NOT PRECEDENTIAL 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

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No. 18-3628 

________________ 

UNITED STATES OF AMERICA 

v. 

MICHAEL R. VOLEK, 

 Appellant 

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Appeal from the United States District Court 

for the District of New Jersey 

(D.C. Criminal Action No. 3-18-cr-00234-001) 

District Judge: Honorable Anne E. Thompson 

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Submitted under Third Circuit LAR 34.1(a) 

On September 24, 2019 

Before: MCKEE, AMBRO and ROTH, Circuit Judges 

(Opinion filed: December 4, 2019) 

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OPINION*

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ROTH, Circuit Judge 

 

*

 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent. 
2 

 Upon pleading guilty to one-count of bank robbery, Michael R. Volek was 

sentenced as a career offender by virtue of two prior state robbery convictions. Volek 

challenges his sentence, arguing that his state robbery convictions are not “crimes of 

violence” that warrant enhanced sentencing as a career offender.1

 For the reasons stated 

below, we will affirm his judgment of sentence. 

I. 

 After robbing two TD Banks, Volek pled guilty to one count of bank robbery, in 

violation of 18 U.S.C. §§ 2113(a) and 2. The District Court sentenced him as a career 

offender on account of his two prior New Jersey robbery convictions, described in his 

presentence investigation report (PSR). The court sentenced Volek to 130 months in 

prison, three years of supervised release, and payment of restitution. 

 Volek appeals his sentence, arguing that the New Jersey robbery statute, N.J. 

STAT. ANN. § 2C:15-1, is not divisible and that violations of the statute do not necessarily 

constitute crimes of violence. He also challenges the District Court’s reliance on his PSR 

to determine the nature of his prior convictions. 

II. 

 

1

 Volek also challenges the District Court’s finding that his federal bank robbery 

conviction was a crime of violence. However, he concedes that this argument is 

foreclosed by our decision in United States v. Wilson, 880 F.3d 80 (3d Cir. 2018), and 

only wishes to preserve his right to raise this argument in the future. We agree that under 

Wilson his instant offense for bank robbery is a crime of violence. See id. at 88. 
3 

 We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We 

exercise plenary review over whether a prior conviction constitutes a crime of violence 

for purposes of the career offender Guideline.2

III. 

 The U.S. Sentencing Guidelines impose sentencing enhancements for career 

offenders.3

 The career offender enhancement essentially operates as a three strikes rule: 

A defendant faces an increased sentence for a felony crime of violence or controlled 

substance offense if he has two or more prior felony convictions for a crime of violence 

or controlled substance offense.4

 A “crime of violence” is “any offense under federal or 

state law, punishable by imprisonment for a term exceeding one year, that has as an 

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

another,” or is one of several enumerated offenses, including robbery.5

 We use the categorical approach to determine if a prior conviction is a predicate 

offense for a career offender sentencing enhancement.6

 To do so, we “compare the 

elements of the statute under which the defendant was convicted to the [G]uidelines’ 

definition of crime of violence.”7

 Courts use a modified categorical approach if a statute 

is “divisible”—that is, the statute defines multiple crimes by listing elements in the 

 

2 United States v. Brown, 765 F.3d 185, 188 (3d Cir. 2014). 

3

 U.S.S.G. § 4B1.1. 

4

 U.S.S.G. § 4B1.1(a). 

5

 U.S.S.G. § 4B1.2(a). 

6 United States v. McCants, 920 F.3d 169, 177 (3d Cir. 2019). 

7 Id. (alteration in original) (quoting United States v. Ramos, 892 F.3d 599, 606 (3d Cir. 

2018)). 
4 

alternative.8

 The modified categorical approach permits courts to consult a limited 

number of Shepard documents to determine which elements formed the basis of a prior 

conviction.9

 Shepard documents are “generally limited to examining the statutory 

definition, charging document, written plea agreement, transcript of plea colloquy, and 

any explicit factfinding by the trial judge to which the defendant assented, or other 

comparable judicial record[s] of the prior conviction.”10 

We first address Volek’s contention that New Jersey’s robbery statute, N.J. STAT.

