USA v. Andre Lewi

Filing

NOT PRECEDENTIAL OPINION Coram: SHWARTZ, ROTH and *PAPPERT, Circuit Judges. Total Pages: 17. Judge: SHWARTZ Authoring. Roth, Concurring. *The Honorable Gerald J. Pappert, United States District Judge for the Eastern District of Pennsylvania, sitting by designation.

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-4378
_____________
UNITED STATES OF AMERICA
v.
ANDRE S. LEWIS,
Appellant
______________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-15-cr-00368-001)
District Judge: Hon. Legrome D. Davis
______________
Submitted Under Third Circuit L.A.R. 34.1(a)
October 2, 2017
______________
Before: SHWARTZ and ROTH, Circuit Judges,
and PAPPERT, District Judge. *
(Filed: January 8, 2018)
______________
OPINION **
______________
SHWARTZ, Circuit Judge.

*

Honorable Gerald J. Pappert, United States District Judge for the Eastern District
of Pennsylvania, sitting by designation.
**
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.

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Andre Lewis pleaded guilty to one count of unarmed bank robbery and two counts
of attempted unarmed bank robbery, in violation of 18 U.S.C. § 2113(a), and was
sentenced pursuant to the career offender guideline, U.S.S.G. § 4B1.1. Because Lewis’s
bank robbery convictions and prior conviction for aggravated assault under 18 Pa. Cons.
Stat. § 2702(a)(4) are crimes of violence under § 4B1.1, and because he also had a prior
drug conviction, he was properly sentenced under the career offender guideline, and we
will affirm.
I
In June 2015, Lewis entered a Wells Fargo bank in Philadelphia, displayed the
handle of a firearm, and passed the teller a note stating: “I know where you live. Dn’t
make any funny movements or us an your coworkers are fuckin dead hand over cash.”
The teller handed Lewis $1,740.25, and Lewis left the bank. Over the next month, Lewis
twice attempted to rob another Wells Fargo bank using similar demand notes but left with
no money. Lewis pleaded guilty to bank robbery and attempted bank robbery in violation
of § 2113(a).
The United States Probation Office prepared a Presentence Investigation Report
(“PSR”) recommending that Lewis be sentenced as a career offender under § 4B1.1.
Under that provision, a defendant qualifies for the career offender enhancement if, among
other things, he is convicted of either a “controlled substance offense” or a “crime of
violence” and has at least two prior convictions falling within those two categories.
U.S.S.G. § 4B1.1(a). According to the PSR, Lewis was convicted of bank robbery,

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which the PSR stated was a crime of violence, and had prior drug and aggravated assault
convictions.
Lewis objected to the career offender designation on the ground that his prior
aggravated assault conviction did not qualify as a crime of violence. The District Court
rejected that argument, departed downward from the applicable career offender
Guidelines range of 151 to 181 months, and sentenced Lewis to 120 months’
imprisonment followed by three years of supervised release. Lewis appeals.
II 1
Lewis argues that his unarmed bank robbery conviction and his prior Pennsylvania
aggravated assault conviction are not “crime[s] of violence” under U.S.S.G. § 4B1.2, and
therefore, it was error to sentence him as a career offender. 2
“Whether a . . . 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) (internal quotation marks
omitted). However, where a defendant fails to preserve his objection in the District
Court, we review for plain error. 3 United States v. Russell, 564 F.3d 200, 203 (3d Cir.

1

The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction under 28 U.S.C. §§ 1291 and 3742.
2
Lewis does not dispute that his drug conviction is a qualifying offense under the
career offender provision.
3
To establish plain error, Lewis must demonstrate: (1) an error; (2) that is clear or
obvious; and (3) that affects his substantial rights. Gov’t of the V.I. v. Mills, 821 F.3d
448, 456 (3d Cir. 2016). If all three prongs are satisfied, then our Court has discretion to
remedy the error “only if the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id. at 457 (internal quotation marks and alteration
omitted).
3

