PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-2351

___________

UNITED STATES OF AMERICA

v.

RICARDO MARRERO, 

 Appellant

__________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 09-cr-00208)

District Judge: Honorable Gustave Diamond

___________

Argued January 26, 2012

Before: AMBRO, CHAGARES and HARDIMAN, Circuit 

Judges.

(Filed: April 25, 2012)

Rebecca R. Haywood

Michael L. Ivory [ARGUED]
2

Office of the United States Attorney

700 Grant Street

Suite 4000

Pittsburgh, PA 15219-0000

Attorneys for Plaintiff-Appellee

Karen S. Gerlach [ARGUED]

Office of Federal Public Defender

1001 Liberty Avenue

1500 Liberty Center

Pittsburgh, PA 15222-0000

Attorneys for Defendant-Appellant

____________

OPINION OF THE COURT

____________

HARDIMAN, Circuit Judge.

Ricardo Marrero appeals his judgment of sentence 

after pleading guilty to two counts of bank robbery. Marrero 

claims the District Court erred in classifying him as a “career 

offender” under § 4B1.1 of the United States Sentencing 

Guidelines. Because we agree with the District Court that 

Marrero’s convictions for simple assault and third-degree 

murder qualify as “crimes of violence,” we will affirm.

I

In December 2010, Marrero pleaded guilty to two 

counts of bank robbery in violation of 18 U.S.C. § 2113(a). 

Thereafter, the Probation Office prepared a Presentence 

Investigation Report (PSR), which recommended that 

Marrero be sentenced as a career offender under § 4B1.1 of 
3

the United States Sentencing Guidelines (USSG or 

Guidelines) because he had three convictions for crimes of 

violence: (1) third-degree murder under 18 Pa. Cons. Stat. 

Ann. § 2502(c) in 1997; (2) simple assault under 18 Pa. Cons. 

Stat. Ann. § 2701(a)(1) in 2004; and (3) the bank robberies in 

this case.

The PSR described Marrero’s third-degree murder 

conviction as follows. In 1997, a man named Guy Prange 

approached Marrero and others outside a house in 

Coatesville, Pennsylvania, and asked for drugs. He was told 

they did not have any drugs. When Prange began walking 

away, Marrero ran up and hit him from behind, knocking him 

to the ground. Marrero then kicked Prange numerous times. 

Prange died in the hospital twenty-five days later from 

complications from a ruptured spleen. In September 2002, 

Marrero pleaded guilty to murder in the third degree.

The PSR also indicated that Marrero pleaded guilty to 

simple assault following two attacks on his wife in 2004. The 

transcript of Marrero’s guilty plea colloquy states, in relevant 

part:

[Assistant District Attorney]: Your 

Honor, the defendant is charged with two 

separate incidents of simple assault. On 

Information 2804-04, the date of May 29 of 

2004 . . . the defendant was seen placing his 

hands on the victim’s neck. The victim’s name 

is Lucy Marrero. And he did, at that time, 

threaten serious bodily injury. On Information 

38 –

The Court: Do you admit those facts?
4

The Defendant: Yes, Sir.

[Assistant District Attorney]: On 

Information 3839-04, the date was April 27, 

2004, . . . the defendant grabbed Mrs. Marrero 

by the neck, attempting to drag her upstairs to 

the second floor. When she tried to make a 

phone call, he ripped the phone cord out of the 

wall as she was attempting to call 911.

The Court: Do you admit those facts?

The Defendant: Yes, Sir.

The Probation Office concluded that Marrero’s 

convictions for third-degree murder and simple assault 

constituted “crimes of violence” under the Guidelines. 

Accordingly, the PSR classified Marrero as a career offender, 

which increased his offense level from 21 to 32. After a 

three-point reduction for acceptance of responsibility, 

Marrero’s total offense level was 29. The career offender 

enhancement also increased his criminal history category 

from IV to VI. See USSG § 4B1.1(b). This resulted in a final 

Guidelines range of 151 to 188 months’ imprisonment. Had 

Marrero not been deemed a career offender, his Guidelines 

range would have been 57 to 71 months.

Marrero objected to the career offender classification, 

arguing that under Pennsylvania law neither third-degree 

murder nor simple assault qualifies as a crime of violence 

because “a conviction for mere recklessness cannot constitute 

a crime of violence.” The District Court disagreed, holding 
5

that he was a career offender under USSG § 4B1.1. 

