United States v. Mekail Jones

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________

No. 13-1020
_____________

UNITED STATES OF AMERICA

v.

MEKAIL OMAR JONES,

Appellant

Appeal from the United States District Court
for the Western District of Pennsylvania
(District Court No. 1-11-cr-00042-001)
District Judge: Honorable Sean J. McLaughlin

Argued October 18, 2013

Before: RENDELL, JORDAN and LIPEZ*, Circuit Judges

(Opinion Filed: January 10, 2014)

*Honorable Kermit V. Lipez, Senior United States
Circuit Judge for the Court of Appeals for the First Circuit,
sitting by designation.
Lisa B. Freeland, Esquire
Federal Public Defender
Thomas W. Patton, Esquire (Argued)
Assistant Federal Public Defender
Office of Federal Public Defender
1001 State Street
1111 Renaissance Centre
Erie, PA 16501

Counsel for Appellant

David J. Hickton, Esquire
United States Attorney
Michael L. Ivory, Esquire (Argued)
Assistant United States Attorney
Rebecca R. Haywood, Esquire
Office of United States Attorney
700 Grant Street, Suite 4000
Pittsburgh, PA 15219

Christine A. Sanner, Esquire
Office of United States Attorney
17 South Park Row, Room A330
Erie, PA 16501

Counsel for Appellee

2
 OPINION

RENDELL, Circuit Judge:

Defendant Mekail Omar Jones appeals his sentence of
120 months imprisonment following his guilty plea to
possession of a firearm by a convicted felon. Jones makes
three claims of error by the District Court. First, he argues
that his prior conviction for vehicular flight should not have
counted as a crime of violence under the sentencing
guidelines. Second, Jones contends that his conduct in this
case did not support a guideline enhancement for assault on a
police officer. Third, he states that the District Court erred by
presuming his guidelines range to be reasonable, ignoring
arguments made by his defense counsel.

For the reasons that follow we will affirm in part, and
reverse in part, the District Court’s judgment of sentence.

I.

On the afternoon of April 27, 2011, uniformed City of
Erie police officers Ryan Onderko and Gregory Baney
responded to a disturbance call at a bar located at Parade and
11th Streets in Erie, Pennsylvania. As the officers
approached the bar in their marked police cruiser, they
spotted an individual, later identified as Jones, running from
the bar.

3
 Officer Onderko was familiar with Jones from a prior
arrest, as described below, and both officers were aware that
Jones had an outstanding arrest warrant. As the police cruiser
approached, Jones stopped running and began walking, and
Officer Onderko was then able to recognize him. Officer
Onderko exited the car and said, “hey, Jones, come here.”
(App. 258.) Jones then “took off running” toward 12th Street
and Officer Onderko pursued him on foot, “yelling several
times, ‘stop you’re under arrest.’” (Id.) The foot-chase that
ensued saw Jones lead Officer Onderko across traffic on 12th
Street before heading back in the direction where the chase
began.

As Officer Onderko closed in, he could tell that Jones
was reaching or digging in his waistband, but could not
discern what Jones was reaching for. (App. 259.) Officer
Baney parked the police cruiser, exited and began to pursue
Jones as well. As Jones fled back towards the parking lot
where the chase had begun, Officer Baney observed Jones
retrieve a handgun from his waistband while he was “no more
than . . . two parking spots” away. (App. 218.) Officer
Onderko then caught up to Jones and tackled him from
behind. At that moment, Officer Baney shouted, “Gun!” and
the handgun flew out of Jones’s hand. (App. 219.) In
tackling Jones, Officer Onderko suffered a complete tear of
his anterior cruciate ligament. Yet Jones managed to escape
and continue fleeing. Officer Baney grabbed Jones’s shirt,
but Jones slipped out of his shirt and again continued to run.
Officer Baney then shot Jones with his taser from a distance
of 30-40 feet three times, finally subduing Jones.

Police later recovered the firearm that Jones had
removed from his waistband, a Smith & Wesson .38 caliber

4
handgun. In a post-arrest statement, Jones, a convicted felon,
admitted that he was carrying the gun. Jones was
subsequently charged with, and pleaded guilty to, one count
of possession of a firearm by a convicted felon, in violation of
18 U.S.C. § 922(g)(1).