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2009); see also Fed. R. Crim. P. 52(b) (“A plain error that affects substantial rights may
be considered even though it was not brought to the court’s attention.”). In the District
Court, Lewis argued only that his prior aggravated assault conviction is not a crime of
violence under the career offender provision. Thus, the District Court’s application of the
career offender sentencing guideline is subject to plain error review with respect to
Lewis’s bank robbery conviction and plenary review with respect to Lewis’s aggravated
assault conviction.
Regardless of the standard of review, each issue raised on appeal requires us to
consider whether a particular offense constitutes a crime of violence under § 4B1.2. A
“crime of violence” is defined 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.” 4 U.S.S.G.
§ 4B1.2(a)(1). “[P]hysical force” under § 4B1.2(a)(1) means “violent force,” which is a
“force capable of causing physical pain or injury to another person.” Johnson v. United
States, 559 U.S. 133, 140 (2010) (interpreting “physical force” as used in the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(i), whose language is identical
to § 4B1.2(a)(1)). 5 In addition, the use of physical force must be knowing or intentional;

4

The word “use” in the force clause of § 4B1.2(a)(1) means “the intentional
employment of . . . force, generally to obtain some end.” Tran v. Gonzales, 414 F.3d
464, 470 (3d Cir. 2005).
5
Although Johnson involved a sentencing enhancement under the ACCA, our
Court has extended that analysis to § 4B1.2. E.g., United States v. Chapman, 866 F.3d
129, 132 n.3 (3d Cir. 2017); Brown, 765 F.3d at 189 n.2; United States v. Hopkins, 577
F.3d 507, 511 (3d Cir. 2009).
4

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recklessness or gross negligence are insufficient. United States v. Chapman, 866 F.3d
129, 133-36 (3d Cir. 2017); United States v. Otero, 502 F.3d 331, 335 (3d Cir. 2007).
To determine whether the crime of conviction is a crime of violence, courts
typically apply the categorical approach, which compares the elements of the statute
under which the defendant was convicted with the definition of a crime of violence.
Chapman, 866 F.3d at 133-34 (citing Descamps v. United States, 133 S. Ct. 2276, 2281
(2013)). Specifically, we “ask whether ‘the use or threat of physical force’ is an element
of the [statute]” under which the defendant was convicted. Id. at *4. This requires us to
“ascertain the least culpable conduct hypothetically necessary to sustain a conviction
under the statute.” United States v. Dahl, 833 F.3d 345, 350 (3d Cir. 2016) (internal
quotation marks omitted). In making this determination, “we look only to the statutory
definitions—i.e., the elements—of a defendant’s . . . offense, and not to the particular
facts underlying the conviction.” 6 Chapman, 866 F.3d at 134 (internal quotation marks,
alterations, and emphasis omitted). That crime is then compared to the crime of violence
definition described above. Id. at 133-36. 7

6

If a statute is divisible such that it “list[s] elements in the alternative, and thereby
define[s] multiple crimes,” then courts use the modified categorical approach, which
allows a court to consider certain limited documents to determine “what crime, with what
elements, a defendant was convicted of.” Mathis v. United States, 136 S. Ct. 2243, 2249
(2016).
7
Our concurring colleague, relying on United States v. Robinson, 844 F.3d 137,
141 (3d Cir. 2016), says that we need not resort to the categorical approach to determine
whether the instant conviction (as opposed to a prior conviction) constitutes a crime of
violence because “the record of all necessary facts [concerning the offense] are before the
District Court.” After Robinson, however, our Court issued Chapman, in which it
applied the categorical approach to determine whether the instant offense there
constituted a crime of violence under § 4B1.2, see Chapman, 866 F.3d at 131-34, even
5

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With this background, we will consider whether unarmed bank robbery under
§ 2113(a) and aggravated assault under 18 Pa. Cons. Stat. § 2702(a)(4) are crimes of
violence.