According to the District Court, Marrero’s simple assault 

conviction was a crime of violence because: (1) our decision 

in United States v. Johnson, 587 F.3d 203 (3d Cir. 2009), 

established that intentional or knowing simple assault under 

Pennsylvania law is a crime of violence; and (2) the transcript 

of Marrero’s guilty plea colloquy “indicated that he pled 

guilty to an intentional and knowing violation of the simple 

assault statute.” As for Marrero’s third-degree murder 

conviction, the District Court found that it constituted a crime 

of violence because “murder” is expressly enumerated as 

such in Application Note 1 to USSG § 4B1.2.

Having found the career offender designation 

appropriate in Marrero’s case, the District Court agreed with 

the Probation Office that his applicable Guidelines range was 

151 to 188 months’ imprisonment. Marrero sought a belowGuidelines sentence, and the Government opposed that 

request. Applying the factors set forth in 18 U.S.C. 

§ 3553(a), the District Court determined that a substantial 

downward variance was warranted and sentenced Marrero to 

96 months’ imprisonment and three years of supervised 

release.

Marrero timely appealed and has raised one issue: his 

classification as a career offender. If either of his prior 

offenses is not a crime of violence, Marrero’s sentence, which 

was based in part on his career offender designation, cannot 

stand. See, e.g., United States v. Keller, 666 F.3d 103, 109 

(3d Cir. 2011); United States v. Friedman, 658 F.3d 342, 359 

(3d Cir. 2011).
6

II

The District Court had jurisdiction pursuant to 18 

U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 

and 18 U.S.C. § 3742(a)(1). Whether a prior conviction 

constitutes a crime of violence for purposes of the career 

offender Guideline is a question of law over which we 

exercise plenary review. E.g., Johnson, 587 F.3d at 207.

III

Our legal analysis begins with the text of the relevant 

Guidelines. Under USSG § 4B1.1, one is a career offender if:

(1) [he] was at least eighteen years old at the 

time [he] committed the instant offense of 

conviction; (2) the instant offense of conviction 

is a felony that is either a crime of violence or a 

controlled substance offense; and (3) [he] has at 

least two prior felony convictions of either a 

crime of violence or a controlled substance 

offense.

Under the Guidelines, “crime of violence”

means any offense under federal or state law, 

punishable by imprisonment for a term 

exceeding one year, that—

(1) has as an element the use, attempted 

use, or threatened use of physical force 

against the person of another, or

(2) is burglary of a dwelling, arson, or 

extortion, involves use of explosives, or 
7

otherwise involves conduct that presents 

a serious potential risk of physical injury 

to another.

USSG § 4B1.2(a). Finally, Application Note 1 to USSG 

§ 4B1.2 provides that “‘[c]rime of violence’ includes murder, 

manslaughter, kidnapping, aggravated assault, forcible sex 

offenses, robbery, arson, extortion, extortionate extension of 

credit, and burglary of a dwelling.”

A

The first question presented is whether Marrero’s 

Pennsylvania simple assault conviction is a qualifying offense 

for purposes of the career offender Guideline. See USSG 

§ 4B1.1. Under Pennsylvania law, “[a] person is guilty of 

[simple] assault if he: (1) attempts to cause or intentionally, 

knowingly or recklessly causes bodily injury; (2) negligently

causes bodily injury to another with a deadly weapon; [or] (3) 

attempts by physical menace to put another in fear of 

imminent bodily injury.” 18 Pa. Cons. Stat. Ann. § 2701(a). 

Apart from “aggravated assault,” assault is not enumerated in 

either § 4B1.2(a)(2) of the Guidelines or the application note 

thereto, and neither party argues that Marrero’s simple assault 

conviction could qualify as a crime of violence under 

§ 4B1.2(a)(1). Therefore, we must determine whether 

Marrero’s simple assault offense was a crime of violence 

under the so-called “residual clause” in § 4B1.2(a)(2), which 

refers to offenses that “otherwise involve[] conduct that 

presents a serious potential risk of physical injury to another.”

As we noted in Johnson, the Supreme Court’s decision 

in Begay v. United States, 553 U.S. 137 (2008), altered the 
8

analytical framework for residual clause cases.1

 1 Although Begay and several related cases involved 

sentencing enhancements under the Armed Career Criminal 

Act (ACCA), 18 U.S.C. § 924(e), rather than the career 

offender Guideline, they nevertheless bind our analysis. 

