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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 11-3070

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UNITED STATES OF AMERICA

v.

ANTHONY WAYNE RANSOM,

 Appellant

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On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 10-cr-798)

District Judge: Hon. Harvey Bartle, III 

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Submitted Under Third Circuit LAR 34.1(a)

September 25, 2012

Before: McKEE, Chief Judge, JORDAN, and VANASKIE, Circuit Judges.

(Filed: October 25, 2012)

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OPINION OF THE COURT

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JORDAN, Circuit Judge.

Anthony Ransom appeals a judgment of the United States District Court for the 

Eastern District of Pennsylvania sentencing him to 163 months‟ imprisonment and 3 

years‟ supervised release based upon his convictions for four counts of bank robbery. 

Although, through counsel, he represented to the District Court that he “technically 
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qualif[ied] as [a] career offender” under § 4B1.1 of the United States Sentencing 

Guidelines (Joint App. at 61), he now seeks to set aside his sentence on the ground that

the Court erred in sentencing him as such. He also contends that the District Court‟s 

judgment should be vacated because the Court failed to rule on his pro se motion for a 

sentencing departure. For the reasons that follow, we will vacate the District Court‟s 

judgment of sentence and remand for a ruling on Ransom‟s departure motion.

I. Background

Ransom pled guilty to robbing four federally insured banks in the Philadelphia 

area, in violation of 18 U.S.C. § 2113(a). In anticipation of sentencing, the United States 

Probation Office prepared a presentence investigation report (“PSR”) calculating 

Ransom‟s total offense level to be 29, based, in part, on Ransom‟s designation as a 

“career offender” under § 4B1.1 of the Guidelines. The PSR concluded that Ransom 

qualified as a career offender because he had pled guilty to a federal bank robbery charge

in 2004, and to a charge of simple assault under Pennsylvania law in 2003.

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 While the 

PSR determined that the career offender determination did not impact Ransom‟s criminal 

history level of VI, it showed that Ransom‟s total offense level would have been 25

absent application of § 4B1.1. Thus, the conclusion that Ransom was a career offender

 

1 With respect to the simple assault conviction, the PSR stated that the criminal 

complaint against Ransom said that he entered the victim‟s home, punched the victim in 

the face, pointed a gun at him, and bit his shoulder. At sentencing, however, Ransom 

claimed that the “simple assault was ... a fight,” and that there “was no gun involved, ... 

.” (Joint App. at 64.)
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increased his advisory sentencing range from 110-137 months‟ imprisonment to 151-188 

months‟ imprisonment. See U.S.S.G. ch. 5, Pt. A (sentencing table). 

Despite that increase, Ransom filed no objections to the PSR. And, when a

sentencing memorandum was submitted on his behalf, it expressly acknowledged that he

was a career offender, though it pressed for a variance on the ground that the simple 

assault conviction that played a role in triggering § 4B1.1‟s application resulted in a 

Guidelines range that was not commensurate with his criminal history. 

Indeed, while Ransom acknowledged that he was “considered a career offender 

pursuant to ... § 4B1.1,” he implored the Court to recognize that the simple assault

conviction was “crucial in raising his sentencing guideline range from 110-137 months 

up to 151-188 months” and that a lower sentence should be imposed because his record 

was not as serious “in comparison to [those] of most individuals who have attained career 

offender status.” (Joint App. at 51-52.) Ransom‟s attorney expanded on that contention 

at sentencing, again explaining that while Ransom “technically qualif[ied] as [a] career 

offender,” the simple assault was a mere “fight between two individuals who knew each 

other” and so should not be used to sentence him in the range that an application of 

§ 4B1.1 would counsel. (Id. at 61.) He therefore asked that the Court vary below the 

“applicable Guideline range for career offender status” by imposing a sentence “in 

between what the Guidelines [would be] if he was not technically a career offender and 

the career offender Guidelines.” (Id. at 62.) 

Ransom‟s attorney then handed the District Court “a copy of [a] letter that Mr. 

