PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 22-2613

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UNITED STATES OF AMERICA

v.

DARRON HENDERSON,

Appellant

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On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(No. 2-21-cr-00184-001)

U.S. District Judge: Honorable Chad F. Kenney

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Argued: July 11, 2023

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Before: SHWARTZ, RESTREPO, and CHUNG, Circuit 

Judges.

(Filed:August 15, 2023)

Caroline G. Cinquanto

2 Greenwood Square
2

3331 Street Road

Bensalem, PA 19020

Brett G. Sweitzer [ARGUED]

Federal Community Defender Office for the Eastern District 

of Pennsylvania

601 Walnut Street

The Curtis Center, Suite 540 West

Philadelphia, PA 19106

Counsel for Appellant

Michael R. Miller

Shannon G. Zabel

Robert A. Zauzmer [ARGUED]

Office of United States Attorney

615 Chestnut Street

Suite 1250

Philadelphia, PA 19106

Counsel for Appellee

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OPINION OF THE COURT

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SHWARTZ, Circuit Judge.

Darron Henderson received a sentencing enhancement 

under United States Sentencing Guideline (“U.S.S.G.”)

§ 2K2.1(a)(4) based on his Pennsylvania robbery conviction
3

because the District Court concluded that the subsection of the 

robbery statute Henderson violated, 18 Pa. Cons. Stat. 

§ 3701(a)(1)(ii), qualifies as a “crime of violence” as defined 

by U.S.S.G. § 4B1.2(a). The District Court was correct and so 

we will affirm. 

I

In 2019, police officers stopped Henderson due to a 

traffic violation, searched his vehicle, and found a loaded semiautomatic firearm with an obliterated serial number and 

thirteen rounds of ammunition. Henderson was indicted for,

and pled guilty to, possession of a firearm by a convicted felon 

in violation of 18 U.S.C. § 922(g)(1). At the time of the 

offense, Henderson had a prior state robbery conviction under 

18 Pa. Cons. Stat. § 3701(a)(1)(ii).

At sentencing, the District Court applied the sentencing 

enhancement under U.S.S.G. § 2K2.1(a)(4) based on 

Henderson’s robbery conviction. The Court concluded that:

(1) § 3701(a) is divisible and Henderson was convicted of 

violating subsection (ii) of the statute; and (2) subsection (ii) 

qualified as a “crime of violence” under U.S.S.G. § 4B1.2(a)

because the subsection provides that a person is guilty of 

robbery if he “threatens another with or intentionally puts him 

in fear of immediate serious bodily injury,” App. 109 (quoting 

18 Pa. Cons. Stat. § 3701(a)(1)(ii)), 120, which means a 

violation of the subsection necessarily “requires the purposeful 

use or threat of physical force against another,” App. 109, 120. 

 

Based on this prior conviction, Henderson’s base 

offense level was twenty. U.S.S.G. § 2K2.1(a)(4). This 

offense level was increased by four because the firearm he 
4

possessed had an obliterated serial number,

U.S.S.G. § 2K2.1(b)(4)(B), and reduced by three for 

acceptance of responsibility, U.S.S.G. § 3E1.1, resulting in a 

total offense level of twenty-one. Given his criminal history 

category of IV, his Guideline range was fifty-seven to seventyone months’ imprisonment. The Court imposed a sentence of 

sixty months’ imprisonment and three years’ supervised 

release. 

Henderson appeals. 