“Precedent . . . requires the application of case law 

interpreting ‘violent felony’ in ACCA to ‘crime of violence’ 

in U.S.S.G. § 4B1.2[] because of the substantial similarity of 

the two sections.” United States v. Herrick, 545 F.3d 53, 58 

(1st Cir. 2008); accord, e.g., Hopkins v. United States, 555 

U.S. 1132 (2009) (mem.) (remanding a career offender case 

for consideration after the Supreme Court’s ACCA opinion in 

Chambers v. United States, 555 U.S. 122 (2009)); United 

States v. Hopkins, 577 F.3d 507, 511 (3d Cir. 2009) (“[T]he 

definition of a violent felony under the ACCA is sufficiently 

similar to the definition of a crime of violence under the 

Sentencing Guidelines that authority interpreting one is 

generally applied to the other . . . .”).

 587 F.3d at 

207. Reasoning that the residual clause must be interpreted 

with reference to the enumerated crimes that precede it—

namely, burglary, arson, extortion, and crimes involving the 

use of explosives—the Supreme Court concluded that the 

residual clause “covers only similar crimes, rather than every

crime that ‘presents a serious potential risk of physical injury 

to another.’” Begay, 553 U.S. at 142 (quoting 18 U.S.C. 

§ 924(e)(2)(B)(ii)). Accordingly, “[p]ost-Begay, to qualify as 

a crime of violence [under the residual clause] the crime in 

question ‘must (1) present a serious potential risk of physical 

injury and (2) be “roughly similar, in kind as well as degree 

of risk posed, to the examples [of burglary, arson, extortion, 

or use of explosives] themselves.”’” Johnson, 587 F.3d at 

207–08 (third alteration in original) (quoting United States v. 
9

Polk, 577 F.3d 515, 518 (3d Cir. 2009)). And “[a] crime is 

similar in kind to one of the enumerated examples if it 

‘typically involve[s] purposeful, violent, and aggressive 

conduct.’” Id. at 208 (quoting Begay, 553 U.S. at 144–45).

To determine whether Marrero’s case satisfies the 

residual clause, we first apply the categorical approach 

prescribed by the Supreme Court in United States v. Taylor, 

495 U.S. 575, 602 (1990). This approach requires us to ask 

“whether the elements of the offense are of the type that 

would justify its inclusion within the residual provision, 

without inquiring into the specific conduct of this particular 

offender.” James v. United States, 550 U.S. 192, 202 (2007); 

accord Johnson, 587 F.3d at 208. In Begay, the Court 

concluded that the offense of driving under the influence of 

alcohol did not meet these residual-clause criteria. 553 U.S. 

at 144–48. After Begay, “a conviction for mere recklessness 

cannot constitute a crime of violence” under the residual 

clause. United States v. Lee, 612 F.3d 170, 196 (3d Cir. 

2010). As we have explained, the Begay Court’s “repeated 

invocation of ‘purposefulness,’ and the contrast the Court 

drew between that state of mind and negligence or 

recklessness, suggest that a crime committed recklessly is not 

a crime of violence.” Johnson, 587 F.3d at 210 n.8. Our 

sister circuits that have considered this question have reached 

the same conclusion. See id. (listing cases).

We have previously applied Begay and Taylor to 

determine whether a conviction for simple assault under 

Pennsylvania law qualifies as a crime of violence under the 

residual clause of USSG § 4B1.2(a)(2). In Johnson, we held 

that only “an intentional or knowing violation of subsection 

(a)(1) of [§ 2701] may qualify as a crime of violence ‘in the 

ordinary case.’” 587 F.3d at 210–12. We reasoned that 
10

“there can be no doubt that simple assault is at least as violent 

and aggressive as the enumerated crimes because a defendant 

who intentionally or knowingly commits [simple assault] 

intends to impair the victim’s physical condition or cause her 

substantial pain, [and] no such objective is required by the 

enumerated crimes.” Id. at 212.

Whether Marrero’s prior conviction was for intentional 

or knowing simple assault, rather than merely reckless or 

negligent iterations of the crime, depends on the statutory 

elements of which Marrero was actually convicted. Id. at 

208; accord United States v. Stinson, 592 F.3d 460, 462 (3d 

Cir. 2010). To make this determination, we apply a modified 

categorical approach, in which we are “generally limited to 

examining the statutory definition, charging document, 

written plea agreement, transcript of plea colloquy, and any 

explicit factual finding by the trial judge to which the 

defendant assented.” Shepard v. United States, 544 U.S. 13, 

16 (2005). Whether one of these Shepard-approved 

documents “contains sufficient information to permit a 

conclusion about the character of the defendant’s previous 

conviction will vary from case to case.” Johnson, 587 F.3d at 

213.

