PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 23-1961

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UNITED STATES OF AMERICA

v.

SAHBREE HURTT,

Appellant

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On Appeal from the United States District Court 

for the Middle District of Pennsylvania

(D.C. No. 4-21-cr-00172-009)

District Judge: Honorable Matthew W. Brann

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Submitted Under Third Circuit L.A.R. 34.1(a):

May 7, 2024

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Before: PORTER, MONTGOMERY-REEVES, ROTH

Circuit Judges.

(Filed: June 24, 2024)

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2

Andrew J. Shubin

Shubin Law Office

310 S. Burrowes St.

State College, PA 16801

Counsel for Appellant

Christian T. Haugsby

Carlo D. Marchioli

Office of the United States Attorney

1501 N. 6th St., 2nd Floor

P.O. Box 202

Harrisburg, PA 17102

Counsel for Appellee

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OPINION OF THE COURT

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PORTER, Circuit Judge.

Sahbree Hurtt was convicted of a drug-related offense. 

The District Court determined that his prior convictions for 

aggravated assault and drug trafficking constitute a “crime of 

violence” and “controlled substance offense,” respectively,

under the U.S. Sentencing Guidelines (“USSG”). As a result, 

Hurtt qualified as a “career offender” under the USSG, and the 

District Court imposed corresponding sentencing 

enhancements. For the reasons that follow, we will affirm.
3

I

In December 2022, Hurtt pleaded guilty to possession 

of heroin, fentanyl, and cocaine with intent to distribute, 21 

U.S.C. § 841(a)(1). The U.S. Probation Office’s presentencing 

report (“PSR”) stated that Hurtt had two prior convictions in 

Pennsylvania qualifying him as a career offender under the

USSG: (1) a conviction for an aggravated assault, a violation 

of 18 Pa. Cons. Stat. Ann. § 2702(a), and (2) a conviction for 

trafficking cocaine base and heroin, a violation of 35 Pa. Stat. 

Ann. § 780-113(a)(30). Hurtt objected to his status as a career 

offender, contending that neither conviction constituted a 

career-offender predicate.

The government presented judicial records from Hurtt’s 

prior convictions detailing his statutory offenses. For Hurtt’s 

aggravated assault conviction, the government submitted 

Hurtt’s written plea colloquy and multiple sentencing orders 

indicating that Hurtt was convicted specifically under 

subsection (a)(6) of Pennsylvania’s aggravated-assault statute. 

And for Hurtt’s drug-tracking conviction, the government 

submitted Hurtt’s written plea colloquy indicating that his 

conviction involved possession of cocaine base with intent to 

deliver.

The District Court determined that Hurtt had prior 

convictions under § 2702(a)(6) and § 780-113(a)(30), the latter 

as it relates only to possession of cocaine base with intent to 

deliver. And it determined that Hurtt qualifies as a career 

offender under the USSG because his convictions qualify as a

“crime of violence” and “controlled substance offense,” 

respectively. It then imposed corresponding enhancements and 

sentenced Hurtt to 120 months’ imprisonment. Hurtt appealed, 

challenging his status as a career offender.
4

II

The District Court had jurisdiction under 18 U.S.C. 

§ 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 

U.S.C. § 3742(a). “Whether a conviction constitutes a 

predicate career offender offense under the [USSG] is a 

question of law subject to plenary review.” United States v. 

Womack, 55 F.4th 219, 236 (3d Cir. 2022).

III

Under the USSG, a defendant is subject to certain 

sentencing enhancements if he qualifies as a “career offender.” 

USSG § 4B1.1(b). “A defendant is career offender if . . . [he] 

has at least two prior felony convictions of either a crime of 

violence or a controlled substance offense.” USSG 

§ 4B1.1(a).

1

“Ordinarily, to determine whether a prior conviction 

qualifies as a crime of violence or controlled substance offense, 

we apply [the] categorical approach.” United States v. 