though the Court had the facts before it and could have reviewed the record to evaluate
whether the offense was a crime of violence. We are bound to follow Chapman and not
Robinson. First, like this case, Chapman assessed whether a conviction constituted a
crime of violence under the career offender sentencing enhancement and the conviction
was based on a plea rather than a trial. In contrast, Robinson concerned whether a posttrial conviction for Hobbs Act robbery qualified as a crime of violence for purposes of a
conviction under 18 U.S.C. § 924(c), which punishes brandishing a firearm during the
commission of a crime of violence. 844 F.3d at 139-40. Second, the Chapman panel was
aware of Robinson and chose not to apply it, see, e.g., 866 F.3d at 136 (Jordan, J.,
concurring) (citing Robinson). Moreover, four other circuit courts have similarly applied
the categorical or modified categorical approach to assess whether an instant offense of
federal bank robbery was a crime of violence under the career offender sentencing
enhancement. See United States v. Harper 869 F.3d 624, 626-27 (8th Cir. 2007); United
States v. Ellison, 866 F.3d 32, (1st Cir. 2017); United States v. Brewer, 848 F.3d 711 (5th
Cir. 2017); United States v. McBride, 826 F.3d 293 (6th Cir. 2016). As a result, we have
applied Chapman because that is what the precedent requires.
Our application of the precedent, however, does not mean that our concurring
colleague and the courts whose opinions she cites lack a well-founded concern. In fact,
we agree with the observations of these jurists concerning the practicalities (or put
differently, the lack of reality) sometimes associated with the categorical approach.
Thus, contrary to the concurrence’s characterization, we are not closing our eyes to the
facts or even the well-placed criticism of the categorical approach. Rather, we are
applying the approach required by the current, albeit criticized, precedent.
In any event, whether or not we apply the categorical approach, the result is the
same because Lewis’s unarmed bank robbery conviction constituted a crime of violence
under the enumerated offenses clause of § 4B1.2. In the context of the Sentencing
Guidelines, “generic federal robbery is defined . . . without the requirement of more than
de minimis force.” United States v. Graves, __ F.3d __, 2017 WL ______ (3d Cir. Dec.
13, 2017). Robbery by intimidation under § 2113(a) requires at least de minimis force
and therefore is consistent with the generic crime of robbery referenced in § 4B1.2’s
enumerated offenses clause. For this additional reason, it qualifies as a crime of violence.
6

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III
A
Section 2113(a) provides, in relevant part:
Whoever, by force and violence, or by intimidation, takes, or attempts to
take, from the person or presence of another, or obtains or attempts to obtain
by extortion any property or money or any other thing of value belonging to,
or in the care, custody, control, management, or possession of, any bank,
credit union, or any savings and loan association. . . .
Shall be fined under this title or imprisoned not more than twenty years, or
both.
18 U.S.C. § 2113(a). The elements of the crime are: “[1] taking, or attempting to take,
[2] anything of value, [3] by force and violence, by intimidation, or by extortion” from a
financial institution whose accounts are insured by the Federal Deposit Insurance
Corporation. United States v. Askari, 140 F.3d 536, 548 (3d Cir. 1998) (en banc),
vacated and superseded on other grounds on reconsideration, 159 F.3d 774 (3d Cir.
1998); see also 18 U.S.C. § 2113(f) (defining “bank”). Thus, § 2113(a) bank robbery is
committed “by force and violence, or by intimidation” or by “extortion.” The least
culpable conduct for which a defendant can be convicted under the statute is taking
money or property “by intimidation.” We must therefore assess whether intimidation
necessarily includes a use of physical force, meaning force “capable of causing physical
pain or injury to another person,” Johnson, 559 U.S. at 140, and if so, whether the
intimidation must be intentional or knowing.
To intimidate under § 2113(a) means to cause fear of bodily injury. Askari, 140
F.3d at 541; see also United States v. Ellison, 866 F.3d 32, 37 (1st Cir. 2017) (concluding