II1

A

A defendant convicted of violating § 922(g)(1) faces an 

enhanced base offense level under the Sentencing Guidelines 

if he has a prior felony conviction of “either a crime of violence 

or a controlled substance offense.” U.S.S.G. § 2K2.1(a)(2), 

(a)(4)(A). The Guidelines define a “crime of violence” as 

any offense under federal or state law, 

punishable by imprisonment for a term 

exceeding one year, that—

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

§ 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291 

and 18 U.S.C. § 3742. We review the District Court’s factual 

findings for clear error and its legal conclusions de novo,

United States v. Lowe, 791 F.3d 424, 427 (3d Cir. 2015), 

including the Court’s determination that a conviction 

constitutes a “crime of violence” under the Guidelines, United 

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

(1) has as an element the use, attempted 

use, or threatened use of physical force 

against the person of another, or 

(2) is murder, voluntary manslaughter, 

kidnapping, aggravated assault, a forcible 

sex offense, robbery, arson, extortion, or 

the use or unlawful possession of a 

firearm described in 26 U.S.C. § 5845(a) 

or explosive material as defined in 18 

U.S.C. § 841(c).

U.S.S.G. § 4B1.2(a). The first section is known as the 

“elements clause,” and the second section is known as the 

“enumerated offenses clause.” United States v. Ramos, 892 

F.3d 599, 605 (3d Cir. 2018). 

To decide whether an offense constitutes a crime of 

violence, we apply the “categorical approach,” which requires 

“compar[ing] the elements of the statute under which the 

defendant was convicted to the [G]uidelines’ definition of 

crime of violence.” Id. at 606 (quotations and citation 

omitted). If the statute forming the basis of the defendant’s 

conviction necessarily has as an element “the use, attempted 

use, or threatened use of physical force against another 

person,” or if its elements substantially correspond to the 

elements of one of the enumerated offenses, then the statute 

proscribes a predicate crime of violence within the meaning of 

the Guidelines. Id.; United States v. Brasby, 61 F.4th 127, 134 

(3d Cir. 2023). If, however, the statute of conviction lacks 

such an element, it “sweeps more broadly” than the Guidelines 

definition and does not qualify as a crime of violence, even if 
6

the defendant actually committed the offense by using, 

attempting to use, or threatening to use physical force against 

another person. Ramos, 892 F.3d at 606 (citation omitted). 

Thus, we “not only [] ignore the actual manner in which the 

defendant committed the prior offense, but also [] presume that 

the defendant did so by engaging in no more than ‘the 

minimum conduct criminalized by the state statute.’” Id.

(quoting Moncrieffe v. Holder, 569 U.S. 184, 191 (2013)).

When a statute “list[s] elements in the alternative, and 

thereby define[s] multiple crimes,” it is divisible, and we must 

identify which of the alternate elements was the basis for the 

conviction. Mathis v. United States, 579 U.S. 500, 505-06

(2016). Under this “modified categorical approach,” we

identify the statutory offense of conviction by looking at a 

“specific set of extra-statutory documents,” such as the 

“charging document, written plea agreement, transcript of plea 

colloquy, and any explicit factual finding by the trial judge.” 

Ramos, 892 F.3d at 606-07. 

Thus, we must first determine whether the Pennsylvania 

robbery statute is divisible. If it is divisible, then we must

identify the provision that formed the basis of Henderson’s 

conviction, and thereafter determine whether that provision 

constitutes a crime of violence under the elements clause or 

enumerated offenses clause. 
7

B

Under Pennsylvania law, a person commits robbery, if 

“in the course of committing a theft,”

2 he:

(i) inflicts serious bodily injury upon another;

(ii) threatens another with or intentionally puts 

him in fear of immediate serious bodily injury; 

(iii) commits or threatens immediately to commit 

any felony of the first or second degree;

(iv) inflicts bodily injury upon another or 

threatens another with or intentionally puts him 

in fear of immediate bodily injury;

(v) physically takes or removes property from 

the person of another by force however slight; or

(vi) takes or removes the money of a financial 

institution . . . . 

18 Pa. Cons. Stat. § 3701(a)(1). “Theft means taking someone 

else’s property intending not to give it back.” Pa. Suggested 

Standard Criminal Jury Instructions 15.3701A. Robbery under 

subsections (i)–(iii) are first-degree felonies, robbery under 

subsections (iv) and (vi) are second-degree felonies, and 

2 “An act shall be deemed ‘in the course of committing 

a theft’ if it occurs in an attempt to commit theft or in flight 

after the attempt or commission.” 18 Pa. Cons. Stat. 