Marrero concedes that the District Court was permitted 

to consult his plea colloquy to determine the type of simple 

assault of which he was convicted. Appellant’s Br. 33. He 

argues, however, that the District Court’s inquiry was limited 

to determining only the elements of § 2701(a) to which he 

pleaded guilty. He claims that the District Court exceeded 

this boundary by looking to specific facts established during 

the colloquy rather than solely to any statutory elements set 

forth in the record. In support, Marrero cites a statement by 

the Court of Appeals for the Seventh Circuit in United States 
11

v. Woods, 576 F.3d 400 (7th Cir. 2009), that “the additional 

materials permitted by Shepard may be used only to 

determine which crime within a statute the defendant 

committed, not how he committed the crime,” id. at 405.

Our inquiry under Shepard’s modified categorical 

approach is not as constrained as Marrero suggests. It is wellestablished that where a statute sets forth multiple, divisible 

ways of committing a particular crime—e.g., where a statute

contains separate subsections, elements, or phrases 

differentiating violent from non-violent ways of committing 

an offense—the sentencing court may resort to Shepardapproved documents to “determine which statutory phrase 

(contained within a statutory provision that covers several 

different generic crimes) covered a prior conviction.” 

Nijhawan v. Holder, 557 U.S. 29, 37 (2009); accord Johnson 

v. United States, 130 S. Ct. 1265, 1273 (2010); Chambers v. 

United States, 555 U.S. 122, 126 (2009). In Nijhawan, the 

Supreme Court expounded upon the proper inquiry in these 

cases, explaining:

[S]ometimes a separately numbered subsection 

of a criminal statute will refer to several 

different crimes, each described separately. 

And it can happen that some of these crimes 

involved violence while others do not. A single 

Massachusetts statute section entitled “Breaking 

and Entering at Night,” for example, 

criminalizes breaking into a “building, ship, 

vessel or vehicle.” Mass. Gen. Laws, ch. 266, 

§ 16 (West 2006). In such an instance, we have 

said, a court must determine whether an 

offender’s prior conviction was for the violent, 

rather than the nonviolent, break-ins that this 
12

single five-word phrase describes (e.g., 

breaking into a building rather than a vessel), by 

examining “the indictment or information and 

jury instructions,” or, if a guilty plea is at issue, 

by examining the plea agreement, plea 

colloquy, or “some comparable judicial record” 

of the factual basis for the plea.

557 U.S. at 33. Moreover, Shepard authorizes sentencing 

courts to look to “any explicit factual finding by the trial 

judge to which the defendant assented,” which includes far 

more than merely the precise statutory provision to which the 

defendant pleaded guilty. See Shepard, 544 U.S. at 16 

(emphasis added).

Applying these principles to Marrero’s case, we 

conclude that the District Court properly examined Marrero’s 

simple assault plea colloquy transcript—a Shepard-approved 

document—to determine whether he pleaded guilty to 

intentional, knowing, or reckless assault. Pennsylvania’s 

simple assault statute expressly lists those three different 

ways of violating § 2701(a). Upon examining the plea 

colloquy transcript, the District Court correctly concluded 

that Marrero’s conviction was for intentional (or, at the very 

least, knowing) simple assault. Marrero admitted to placing 

his hands around his wife’s neck and attempting to pull her up 

a flight of stairs. This constituted intent to cause bodily 

injury, which we have already held qualifies as a crime of 

violence. Johnson, 587 F.3d at 212.

B

Because Marrero could not properly be designated a 

career offender unless both of his state convictions were 
13

“crimes of violence,” we now consider whether his thirddegree murder conviction so qualified. Under Pennsylvania’s 

general homicide statute, 18 Pa. Cons. Stat. Ann. § 2501(a), 

“[a] person is guilty of criminal homicide if he intentionally, 

knowingly, recklessly or negligently causes the death of 

another human being.” Section 2501(b) classifies homicides 

as either “murder, voluntary manslaughter, or involuntary 

manslaughter.” Pennsylvania recognizes three types of 

murder:

(a) Murder of the first degree—A criminal 

homicide constitutes murder of the first degree 

when it is committed by an intentional killing.

(b) Murder of the second degree—A criminal 

homicide constitutes murder of the second 

degree while defendant was engaged as a 

principal or an accomplice in the perpetration of 

a felony.

(c) Murder of the third degree—All other kinds 

of murder shall be murder of the third degree. 

Murder of the third degree is a felony of the 

first degree.