Williams, 898 F.3d 323, 333 (3d Cir. 2018). “We consider only 

the elements of the crime of conviction and assess whether they 

fall within the bounds of a crime of violence or controlled 

substance offense, as defined under the [USSG].” Id. “If the 

statute of conviction has the same elements as the [USSG’s 

definitions], . . . then the prior conviction is a categorical match 

1 To qualify as a career offender, a defendant must also be “at 

least eighteen years old at the time [he] committed the instant 

offense of conviction” and the “instant offense of conviction 

[must be] a felony that is either a crime of violence or a 

controlled substance offense.” USSG § 4B1.1(a). Hurtt does 

not dispute that those elements are satisfied.
5

and can serve as a predicate offense.” United States v. Brasby, 

61 F.4th 127, 134 (3d Cir. 2023). But “if the statute sweeps 

more broadly than the [USSG’s definitions], then a conviction 

under that statute cannot serve as a predicate offense.” Id.

Under limited circumstances, we may apply a variant of 

the categorical approach known as the “modified categorical 

approach.” Id. This approach applies when a defendant’s 

statute of conviction describes “multiple crimes,” rendering the 

statute “divisible.” Id. (internal quotation marks and quoted 

source omitted). In that case, we may review “a restricted set 

of documents”—referred to as Shepard documents—“to 

identify the specific statutory offense that provided the basis 

for the prior conviction.” Id. (internal quotation marks and 

quoted source omitted); see Shepard v. United States, 544 U.S. 

13, 26 (2005). We then apply the categorical approach, 

comparing the elements of the offense to the USSG’s 

definitions of “crime of violence” and “controlled substance 

offense.” Brasby, 61 F.4th at 134.

A. Hurtt’s Aggravated-Assault Conviction Constitutes

a “Crime of Violence.”

Hurtt argues that his prior conviction under 

Pennsylvania’s aggravated-assault statute, 18 Pa. Cons. Stat. 

Ann. § 2702(a), does not constitute a “crime of violence” under 

the USSG. Section 2702(a) contains nine different subsections, 

each “criminaliz[ing] different conduct.” United States v. 

Ramos, 892 F.3d 599, 609 (3d Cir. 2018). Hurtt does not 

dispute that § 2702(a) is “divisible” and subject to the modified 

categorical approach. Id. at 610 (holding that § 2702(a) is

“divisible”). Instead, he contends that Shepard documents do 

not clearly indicate which subsection of § 2702(a) that he 

violated and, even if they do, his statutory offense is not a 
6

categorial match to the USSG’s definition of a “crime of 

violence.” Neither argument has merit.

First, we agree with the District Court that Hurtt 

violated subsection (a)(6) of Pennsylvania’s aggravatedassault statute. To make this determination, we may consult 

“judicial records of the convicting court.” United States v. 

Bentley, 49 F.4th 275, 291 (3d Cir. 2022). These records 

include “the charging document, written plea agreement, 

transcript of plea colloquy, and any explicit factual finding by 

the trial judge to which the defendant assented.” Ramos, 892 

F.3d at 607 (internal quotation marks and quoted source 

omitted). Importantly, they also include the convicting court’s 

sentencing orders. United States v. Henderson, 841 F.3d 623, 

631 (3d Cir. 2016) (stating that “the District Court properly 

looked to [the defendant’s] . . . sentencing order”); see 

Shepard, 544 U.S. at 26 (holding that courts may consult “the 

charging document . . . or . . . some comparable judicial record

of this information”) (emphasis added). The records must 

“speak plainly” to what specific offense the defendant violated. 

Henderson, 841 F.3d at 631 (internal quotation marks and 

quoted source omitted).