§ 3701(a)(2). 
8

robbery under subsection (v) is a third-degree felony. 18 Pa. 

Cons. Stat. § 3701(b)(1). These various felony levels carry 

different penalties.

3

The subsections of § 3701(a)(1) are not separate means 

of satisfying a specific element, but rather “clearly la[y] out 

alternative elements” for separate robbery offenses.

4

 United 

States v. Peppers, 899 F.3d 211, 232 (3d Cir. 2018) (citation 

omitted) (holding § 3701 divisible); see also United States v. 

Blair, 734 F.3d 218, 225 (3d Cir. 2013) (same). Moreover, the 

fact that the various subsections trigger different penalties 

shows that they are alternative elements that must be proven. 

Mathis, 579 U.S. at 518 (“If statutory alternatives carry 

different punishments . . . they must be elements.”). For these 

reasons, § 3701 is divisible. Peppers, 899 F.3d at 232; Blair, 

734 F.3d at 225. 

3 First-degree felonies are subject to a maximum term 

of twenty years’ imprisonment. 18 Pa. Cons. Stat. § 1103(1). 

Second-degree felonies are subject to a maximum term of ten 

years’ imprisonment. 18 Pa. Cons. Stat. § 1103(2). Thirddegree felonies are subject to a maximum term of seven years’ 

imprisonment. 18 Pa. Cons. Stat. § 1103(3). 

4 Henderson argues on appeal that § 3701 is not 

divisible, but he withdrew his divisibility argument before the 

District Court and conceded at sentencing that the statute is 

divisible. Although Henderson failed to preserve his 

challenge, Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. 

Dist., 877 F.3d 136, 146-47 & n.7 (3d Cir. 2017) (explaining a 

claim is “waived” when intentionally abandoned, and “may not 

be resurrected on appeal”), the categorical approach requires 

that we determine whether § 3701 is divisible to ensure we are 

examining the actual crime of conviction.
9

Because § 3701 is divisible, we apply the “modified 

categorical approach,” which allows us to consider “extrastatutory documents” to identify the subsection under which 

Henderson was convicted. Ramos, 892 F.3d at 606-07. The 

parties do not dispute that Henderson was convicted under 

subsection (ii). As a result, we next examine whether 

subsection (ii) of the Pennsylvania robbery statute is a crime of 

violence under either § 4B1.2(a)’s elements clause or its 

enumerated offenses clause.

C

To qualify as a crime of violence under the elements 

clause, the offense must have “as an element the use, attempted 

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

another.” U.S.S.G. § 4B1.2(a)(1). For subsection (ii) to meet 

this definition, (1) a defendant must threaten to use physical

force, Ramos, 892 F.3d at 611, and (2) the threat must be made 

intentionally or knowingly, Borden v. United States, 141 S. Ct. 

1817, 1826 (2021).5 As we will explain, subsection (ii) meets 

both requirements and thus qualifies as a crime of violence. 

5 Borden addressed the elements clause of the ACCA, 

which is identical to the elements clause of § 4B1.2(a)(1). See

18 U.S.C.A. § 924(e)(2)(B)(i). Given their similarity, “courts 

generally apply authority interpreting one provision to the 

other.” United States v. Brasby, 61 F.4th 127, 133 (3d Cir. 

2023).

Borden left open the question of whether offenses 

requiring a mental state of “extreme recklessness” satisfy the 

elements clause. 141 S. Ct. at 1825 n.4. Because this is an 
10

1

The first question is whether a theft where a defendant

“threatens another with or intentionally puts him in fear of 

immediate serious bodily injury,” 18 Pa. Cons. Stat. 

§ 3701(a)(1)(ii), involves the threatened use of physical force

against another. Section 4B1.2(a)(1) envisions the requisite 

“use of physical force” as “force capable of causing physical 

pain or injury.” Stokeling v. United States, 139 S. Ct. 544, 553 

(2019) (quotations omitted). 