ANN. § 2C:15-1, is not divisible. That statute reads 

a. Robbery defined. A person is guilty of robbery if, in the 

course of committing a theft, he: 

(1) Inflicts bodily injury or uses force upon another; or 

(2) Threatens another with or purposely puts him in fear 

of immediate bodily injury; or 

(3) Commits or threatens immediately to commit any 

crime of the first or second degree. 

. . . 

b. Grading. Robbery is a crime of the second degree, except 

that it is a crime of the first degree if in the course of 

committing the theft the actor attempts to kill anyone, or 

purposely inflicts or attempts to inflict serious bodily injury, or 

is armed with, or uses or threatens the immediate use of a 

deadly weapon. 

 

8 Id. at 178. 

9 Descamps v. United States, 570 U.S. 254, 262 (2013); Shepard v. United States, 544 

U.S. 13, 16 (2005). 

10 United States v. Siegel, 477 F.3d 87, 93 (3d Cir. 2007) (alteration in original) (internal 

quotation marks omitted) (quoting Shepard, 544 U.S. at 16, 26). 
5 

Volek argues that the District Court should have looked to New Jersey’s treatment 

of the statute, which he maintains regards it as indivisible. However, Volek fails to 

identify, and we have not located, any state precedent that “definitively answers the 

question” of divisibility.11 In the absence of clear state authority to the contrary, we 

agree with our recent analysis in United States v. McCants, which held that § 2C:15-1 is 

divisible.12

 A divisible statute calls for us to use the modified categorical approach to 

determine whether Volek’s convictions are predicate offenses under the Guidelines. 

Instead of submitting the typical Shepard documents at sentencing, the government 

produced only Volek’s PSR to clarify the nature of his prior convictions. We have 

previously held that a court can look to a presentence report if the defendant did not 

challenge the descriptions of the factual accounts within it.13 In his sentencing 

memorandum and during his sentencing hearing, Volek challenged the District Court’s 

use of the PSR and the reliability of the source. He did not, however, dispute the PSR’s 

factual descriptions of his crimes, even when asked if he had “any objections to its 

accuracy or completeness.” Nor does he challenge those descriptions now. 

 

11 See Mathis v. United States, 136 S. Ct. 2243, 2256 (2016). 

12 920 F.3d at 178-79. 

13 Siegel, 477 F.3d at 93-94. 
6 

 Moreover, we are able to take judicial notice of the Shepard documents submitted 

by the government for the first time on appeal.14 The charging document, plea form, and 

judgment of conviction reveal that Volek’s 1996 conviction for first-degree robbery 

included conduct that tracks the language found in N.J. STAT. ANN. § 2C:15-1(a)(1) and 

(a)(2). His 2007 conviction was also for first-degree robbery and involved conduct that 

tracks the language of § 2C:15-1(a)(2). These elements require force or the threat of 

force against another person. This forecloses Volek’s argument that his convictions may 

have rested on § 2C:15-1(a)(3), which he contends does not necessarily include force or 

the threat of force. Additionally, each offense resulted in a sentence greater than one 

year. Thus, we conclude that both of his first-degree robbery convictions qualify as 

crimes of violence and warrant enhanced sentencing as a career offender. 

IV. 

 For these reasons we will affirm Volek’s judgment of sentence. 

 

14 See Fed. R. Evid. 201(b)(2) (“The court may judicially notice a fact that is not subject 

to reasonable dispute because it . . . can be accurately and readily determined from 

sources whose accuracy cannot reasonably be questioned.”); see also United States v. 

Remoi, 404 F.3d 789, 793 n.1 (3d Cir. 2005) (noting “it would be pointless to remand the 

case simply to have the District Judge take notice of that which we may notice 

ourselves”).