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that “proving ‘intimidation’ under § 2113(a) requires proving that a threat of bodily harm
was made”); United States v. McBride, 826 F.3d 293, 296 (6th Cir. 2016) (observing that
“[r]obbery by intimidation involves the threat to do immediate bodily harm”) (alterations,
internal quotation marks, and emphasis omitted). Causing a fear of bodily injury in the
context of a bank robbery necessarily requires a threat of physical force. As the Court of
Appeals for the Fifth Circuit recently observed, “[t]he kind of intimidation that suffices to
put a victim in fear of bodily injury during the course of a bank robbery . . . is the very
sort of threat of immediate, destructive, and violent force required to satisfy the crime of
violence definition.” United States v. Brewer, 848 F.3d 711, 715 (5th Cir. 2017) (internal
quotation marks omitted); cf. Chapman, 866 F.3d at 135 (concluding that a threat “to
injure” another “necessarily threatens the use of physical force”). Thus, robbery by
intimidation under § 2113(a) necessarily includes the use or threatened use of physical
force. 8 Brewer, 848 F.3d at 715-16; Ellison, 866 F.3d at 35-38; McBride, 826 F.3d at
296; United States v. McNeal, 818 F.3d 141, 153 (4th Cir. 2016). Therefore, § 2113(a)’s
intimidation element satisfies § 4B1.2(a)(1)’s use or threatened use of force requirement.

8

Lewis’s argument that intimidation in the form of a threat to cause bodily injury
can occur without the use of physical force, such as through a threat to release poison or a
hazardous substance, was rejected in United States v. Castleman, where the Supreme
Court stated that poisoning does constitute a “use or attempted use of physical force”
even though the force is applied indirectly. 134 S. Ct. 1405, 1415 (2014) (explaining that
the use of force “is the act of employing poison knowingly as a device to cause physical
harm” and that the fact “the harm occurs indirectly, rather than directly (as with a kick or
punch), does not matter”); see also Ellison, 866 F.3d at 37-38 (rejecting same argument
raised by Lewis). Although Castleman involved the application of the force clause in 18
U.S.C. § 921(a)(33)(A)(ii), our Court has explicitly extended Castleman’s analysis of the
use of physical force to the use of physical force clause under § 4B1.2(a)(1). Chapman,
866 F.3d at 132-33; see also Ellison, 866 F.3d at 37-38 (same).
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Section 2113(a) also satisfies § 4B1.2(a)(1)’s scienter requirement even though
§ 2113(a) lacks explicit scienter language. The Supreme Court has held that § 2113(a)
“requir[es] proof of general intent—that is, that the defendant possessed knowledge with
respect to the actus reus of the crime (here, the taking of property of another by force and
violence or intimidation).” Carter v. United States, 530 U.S. 255, 268 (2000) (emphasis
omitted). Thus, § 2113(a) has an implicit scienter requirement of intent or knowledge as
to the taking of property by intimidation, which forecloses Lewis’s argument that a
defendant could be convicted under that statute for mere reckless or negligent conduct.
See Ellison, 866 F.3d at 38-40 (noting Carter requires proof defendant knowingly took
property and knew that his actions were objectively intimidating); McNeal, 818 F.3d at
155-56 (same); McBride, 826 F.3d at 296 (observing Carter requires prosecution to prove
that defendant “at least kn[e]w that his actions would create the impression in an ordinary
person that resistance would be met by force”).
Therefore, because federal bank robbery by intimidation necessarily involves the
use or threatened use of physical force and proof of the required mental state, it qualifies
as a crime of violence within the meaning of § 4B1.2, 9 see Ellison, 866 F.3d at 35
(holding that 18 U.S.C. § 2113(a) is a crime of violence under the force clause of

9

Even before Johnson’s interpretation of “physical force” under the ACCA, courts
of appeal held that § 2113(a) bank robbery was a crime of violence under § 4B1.2. See
United States v. Wright, 957 F.2d 520, 521 (8th Cir. 1992); United States v. Jones, 932
F.2d 624, 625 (7th Cir. 1991); United States v. Selfa, 918 F.2d 749, 751 (9th Cir. 1990);
United States v. Davis, 915 F.2d 132, 133 (4th Cir. 1990); United States v. Maddalena,
893 F.2d 815, 819 (6th Cir. 1989).
9