Id. § 2502. Although the statute itself only defines thirddegree murder as a catch-all without describing the elements 

of the offense, the Pennsylvania Superior Court has specified 

that third-degree murder is “an unlawful killing with malice 

but without specific intent to kill.” Commonwealth v. 

Dunphy, 20 A.3d 1215, 1219 (Pa. Super. Ct. 2011); accord 

Commonwealth v. Tielsch, 934 A.2d 81, 84 n.3 (Pa. Super. 

Ct. 2007). And “malice” is defined as
14

“wickedness of disposition, hardness of heart, 

cruelty, recklessness of consequences, and a 

mind regardless of social duty, although a 

particular person may not be intended to be 

injured,” [and] malice may be found where the 

defendant consciously disregarded an 

unjustifiable and extremely high risk that his 

actions might cause serious bodily injury.

Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa. Super. 

Ct. 2001) (quoting Commonwealth v. Cottam, 616 A.2d 988, 

1004 (Pa. Super. Ct. 1992)); see also Commonwealth v. 

Kling, 731 A.2d 145, 148 (Pa. Super. Ct. 1999) (“A defendant 

must display a conscious disregard for almost certain death or 

injury such that it is tantamount to an actual desire to injure or 

kill; at the very least, the conduct must be such that one could 

reasonably anticipate death or serious bodily injury would 

likely and logically result.”).

Based on this definition, Marrero cites Begay to argue 

that third-degree murder cannot be a crime of violence 

because malice, the essential mens rea, might entail 

recklessness only. Marrero’s reliance upon Begay is 

misplaced, however, because Begay’s prohibition on counting 

reckless crimes as crimes of violence applies only in residual 

clause cases. See, e.g., Sykes v. United States, 131 S. Ct. 

2267, 2275–76 (2011) (describing Begay as a decision 

“concerning the reach of ACCA’s residual clause”); United 

States v. Angiano, 602 F.3d 828, 829 (7th Cir. 2010) (finding 

Begay “inapposite” to a case involving the enumerated 

offense of burglary of a dwelling under § 2L1.2 of the 

Guidelines because “Begay . . . only classified the prior 

convictions under the residual clause”); United States v. 

Patillar, 595 F.3d 1138, 1140 (10th Cir. 2010) (describing 
15

Begay as a case interpreting the residual clause); see also 

United States v. Peterson, 629 F.3d 432, 437 (4th Cir. 2011) 

(holding that the generic definition for the enumerated crime 

of violence of “manslaughter” was a “homicide that ‘is 

committed recklessly’” (quoting Model Penal Code § 210.3 

(1962))). Thus, Begay does not control this case. Rather, 

whether Marrero’s third-degree murder conviction qualifies 

as a crime of violence depends on the enumeration of 

“murder” in Application Note 1 to § 4B1.2.

Application Note 1 expressly states that the term 

“‘[c]rime of violence’ includes murder.” Consistent with the 

categorical approach prescribed by Taylor for predicate 

offenses expressly listed as “crimes of violence,” we 

previously held that “no inquiry into the facts of the predicate 

offense is permitted when a predicate conviction is 

enumerated as a ‘crime of violence’ in [then-]Application 

Note 2 to § 4B1.2.” United States v. McQuilkin, 97 F.3d 723, 

728 (3d Cir. 1996) (holding that a defendant’s aggravated 

assault conviction, even though based on reckless conduct, 

counted as a crime of violence because aggravated assault 

was enumerated in the application note); accord United States 

v. McClenton, 53 F.3d 584 (3d Cir. 1995) (holding that 

burglary of an unoccupied hotel room was a crime of violence 

because burglary of a dwelling was enumerated in § 4B1.2). 

Since we decided McQuilkin, nothing has called into question 

our prior conclusion that offenses listed in what is now 

Application Note 1 to § 4B1.2 should be considered 

“enumerated” offenses for purposes of the crime-of-violence 

analysis.

First, basic interpretative principles and a plain reading 

of Application Note 1 compel the same conclusion now as we 

reached in McQuilkin. “[C]ommentary in the Guidelines 
16

Manual that interprets or explains a guideline is authoritative 

unless it violates the Constitution or a federal statute, or is 

inconsistent with, or a plainly erroneous reading of, that 

guideline.” Stinson v. United States, 508 U.S. 36, 38 (1993); 

accord Johnson, 587 F.3d at 207. Application Note 1 does 

not conflict with federal law and is not an erroneous reading 

of USSG § 4B1.2. It merely supplements the numbered 

provisions of § 4B1.2 and unambiguously states that “‘crime 

of violence’ includes” ten specific crimes. USSG § 4B1.2 

cmt. n.1 (emphasis added); cf. Taylor, 495 U.S. at 597 (“[I]f 

Congress had meant to include only an especially dangerous 

subclass of burglaries as predicate offenses, it is unlikely that 

it would have used the unqualified language ‘is burglary . . .’ 

in § 924(e)(2)(B)(ii) [of ACCA].”).