Here, the government presented evidence of Hurtt’s 

written plea colloquy, which described his aggravated-assault 

conviction as a second-degree felony. Section 2702(a)(6) 

constitutes a second-degree felony under Pennsylvania law. 18 

Pa. Cons. Stat. Ann. § 2702(b). The government also presented 

the convicting court’s sentencing order and its revised 

sentencing order revoking Hurtt’s parole. Each document

expressly states that Hurtt violated § 2702(a)(6). So, taken 

together, these Shepard documents speak plainly to Hurtt’s

conviction under § 2702(a)(6).
7

Second, we agree with the District Court that Hurtt’s 

conviction under § 2702(a)(6) constitutes a “crime of 

violence” under USSG § 4B1.2(a)(1). Section 2702(a)(6) 

reads: “A person is guilty of aggravated assault if he . . . 

attempts by physical menace to put any . . . officers [or other 

statutorily listed individuals] . . . in fear of imminent serious 

bodily injury.” Section 4B1.2(a)(1) defines “crime of violence” 

as “any [felony] offense under federal or state law . . . [that] 

has as an element the use, attempted use, or threatened use of 

physical force against the person of another.”2

In Singh v. Gonzales, we considered whether a 

subsection of Pennsylvania’s simple-assault statute, 18 Pa. 

Cons. Stat. Ann. § 2701(a)(3), constitutes a “crime of violence” 

within the meaning of 18 U.S.C. § 16(a). 432 F.3d 533 (3d Cir. 

2006). Like § 2702(a)(6), § 2701(a)(3) prohibits any 

“attempt[] by physical menace to put [an individual] in fear of 

imminent serious bodily injury.” And like § 4B1.2(a)(1), 

§ 16(a) defines “crime of violence” in part as any “offense that 

has as an element the use, attempted use, or threatened use of 

physical force against the person . . . of another.” We explained 

that, in order to violate § 2701(a)(3), an individual must engage 

in some “physical act” committed with “a mental state of 

specific intent” to “threaten another with corporeal harm.” 

Singh, 432 F.3d at 539. We then concluded that there is no 

“conceiv[able] . . . situation” where a violation of § 2701(a)(3) 

“would not, at the very least, constitute the attempted or 

threatened use of physical force” under § 16(a). Id. at 540.

2 The USSG also defines “crime of violence” based on certain 

enumerated offenses. USSG § 4B1.2(a)(2). That alternative 

definition is not at issue here.
8 

Our decision in Singh compels the conclusion that 

§ 2702(a)(6) and § 4B1.2(a)(1) are a categorical match. 

Section 2702(a)(6) and § 2701(a)(3) are nearly identical, and 

thus we construe them in the same manner. See United States 

v. Dawson, 32 F.4th 254, 263 (3d Cir. 2022) (stating in the 

context of the categorical approach that “when similar 

language is used in related statutes in functionally equivalent 

ways, we presume the same meaning applies”). As with 

§ 2701(a)(3), we understand § 2702(a)(6) to require, at a 

minimum, some “physical act” with the “mental state of 

specific intent” to “threaten [an officer or other statutorily 

listed individual] with corporeal harm.” Singh, 432 F.3d at 539. 

And like our categorical comparison between § 2701(a)(3) and 

§ 16(a), “[w]e cannot reasonably conceive of [any] situation” 

where a defendant could violate § 2702(a)(6) without, at the 

very least, engaging in “the attempted or threatened use of 

physical force” against the person of another under 

§ 4B1.2(a)(1). Id. at 540. Accordingly, we conclude that 

Hurtt’s conviction under § 2702(a)(6) constitutes a “crime of 

violence” under § 4B1.2(a)(1) and is a career-offender 

predicate. 

B. Hurtt’s Drug Conviction Constitutes a “Controlled 

Substance Offense.” 

Hurtt argues that his prior conviction under 

Pennsylvania’s drug-trafficking statute, 35 Pa. Stat. Ann. 

§ 780-113(a)(30), does not constitute a “controlled substance 

offense” under the USSG. Section 780-113(a)(30) prohibits the 

“manufacture, delivery, or possession with intent to 

manufacture or deliver, a controlled substance.” An individual 

may be convicted under § 780-113(a)(30) in multiple ways, 

“depend[ing] on the type of controlled substance” at issue in 

the offense. United States v. Abbott, 748 F.3d 154, 158 (3d Cir. 
9 

2014). Again, Hurtt does not dispute that § 780-113(a)(30) is 

“divisible” and subject to the modified categorical approach.

