Third Circuit: Pennsylvania Second-Degree Aggravated Assault of a Protected Individual Not a ‘Violent Felony’ Under ACCA, Court Acknowledges ‘Bizarre Result’
by Anthony W. Accurso
The U.S. Court of Appeals for the Third Circuit held that second-degree aggravated assault of a protected individual in violation of 18 Pa. Cons. Stat. § 2702(a)(3) is not a “violent felony,” for purposes of the Armed Career Criminal Act (“ACCA”), reversing a defendant’s sentence enhanced thereunder.
In 2008, Samuel Jenkins pleaded guilty to a violation of 18 U.S.C. §§ 922(g)(1) and 924(3) for possessing a firearm as a convicted felon. He also had two prior drug convictions and a conviction in Pennsylvania for second-degree aggravated assault of a protected individual under § 2702(a)(3). His sentence was enhanced under the ACCA and sentenced to 15 years in prison with five years of supervision.
In 2015, the U.S. Supreme Court issued its ruling in Johnson v. United States, 576 U.S. 591 (2015), declaring the residual clause of the ACCA unconstitutional, which was made retroactive in Welch v. United States, 578 U.S. 120 (2016).
Jenkins submitted a habeas motion under 28 U.S.C. § 2255, claiming that, under Johnson, § 2702(a)(3) is not a “violent felony” upon which an ACCA enhancement can stand because the statute of conviction can be violated without the use, attempted use, or threatened use of physical force, so it does not constitute a “violent felony” under the elements clause of the ACCA. The U.S. District Court for the Eastern District of Pennsylvania denied his motion but issued a certificate of appealability.
On appeal, the Third Circuit noted that § 2702(a)(3) does not meet the common definition of “burglary, arson, or extortion” under the enumerated offenses clause of the ACCA, so it must determine if the statute fits the elements clause. See United States v. Abdullah, 905 F.3d 739 (3d Cir. 2018). To qualify, an offense must have “as an element the use, attempted use, or threatened use of physical force against the person of another.” § 924(e)(2)(B)(I). “Physical force” in this context means violent force – that is, force capable of causing physical pain or injury to another person.” Johnson v. United States, 559 U.S. 133 (2010).
In determining whether the statute fits the elements clause, courts apply the categorical approach, looking only at the elements of the offense, not the defendant’s actual conduct. See Descamps v. United States, 570 U.S. 254 (2013). Courts focus on the “minimum” conduct criminalized by the statute. Abdullah. The state law must not criminalize a wider swath of conduct than the ACCA intended. United States v. Ramos, 892 F.3d 599 (3d Cir. 2018). In short, “[I]f the state-law statute sweeps more broadly than the federal comparator – that is, if § 2702(a)(3) criminalizes any conduct that is not a violent felony under ACCA – no conviction under the statute is a predicate offense, regardless of the underlying facts.” Id.
In support of his argument, Jenkins cited United States v. Harris, 289 A.3d 1060 (Pa. 2023), in which the Pennsylvania Supreme Court ruled that § 2702(a)(1) can be violated by a “failure to act, like withholding food or medical care.” If this ruling can be similarly applied to subsection (a)(3), it would not be a violent felony for ACCA purposes. See United States v. Mayo, 901 F.3d 218 (3d Cir. 2018) (considering subsection (a)(1), holding “the use of physical force required by the ACCA cannot be satisfied by a failure to act”).
The Harris Court contrasted subsection (a)(1) with two other subsections of § 2702 that do “codify the manner causing a particular bodily injury as an element of the crime,” i.e., subsections (a)(4) (“with a deadly weapon”) and (a)(6) (“by physical menace”). It noted that, “[I]f the legislature wanted to similarly limit the way subsection (a)(1) can be violated, it would have done so explicitly.” It was from this lack of “manner of causing a particular bodily injury” that the court inferred the legislature intended subsection (a)(1) to have a broad scope, including “failure to act.”
Following the logic of Harris, the Third Circuit concluded that, “subsection (a)(3) is similar to subsection (a)(1) in the relevant aspects, and different only in ways immaterial to ACCA’s elements clause” such that “injury under Section 2702(a)(3) can be inflicted by forcible or non-forcible means, including by a failure to act.” Thus, the Court ruled that § 2702(a)(3) covers more conduct than the ACCA intended and is thus not a violent felony for purposes of the sentence enhancement.
In reaching this conclusion, the Court acknowledged “the bizarre result in this case. We’ve now held that a type of first-degree aggravated assault in Pennsylvania and one type of second-degree aggravated assault are not violent felonies under ACCA even though a second-degree aggravated assault is a violent felony.” See Ramos (holding second-degree aggravated assault under § 2702(a)(4) is a crime of violence). The Court continued its commentary as follows: “It is possible, perhaps even likely, that no defendant will ever be convicted under Section 2702(a)(3) for an act of omission. But since the legislature drafted the statute in a way that does not foreclose that possibility, we are constrained to hold that every Section 2702(a)(3) violator – individuals convicted of assaulting teachers, nurses, and police officers – did not commit a violent felony under ACCA.”
Accordingly, the Court vacated Jenkins’ conviction and remanded with instructions to grant him a resentencing without the ACCA enhancement. See United States v. Jenkins, 68 F.4th 148 (3d Cir. 2023).