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§ 4B1.2); Brewer, 848 F.3d at 716 (same); McBride, 826 F.3d at 295-96 (same), and the
District Court did not err in so finding.
B
Lewis also argues that the District Court erred in finding that his prior conviction
for aggravated assault under 18 Pa. Cons. Stat. § 2702(a)(4) constitutes a crime of
violence. To evaluate his claim, we must determine whether the elements of § 2702(a)(4)
necessarily include a use of physical force under § 4B1.2(a)(1)’s force clause and proof
of intent or knowledge. 10
Section 2702(a)(4) punishes a person who “attempts to cause or intentionally or
knowingly causes bodily injury to another with a deadly weapon.” 18 Pa. Cons. Stat.
§ 2702(a)(4). The provision explicitly requires intent or knowledge, thereby satisfying
the force clause’s required mental state. See Chapman, 866 F.3d at 135-36; Otero, 502
F.3d at 335. Thus, we must determine whether § 2702(a)(4)’s element of “caus[ing]
bodily injury with a deadly weapon” requires use of physical force under § 4B1.2(a)(1),
meaning a “violent force” that is “capable of causing physical pain or injury to another
person,” Johnson, 559 U.S. at 140 (emphasis omitted).
To determine whether the crime includes that sort of violent force, we must
examine two terms in the statute: bodily injury and deadly weapon. Pennsylvania defines
“[b]odily injury” to mean an “impairment of physical condition or substantial pain,” and

10

The parties do not dispute that Pennsylvania’s aggravated assault statute is
divisible, meaning the modified categorical approach applies, and that Lewis was
convicted under 18 Pa. Cons. Stat. § 2702(a)(4).
10

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“[d]eadly weapon” to include “any . . . device or instrumentality which, in the manner in
which it is used or intended to be used, is calculated or likely to produce death or serious
bodily injury.” 18 Pa. Cons. Stat. § 2301. Aggravated assault under § 2702(a)(4)
therefore requires intentional or knowing conduct sufficient to cause bodily “impairment”
or “substantial pain” by means of a device that is “calculated or likely to produce death or
serious injury.” Because “it is impossible to cause bodily injury without applying force,”
Castleman, 134 S. Ct. at 1415, conduct causing bodily “impairment” or “substantial pain”
necessarily involves a use of a force. Moreover, the force under § 2702(a)(4) necessarily
includes physical force within the meaning of § 4B1.2(a)(1) because § 2702(a)(4)
requires use of an object “calculated or likely to produce death or serious injury.” Hence,
the offense requires proof of “violent force” “capable of causing physical pain or injury,”
required by Johnson, 559 U.S. at 140 (emphasis omitted). United States v. Whindleton,
797 F.3d 105, 114 (1st Cir. 2015) (explaining the dangerous weapon element “imports
the violent force required by Johnson into the otherwise overbroad simple assault
statute”); see also Johnson, 559 U.S. at 140-41 (suggesting that the ACCA’s force
element would be satisfied by crimes “characterized by extreme physical force, such as
murder, forcible rape, and assault and battery with a dangerous weapon”) (internal
quotation marks omitted). 11 As a result, aggravated assault under 18 Pa. Cons. Stat. §

11

Lewis’s reliance on Commonwealth v. Thomas, 867 A.2d 594, 597 (Pa. Super.
Ct. 2005), which affirmed the aggravated assault conviction of a mother who neglected
and starved her child to death is misplaced because that case involves a different
provision of Pennsylvania’s aggravated assault statute. Moreover, our Court has rejected
the argument that causing bodily injury or death does not necessarily require a use of
violent force. Chapman, 866 F.3d at 135-36.
11

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2702(a)(4) qualifies as a crime of violence under § 4B1.2(a)(1), and the District Court
was correct in so finding.
IV
For the foregoing reasons, Lewis was properly designated a career offender under
§ 4B1.1, and we will affirm.

