2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-14-2010

USA v. Melvin Stinson

Precedential or Non-Precedential: Precedential

Docket No. 08-1717

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 08-1717

 

UNITED STATES OF AMERICA

v.

MELVIN STINSON,

a/k/a Tank

Melvin Stinson,

 Appellant

 

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Crim. No. 2-07-cr-00170-1)

District Judge: Honorable Eduardo C. Robreno

 

Originally Submitted Under Third Circuit LAR 34.1(a) on

July 6, 2009

Opinion Filed July 28, 2009 and Vacated September 24, 2009

Argued on Panel Rehearing October 8, 2009

Before: SLOVITER, AMBRO, and JORDAN, Circuit Judges

(Filed January 14, 2010)

 

Thomas F. Burke

Law Office of William J. Brennan

Philadelphia, PA 19103
2

Attorney for Appellant

Robert A. Zauzmer (Argued)

 Assistant United States Attorney

 Chief of Appeals

Maria M. Carrillo

 Assistant United States Attorney

Philadelphia, PA 19106

Attorneys for Appellee

Sarah S. Gannett

 Assistant Federal Defender

David L. McColgin (Argued)

 Supervising Appellate Attorney

Leigh M. Skipper

 Chief Federal Defender

Federal Community Defender Office for

Defender Association of Philadelphia

Federal Court Division

Philadelphia, PA l9l06

Attorneys for Amici Curiae

 

OPINION OF THE COURT

 

SLOVITER, Circuit Judge.

This matter is before us on this court’s grant of the

petition for panel rehearing filed on behalf of Appellant Melvin

Stinson supported by Amici Curiae Federal Public and

Community Defender Organizations for each District in the

Third Circuit. Because our prior opinion was vacated with the

order granting rehearing, we include here the relevant facts.

I.
 We have jurisdiction under 18 U.S.C. § 3742 and 28 1

U.S.C. § 1291. “We exercise plenary review over questions of law,

such as whether a crime is a crime of violence.” United States v.

Hull, 456 F.3d 133, 137 (3d Cir. 2006).

3

Stinson, who was arrested by local police in a

Philadelphia bar pursuant to an arrest warrant for failing to

appear in court, was found to be in possession of 23 glass vials

of cocaine base, totaling approximately 1.5 grams, and a .357

Magnum revolver. Thereafter, Stinson pled guilty to possession

with intent to distribute cocaine base in violation of 21 U.S.C. §

841(a)(1), using and carrying a firearm during a drug trafficking

crime in violation of 18 U.S.C. § 924(c)(1), and possession of a

firearm by a convicted felon in violation of 18 U.S.C. §

922(g)(1).

The presentence investigation report (“PSR”) found

Stinson to be a career offender under the 2006 United States

Sentencing Guidelines based on his 1998 conviction for

distribution of a controlled substance and his 1994 conviction in

Pennsylvania for “simple assault.” The PSR also noted that

Stinson had been convicted in Pennsylvania of resisting arrest. 

The District Court agreed that Stinson was a career offender and,

as a result, gave Stinson an enhanced offense level of 32, but

deducted 3 points for acceptance of responsibility. As a career

offender, Stinson had a criminal history category of VI and

received a Guidelines range of 262 to 327 months imprisonment. 

He was sentenced to 262 months, the bottom of the range. This

matter is before us on Stinson’s challenge to that sentence.

1

When this matter was originally before us, Stinson

claimed that the District Court (1) incorrectly considered his

simple assault crime to be a crime of violence under the relevant

sentencing provisions and (2) did not reasonably apply the 18

U.S.C. § 3553(a) factors when determining his sentence. See

United States v. Stinson, 574 F.3d 244, 245 (3d Cir. 2009),

vacated, 2009 U.S. App. LEXIS 21202, at *1 (3d Cir. 2009). 

