NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT

_____________

No. 16-1648

_____________

UNITED STATES OF AMERICA

v.

JOHN L. KNIGHT,

Appellant

______________

On Appeal from the United States District Court

for the District of New Jersey

(District Court No. 2:15-cr-00004-001)

District Judge: Hon. Jose L. Linares

______________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

February 9, 2017

______________

Before: McKEE, RENDELL, and FUENTES, Circuit Judges.

(Opinion filed: August 23, 2017)

_______________________

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

McKEE, Circuit Judge

John L. Knight appeals his sentence, arguing that the District Court erred in 

counting his prior robbery convictions as crimes of violence under U.S.S.G. § 2K2.1. For 

the reasons that follow, we will affirm the sentencing judgment. 

I

Knight was charged with being a felon in possession of a weapon in January 2015. 

His sentencing was based, in part, on the Probation Department’s determination that 

Knight’s prior convictions—including one for aggravated assault and two for first-degree 

robbery (which constituted a single count)—qualified as “crimes of violence” under 

U.S.S.G. § 2K2.1(a)(2). Section 2K2.1 increases a defendant’s base offense level when 

the defendant has prior convictions that constitute “crime[s] of violence,” as defined in 

U.S.S.G. 4B1.2(a)(1).1 

Knight filed a motion in District Court pursuant to Fed. R. Crim. P. 35 to correct 

his sentence. The District Court determined that Knight’s prior first-degree robbery 

convictions were, in fact, crimes of violence under § 4B1.2(a)(1), but the aggravated 

assault conviction was not.2 The District Court ultimately sentenced Knight to 55 

 

1 Section 2K2.1 does not define “crime of violence” in its text; instead, its commentary 

says that “‘[c]rime of violence’ has the meaning given that term in § 4B1.2(a) and 

Application Note 1 of the Commentary to § 4B1.2.” U.S.S.G. § 2K2.1, cmt. n.1. That 

commentary is “a binding interpretation of the phrase ‘crime of violence’” in § 2K2.1. 

Stinson v. United States, 508 U.S. 36, 47 (1993). Accordingly, Section 2K2.1 

incorporates § 4B1.2(a) of the United State Sentencing Guidelines Manual and 

Application Note 1 to § 4B1.2, as if those provisions were expressly set forth in the text 

of § 2K2.1 itself. 

2 United States v. Knight, 2016 WL 223701 (D.N.J. Jan. 9, 2016). 
3

months’ imprisonment and three years’ supervised release and imposed a $100 special 

assessment fee. This appeal followed.3

II.

A. Background 

Knight challenges only the District Court’s determination that his prior New 

Jersey robbery convictions qualify as crimes of violence.4 The relevant New Jersey 

robbery 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. 

An act shall be deemed to be included in the phrase “in the course of committing a 

theft” if it occurs in an attempt to commit theft or in immediate flight after the 

attempt or commission.

(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.5

 

3 The Government withdrew its cross-appeal. Gov’t Br. 1. 

4 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. This Court has 

jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. “Whether a prior 

conviction constitutes a crime of violence for purposes of the career offender Guideline is 

a question of law over which we exercise plenary review.” United States v. Brown, 765 

F.3d 185, 188 (3d Cir. 2014).

5 N.J. Stat. Ann. § 2C:15-1 (West 2017). 
4

Knight’s prior robbery convictions included one under subsection (a)(1) and one under 

subsection (a)(2).

6 Both were aggravated to first degree under subsection (b). 

The Federal Sentencing Guidelines define “crime of violence” as “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.”7 We recently clarified in United States v. Chapman that 

“use of physical force” in that definition “does not require that the person employing 

force directly apply harm to—i.e., strike—the victim.”8 Instead, we held, “the ‘use’ of 

‘physical force,’ as used in § 4B1.2(a)(1), involves the intentional employment of 

something capable of causing physical pain or injury to another person, regardless of 

whether the perpetrator struck the victim’s body.”9 

Here, the District Court, observing that N.J. Stat. Ann. § 2C:15-1 was divisible, 

applied the “modified categorical approach”10 and concluded that first-degree robbery 

 

6 The District Court apparently considered only whether a violation of (a)(1) aggravated 

in the first degree qualified as a crime of violence. See App. 25. 

7 U.S.S.G. § 4B1.2(a)(1). A prior felony conviction separately qualifies if it is for an 

offense expressly enumerated in § 4B1.2(a)(2) or Application Note 1.

8 United States v. Chapman, --- F.3d ---, No. 16-1810, 2017 WL 3319287, at *3 (3d Cir. 

Aug. 4, 2017). 

9

Id. 

10 When a statute is divisible—i.e., when it “comprises multiple, alternative versions of 

the crime,” Descamps v. United States, 133 S. Ct. 2276, 2281 (2013)—a sentencing court 

“may look to a limited class of extra-statutory documents to determine which version of 

the offense was the basis of conviction,” Brown, 765 F.3d at 191. This is known as the 

modified categorical approach. Shepard v. United States, 544 U.S. 13, 16 (2005). Under 

that approach, the sentencing court is permitted to consult, for example, the “charging 

document, written plea agreement, transcript of plea colloquy, and any explicit factual 
5

always qualified as a crime of violence under New Jersey law.

11

 It also found that 

Knight’s Shepard documents demonstrated that he had, in fact, pled guilty to first-degree 

robbery (N.J. Stat. Ann. § 2C:15-1(b)).12 

B. Analysis 

Although the District Court did not conclude as much, the Government argues that 

N.J. Stat. Ann. § 2C:15-1(b) is, itself, divisible.13 That is, each way of aggravating 

second-degree robbery into first-degree robbery under the New Jersey statute requires 

proof of an element not required for the other way of committing that crime. 