Ransom” had written which Ransom‟s attorney mistakenly believed to have already been 
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submitted directly to the Court. (Id. at 63.) Upon reading the letter,

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the Court stated, “I 

see we have a motion for a downward departure based on extraordinary confinement of a 

Federal inmate in a non-Federal ... pretrial institution.” (Id.) Defense counsel 

responded, “[y]es ... I had discussed that with my client and I had told him about how 

unsuccessful those motions have been in the past,” further noting that Ransom “had been 

out at Delaware County Prison ... during th[e] presentence period and the reports of the 

conditions out there are not as good as the reports of conditions at the Federal Detention 

Center ... .” (Id.) The District Court responded, “[a]ll right. Thank you” (id.), and the 

issue of Ransom‟s pretrial confinement was not addressed by the Court or the parties 

again. 

Eventually, after hearing from Ransom directly, the District Court imposed a 

sentence of 163 months‟ imprisonment and 3 years‟ supervised release, and ordered 

Ransom to pay restitution in the amount of $8,385. This timely appeal followed. 

II. Discussion3

Ransom argues that the District Court errantly sentenced him as a career offender,

because his Pennsylvania simple assault conviction does not qualify as a crime of 

violence. He also contends that the District Court committed procedural error by failing 

to formally rule on his pro se letter-motion for a downward departure. We address those 

arguments in turn.

 

2 We do not cite the letter because, as Ransom acknowledges, the letter was never 

made a part of the record. 

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The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have 

jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291. 
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A. Applicability of § 4B1.1

Ransom first argues that the District Court incorrectly sentenced him as a career 

offender under the Guidelines. He posits that, despite taking a contrary position in the 

District Court (e.g., Joint App. at 51 (Ransom‟s attorney‟s acknowledgment that Ransom 

was “considered a career offender pursuant to ... § 4B1.1”)), we should review his 

contention for plain error and vacate his sentence because the District Court‟s “error [in 

sentencing him as a career offender] was plain, ... affected [his] substantial rights, and, if 

not rectified, ... would seriously affect the fairness, integrity or public reputation of 

judicial proceedings,” United States v. Fumo, 655 F.3d 288, 311 (3d Cir. 2011) (citation 

and internal quotation marks omitted). Assuming, without deciding, that Ransom did not 

waive his right to challenge his classification as a career offender by repeatedly 

acknowledging to the District Court that he so qualified,

4 we must still reject Ransom‟s 

efforts to set aside his conviction because he has not established a basis upon which to 

conclude that any error that may have been committed “affected his sentence.” United 

States v. Williams, 358 F.3d 956, 966 (D.C. Cir. 2004) (internal citations omitted); see 

Gov’t of V.I. v. Rosa, 399 F.3d 283, 293 (3d Cir. 2005) (noting that, to affect substantial 

rights for purposes of plain error review, an error “must have been prejudicial: It must 

have affected the outcome of the district court proceedings” (citation and internal 

quotation marks omitted)).

 

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Federal Rule of Criminal Procedure 52(b) allows for “[a] plain error that affects 

substantial rights [to] be considered even though it was not brought to the court‟s 

attention.” Fed. R. Crim. P. 52(b). Here, however, Ransom brought the issue of career 

offender status to the Court‟s attention by expressly acknowledging that he was a career 
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We begin with the text of the Guidelines, which provide that a defendant is a 

“career offender” if “(1) [he] was at least eighteen years old at the time ... [of] the ... 

offense of conviction; (2) the ... 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.” U.S.S.G. 

§ 4B1.1(a). Ransom does not contest the first two of those requirements, arguing only 

that he cannot qualify as a career offender because his simple assault conviction was not 

a “crime of violence.” Id. The Guidelines define that term as an offense that “has as an 

element the use, attempted use, or threatened use of physical force against the person of 

another,” or “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.” Id. § 4B1.2(a). 