Stinson conceded that the District Court’s conclusion that his
4

simple assault conviction qualified as a crime of violence was

required after our precedent in United States v. Dorsey, 174 F.3d

331 (3d Cir. 1999), noting in his brief that “it would seem to be

difficult to distinguish Dorsey from the case at bar, factually.” 

Appellant’s Br. at 10. He argued only that “[t]he District Court

must make a specific finding as to whether the offense of

conviction [i.e., the simple assault] established a crime of

violence by reference to the charged conduct [in the assault

charge].” Appellant’s Br. at 12. We do not understand Stinson

to have argued that the sentencing court should inquire into the

specific conduct of this particular offender, which would be

contrary to the Supreme Court’s direction that courts must apply

the categorical approach to classify a prior conviction. See

Taylor v. United States, 495 U.S. 575, 600-02 (1990). Under

that approach, a court must ask “whether the elements of the

offense are of the type that would justify its [classification as a

crime of violence].” James v. United States, 550 U.S. 192, 202

(2007).

Where a statute criminalizes different kinds of conduct,

some of which would constitute crimes of violence while others

would not, the court must apply a modified categorical approach

by which a court may look beyond the statutory elements to

determine the particular part of the statute under which the

defendant was actually convicted. See Shepard v. United States,

544 U.S. 13, 26 (2005); Evanson v. Att’y Gen., 550 F.3d 284,

290-91 (3d Cir. 2008); see also United States v. Smith, 544 F.3d

781, 786 (7th Cir. 2008) (“Such an examination . . . is ‘only to

determine which part of the statute the defendant violated.’”

(quoting United States v. Howell, 531 F.3d 621, 623 (8th Cir.

2008))).

After the briefs in the original appeal were filed, the

Supreme Court issued its opinion in Begay v. United States, 128

S. Ct. 1581 (2008). Begay interpreted the Armed Career

Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), which imposes

a special mandatory prison term on a felon who unlawfully

possesses a firearm and who has three or more prior convictions

for committing certain drug crimes or “violent felon[ies].” 

Under the ACCA:
5

[T]he term “violent felony” means any crime punishable

by imprisonment for a term exceeding one year, or any act

of juvenile delinquency involving the use or carrying of a

firearm, knife, or destructive device that would be

punishable by imprisonment for such term if committed

by an adult, that –

(i) has as an element the use, attempted use, or threatened

use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of

explosives, or otherwise involves conduct that presents a

serious potential risk of physical injury to another . . . . 

18 U.S.C. § 924(e)(2)(B). Begay focused on the meaning of the

latter clause, i.e., “or otherwise involves conduct that presents a

serious potential risk of physical injury to another,” which has

been called “the residual clause.” See 128 S. Ct. at 1586.

In our original opinion we declined to address the effect

of Begay on the District Court’s characterization of Stinson’s

conviction for simple assault as a crime of violence under

U.S.S.G. § 4B1.1(a), reasoning that it was “an issue that would

benefit from initial briefing and exploration before a trial judge

[in light of the subsequent decision in Begay].” Stinson, 574

F.3d at 246. We nevertheless affirmed the sentence on the basis

that resisting arrest, of which Stinson was also convicted, was a

crime of violence under the Sentencing Guidelines.

Thereafter, another panel of this court decided the issue

of the characterization of “simple assault” that we had declined

to reach in Stinson and held that “an intentional or knowing

violation of the [Pennsylvania simple assault statute] is a crime

of violence under U.S.S.G. § 4B1.2(a)(2).” United States v.