The Presentence Report (“PSR”) calculated Jones’s
base offense level to be 24, pursuant to U.S.S.G.
§2K2.1(a)(2), because Jones had previously been convicted of
two “crimes of violence”: conspiracy to commit robbery, and
fleeing or attempting to elude law enforcement. Jones
objected, arguing that fleeing or attempting to elude was not a
crime of violence. (App. 47.)

This prior conviction was for a second degree
misdemeanor charge of “Fleeing or Attempting to Elude [a]
Police Officer” under Pennsylvania law, 75 Pa. Cons. Stat.
§ 3733. The relevant language of the statute is as follows:

Offense defined.--Any driver of a
motor vehicle who willfully fails
or refuses to bring his vehicle to
a stop, or who otherwise flees or
attempts to elude a pursuing
police officer, when given a visual
and audible signal to bring the
vehicle to a stop, commits an
offense as graded in subsection
(a.2).

The “grading” provision makes this offense a misdemeanor of
the second degree, unless, while “fleeing or attempting to
elude a police officer,” the driver (1) drives under the

5
influence of alcohol or a controlled substance, or (2) crosses a
state line, or (3) “endangers a law enforcement officer or
member of the general public due to the driver engaging in a
high-speed chase.” 75 Pa. Cons. Stat. § 3733(a.2)(i)-(iii). In
that event, the offense is a third-degree felony.

The District Court first took note of several cases
which had held that vehicular flight is categorically a crime of
violence, as well as a non-precedential opinion of our Court
in which we held that a conviction for vehicular flight under
Pennsylvania law constituted a crime of violence. (App. 298-
300) (citing United States v. Jackson, 495 F. App’x 224 (3d
Cir. 2012).

However, the District Court did not resolve whether
misdemeanor vehicular flight pursuant to 75 Pa. Cons. Stat. §
3733(a)(1) categorically constitutes a crime of violence under
the sentencing guidelines. Instead, the District Court looked
at the records of Jones’s conviction and concluded, “the
factual conduct attributed to the defendant in the criminal
information . . . and agreed to by the defendant during his
colloquy is consistent with that attributed to the defendant in
the Third Circuit’s decision in Jackson and would support an
application of the enhancement pursuant to a modified
categorical approach.” (App. 301.) The District Court then
recounted that “during the [plea] colloquy, the defendant
admitted to backing his vehicle into Officer Onderko’s
attended vehicle, engaging in a high speed chase, and failing
to stop for multiple stoplights and stop signs. In addition, he
admitted to striking a fence and driving onto a lawn.” (App.
10-11.) Thus, the District Court concluded that Jones’s prior
conviction for fleeing and eluding was a crime of violence
and overruled his objection.

6
 The Government also objected to the PSR, urging that
an additional six-level increase pursuant to U.S.S.G. §
3A1.2(c)(1) was warranted, because Jones assaulted Officer
Onderko during the foot-chase. Jones objected to this
enhancement. The District Court sustained the Government’s
objection, concluding that reaching for a loaded gun is
enough to produce a substantial risk of serious bodily injury,
thereby warranting the six-level enhancement.

Toward the conclusion of sentencing, the District
Court addressed defense counsel’s request for a variance,
inquiring as to the factors that would support a sentence
below the guidelines range. The Court also engaged in a
colloquy with defense counsel concerning his argument that it
did not promote respect for the law to enhance Jones’s
sentence to the statutory maximum based on uncharged
conduct.

In calculating the final guidelines range, pursuant to §
2K2.1(a)(2), the District Court utilized the base offense level
of 24 based on two prior convictions for crimes of violence.
The Court then added four levels for an enhancement under §
2K2.1(b)(6)(B), not at issue here, for the possession of a
firearm in connection with resisting arrest. Subtracting three
levels for acceptance of responsibility, the offense level stood
at 25 with a criminal history category III, corresponding to an
imprisonment range of 70 to 87 months. Then, the
subsequent addition of six levels for “assault” on Officer
Onderko pursuant to § 3A1.2(c)(1) led to a new total offense
level of 31, for an imprisonment range of 135 to 168 months.
However, the statutory maximum time of imprisonment was
ten years, so that pursuant to § 5G1.1(c), 120 months became
Jones’s guidelines range. The District Court accordingly

7
sentenced Jones to 120 months’ imprisonment. In so doing,
the District Court declined to grant a downward variance.

II.

The District Court had jurisdiction over this case under
18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. §
1291.

