NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 16-4219

_____________

UNITED STATES OF AMERICA

v.

ANTHONY JEROME WHITE, a/k/a Dean Braithwaite, 

a/k/a Carlos Valentine, a/k/a Anthony Brown

Anthony Jerome White,

 Appellant 

_______________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 1-06-cr-266-01)

District Judge: Hon. Sylvia H. Rambo

_______________

Argued

September 14, 2017

Before: CHAGARES, JORDAN, and NYGAARD, Circuit Judges.

(Filed: September 7, 2018)

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OPINION*

______________

 

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

constitute binding precedent.
2

Frederick W. Ulrich [ARGUED]

Office of Federal Public Defender

100 Chestnut Street – Ste. 306

Harrisburg, PA 17101 

 Counsel for Appellant

Carlo D. Marchioli [ARGUED]

Kate L. Mershimer

United States Attorney’s Office

228 Walnut Street, Room 220

Harrisburg, PA 17108

Counsel for Appellee

JORDAN, Circuit Judge.

Anthony White appeals the District Court’s denial of his motion to correct 

sentence filed pursuant to 28 U.S.C. § 2255. For the reasons that follow, we will affirm.

I. Background

On March 15, 2006, police and probation officers conducted a search for White, 

who was wanted for a parole violation. After a brief chase, police apprehended him and 

found crack cocaine along his flight path. As a result of that encounter, a grand jury 

indicted White on five counts related to drugs and firearms. At a bench trial, White was 

found guilty on all counts and the District Court sentenced him for Count 1 under the 

Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), because he had three 

predicate ACCA convictions, namely, two serious drug offenses and a violent felony.

But the Court did not specify whether it considered White’s prior Pennsylvania 

conviction for aggravated assault with a deadly weapon to be a “violent felony” under the
3

“elements” clause of the ACCA or under its now-unconstitutional “residual” clause.1

Ultimately, the Court imposed a 360-month term of imprisonment for Counts 1, 3, and 4; 

a concurrent 120-month term for Count 5; and a consecutive 60-month term for Count 2.2 

White appealed the Court’s judgment of conviction, which we affirmed. United 

States v. White, 320 F. App’x 120 (3d Cir. 2008). He did not appeal his sentence.

Later, White filed his first § 2255 motion alleging trial errors by the District Court 

and ineffective assistance of counsel. He again did not challenge his sentence. The 

Court denied his petition. 

White then filed a flurry of motions. The Court deemed two such filings to be 

§ 2255 motions, one based on recent changes to the Sentencing Guidelines and the other 

based on ineffective assistance of counsel regarding a possible plea. The Court denied 

both.3

 

1 As noted herein, the Supreme Court in Johnson v. United States, 135 S. Ct. 2551 

(2015) invalidated the ACCA’s residual clause as being unconstitutionally vague. 

2 The District Court found White guilty on all five counts: (1) felon in possession 

of a firearm, in violation of 18 U.S.C. §§ 922(g) and 924(e); (2) possession of a firearm 

in furtherance of drug trafficking, in violation of 18 U.S.C. § 924(c); (3) conspiracy to 

possess with the intent to distribute, and distributing, crack cocaine and marijuana, in 

violation of 21 U.S.C. § 846; (4) possession with intent to distribute, and distributing, 50 

grams or more of crack cocaine and an unspecified amount of marijuana, in violation of 

21 U.S.C. § 841(a)(1); and (5) possession of a firearm while in the United States as an 

illegal alien, in violation of 18 U.S.C. § 922(g)(5)(A) and (B). 

3

 The Court denied White’s second § 2255 motion, as the changes to the 

Sentencing Guidelines were effective during the pendency of his first § 2255 motion and,

in any case, would not have affected White’s criminal history score and not led to relief. 

The Court denied White’s third § 2255 motion because he failed to obtain a certificate of 

appealability. 
4

Following the Supreme Court’s invalidation of the ACCA’s residual clause as 

unconstitutionally vague in Johnson v. United States, 135 S. Ct. 2551 (2015), White filed 

another successive § 2255 motion, this one based on Johnson. We granted a certificate of 

appealability to allow that § 2255 motion because White had “made a prima facie 

showing that his proposed § 2255 motion contains a new rule of constitutional law made 

retroactive to cases on collateral review by the Supreme Court that was previously 

unavailable.” (App. at 77.) See also Welch v. United States, 136 S. Ct. 1257, 1268

(2016) (applying Johnson retroactively).