Furthermore, several of our sister circuits have 

concluded or suggested that the ten offenses listed in 

Application Note 1 are “enumerated” for purposes of the 

crime-of-violence analysis. See United States v. Lockley, 632 

F.3d 1238, 1242 (11th Cir. 2011) (finding that robbery is an 

enumerated offense); Peterson, 629 F.3d at 436–37 (treating 

“manslaughter” in U.S.S.G. § 4B1.2(a) cmt. 1 as an 

enumerated offense); Patillar, 595 F.3d at 1140 (“Nor is 

larceny from the person one of the offenses enumerated in 

either § 4B1.2(a)(2) . . . or the application note, see id.

§ 4B1.2 cmt n.1 . . . .” (emphasis added)); United States v. 

Walker, 595 F.3d 441, 443–44 (2d Cir. 2010) (“[The] 

application note specifically includes ‘robbery’ as a ‘crime of 

violence’ under § 4B1.2(a). . . . [T]he Supreme Court held in 

Taylor that where a specific offense—in Taylor, burglary—is 

listed as a qualifying violent felony, ‘then the trial court need 

find only that the state statute corresponds in substance to the 

generic meaning of burglary.’” (quoting Taylor, 495 U.S. at 
17

599)); United States v. Otero, 495 F.3d 393, 401 (7th Cir. 

2007) (“Given that robbery is enumerated as a ‘crime of 

violence’ under the Guidelines and [the defendant’s] 

conviction for strong-armed robbery was classified as an 

adult conviction, the district court did not err in finding that 

[the defendant] qualified as a career offender.”).

Consistent with these precedents, we reaffirm that 

offenses listed in Application Note 1 are “enumerated” for 

purposes of the crime-of-violence analysis. The District 

Court reached the same conclusion, but erred when it held 

that the enumeration of “murder” was alone sufficient to 

render third-degree murder under Pennsylvania law a crime 

of violence. As we shall explain, the Court should have 

proceeded to apply the additional steps set forth by the 

Supreme Court in Taylor.

In Taylor the Court concluded that Congress did not 

intend for offenses enumerated as crimes of violence to take 

on whatever meaning state statutes ascribe to them; rather, 

Congress sought to use “uniform, categorical definitions . . . 

regardless of technical definitions and labels under state law.” 

Taylor, 495 U.S. at 590. The Court reasoned that it was 

“implausible that Congress intended the meaning of 

‘burglary’ for purposes of [ACCA’s] § 924(e) to depend on 

the definition adopted by the State of conviction.” Id. The 

Court thus identified a generic definition of burglary that 

Congress likely intended in the statute, id. at 596–99, and

sought to compare that definition with “burglary” under 

Missouri law, id. at 602. Unable to discover in the record 

which Missouri statute formed the basis for Taylor’s prior 

convictions, it remanded for further proceedings. Id.
18

The Taylor analysis must be applied in enumeratedoffense cases like this one. “Where, as here, the Guidelines 

specifically designate a certain offense as a ‘crime of 

violence,’ 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.” 

Lockley, 632 F.3d at 1242; accord Peterson, 629 F.3d at 435–

37; United States v. Ramon Silva, 608 F.3d 663, 665 (10th 

Cir. 2010); Walker, 595 F.3d at 443–44; United States v. 

Watkins, 54 F.3d 163, 166 (3d Cir. 1995) (comparing a 

Pennsylvania burglary statute to the “generic” definition of 

burglary announced in Taylor). In other words, “[f]irst, a 

court must distill a ‘generic’ definition of the predicate 

offense based on how the offense is defined ‘in the criminal 

codes of most states.’” Peterson, 629 F.3d at 436 (emphasis 

omitted) (quoting Taylor, 495 U.S. at 598). “Second, after 

finding the generic form of the predicate offense, a court must 

determine whether the defendant’s prior conviction 

constituted a conviction of the generic offense . . . by 

comparing the elements of the crime of conviction with the 

generic offense.” Id. So long as the statutory definition of 

the prior conviction “substantially corresponds” to the generic 

definition of the offense, the defendant’s prior offense 

qualifies as a crime of violence. Taylor, 495 U.S. at 602; 

accord, e.g., Ramon Silva, 608 F.3d at 665. If, on the other 

hand, the “statutory definition of the prior conviction 

proscribes a range of conduct that is broader than [the] 

generic [offense],” we look to the Shepard-approved sources 

to determine whether the jury or judge was required to find or 

the defendant was required to admit all of the elements of the 

generic offense in order to be convicted. Ramon Silva, 608 

F.3d at 665. We apply this enumerated-offense approach to 
19

cases, like this one, in which the crime of conviction is listed 

in either § 4B1.2(a)(2) or Application Note 1 to § 4B1.2.

