SPENCER v. UNITED STATES OF AMERICA

Filing 15

OPINION FILED. Signed by Judge Renee Marie Bumb on 6/29/12. (js)

[Docket No. 1]

NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

ELTON SPENCER,
Petitioner,
Civil No. 11-4926 (RMB)
v.
OPINION

UNITED STATES OF AMERICA,
Respondent.

Appearances:
Elton Spencer
41372-050
F.C.I. BECKLEY
P.O. Box 350
Beaver, W. Virginia 25813
Pro Se Plaintiff
Robert Stephen Stigall, Assistant U.S. Attorney
Office of the US Attorney
401 Market Street
P.O. Box 2098
Camden, New Jersey 08101
Attorney for the Respondent
BUMB, UNITED STATES DISTRICT JUDGE:
Petitioner Elton Spencer (“Petitioner”) has moved, pursuant
to Title 28, United States Code, Section 2255, to vacate, set
aside, or correct his sentence.

For the reasons set forth

below, Petitioner’s motion is DENIED.
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I.

Background
On September 7, 2007, Petitioner pled guilty to a

Superseding Information before this Court pursuant to a
negotiated plea agreement.

The Superseding Information charged

Petitioner with possession with intent to distribute cocaine, in
violation of Title 21, United States Code, Sections 841(a)(1)
and (b)(1)(C).
At sentencing, this Court designated Petitioner a career
offender pursuant to Section 4B1.1(a) of the United States
Sentencing Guidelines (“U.S.S.G.”).

Under this provision, a

defendant is a career offender if:
(1) the defendant was at least eighteen years old at the time
the defendant committed the instant offense of conviction;
(2) the instant offense of conviction is a felony that is
either a crime of violence or a controlled substance
offense; and
(3) the defendant has at least two prior felony convictions of
either a crime of violence or a controlled substance
offense.
U.S.S.G. § 4B1.1.

The Court found that Petitioner was over 18,

the instant offense of conviction was for a controlled substance
offense, and Petitioner had a prior conviction for third-degree
aggravated assault, which the Court found was a crime of
violence.

Petitioner now argues that there was insufficient

evidence to classify his prior aggravated assault as a crime of
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violence and an evidentiary hearing is therefore necessary.
II.

Analysis
The U.S.S.G. define a “crime of violence” as:
any offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that – (1) has
as an element the use, attempted use, or threatened use of
physical force against the person of another, or (2) is
burglary of a dwelling, arson, or extortion, involves the
use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to
another.

U.S.S.G. § 4B1.2(a).

Courts have also imposed the additional

requirement that, in order to qualify as a crime of violence
under the U.S.S.G., “the crime at issue must present a serious
potential risk of physical injury and be one that typically
involves purposeful, violent, and aggressive conduct,” as
opposed to mere recklessness or negligence.

United States v.

Lee, 612 F.3d 170, 196 (3d Cir. 2010)(internal quotation marks
and citation omitted).
In determining whether a prior conviction constitutes a
crime of violence, the Third Circuit normally employs a
categorical approach to determine whether a prior conviction
falls within the category of a “crime of violence.”

See United

States v. Vincencio-Martinez, 404 F. App’x 633, 635 (3d Cir.
2010)(“To determine whether a conviction . . . is a crime of
violence, we presumptively use a categorical approach)(quotation
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marks and citation omitted); see also Taylor v. United States,
495 U.S. 575, 600-02 (1990)(laying out the categorical
approach).

The categorical approach directs the sentencing

court to look “only to the statutory definitions of the prior
offenses, and not to the particular facts underlying those
convictions” in determining whether a prior conviction
constitutes a crime of violence.

Taylor, 495 U.S. at 600

(citations omitted); see also Vincencio-Martinez, 404 F. App’x
at 635-36.

However, “[w]here a statute criminalizes different

kinds of conduct, some of which would constitute crimes of
violence while others would not,” the Third Circuit uses a
modified categorical approach outlined in Shepard v. United
States, 544 U.S. 13 (2005).