At the District Court, White argued that his prior Pennsylvania conviction for 

aggravated assault with a deadly weapon no longer qualified as a “violent felony” due to 

Johnson’s invalidation of the residual clause. The Court, however, denied White’s most 

recent § 2255 motion based solely on the “concurrent sentence doctrine.”

4 The District 

Court nevertheless granted White a certificate of appealability, and he has timely 

appealed.

II. Discussion5

 

4

 “Under the concurrent sentence doctrine, we have discretion to avoid resolution 

of legal issues affecting less than all of the counts in an indictment where at least one 

count will survive and the sentences on all counts are concurrent.” United States v. 

McKie, 112 F.3d 626, 628 n.4 (3d Cir. 1997).

5

 We have jurisdiction pursuant to 28 U.S.C. § 2253(a). We review legal 

determinations de novo. United States v. Doe, 810 F.3d 132, 142 (3d Cir. 2015). Our 

review of the gatekeeping requirements of § 2255(h) is de novo. United States v. 

Peppers, No. 17-1029, 2018 WL 3827213, at **5, 6 (3d Cir. Aug. 13, 2018). We 

exercise plenary review over the determination of whether White qualifies as an Armed 

Career Offender. United States v. Chapman, 866 F.3d 129, 131 (3d Cir. 2017).
5

There are two issues on appeal. First, the government argues that the District 

Court lacked jurisdiction to review White’s successive § 2255 motion. Second, White 

argues that Johnson’s invalidation of the ACCA’s residual clause may make him 

ineligible for enhanced sentencing under that statute, preventing application of the 

concurrent sentence doctrine. We conclude that that the District Court had jurisdiction to 

review White’s successive § 2255 motion and that the Court properly sentenced White 

under the ACCA.

A. The District Court Had Jurisdiction to Review White’s Successive

§ 2255 Motion.

The government argues that the District Court lacked jurisdiction to review 

White’s successive § 2255 motion because White did not establish that his enhanced 

sentence was based on the ACCA’s residual clause. That argument, however, is 

foreclosed by our recent opinion in United States v. Peppers, --- F.3d ---, No. 17-1029, 

2018 WL 3827213, (3d Cir. Aug. 8, 2018), in which we held that “the jurisdictional 

gatekeeping inquiry for second or successive § 2255 motions based on Johnson requires 

only that a defendant prove he might have been sentenced under the now-unconstitutional 

residual clause of the ACCA, not that he was in fact sentenced under that clause.” Id. at 

*1 (emphasis added). Here, the District Court did not specify which clause was the basis 

for classifying White’s aggravated assault conviction as a “violent felony.” Accordingly,

White has established that he might have been sentenced under the residual clause, and 

he has thus satisfied § 2255’s jurisdictional gatekeeping requirement. 

B. White’s Conviction for Aggravated Assault with a Deadly Weapon Is a 

“Violent Felony” Under the ACCA’s Elements Clause.
6

White argues that Johnson’s invalidation of the ACCA’s residual clause may 

make him ineligible for enhanced sentencing under that statute, preventing the 

application of the concurrent sentence doctrine. But recent precedent undermines that 

argument too. In United States v. Ramos, 892 F.3d 599 (3d Cir. 2018), we held that 

second degree aggravated assault with a deadly weapon, under Pennsylvania law, is 

categorically a crime of violence under the Sentencing Guidelines. Id. at 612. Our prior 

opinions have interpreted a “violent felony” under the ACCA and a “crime of violence” 

under the Sentencing Guidelines as interchangeable concepts. See United States v. 

Hopkins, 577 F.3d 507, 511 (3d Cir. 2009) (“While the Court was not called upon to 

construe the career offender provision of the Sentencing Guidelines, the 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”); see also United States v. Wilson, 880 F.3d 80, 83 (3d Cir.), cert.

denied, 138 S. Ct. 2586 (2018) (concluding that “bank robbery by intimidation does 

indeed qualify as a ‘crime of violence’ under § 4B1.2(a)(1) or the nearly identically 

worded ‘elements’ clause of the ACCA”). Accordingly, White’s conviction for 

aggravated assault was properly classified as a “violent felony,” and the District Court 

rightly sentenced him under the ACCA.6 

III. Conclusion

 

6 We may affirm the District Court on any grounds supported by the record. 

Kossler v. Crisanti, 564 F.3d 181, 186 (3d Cir. 2009). 
7

For the foregoing reasons, we will affirm the District Court’s denial of White’s 

motion to correct his sentence under § 2255.