Johnson, 587 F.3d 203, 212 (3d Cir. 2009). Under the

Pennsylvania simple assault statute, a person is guilty who

“attempts to cause or intentionally, knowingly, or recklessly

causes bodily injury to another.” 18 Pa. Cons. Stat. Ann. §

2701(a)(2). Although the criminal information charged Johnson

with intentional and knowing conduct, the Johnson court was
6

unable to decide whether Johnson’s simple assault conviction

was a crime of violence because it was unclear, “based on the

information alone, whether Johnson actually admitted to acting

intentionally or knowingly.” Id. In light of the Government’s

position “that reckless conduct, standing alone, is not the type of

purposeful conduct that can constitute a crime of violence under

§ 4B1.2(a)(2)’s residual clause,” we vacated Johnson’s sentence

and remanded to the sentencing court. Id. at 210. We included a

reminder that the Supreme Court’s decision in Shepard

foreclosed the court from inquiring into the facts underlying the

earlier conviction but required the court to determine the part of

the Pennsylvania simple assault statute to which Johnson pled

guilty. Id. at 209.

In this case, as in Johnson, the record fails to show the

part of Pennsylvania’s simple assault statute on which Stinson’s

1994 conviction was based. We therefore turn from the simple

assault issue to analyze instead whether Stinson’s conviction for

resisting arrest qualifies as a categorical crime of violence. If so,

the District Court did not err in denominating Stinson a career

offender.

II.

In his motion for panel rehearing, Stinson raises three

challenges to his sentence. He argues that the Pennsylvania

resisting arrest statute, 18 Pa. Cons. Stat. Ann. § 5104, 

is not a categorical crime of violence after Begay; that the court

should not have affirmed the career offender sentence based on

Stinson’s prior conviction for resisting arrest; and that the

court’s holding that resisting arrest is a crime of violence is at

odds with United States v. Hopkins, 577 F.3d 507 (3d Cir. 2009).

We turn to consider these arguments.

Under the United States Sentencing Guidelines:

The term “crime of violence” means any offense under

federal or state law, punishable by imprisonment for a

term exceeding one year, that –
7

(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 otherwise involves

conduct that presents a serious potential risk of

physical injury to another.

U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 4B1.2(a)

(2006) (emphasis added). The definition in the Sentencing

Guidelines is sufficiently similar to the definition of a violent

felony under the ACCA that authority interpreting one is

generally applied to the other. See Hopkins, 577 F.3d at 511. 

Therefore, we are guided by the Supreme Court’s decision in

Begay analyzing the term “violent felony” under the ACCA.

That decision also underlies our analysis of Stinson’s

challenge to the District Court’s characterization of him as a

career offender. Under the Sentencing Guidelines, Stinson is a

career offender if he: (1) was at least eighteen years old when

the instant offense occurred; (2) the instant offense of conviction

is 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.” U.S.S.G. § 4B1.1(a)

(2006) (emphasis added). The first two requirements are

satisfied as Stinson was at least 18 years old and the instant

offense of conviction was a controlled substance offense. We

therefore focus on the third requirement: Stinson’s prior

convictions.

Stinson has prior convictions for distribution of a

controlled substance, simple assault, and resisting arrest. 

Stinson does not challenge that his 1998 conviction for

distribution of a controlled substance qualifies as a prior

conviction for career offender purposes. In light of our

elimination of simple assault at this stage, if we are to affirm

Stinson’s sentence, as the Government urges, we must find that

resisting arrest under Pennsylvania law is a crime of violence.
8

In Taylor v. United States, 495 U.S. 575 (1990), the

Supreme Court considered how prior convictions should be

analyzed for career offender purposes. After careful

consideration, it concluded that a court should apply a

categorical approach, and “look only to the fact of conviction

and the statutory definition of the prior offense.” Id. at 602. We

thus look to the statutory definition of resisting arrest under

Pennsylvania law.

The Pennsylvania Code states that:

A person commits a misdemeanor of the second degree if,

with the intent of preventing a public servant from

effecting a lawful arrest or discharging any other duty, the

person [1] creates a substantial risk of bodily injury to the

public servant or anyone else, or [2] employs means

justifying or requiring substantial force to overcome the

resistance.