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United States v. Lewis
No. 16-4378
________________________________________________________________________
ROTH, Circuit Judge, concurring in the judgment.
Were I a poet, I would opine that the “categorical approach” is an albatross hung
round my neck. But were this “bird” really dead, I would feel no guilt for having killed
it. 1 Indeed, the categorical approach has of late received its share of deserved criticism.
Chief Judge Carnes of the Eleventh Circuit lamented that the categorical approach had
once again thrust him and his colleagues “down [a] rabbit hole . . . to a realm where we
must close our eyes as judges to what we know as men and women.” 2 In his concurrence
in United States v. Chapman, Judge Jordan likened the categorical approach to “kudzu . .
. which seems to be always enlarging its territory.” 3 That kudzu quality infects the
Majority’s opinion here, which applies the categorical approach where it does not
belong—namely, to instant offenses to which a defendant has pled guilty. I write
separately in an attempt to curb the misapplication of the doctrine.
In this case, Andre Lewis pled guilty to one count of unarmed robbery and two
counts of attempted unarmed robbery “knowingly and unlawfully by force and violence,
and by intimidation.” App. 19-20. Those are the instant offenses in this case, not prior
convictions. In United States v. Robinson, we held that, in circumstances such as these,

1

I recognize that Samuel Taylor Coleridge’s albatross, in The Rime of the Ancient
Mariner, was already dead when it was hung round the mariner’s neck. I take some
artistic license with the metaphor.
2
United States v. Davis, 875 F.3d 592, 595 (11th Cir. 2017).
3
866 F.3d 129, 136 (3d Cir. 2017) (Jordan, J., concurring).
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where an instant offense is tried to conviction or where the underlying facts are admitted
in a guilty plea, “[t]he remedial effect of the ‘categorical approach’ is not necessary.” 4
That is because “the record of all necessary facts [is] before the district court” and “[t]he
defendant suffers no prejudice” when the categorical approach is not applied. 5 To further
explain that conclusion, we examined the history of the categorical approach and its
rationale. 6 A reminder of that history is warranted here.
Twenty-seven years ago, Taylor v. United States spawned the categorical
approach. There, the Supreme Court considered whether two prior convictions for
second-degree burglary were “violent felony” convictions under the Armed Career
Criminal Act (ACCA), 18 U.S.C. § 924(e), so that they triggered the statute’s sentencing
enhancement. 7 The central question in Taylor was “whether the sentencing court in
applying § 924(e) must look only to the statutory definitions of the prior offenses, or
whether the court may consider other evidence concerning the defendant’s prior crimes.” 8
The Court opted for the former approach—the categorical approach—largely because of
“the practical difficulties and potential unfairness of a factual approach” for prior
convictions, some of which may have occurred in the distant past. 9

4

844 F.3d 137, 141 (3d Cir. 2016).
Id. at 141, 143.
6
Id. at 141-143.
7
495 U.S. 575 (1990).
8
Id. at 600.
9
Id. at 601. The Taylor Court also considered the text and legislative history of the
ACCA, which are not germane here. This case is about Lewis’s status as a “career
offender” under § 4B1.1 of the Federal Sentencing Guidelines. Since Taylor, the reach of
the categorical approach has extended to the Sentencing Guidelines and immigration,
among other contexts. See, e.g., United States v. Brown, 765 F.3d 185, 188-89 (3d Cir.
5

2

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The problem Taylor was trying to solve was an epistemic and evidentiary one:
How is a “trial court . . . to determine what [a defendant’s prior] conduct was”? 10 The
Court recognized that a factual inquiry years after a prior conviction was fraught with risk
and—in the face of an incomplete or otherwise undependable factual record—would
effectively require a fresh trial. 11 Even in the case of prior guilty pleas, the Court
acknowledged that “there often is no record of the underlying facts” and “it would seem
unfair to impose a sentence enhancement” where a sentencing court cannot glean from
the record whether a defendant had pleaded guilty to a lesser offense, instead of the
violent felony. 12 For that reason, the Court embraced the categorical approach as a
means of analyzing prior convictions.
That practical concern does not apply when a defendant has admitted the facts
underlying an instant offense before the very judge who will be sentencing him. Indeed,
since Taylor, every landmark Supreme Court decision to apply and develop the
categorical approach has done so in the context of prior convictions only. See, e.g.,
Shepard v. United States, 544 U.S. 13, 23 (2005) (analyzing prior Massachusetts burglary
convictions entered upon guilty pleas and recognizing that the categorical approach
served as a means of avoiding “collateral trials” on prior convictions); Johnson v. United

