NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT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 V alentine, 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 Septe mber 14, 2017 Before: CHAGARES, JORDAN , and NYGAARD, Circuit Judges.

(Filed : September 7, 2018 )

______________ OPINION *

______________

* This disposition is not an opinion of the full C ourt and pursuant to I.O.P. 5.7 does not constitute b inding 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 office rs conducted a search for White,
who was wanted for a parole violation. After a brief ch ase, p olice apprehended him and
found crac k 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 t he District C ourt 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 t he C ourt did not specify whether it considered White’s prior Pennsylvania conviction for aggravated assault with a deadly weapon to be a “violent felony” under the3

“elements ” clause of the ACCA or under its now
- unconstitutional “residual ” clause. 1 Ultimately, t he Court imposed a 360

- month term of impr isonment for Counts 1, 3, and 4;

a co ncurrent 120

- month term for C ount 5 ; and a consecutive 60

- month term for Count 2. 2 White appeal ed 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 C ourt
and ineffe ctive assistance of counsel. He again did not challenge his sentenc e
. The
Court denied his petition

. White then filed a fl urry of motion s
. The Court deemed two such filings to be § 2255 motions , one based on recent changes to the S enten cing G uidelines and the other
based on ineffective assistance of counsel regarding a possible plea. The Court denied
both. 3

1 As not ed herein, the S upreme 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. § 9 2 4 (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 S tates as an illegal alien , in violation of 18 U.S.C. § 922(g)(5)(A) and (B ).

3 The Court denied W hite’s second § 2255 motion, as the changes to the Sentencing Guidelines were effective during the pend ency of his first § 2255 motion and , in any case, wo uld not have a f fect ed 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

a nother successive § 2255 motio n, this one based on Johnson . W e 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
unavail able.” ( App. at 77

. ) See also Welch v. United States, 136 S. Ct. 1257 , 1268 (2016) ( applying Johnson retroactive ly )

. At the District Court, White argued that his prior Pennsylvania conviction for aggravated assault with a de adly weapon no longer q ualified as a “ violent felony ” due to
Johnson ’s invalidation of the residual clause. T he C ourt , however, denied White’s most

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

. ” 4 The District
C ourt nevertheless granted White a certificate of appealability, and he has timely appealed

. II. Discussion 5

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, t he government argues that the District Court lacked jurisdiction to review White’s successive § 2255 motion. Second, White argues that Jo hnson ’s invalidation of the ACCA’s residual clause may make him ineligible for enhanced sentencing under that statute , preventing application of the
concurrent sentence d octrine

. 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 C ourt lacked jurisdiction to review
White’s succes si v e § 2255 motion because White did not establish that his enhanced
sentence was based on the ACCA’s residual clause. That argument, however, is
fo reclosed 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, t he 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 gate keeping requirement.
B. White’s Conviction for Aggravated Assault w ith a Deadly Weapon Is a “Violent Felony” Under the A CCA’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 c oncurrent s entence d octrine

. But r ecent precedent undermi nes 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 up on 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 intimid ation does indeed qualify as a ‘ crime of violence ’ under § 4B1.2(a)(1) or the near ly 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.