The plain language of subsection (ii) satisfies this 

requirement. The statute states that the threatened force must 

place the victim in fear of immediate “serious bodily injury.” 

Pennsylvania defines “[b]odily injury” as an “[i]mpairment of 

physical condition or substantial pain,” and “[s]erious bodily 

injury” as “[b]odily injury which creates a substantial risk of 

death or which causes serious, permanent disfigurement, or 

protracted loss or impairment of the function of any bodily 

member or organ.” 18 Pa. Cons. Stat. § 2301. Because 

subsection (ii) requires proof that the victim was threatened

with, or put in fear of, immediate serious bodily injury, it

contemplates a level of force that is capable of causing physical 

pain or injury and therefore satisfies the force provision of

§ 4B1.2(a)’s elements clause. Cf. United States v. McCants, 

952 F.3d 416, 428 (3d Cir. 2020) (holding textually similar 

open question, we do not address it here and focus our analysis 

on whether robbery under subsection (ii) requires that the 

offense be committed intentionally or knowingly.
11

New Jersey robbery statute qualified as crime of violence 

because it required a threat of “bodily injury”).

6

6 United States v. Harris, 289 A.3d 1060 (Pa. 2023), and 

its conclusion that Pennsylvania’s aggravated assault statute 

does not require force, is not applicable. In Harris, the 

Pennsylvania Supreme Court explained that the aggravated 

assault statute did not contain a requirement of force and thus 

could be violated by an omission. Id. at 1074. The court 

observed that the aggravated assault statute does not identify 

the “manner of causing a particular bodily injury,” instead 

providing only that a defendant must “cause” such injury. Id.

at 1070-71. Like the statutes Harris distinguished from 

aggravated assault, such as an “attempt[] by physical menace” 

to put others in fear of bodily injury, subsection (ii) 

criminalizes a specific act. As we explain in the following 

section, subsection (ii)’s “threaten another” language identifies 

the act in which the defendant must engage, namely a 

declaration directed toward another. Thus, because subsection 

(ii) identifies the manner by which the harm must be caused, it 

differs from the aggravated assault statute. By identifying the 

act, subsection (ii) robbery cannot be committed by omission.

Furthermore, unlike the aggravated assault statute, 

subsection (ii) requires that the victim be threatened with or 

placed in fear of “immediate” serious bodily injury. Harris is 

also distinguishable because in its examination of 

Pennsylvania’s aggravated assault statute it relied on a case in 

which a mother was charged with aggravated assault through 

an act of omission (i.e., starving a child to death), but such an 

act would not satisfy the immediacy requirement in subsection 

(ii). In the same way, a theft where a nursing home caretaker 

who threatens to withhold medication necessary to prevent 
12

2

The second question is whether subsection (ii) requires 

proof that the defendant acted with a knowing or intentional 

state of mind. Subsection (ii) prohibits, in the course of 

committing a theft, “threaten[ing] another with or intentionally 

put[ting] him in fear of immediate serious bodily injury.” 18 

Pa. Cons. Stat. § 3701(a)(1)(ii). The second clause of 

subsection (ii) explicitly provides for an intentional state of 

mind by making it a crime to “intentionally put[] [another] in 

fear of immediate serious bodily injury.” Id. The first clause

adverse medical consequences unless the patient gave the 

caretaker money would not satisfy the immediacy 

requirement. For this additional reason, Harris is not 

applicable.

This result is confirmed by applying the realistic 

probability test. Having found that subsection (ii) satisfies 

4B1.2(a)(1)’s requisite quantum of force, to demonstrate that 

subsection (ii) is yet still broader than § 4B1.2(a)(1), 

Henderson must show a “realistic probability, not a theoretical 

possibility, that the State would apply its statute” to a threat of 

immediate serious bodily injury by omission. Moncrieffe v. 

Holder, 569 U.S. 184, 191 (2013). To show such a realistic 

probability, “an offender must at least point to his own case or 

other cases in which the state courts in fact did apply the statute 

in the special [] manner for which he argues.” Gonzales v. 