2014) (“Sentencing courts examining a prior conviction to determine whether it is a
federally defined ‘crime of violence’ must apply a categorical approach.” (emphasis
added)); Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1567-68 (2017) (using the
approach to analyze whether an alien’s prior conviction qualified as an “aggravated
felony” under the Immigration and Nationality Act).
10
495 U.S. at 601.
11
Id.
12
Id. at 601-02.
3

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States, 559 U.S. 133, 144-145 (2010) (using the modified categorical approach to analyze
a defendant’s seven-year-old battery conviction); Descamps v. United States, 133 S. Ct.
2276, 2281 (2013) (“To determine whether a past conviction is for [a violent felony],
courts use what has become known as the ‘categorical approach.’” (emphasis added));
Mathis v. United States, 136 S. Ct. 2243, 2247 (2016) (“To determine whether a past
conviction is for [a violent felony], courts compare the elements of the crime of
conviction with the elements of the ‘generic’ version of the listed offense . . ..” (emphasis
added)).
Mindful of that history and rationale, we held in Robinson that the categorical
approach need not be applied when the facts underlying an instant offense “have either
been found by [a] jury or admitted by the defendant in a plea.” 13 The Majority chooses to
ignore Robinson and instead points to United States v. Chapman, where this Court used
the categorical approach to analyze a guilty plea to an instant offense. 14 Robinson
preceded Chapman; to the extent Chapman conflicts with Robinson, Robinson still
controls. Our Internal Operating Procedures command as much and require en banc
consideration for the holding in a precedential opinion to be overruled. 15
The Majority’s preferred approach would have sentencing judges “ignore facts
already known and instead proceed with eyes shut.” 16 That willful blindness—which

13

844 F.3d at 143.
866 F.3d at 131-34.
15
3d Cir. I.O.P. 9.1 (2017).
16
866 F.3d at 138 (Jordan, J., concurring).
14

4

Case: 16-4378

Document: 003112818726

Page: 17

Date Filed: 01/08/2018

may allow violent offenders to evade accountability—has been lambasted before 17 and I
do so again today. If the albatross around my neck cannot be slayed, I will at least have
the noose around its neck tightened. 18

17

See, e.g., Mathis v. United States, 136 S. Ct. 2243, 2269 (2016) (Alito, J., dissenting)
(“A real-world approach would avoid the mess that today's decision will produce.”);
United States v. Faulls, 821 F.3d 502, 516 (4th Cir. 2016) (Shedd, J., concurring) (“[T]he
categorical approach is the antithesis of individualized sentencing; we do not consider
what the individual to be sentenced has actually done, but the most lenient conduct
punished by his statute of conviction. This flaw is even more apparent in cases like this
one, involving instant offenses. . ..”); United States v. Doctor, 842 F.3d 306, 312-313 (4th
Cir. 2016) (Wilkinson, J., concurring) (remarking that the categorical approach “has
pushed criminal sentencing to the very last place that sentencing ought to be, that is at an
untenable remove from facts on the ground”).
18
Our recently published opinion in United States v. Graves provides a separate basis for
today’s result. We held that the enumerated crime of “robbery” in the Federal Sentencing
Guidelines requires no more than de minimis force, force “which pose[s] no threat of
injury to another.” No. 16-3995 at 15, 20 (3d Cir. Dec. 13, 2017). Accordingly, bank
robbery under 18 U.S.C. 2113(a)—the offense to which Lewis pled guilty—necessarily
qualifies as “robbery” under Section 4B1.2 of the Guidelines, a “crime of violence.”
5