United States v. Johnson, 587 F.3d

203, 208 (3d Cir. 2009)(describing the application of a modified
categorical approach); see also United States v. Mahone, 662
F.3d 651, 654 (3d Cir. 2011)(applying a modified categorical
approach when a conviction was premised on a statute
criminalizing some conduct that would constitute a crime of
violence and other conduct that would not); United States v.
Forehand, 386 F. App’x 174, 178-79 (3d Cir. 2010)(same).

Under

a modified categorical approach, courts can consider “the
statutory definition, charging document, written plea agreement,

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transcript of plea colloquy, and any explicit factual finding by
the trial judge to which the defendant assented.”

Johnson, 587

F.3d at 208 (citation omitted).
Here, Petitioner claims that there was insufficient
evidence to support a finding that his aggravated assault
conviction was a crime of violence because there was no evidence
presented that his conduct was purposeful, as opposed to
reckless.
issue.1

He argues that a hearing is necessary to resolve this

It is not.

Petitioner’s aggravated assault conviction was based on
N.J. Stat. Ann. § 2C:12-1(b)(7).

The statute provides that “[a]

person is guilty of aggravated assault if he . . . [a]ttempts to
cause significant bodily injury to another or causes significant
bodily injury purposely or knowingly or, under circumstances
manifesting extreme indifference to the values of human life
recklessly causes such significant bodily injury.”

Because

Section 2C:12-1(b)(7) prohibits intentional and reckless
conduct, it criminalizes both conduct that would qualify as a
crime of violence and conduct that would not qualify as a crime
of violence.

1

See e.g. Forehand, 386 F. App’x at 178-79

Plaintiff clarified in a supplemental submission that his sole claim was
that the current record before the Court “does not indicate whether
[his] guilty plea to New Jersey Statute 2C:12-1 . . . was for
intentional or reckless conduct . . . [and that] [t]his question is one

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(concluding Section 2C:12-a(b) prohibits “both intentional and
reckless conduct”); Johnson, 587 F.3d at 208 (“Where a statute
criminalizes different kinds of conduct, some of which would
constitute crimes of violence while others would not, a court
may look beyond the statutory elements to determine the
particular part of the statute of which the defendant was
actually convicted.”).

Therefore, the Court will apply a

modified categorical approach to determine whether Petitioner’s
aggravated assault conviction constituted a crime of violence.
See United States v. Johnson, 376 F. App’x 205, 208-09 (3d Cir.
2010).
While the government had not previously submitted evidence
as to the specific nature of Petitioner’s aggravated assault
conviction, it has since submitted a copy of the transcript of
Petitioner’s aggravated assault guilty plea, which this Court
may consider in employing the modified categorical approach.
See Johnson, 587 F.3d at 208 (listing transcript of plea
colloquy as one of the sources a court can examine in
determining whether a conviction was a crime of violence).
According to the transcript of Petitioner’s guilty plea,
Petitioner admitted to “purposely” putting his hands on somebody

of fact that requires a hearing to resolve.”

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[Docket No. 10 at p. 4].

in the course of “a fist fight,” which resulted in “pain” for
that individual.

Guilty Plea Tr. 5:12-6:14, May 11, 2001

[Docket No. 14].

Purposeful physical conduct, during the course

of a fistfight, with resulting pain to the individual assaulted,
is both intentional and has as an element of physical force
against another.

Petitioner’s prior conviction was therefore

sufficient to constitute a crime of violence under U.S.S.G. §
4B1.2(a)(1).

See e.g. United States v. Horton, 461 F. App’x 179

(3d Cir. 2012)(holding that a conviction for third-degree
aggravated assault was sufficient to classify the offense as a
crime of violence when the defendant stated at his plea colloquy
he “intended” to “hit [someone] in the face”).
III. Conclusion
For all these reasons, there is no need for an evidentiary
hearing and Petitioner’s Motion is DENIED.

United States v.

Padilla-Castro, 426 F. App’x 60, 63 (3d Cir. 2011)(finding that
“[a] hearing is unnecessary when files and records of the case
conclusively show that the prisoner is entitled to no
relief.”)(quotation and citation omitted).

s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: June 29, 2012
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