Duenas-Alvarez, 549 U.S. 183, 193 (2007). Because 

Henderson has failed to identify any case in which 

Pennsylvania applied subsection (ii) to threats of immediate 

serious bodily injury by omission, we hold that subsection (ii) 

is not broader than § 4B1.2(a)(1) on this basis.
13

lacks the word “intentionally,” stating only that a person is 

guilty of a robbery if he “threatens another with . . . immediate 

serious bodily injury.” 18 Pa. Cons. Stat. § 3701(a)(1)(ii). The 

text, structure, and case law, however, show that the first clause

also captures an intentional or knowing mens rea.

A term in a statute “is given more precise content by the 

neighboring words with which it is associated.” United States 

v. Williams, 553 U.S. 285, 294 (2008). The Supreme Court 

applied this principle in Borden, where the Court considered 

two different interpretations of the phrase “use of physical 

force against the person of another,” as used in the ACCA. The 

parties agreed that the “use of physical force” means the 

“volitional” or “active” employment of force but had different 

views as to whether “against the person of another” had: (1) a 

passive meaning, which supported a mens rea of recklessness; 

or (2) an oppositional meaning, which supported a stricter 

mens rea. 141 S. Ct. 1817, 1825-1830 (2021). The passive 

reading would interpret “against” to mean “making contact 

with,” e.g. “waves crashing against the shore.” Id. at 1827

(quotations omitted). The oppositional reading of “against” 

would interpret the phrase to introduce a “conscious object” or 

“intended target” of the force, not a “mere recipient” of the 

force by happenstance, e.g. “[t]he general deployed his forces 

against a rival regiment.” Id. at 1825-26. The Court adopted 

the oppositional interpretation because “against” was paired 

with “use of physical force,” and the “pairing of a volitional 

action with the word ‘against’ supports that word’s 

oppositional, or targeted, definition.” Id. at 1826.

The same interpretation applies here. Viewing 

subsection (ii)’s threatens clause in its entirety, the clause 

“threatens another with [] immediate serious bodily injury” has 
14

an oppositional meaning because the language “another with” 

introduces an intended target, not a mere recipient of the threat 

by happenstance.

Pennsylvania courts, which are “the ultimate 

expositors” of Pennsylvania law, support this interpretation of 

“threatens another” in subsection (ii). Mullaney v. Wilbur, 421 

U.S. 684, 691 (1975); see also Jackson v. Virginia, 443 U.S.

307, 324 n.16 (1979) (recognizing that States have the power 

to define the substantive elements of criminal offenses). Under 

Pennsylvania law, the “common and approved usage” of a 

word dictates how it is construed within a statute. 1 Pa. Cons. 

Stat. § 1903(a). See also Commonwealth v. Griffin, 207 A.3d 

827, 830 (Pa. 2019) (“[T]he plain language of the statute itself 

provides the clearest indication of legislative intent.”). When 

determining a word’s common meaning, Pennsylvania law 

directs us to consult a dictionary. See e.g., Chamberlain v. 

Unemployment Comp. Bd. of Rev., 114 A.3d 385, 394 (Pa. 

2015) (“It is well-established that the common and approved 

meaning of a word may be ascertained from an examination of 

its dictionary definition.”). Black’s Law Dictionary defined

“threat” at the time § 3701 was enacted as “[a] declaration of 

intention or determination to inflict punishment, loss, or pain 

on another . . . [; a] declaration of one’s purpose or intention to 

work injury to the person, property, or rights of another.” See

Threat, Black’s Law Dictionary (4th ed. 1968). Thus, 

interpreting the “threatens another” language to convey an 

intentional act, where the perpetrator knowingly states his 

intent to harm his victim, is consistent with directives found 

within Pennsylvania law.7

7 We acknowledge that the word “threat” alone has 

been viewed as an actus reus and does “not carry its own 
15

Pennsylvania case law further supports this 

interpretation of subsection (ii). In Commonwealth v. Thomas, 

546 A.2d 116 (Pa. Super. Ct. 1988), appeal denied, 554 A.2d 

509 (Pa. 1989), the state court explained that a defendant 

violates subsection (ii) if his threat “was calculated to inflict 

fear of serious bodily injury.” Id. at 118. The court’s use of 

the word “calculated” suggests that, to commit a violation of 

subsection (ii), a defendant must intend to inflict fear of serious 

bodily injury on the victim. Id. at 119.