We agree with the Government.14 Accordingly, we may, under the modified 

categorical approach, consult available Shepard documents to determine whether Knight 

necessarily admitted elements to a crime that would qualify as a predicate crime-of-

 

finding by the trial judge to which the defendant assented”—those which have been 

referred to as Shepard documents. Id. 

11 The District Court specifically found that “[r]egardless of which subsection an 

individual is convicted under (i.e., subsection (a)(1), (a)(2), or (a)(3)), if a conviction 

under N.J.S.A. § 2C:15-1 is in the first degree under subsection (b), it will always be a 

crime of violence.” App. 26. The District Court found particularly compelling the fact 

that N.J. Stat. Ann. § 2C:15-1(b), based on its text, essentially had the “use, attempted 

use, or threatened use of physical force” as an element if robbery was found in the first 

degree. App. 26 (quoting U.S.S.G. § 4Bl .2(a)(l)). Id. 

12 Consulting the Model Penal Code, the District Court also determined that New Jersey’s 

first-degree robbery was not “overbroad” and that its elements “sufficiently correspond[] 

to first-degree robbery as commonly understood” such that it “qualifies as a predicate 

offense for sentencing purposes.” App. 27–28. 

13 The District Court found only that N.J. Stat. Ann. § 2C:15-1, as a whole, was divisible. 

14 See N.J. Stat. Ann. § 2C:15-1(b) (West 2017) (“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.” 

(emphasis added)). 
6

violence.

15

 The Shepard documents Knight provided for his New Jersey robbery 

convictions include his plea colloquy. That clearly establishes that the aggravator he 

admitted for both first-degree robbery convictions was a threat to use a deadly weapon. 

Knight relies on United States v. Johnson,

16 to now argue that his first-degree 

robbery convictions cannot qualify as crimes of violence because they were for offenses 

that do not require the kind of violent force that the Supreme Court requires. In Johnson, 

the Supreme Court explained that “physical force” (as used to define a “violent felony” in 

the statute there) was “force capable of causing physical pain or injury to another person”

and that the term, “violent,” itself, “connotes a substantial degree of force.”17 Knight 

then points to United States v. Jones,

18 a case decided after Johnson. There, the U.S. 

Court of Appeals for the Second Circuit concluded that a New York first-degree robbery 

statute did not qualify as a crime of violence. 

Knight maintains that the “mere threat of a deadly weapon—not its use, just its 

mention—categorically fails to require any force, much less violent physical force.”19 

He further concludes that the issue is “not whether [he] committed the robberies using 

 

15 See Chapman, 2017 WL 3319287, at *4. 

16 559 U.S. 133 (2010). 

17 Id. at 140. Johnson involved a sentencing enhancement under the Armed Career 

Criminal Act (ACCA), 18 U.S.C. § 924(e), not the career offender Guideline, but it still 

instructs our analysis here. “Precedent . . . requires the application of case law 

interpreting ‘violent felony’ in [the] ACCA to ‘crime of violence’ in [Guideline] 

§ 4B1.2[] because of the substantial similarity of the two sections.” United States v. 

Marrero, 743 F.3d 389, 395 n.2 (3d Cir. 2014) (first and fourth alteration in original) 

(quoting United States v. Herrick, 545 F.3d 53, 58 (1st Cir. 2008)), abrogated on other 

grounds by United States v. Calabretta, 831 F.3d 128, 135 (3d Cir. 2016). 

18 No. 15-1518, 2016 WL 3923838 (2d Cir. July 21, 2016). 

19 Appellant’s Br. 27.
7

physical force but whether the [New Jersey first-degree robbery] statute permits 

conviction without the use of physical force.”20

We disagree. “[U]se” of “physical force” necessarily encompasses threatening the 

immediate use of a deadly weapon, which Knight admitted when he pled guilty. In 

Chapman, we concluded that 18 U.S.C. § 876(c), which prohibits mailing “any threat to 

kidnap any person or any threat to injure the person of the addressee or of another,” 

constituted a crime of violence under § 4B1.1(a) of the Guidelines.21 As we explained in 

Chapman, an argument like Knight’s “allows no room for murder or voluntary 

manslaughter to qualify as crimes of violence because both offenses can be committed 

without the perpetrator striking the victim.”22 

Although our analysis differs slightly from the District Court’s reasoning, we are 

convinced that purposely threatening another with what is perceived to be a deadly 

weapon is threatening the victim with “physical force,” as that phrase is defined in 

Johnson.

23

 Knight’s first-degree robbery convictions under N.J. Stat. Ann. § 2C:15-1(b) 

 

20 Appellant’s Reply Br. 4. 

21 Chapman, 2017 WL 3319287, at *2. 

22 Id. at *6 (concluding that “[t]his would substantially undermine Congress’s goal of 

imposing substantial prison terms on repeat violent offenders” (internal quotation marks 

and citation omitted)). 

Jones concerned a different offense than Knight’s. In addition, the Second Circuit 

vacated that opinion. See United States v. Jones, 838 F.3d 296, 296 (2d Cir. 2016). 

23 See Singh v. Gonzalez, 432 F.3d 533, 539–41 (3d Cir. 2006) (discussing the 

perpetrator’s intent to threaten a victim with physical injury). 
8

therefore qualify as crimes of violence under U.S.S.G. § 4B1.2(a)(1) and, by extension, 

U.S.S.G. § 2K2.1(a).24

III

For the foregoing reasons, we will affirm Knight’s sentence. 

 

24 Given the basis for our conclusion, we need not reach the issue of whether Knight’s 

robbery convictions fall within the generic definition of robbery or whether it remains an 

enumerated offense under the Guidelines. We further decline to rule whether N.J. Stat. 

Ann. § 2C:15-1(a)(1) and § 2C:15-1(a)(2) individually qualify as crimes of violence.