We “generally use a categorical approach to classify a prior conviction,” United 

States v. Johnson, 587 F.3d 203, 208 (3d Cir. 2009), meaning that we look to “the 

statutory definition of the prior offense” rather than the “particular facts disclosed by the 

 

offender based, in part, on his simple assault conviction. Indeed, rather than attempt to 

reduce his Guidelines range by arguing that his simple assault conviction could not serve 

as a career offender predicate, he asked the Court to give him a lower sentence in spite of 

his career offender status. (See Joint App. at 52 (arguing for a variance because the fact 

that the simple assault conviction served as a career offender predicate demonstrated that 

Ransom‟s criminal history was not as serious “in comparison to [those] of most 

individuals who have attained career offender status”).) While Ransom claims his 

decision to proceed in that manner was not a tactical decision to waive his right to 

challenge his status as a career offender, we have our doubts. Nevertheless, because it 

does not affect our ultimate disposition, we assume for purposes of argument that 

Ransom‟s actions in the District Court did not amount to a waiver.
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record of conviction,” Shepard v. United States, 544 U.S. 13, 17 (2005) (citation and 

internal quotation marks omitted); see United States v. Mahone, 662 F.3d 651, 653 (3d 

Cir. 2011) (noting that “[o]ur inquiry focuses on the elements and the nature of the 

offense of conviction, not the details of the crime actually committed” (citation and 

internal quotation marks omitted)). Here, however, as Ransom and the government 

agree, reference to the statutory terms is insufficient to determine whether Ransom‟s 

simple assault conviction was a crime of violence because Pennsylvania‟s simple assault 

statute can be violated based on several different types of conduct, “some of which would 

constitute crimes of violence [and] others [that] would not ... .”

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 Johnson, 587 F.3d at 

208. Thus, to ascertain whether Ransom‟s simple assault conviction qualifies as a crime 

of violence, it is necessary to “look beyond the statutory elements to determine the 

 

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Pennsylvania‟s simple assault statute provides that “[a] person is guilty of 

assault” if he or she:

(1) attempts to cause or intentionally, knowingly or recklessly causes 

bodily injury to another; 

(2) negligently causes bodily injury to another with a deadly weapon; 

(3) attempts by physical menace to put another in fear of imminent serious 

bodily injury; or 

(4) conceals or attempts to conceal a hypodermic needle on his person and 

intentionally or knowingly penetrates a law enforcement officer or an 

officer or an employee of a correctional institution, county jail or prison, 

detention facility or mental hospital during the course of an arrest or any 

search of the person. 

18 Pa. Cons. Stat. Ann. § 2701(a). There is no question as to whether an “intentional or 

knowing violation of subsection (a)(1) ... would qualify” as a crime of violence. 

Johnson, 587 F.3d at 210-11. Mere reckless conduct, by contrast, has generally been 

held insufficient to “qualify as a crime of violence” for career offender purposes. Id. at 

210 n.8.
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particular part of the statute of which [Ransom] was actually convicted.” Id. This 

methodology, known as the “modified categorical approach,” allows a court to “look 

beyond the mere fact of conviction,” and, in the context of a prior conviction that resulted 

from a guilty plea, as Ransom‟s simple assault conviction did, “allows the court to 

examine the charging document, the terms of a plea agreement, or the transcript of a plea 

colloquy to determine whether a defendant‟s plea of guilty [to an offense] ... necessarily 

admitted elements which constitute” a crime of violence. Mahone, 662 F.3d at 654 

(citation and internal quotation marks omitted) (alteration in original).

Ransom, pointing to the fact that the government never introduced any such 

evidence so as to meet its “burden of establishing ... career offender status,” United 

States v. Howard, 599 F.3d 269, 271-72 (3d Cir. 2010), reasons that the District Court 

plainly erred when it sentenced him as a career offender. We disagree. 

While Ransom is correct that the record developed before the District Court was 

insufficient to establish that his simple assault conviction was a crime of violence,6he 

“cannot prevail [on plain error review] ... merely by asserting that there was an error.” 