Determination of what constitutes a crime of violence
under the sentencing guidelines, and legal interpretations of
the guidelines, are both subject to plenary review. United
States v. McQuilkin, 97 F.3d 723, 727 (3d Cir. 1996). Factual
findings pertaining to sentencing are reviewed for clear error,
and we review application of the guidelines to the facts for
abuse of discretion. Id.; United States v. Blackmon, 557 F.3d
113, 118 (3d Cir. 2009). We review procedural error for
abuse of discretion, but if an appellant fails to raise a
contemporaneous objection below, we will review for plain
error. United States v. Russell, 564 F.3d 200, 203 (3d Cir.
2009).

As noted above, Jones raises three separate claims of
error concerning his sentence: (1) that the District Court erred
in determining that his vehicular flight conviction constituted
a crime of violence under the guidelines, (2) that the District
Court erred in imposing a six-level enhancement for
assaulting the police, and (3) that the District Court
improperly presumed the applicable sentencing guidelines to
be reasonable, while ignoring defense counsel’s arguments.
We address each of these claims in turn.

8
 1. Vehicular Flight - Crime of Violence

Under U.S.S.G. § 2K2.1(a)(2) a defendant’s base
offense level is 24 if the instant offense was committed after
at least two felony convictions involving a “crime of
violence.” A crime of violence is defined in § 4B1.2(a)(1)-
(2) 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.

(emphasis added). Because the Pennsylvania crime defined
above does not have as an element the use of physical force,
and is not listed as an enumerated offense, the issue in this
case is whether Jones’s conviction for misdemeanor vehicular
flight qualifies as a crime of violence pursuant to the final,
residual clause of § 4B1.2(a)(2).

In making this determination, courts are required to
follow the “categorical approach,” wherein the crime of
conviction is evaluated as to whether it categorically
constitutes a crime of violence. “That is, we consider

9
whether the elements of the offense are of the type that would
justify its inclusion within the residual provision, without
inquiring into the specific conduct of this particular offender.”
James v. United States, 550 U.S. 192, 202 (2007) (emphasis
in original). 1 Thus, in the ordinary case involving the residual
clause, the categorical approach calls for a straightforward
procedure: determining whether the elements of the statute of
conviction categorically “involve[] conduct that presents a
serious potential risk of physical injury to another.” See
§ 4B1.2(a)(2); see also Sykes v. United States, 131 S. Ct.
2267 (2011) (applying the categorical approach to determine
if vehicular flight constitutes a crime of violence under the
residual clause of the Armed Career Criminal Act
(“ACCA”)).

The Supreme Court has recently spoken as to when we
can look beyond the fact of conviction and examine certain
record evidence, in determining whether the conviction
constitutes a crime of violence. In Descamps v. United
States, 133 S. Ct. 2276 (2013), the Court held that only where
the conviction involves a divisible statute, containing multiple
alternate elements, where it may be impossible to conclude
which statutory provision was the basis for the conviction, is

1
James concerned the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924 (e)(1), which mandates a
minimum of fifteen years imprisonment if a defendant has
three prior convictions for a “violent felony.” 550 U.S. at 195.
However, “the definition of a violent felony under the ACCA
is sufficiently similar to the definition of a crime of violence
under the Sentencing Guidelines that authority interpreting
one is generally applied to the other . . . .” United States v.
Hopkins, 577 F.3d 507, 511 (3d Cir. 2009) (footnote omitted).

10
the sentencing court permitted to investigate the record
beyond the fact of conviction. Pursuant to this “modified
categorical approach,” a court may consult extra-statutory
documents such as the “charging document, written plea
agreement, transcript of plea colloquy, and any explicit
factual finding by the trial judge to which the defendant
assented.” Shepard v. United States, 544 U.S. 13, 16 (2005).
As the Supreme Court emphasized in Descamps:

the modified approach merely
helps implement the cat egorical
approach when a defendant
was convicted of violating a
divisible statute. The modified
approach thus acts not as an
exception, but instead as a tool. It
retains the categorical approach’s
central feature: a focus on the
elements, rather than the facts, of
a crime. . . . All the modified
approach adds is a mechanism for
making that comparison when a
statute lists multiple, alternative
elements, and so effectively
creates “several different . . .
crimes.”

Descamps, 133 S. Ct. at 2285 (quoting Nijhawan v. Holder,
557 U.S. 29, 41 (2009)).