18 Pa. Cons. Stat. Ann. § 5104 (2006).

The Pennsylvania statute specifies two types of conduct

by which a defendant could resist arrest. One specified conduct

is when the defendant resists arrest by “creat[ing] a substantial

risk of bodily injury” to the officer or another. Id. This is

“conduct that presents a serious potential risk of physical injury

to another,” and thus fits squarely within the definition of a

crime of violence in the residual clause of U.S.S.G. §

4B1.2(a)(2) (2006). The other specified conduct of resisting

arrest under the Pennsylvania statute is the action of a defendant

who “employs means justifying or requiring substantial force to

overcome the resistance.” 18 Pa. Cons. Stat. Ann. § 5104. In

order to ascertain whether this conduct fits within the Guidelines

definition of a “crime of violence,” we must focus on whether it

also falls within the residual clause of U.S.S.G. § 4B1.2(a), that

is whether it “involves conduct that presents a serious potential

risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2)

(2006).

Justice Breyer’s opinion in Begay provides needed clarity
9

on the residual clause. As explained there, the conduct falls

within the residual clause if it poses a degree of risk that is

similar to the degree of risk posed by the enumerated offenses

(“burglary of a dwelling, arson, extortion [or] involves use of

explosives”), and is similar in kind to those offenses. Begay,

128 S. Ct. at 1586. Begay further explains that an offense is

similar in kind to the enumerated offenses if it “typically

involve[s] purposeful, violent, and aggressive conduct.” 

Id.(internal quotations and citations omitted). This leads us to

inquire whether the second specified conduct in the

Pennsylvania resisting arrest statute, i.e., “employ[ing] means

justifying or requiring substantial force to overcome the

resistance,” 18 Pa. Cons. Stat. Ann. § 5104, involves

“purposeful, violent, and aggressive conduct,” Begay, 128 S. Ct.

at 1586 (internal quotations and citations omitted).

We conclude that it does. Such conduct poses as great or

greater a risk as burglary or extortion. Unlike those enumerated

offenses, resisting arrest necessarily involves confronting the

authority of a police officer who is likely armed and charged

with defending the public. Because the police officer is dutybound to effectuate the arrest, the offense engenders a significant

risk of conflict and, correspondingly, a significant risk of injury.

Resisting arrest by “employ[ing] means justifying or

requiring substantial force to overcome” is, by definition,

purposeful, aggressive and violent. 18 Pa. Cons. Stat. Ann. §

5104. It is “purposeful” because under the statute the crime

must have been “with the intent of preventing a public servant

from effecting a lawful arrest or discharging any other duty . . .

.” Id. (emphasis added). The refusal to yield to a public

official’s exercise of authority creates a substantial risk of injury

and is at least as aggressive and violent as burglary of a

dwelling. When “employ[ing] means justifying or requiring

substantial force to overcome,” an arrestee is knowingly

engaging in conflict with another. Id. (emphasis added).

Stinson counters that conduct that may fall within the

second clause of the Pennsylvania resisting arrest statute could

permit conviction for passive resistance, behavior that meets
10

neither of Begay’s standards of violence and aggressiveness. To

support his expansive view of the statute, Stinson relies heavily

on a single case, Commonwealth v. Thompson, 922 A.2d 926

(Pa. Super. Ct. 2007). Although defendant in that case

contended that she used “passive resistance” to the officers’

attempts to place her in custody after she and her husband

“interlocked their arms and legs and refused to respond to the

[officer’s] verbal commands to release their hands,” 922 A.2d at

927, it is evident that the Pennsylvania Superior Court focused

on other conduct. The court looked to “the statutory language of

section 5104 criminalizing resistance behavior that requires

substantial force to surmount.” Id. at 928.

The question whether a defendant committed the offense,

i.e., guilty or not, must be distinguished from the question

whether the Pennsylvania offense is a categorical crime of

violence. The defendant in Thompson was hardly passive as she

argued. She “approached [the officer], yelling and waving her

hands in an attempt to scare the horse [on which he was riding] .

