § 4B1.2(a).

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 the 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. STAT. ANN. § 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 
15

if in the course of committing the theft the actor 

attempts to kill anyone, or purposely inflicts or 

attempts to inflict serious bodily injury, or is 

armed with, or uses or threatens the immediate 

use of a deadly weapon.

N.J. STAT. ANN. § 2C:15-1.

We can look beyond the elements of the statute for this 

comparison 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 disjunctively, 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 things the ‘prosecution must prove to 

sustain a conviction.’” Id. (quoting Elements of Crime, 

BLACK’S LAW DICTIONARY (10th ed. 2014)). “At a trial, they 

are what the jury must find beyond a reasonable doubt to 

convict the defendant, and at a plea hearing, they are what the 

defendant necessarily admits when he pleads guilty.” Id.

(citation omitted). “Means,” on the other hand, are “various 

factual ways of committing” a single element. Id. at 2249. 

McCants insists the New Jersey robbery statute is 

indivisible because the alternatives in subsections (a)(1)–(3) 

are 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. In

Mathis, the Supreme Court explained that “the statute on its 

face may resolve the issue” of characterizing alternatives. Id.

at 2256. In doing so, the Court used differences in punishment 
16

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. 

Crimes comprise elements; means illustrate ways of satisfying 

individual elements. If the subsections of § 2C:15-1 were 

means, they would list “diverse means of satisfying a single 

element” of robbery. Id. at 2249 (emphasis added). But the 

statute does not identify an individual element of which 

subsections (a)(1)-(3) are mere examples—it states no 

overarching genus of which they are species. Instead, it lists in 

the disjunctive three separately enumerated, alternative 

elements of robbery.

By contrast, in Mathis, the burglary statute defined 

burglary to require “enter[ing] an occupied structure,” IOWA 

CODE § 713.1, and gave as examples of an occupied structure 

“any building, structure, [or] land, water, or air vehicle,” id. 

§ 702.12. Thus, the element (the genus) for burglary was an 

occupied structure and the means (the species) were any 

building, structure, or land, water, or air vehicle. Here, the 

alternative elements for robbery are (a)(1)-(3) and the means 

are the various types of force, threats, and crimes that could 

satisfy those subsections. Structurally, § 2C:15-1 puts 

subsections (a)(1)-(3) on the level of elements, not means.

Subsections (a)(1)–(3) are elements because each

requires different proof beyond a reasonable doubt to sustain a 

second-degree robbery conviction. Under (a)(1), the 

prosecutor must prove that the defendant inflicts injury or uses

force upon another person. However, the defendant need only 

threaten or place another person in fear of immediate bodily 
17

injury under (a)(2), or threaten to commit another first- or 

second-degree crime under (a)(3).

Our conclusion would be different if McCants could 

show “that a jury” in New Jersey “need not make any specific 

findings (or a defendant admissions) on” which of these 

subsections a defendant violated. Mathis, 136 S. Ct. at 2249. If 

“[a] jury could convict even if some jurors conclude[d] that the 

defendant [violated (a)(1)] while others conclude[d] that he 

[violated (a)(2)],” then the subsections would be means, not 

elements. Id. (internal quotation marks omitted). Because 

McCants makes no such showing, we rely on the phrasing and 

structure of § 2C:15-1 to hold that subsections (a)(1)-(3) list 

elements, not means.

This analysis parallels our decision in United States v. 

Blair, 734 F.3d 218 (3d Cir. 2013), where we held that 

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. STAT. ANN. § 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;
18

 

(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;

(iv) inflicts bodily injury upon another or 

threatens another with or intentionally puts him 

in fear of immediate bodily injury; or

(v) physically takes or removes property from 

the person of another by force however slight.

Peppers, 899 F.3d at 231 (quoting 18 PA. CONS. STAT.

§ 3701(a) (June 24, 1976 to May 16, 2010)). Unlike 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 felony. Otherwise, robberies under the other 

subsections were first-degree felonies. Id.

In Ramos, we explained that a similarly-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. 
19

elements upon which prosecutors can sustain a second-degree 

robbery conviction, we hold that the statute is divisible. 

B

Having determined that the relevant statute is divisible, 

we must ascertain whether McCants’s New 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 

instructions, and judgment of conviction—to 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 And a review of McCants’s plea colloquy leads 

necessarily to the conclusion that he pleaded 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 Newark?” App. 266. He 

 

3 The first robbery indictment charges that McCants 

used or threatened the use of what the victim perceived as a 

deadly weapon. The second indictment charges that he 

threatened the use of a deadly weapon. 
20

responded, “Yeah.” App. 267. Regarding the second robbery 

offense on April 28, 2004, the court asked McCants: “And on 

that occasion did you take or attempt to take from an individual 

by the threat of force some items?” Id. He again responded, 

“Yes.” Id. We agree with the Government that McCants’s 

admissions 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 injury or fear, which he 

believes are required by the statute. Second, he argues his 

admissions regarding force do not equate to threats 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 disagree that McCants’s colloquy shows he could 

have been convicted under subsection (a)(3). First, his

semantic arguments are inconsistent with the plea colloquy. 

His admissions of attempting or successfully using threat of 

force to take items from individuals most closely 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 McCants pleaded guilty to

subsection (a)(3), he would have needed to admit that he 

committed or threatened to commit another crime. Yet his plea 

colloquy makes reference to neither. Because he could not 

have pleaded guilty to subsection (a)(3) and McCants concedes 

he was not convicted under subsection (a)(1), the only logical 
21

choice is subsection (a)(2). Thus, we have no reason to 

overturn the District Court’s finding that the natural reading of 

the plea colloquy is that McCants’s two prior robbery 

convictions fall under N.J. STAT. ANN. § 2C:15-1(a)(2). 

C

Finally, we must decide whether McCants’s convictions

under subsection (a)(2) are predicate offenses 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 physical 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). Subsection (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. STAT. ANN. § 2C:15-1(a)(2). In New Jersey, 

“bodily injury” is defined 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 

definition 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. 
22

We reach the same result with regard to the enumerated 

offense clause (§ 4B1.2(a)(2)), which lists “robbery” as a crime 

of violence. When the Guidelines specifically list an offense, 

we “compare the elements of the crime of conviction to the 

generic form of 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. 929 (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 

force or by intimidation.” App. 199. We held in Graves that 

“generic robbery requires no more than de minimis force” to 

meet this definition. 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 New 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. STAT. ANN. § 2C:15-1(a)(2). 

We agree with the Government that subsection (a)(2) falls 

within the definition of generic robbery because the statute 

requires the threat of bodily injury, which involves more 

force—and is therefore categorically narrower—than de 

minimis force, Graves, 877 F.3d at 504. Accordingly, we hold 

that McCants’s convictions under subsection (a)(2) qualify as 
23

crimes of violence under the enumerated offense clause of 

§ 4B1.2(a)(2). Therefore, the District Court rightly designated 

McCants a career offender because his two prior convictions 

for second-degree 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.