Williams, 358 F.3d at 966. His admission before the District Court that his simple assault 

conviction qualified as a crime of violence – even if not a waiver, see supra note 4 –

requires him to “provide ... some basis for suspecting that a reduction in his sentence is 

sufficiently likely to justify a remand.” Williams, 358 F.3d at 966. In other words, he 

 

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This case would appear to be a cautionary tale for prosecutors who neglect to 

establish the evidentiary bases for the sentences they seek. Even if a defendant makes 

concessions, it may be well, when feasible, to submit evidence.
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must offer a foundation upon which we could conclude that, had the District Court

conducted the appropriate inquiry, it would have determined that his simple assault 

conviction was not a crime of violence. See United States v. Olano, 507 U.S. 725, 741 

(1993) (noting that the defendant “must persuade the appellate court” of prejudice on 

plain error review); Williams, 358 F.3d at 966-67 (determining the defendant could not 

show plain error where the District Court errantly “adopt[ed] the base offense level of 20 

without confirming that [the defendant‟s] 1994 robbery conviction constituted a „crime of 

violence‟” because there was “nothing ... to suggest any likelihood that the District Court 

would have assigned Williams a different base offense level had it first conducted the 

proper inquiry”). He has not done that. On the contrary, “the only indications on this

[albeit, incomplete] record ... suggest that ... [Ransom‟s] sentence would not be 

reduced.”7 Williams, 358 F.3d at 967. Consequently, “we cannot say that [Ransom] has 

satisfied his burden of demonstrating a reasonable likelihood that the [alleged error by 

the] District Court[] ... affected his sentence.” Id. (citation and internal quotation marks 

omitted).

B. Ransom’s Letter-Motion

Ransom next argues that his sentence should be vacated because the District Court 

failed to formally rule on his pro se letter-motion for a downward departure. He 

 

7 As set forth supra in note 1, the PSR described the contents of the criminal 

complaint against Ransom. Given that description, it is difficult to imagine that the 

criminal complaint would not, on its face, reveal that Ransom admitted to engaging in 

conduct that qualifies as a crime of violence. See Johnson, 587 F.3d at 210-11 (noting 

that “intentional or knowing violation of subsection (a)(1) [of the Pennsylvania simple 

assault statute] ... would qualify” as a crime of violence).
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acknowledges that the Court had no obligation to consider his letter-motion at all 

inasmuch as he was represented by counsel. See United States v. Turner, 677 F.3d 570, 

578 (3d Cir. 2012) (noting that “[p]ro se litigants have no right to hybrid representation” 

(citation and internal quotation marks omitted)); Abdullah v. United States, 240 F.3d 683, 

686 (8th Cir. 2001) (“A district court has no obligation to entertain pro se motions filed 

by a represented party.”). He claims, however, that the District Court was obliged to 

formally rule on his submission, see United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 

2006) (explaining that courts must “formally rul[e] on the motions of both parties and 

stat[e] on the record whether they are granting a departure” (citation and internal 

quotation marks omitted) (alteration in original)), since the Court characterized it as “a 

motion for a downward departure” (Joint App. at 63). The government responds that the 

District Court‟s judgment should be affirmed because Ransom‟s counsel “effectively 

abandoned” at sentencing the arguments in support of Ransom‟s letter-motion. 

(Appellee‟s Br. at 34.)

Although we agree with the government that Ransom‟s counsel‟s statements in 

reference to Ransom‟s pro se filing could have led the Court to conclude that Ransom did 

not wish to pursue the motion (see Joint App. at 63 (“I had discussed that with my client 

and I had told him about how unsuccessful those motions have been in the past.”)), the 

Court indicated that it would “treat [Ransom‟s] letter as a pro se motion for a 

[downward] departure, but sentenced [him] without ... explicitly ruling on” it, United 

States v. Powell, 269 F.3d 175, 179 (3d Cir. 2001). Because we thus “have no way of 

knowing why the [D]istrict [C]ourt denied the requested departure,” id., the “appropriate 
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course of action is to vacate the sentence and remand for the [D]istrict [C]ourt to clarify 

the basis for its ruling,” id. at 179-80. We will, therefore, remand so that the District 

Court can either formally rule on Ransom‟s letter-motion or determine that the motion is 

out of order since Ransom was represented by counsel.

III. Conclusion

For the foregoing reasons, we will vacate the District Court‟s judgment of 

sentence and remand.