Thus, the clause “threatens another with . . . immediate 

serious bodily injury” conveys an intentional act because the 

threat must be directed toward another person with the intent 

of causing the victim to fear serious bodily injury. See Borden, 

141 S. Ct. at 1827; Thomas, 546 A.2d at 119; see also United 

States v. Stanford, No. 22-1272, 2023 WL 4835133 (3d Cir. 

July 28, 2023) (holding that Delaware robbery, 11 Del. C. 

§ 831(a), qualifies as a crime of violence under the elements 

clause because it “requires the intentional use or threatened use 

of immediate force ‘upon another person,’” and thus involves

force that is “consciously directed” toward a victim (quoting 

implicit mens rea,” Larios v. Att’y Gen., 978 F.3d 62, 71 (3d 

Cir. 2020) (citing Bovkun v. Ashcroft, 283 F.3d 166, 170 (3d 

Cir. 2002)); see also Counterman v. Colorado, 143 S. Ct. 2106, 

2117-18 (2023) (recognizing that a threat is an act that does not 

embody a particular mens rea and acknowledging that a threat 

may be committed recklessly), but here, where “threatens” is 

coupled with a word of directionality, such as “another,” the 

phrase “threatens another” provides insight into the state of 

mind with which that threat occurs. Thus, our consideration of 

the dictionary definition of “threat” is not inconsistent with 

Larios. 
16

Borden, 141 S. Ct. at 1826)).8 Because the “plain language of 

the statute is the best indication of the legislature’s intent,” In 

re B.W., 250 A.3d 1163, 1171 (Pa. 2021), and the language of

subsection (ii) requires intentional conduct, we need not rely 

on the Pennsylvania Criminal Code’s default mens rea 

provision to identify the applicable state of mind for violating 

subsection (ii). We therefore conclude that subsection (ii) 

embodies an intentional mens rea. 

Because subsection (ii) involves the requisite force and 

mens rea to qualify as a crime of violence under § 4B1.2’s 

elements clause, we need not decide whether it is also one of 

the crimes listed in the enumerated offenses clause.

9

8 Henderson asserts that reading a mens rea of intent into 

the first clause of subsection (ii) would render the word 

“intentionally” in the second clause superfluous. However, the 

first clause’s use of the phrase “threatens another” addresses a 

specific type of act, namely a communication that conveys an 

intent to harm, and therefore the legislature did not need to use 

the word “intentionally” to convey a knowing or intentional 

mens rea. The second clause uses the phrase “intentionally 

puts him in fear.” Without the use of the word “intentionally,” 

conduct that “puts another in fear” could cover reckless 

actions. Thus, unlike the first clause, the inclusion of the word 

“intentionally” in the second clause is necessary to 

demonstrate the legislature’s intent to punish only knowing or 

intentional conduct.

9 Pennsylvania courts have viewed § 3701(a)(1)(ii) as 

“substantially identical in nature and definition” to federal 

bank robbery under 18 U.S.C. § 2113(a), Commonwealth v.

Taylor, 831 A.2d 661, 665-66 (Pa. Super. Ct. 2003), and we 

have held § 2113(a) to be a crime of violence under 
17

III

For the foregoing reasons, we will affirm. 

§ 4B1.2(a)(1), United States v. Wilson, 880 F.3d 80, 85 (3d 

Cir. 2018). This provides further support for the view that 

subsection (ii) qualifies as a § 4B1.2(a) crime of violence.