. . [and] hit the horse’s nose, causing the animal to rear up.” Id.

at 927. Moreover, the defendant in Thompson “struggl[ed] with

the officers for a few minutes.” Id. Thus, Thompson’s behavior

squarely fit within the Pennsylvania resisting arrest statute.

The Pennsylvania courts have not construed the resisting

arrest statute to cover passive resistance. Passive resistance is

the antithesis of an act of violence. Protestors who gather in

large numbers or in small groups to support a cause, whether it

be animal rights, opposition to abortion, more vigorous

environmental enforcement, or the conflict in Afghanistan, and

who passively resist when the authorities seek to dissolve the

group, are not engaging in violent or aggressive action.

Although the language of Pennsylvania’s resisting arrest

statute “does not require the aggressive use of force such as

striking or kicking of the officer,” Commonwealth v. Miller, 475

A.2d 145, 146 (Pa. Super. Ct. 1984), we have found no decision

under Pennsylvania law that affirmed a conviction for resisting

arrest based on a defendant’s inaction or simply “lying down” or

“going limp.” Counsel arguing before us on this appeal could
 We need not dwell on Stinson’s argument that our 2

conclusion that resisting arrest is a crime of violence is contrary to

our opinion in Hopkins, 577 F.3d at 515, where we held that

second degree misdemeanor “escape” pursuant to 18 Pa. Cons.

Stat. Ann. § 5121 does not qualify as a crime of violence for career

offender purposes. The information to which Hopkins pled guilty

charged that he “unlawfully remove[d] himself from official

detention or fail[ed] to return to official detention following

temporary leave granted for a specific purpose or limited period.”

577 F.3d at 513. We held that misdemeanor escape “is conduct

materially less violent and aggressive than the enumerated

offenses.” Id. at 514. Such is not the case with resisting arrest.

11

cite to none in response to our questions. In fact, there are

several cases in which Pennsylvania courts have recognized that

resisting arrest does not extend to “minor scuffle[s] incident to

an arrest.” Commonwealth v. Rainey, 426 A.2d 1148, 1150 (Pa.

Super. Ct. 1981); see also Miller, 475 A.2d at 146 (“The intent

of [Pennsylvania’s resisting arrest statute] is ‘to confine the

offense to forcible resistance that involves some substantial

danger to the person.’” (quoting Pa. Crimes Code Ann. § 5104

(1974)). It is only when a defendant who was “struggling and 2

pulling, trying to get away from [the arresting officer who was

physically restraining him],” that he was convicted of resisting

arrest, and such cases are rare. Commonwealth v. Trego, 33 Pa.

D. & C.3d 352, 353 (Pa. Ct. Com. Pl. 1984).

Having satisfied ourselves that the crime of resisting

arrest in Pennsylvania does not encompass passive resistance, we

must determine whether the “ordinary” or “typical” fact scenario

underlying resisting arrest convictions in Pennsylvania is

sufficiently “purposeful, violent, and aggressive” to qualify as

crimes of violence after Begay. See Begay, 128 S. Ct. at 1586

(noting that the enumerated crimes all “typically” involve

purposeful, violent, and aggressive conduct); see also James v.

United States, 550 U.S. 192, 208 (2007) (“[T]he proper inquiry

is whether the conduct encompassed by the elements of the

offense, in the ordinary case, presents a serious potential risk of

injury to another” comparable to the enumerated offenses). We
 For the reasons set forth, we reject Stinson’s contention 3

that we would benefit from further briefing or record development

at the trial level.

12

conclude that the “ordinary” case meets this definition. Our

examination of the statute and the Pennsylvania cases

interpreting it demonstrate why that is so.

We therefore affirm the District Court’s holding that

Stinson was a career offender, but we do so on the alternate

ground that his prior conviction for resisting arrest, a categorical

crime of violence, provided the second predicate offense to his

designation as a career offender.3