In Marrero’s case, we begin by adopting a generic 

definition for “murder.” The goal of a generic definition of 

an enumerated offense is to capture the “offense as 

envisioned by the Guidelines’ drafters,” Lockley, 632 F.3d at 

1242, by looking to the Model Penal Code (MPC), state laws, 

and learned treatises. See, e.g., Taylor, 495 U.S. at 598; 

Lockley, 632 F.3d at 1242; Peterson, 629 F.3d at 436; Walker, 

595 F.3d at 446. As far as we are aware, no federal court has 

yet adopted a generic definition of murder for the crime-ofviolence analysis.

The MPC is an ideal starting point. Section 210.2 of 

the MPC provides that criminal homicide constitutes murder 

when:

(a) it is committed purposely or knowingly; 

or

(b) it is committed recklessly under 

circumstances manifesting extreme indifference 

to the value of human life. Such recklessness 

and indifference are presumed if the actor is 

engaged or is an accomplice in the commission 

of, or an attempt to commit, or flight after 

committing or attempting to commit robbery, 

rape or deviate sexual intercourse by force or 

threat of force, arson, burglary, kidnapping or 

felonious escape.

Similarly, Black’s Law Dictionary defines “murder” as “[t]he 

killing of a human being with malice aforethought.” Id. at 
20

1114 (9th ed. 2009). “Depraved-heart murder” is “a murder 

resulting from an act so reckless and careless of the safety of 

others that it demonstrates the perpetrator’s complete lack of 

regard for human life.” Id. “Unintentional murder” is “[a] 

killing for which malice is implied because the person acted 

with intent to cause serious physical injury or knew that the 

conduct was substantially certain to cause death or serious 

physical injury.” Id. at 1114–15.

As with burglary in Taylor, 495 U.S. at 598, state-law 

definitions of murder vary widely but share a common 

definitional strand. The majority of state murder statutes 

criminalize at least three types of murder: (1) intentional 

killing; (2) killing during the commission of a felony; and (3) 

killing that, although unintentional, occurs in the course of 

dangerous conduct that demonstrates a reckless or malignant 

disregard for serious risks posed to human life.2

 2 All fifty states and the District of Columbia recognize 

intentional or premeditated murder, and forty-four states and 

the District of Columbia define a felony murder offense. At 

least thirty states define a form of unintentional murder 

involving a substantial likelihood of death, indifference (often 

“extreme indifference”) to the value of human life, an 

abandoned, malignant, or depraved heart, express or implied 

malice, or recklessness. See Ala. Code § 13A-6-2 (2011); 

Alaska Stat. Ann. §§ 11.41.100, .110 (West 2007); Ariz. Rev. 

Stat. Ann. §§ 13-1104 to -1105 (West 2010); Ark. Code Ann. 

§§ 5-10-102 to -103 (West 2008); Cal. Penal Code §§ 187–

188 (West 2012); Colo. Rev. Stat. Ann. § 18-3-102 (West 

2004); Conn. Gen. Stat. Ann. §§ 53a-54a, -54c (West 2007); 

Del. Code Ann. tit 11, §§ 635–636 (West 2010); D.C. Code 

§ 22-2101 (2001); Fla. Stat. Ann. § 782.04 (West 2007); Ga. 

 We 
21

 

Code Ann. § 16-5-1 (West 2009); Haw. Rev. Stat. § 707-701 

(West 2008); Idaho Code Ann. §§ 18-4001, -4003 (West 

2011); 720 Ill. Comp. Stat. Ann. 5/9-1 (West 2002); Ind. 

Code Ann. § 35-42-1-1 (West 2004); Iowa Code Ann. 

§§ 701.1–.3 (West 2003); Kan. Stat. Ann. §§ 21-5402 to -

5403 (West 2008); Ky. Rev. Stat. Ann. § 507.020 (West 

2006); La. Rev. Stat. Ann. § 14:30–:30.1 (West 2007); Me. 