Id. (finding that § 780-113(a)(30) is “divisible”). Instead, he 

argues that Shepard documents do not clearly identify which 

controlled substance was at issue in his offense, and even if 

they do, his offense is not a categorical match to the USSG’s 

definition of a “controlled substance offense.” We again find 

no merit to either argument. 

First, we agree with the District Court that Hurtt 

violated § 780-113(a)(30) for possession of cocaine base with 

intent to deliver. Hurtt’s PSR states that “[he] possessed . . . 

cocaine base (crack) in a quantity sufficient to indicate intent 

to deliver.” SA203. The government then presented evidence 

of Hurtt’s written plea colloquy from his state-court 

proceedings, which states that Hurtt “poss[essed] with int[ent] 

to . . . deliver [the] controlled substance—crack.” SA111. The 

District Court properly relied on this Shepard document. 

Ramos, 892 F.3d at 607 (stating that a written plea colloquy is 

a permissible Shepard document). And it “speak[s] plainly” to 

Hurtt’s conviction under § 780-113(a)(30) for possession of 

cocaine base with intent to deliver. Henderson, 841 F.3d at 631 

(internal quotation marks and quoted source omitted). 

Second, we agree with the District Court that Hurtt’s 

conviction under § 780-113(a)(30) constitutes a “controlled 

substance offense” under USSG § 4B1.2(b)(1). Pennsylvania’s 

drug-trafficking statute punishes “possession [of cocaine base] 

with intent to . . . deliver” with a maximum imprisonment of 

ten years. § 780-113(a)(30); 35 Pa. Stat. Ann. § 780-

113(f)(1.1). Section 4B1.2(b)(1) defines “controlled substance 

offense” as any “offense under federal or state law, punishable 

by imprisonment for a term exceeding one year, that . . . 
10 

prohibits . . . the possession of a controlled substance . . . with 

intent to manufacture, import, export, distribute, or dispense.” 

In United States v. Glass, we held that “§ 780-

113(a)(30) does not sweep more broadly than § 4B1.2 . . . and 

may serve as a predicate offense.” 904 F.3d 319, 324 (3d Cir. 

2018). That includes convictions under § 780-113(a)(30) when 

the controlled substance at issue is cocaine base. Id. (holding 

that Glass’s conviction under § 780-113(a)(30) for 

“manufacturing, delivering, or possessing cocaine” was a 

“controlled substance offense”). Accordingly, Hurtt’s 

conviction under § 780-113(a)(30) for possession of cocaine 

base with intent to deliver constitutes a “controlled substance 

offense” under § 4B1.2(b)(1). 

Nevertheless, Hurtt argues that his cocaine-based 

offense under § 780-113(a)(30) is not a categorical match to 

§ 4B1.2(b)(1) because Pennsylvania law defines “cocaine” 

broader than federal law. However, we recently rejected this 

very argument, holding that, under § 4B1.2(b)(1), “a 

‘controlled substance’ . . . is a drug regulated by either state or 

federal law.” United States v. Lewis, 58 F.4th 764, 771 (3d Cir. 

2023) (emphasis added). So whether Pennsylvania law defines 

“cocaine” broader than federal law is “irrelevant.” Id.

Hurtt further argues that § 780-113(a)(30) is broader 

than § 4B1.2(b)(1) because § 780-113(a)(30) prohibits the 

“administering” of a controlled substance, while federal law 

does not. Once again, however, we already rejected this 

argument, holding that § 780-113(a)(30) “say[s] nothing about 

prohibiting the administration of controlled substances” and in 

fact “expressly excludes the possibility that ‘administering’ . . . 

falls within its scope.” Womack, 55 F.4th at 239 (emphasis 

added). So Hurtt’s argument again lacks merit. 
11 

* * * 

The District Court properly concluded that Hurtt 

qualifies as a career offender under the USSG because his prior 

convictions under § 2702(a)(6) and § 780-113(a)(30) 

constitute a “crime of violence” and “controlled substance 

offense,” respectively. We will therefore affirm the District 

Court’s judgment.