Rev. Stat. Ann. tit. 17, §§ 201–202 (2006); Md. Code Ann., 

Criminal Law §§ 2-201, -204 (West 2002); Mass. Gen. Laws 

Ann. ch. 265, § 1 (West 2008); Mich. Comp. Laws Ann. 

§§ 750.316–.317 (West 2004); Minn. Stat. Ann. §§ 609.185, 

.195 (West 2009); Miss. Code Ann. § 97-3-19 (West 2011); 

Mo. Ann. Stat. §§ 565.020–.021 (West 1999); Mont. Code 

Ann. § 45-5-102 (2009); Neb. Rev. Stat. §§ 28-303 to -304 

(2009); Nev. Rev. Stat. Ann. § 200.010 (West 2000); N.H. 

Rev. Stat. Ann. §§ 630:1-a to -b (2007); N.J. Stat. Ann. 

§ 2C:11-3 (West 2005); N.M. Stat. Ann. § 30-2-1 (West 

2003); N.Y. Penal Law §§ 125.25, .27 (McKinney’s 2009); 

N.C. Gen. Stat. Ann. § 14-17 (West 2000); N.D. Cent. Code 

Ann. § 12.1-16-01 (West 2008); Ohio Rev. Code Ann. 

§ 2903.02 (West 2006); Okla. Stat. Ann. tit. 21, §§ 701.7–.8 

(West 2002); Or. Rev. Stat. Ann. § 163.005 (West 2003); 18 

Pa. Cons. Stat. Ann. § 2502 (1998); R.I. Gen. Laws Ann. 

§ 11-23-1 (West 2012); S.C. Code Ann. § 16-3-10 (2003); 

S.D. Codified Laws §§ 22-16-4, -7 (2006); Tenn. Code Ann. 

§ 39-13-202 (West 2011); Tex. Penal Code Ann. § 19.02(b) 

(West 2003); Utah Code Ann. § 76-5-203 (West 2004); Vt. 

Stat. Ann. tit. 13, § 2301 (West 2007); Va. Code Ann. 

§§ 18.2-32 to -33 (West 2012); Wash. Rev. Code 

§§ 9A.32.030, .050 (West 2009); W. Va. Code Ann. § 61-2-1 

(West 2002); Wis. Stat. Ann. §§ 940.01-.03 (West 2005); 

Wyo. Stat. Ann. §§ 6-2-101, -104 (West 2007).
22

incorporate each of these pervasive aspects of contemporary, 

widely accepted definitions of murder. Cf. Taylor, 495 U.S. 

at 598 (concluding that “[a]lthough the exact formulations 

vary, the generic, contemporary meaning of burglary [should] 

contain[] at least” several common elements appearing in the 

examined sources). Accordingly, we hold that murder is 

generically defined as causing the death of another person 

either intentionally, during the commission of a dangerous 

felony, or through conduct evincing reckless and depraved 

indifference to serious dangers posed to human life.

We further hold that the meaning of third-degree 

murder under Pennsylvania law “substantially corresponds” 

to the third prong of this generic definition. In Pennsylvania, 

third-degree murder is “an unlawful killing with malice but 

without specific intent to kill.” Dunphy, 20 A.3d at 1219. 

Malice, in turn, involves “hardness of heart, cruelty, and

recklessness of consequences.” DiStefano, 782 A.2d at 582. 

Malice exists “where the defendant consciously disregarded 

an unjustifiable and extremely high risk that his actions might 

cause serious bodily injury.” Id. Pennsylvania courts have 

held that the “reckless disregard for consequences” essential 

to malice requires that the defendant “display a conscious 

disregard for almost certain death or injury such that it is 

tantamount to an actual desire to injure or kill; at the very 

least, the conduct must be such that one could reasonably 

anticipate death or serious bodily injury would likely and 

logically result.” Kling, 731 A.2d at 148. This mens rea

requirement for third-degree murder mirrors the “reckless and 

depraved indifference to the serious dangers posed to human 

life” in the generic definition we have identified. Thus, thirddegree murder under Pennsylvania law is equivalent to the 
23

enumerated offense of “murder” and therefore qualifies as a 

crime of violence under the Guidelines.

III

Because Marrero’s third-degree murder and simple 

assault convictions both qualify as crimes of violence under 

USSG § 4B1.2, he was properly designated a career offender 

under USSG § 4B1.1. It follows that Marrero’s Guidelines 

range was properly calculated and that the District Court did 

not err. Accordingly, we will affirm.