Thus, only if the Pennsylvania statute effectively
creates several different crimes, such that it, “renders opaque
which element played a part in the defendant’s conviction,”

11
should the court resort to the modified categorical approach.
Id. at 2283. This approach should be followed if certain
elements of the statute fit within the definition of a crime of
violence, while other alternative elements do not. In that
event, the court would need to know which elements were the
basis for the defendant’s conviction, and the court may
examine Shepard documents to make that determination. See
id. 2285 (“If at least one, but not all of those crimes [in a
given statute] matches the generic version, a court needs a
way to find out which the defendant was convicted of.”)

While it could be argued that the Pennsylvania statute
in question is a divisible one, given the clauses separated by
“or,” Jones’s conviction does not require further examination
under the modified categorical approach. That is because it
matters little whether Jones intentionally “fail[ed] or refus[ed]
to bring his vehicle to a stop,” or “otherwise fle[d] or
attempt[ed] to elude” law enforcement, after being ordered to
stop. 75 Pa. Cons. Stat. § 3733(a). All of the listed conduct
involves the same type of intentional disobedience of a
command from law enforcement while in a vehicle. As such,
all of the listed conduct is of the same nature, that either
would or would not collectively fit under the definition of a
crime of violence. Thus, for purposes of our analysis, the
statute creates one crime of willfully fleeing from law
enforcement, and we need not resort to the modified
approach.

While it may be tempting to examine the conduct
underlying a given conviction, as the District Court did, the
Supreme Court now says we cannot. Indeed, until only
recently we sometimes employed the modified categorical
approach in a way that may have implied its use was not so

12
limited. See United States v. Marrero, 677 F.3d 155, 159 (3d
Cir. 2012) (examining underlying conduct without
determining threshold question of whether the statute is
divisible such that some combinations of elements would be a
crime of violence and some would not), judgment vacated,
133 S. Ct. 2732 (2013). However, we are bound by the
holding of Descamps, which makes clear that use of the
modified categorical approach is restricted to determining the
crime of conviction from divisible statutes, in which certain
proscribed conduct fits within the definition of a crime of
violence, and other conduct does not.

Under Descamps, the District Court erred, although
perhaps understandably given some of our prior case law, by
engaging in a factual analysis in determining whether Jones’s
conviction was a crime of violence. The Court recounted that
“during the [plea] colloquy, the defendant admitted to
backing his vehicle into Officer Onderko’s attended vehicle,
engaging in a high speed chase, and failing to stop for
multiple stoplights and stop signs. In addition, he admitted to
striking a fence and driving onto a lawn.” (App. 10-11.) The
Court accordingly concluded that the “defendant’s prior
conviction of fleeing and attempting to elude police is a crime
of violence . . . .” (App. 11.) As courts may only utilize the
modified categorical approach where the court needs to
determine the statutory basis for the defendant’s conviction,
we now view this factual inquiry as improper.

The Government contends that the Court did not err
because it did not utilize the modified approach, or because
the factual analysis constituted an alternative holding. Both
arguments are meritless. First, the District Court specifically
stated that it could apply the enhancement “pursuant to a

13
modified categorical approach,” before proceeding to cite the
conduct of the defendant during the car chase. (App. 10.)
Second, although the District Court noted that “various
Circuit Courts which have considered the question have
determined that vehicular flight categorically involves a
potential risk of serious injury,” the District Court did not rely
on such authority to reach a similar conclusion. (App. 7.)
Rather, the District Court relied on the “factual conduct
attributed to the defendant in the criminal information and
agreed to by the defendant during his colloquy,” to conclude
that Jones had committed a crime of violence under the
guidelines. (App. 10.) As an improper use of the modified
categorical approach, this was error, and would normally
require us to remand for resentencing on this basis. 2

However, the District Court’s error may be harmless if
Jones’s misdemeanor flight conviction nonetheless qualifies
categorically as a crime of violence. See United States v.
Taylor, 630 F.3d 629, 635 (7th Cir. 2010) (finding improper
use of modified categorical approach harmless where the
“district court reached the correct conclusion” in determining
a conviction to be a crime of violence). The Supreme Court
spoke to this issue in Sykes, 131 S. Ct. 2267, holding that an
offense under the Indiana vehicular flight law was a violent
felony under the residual clause of the ACCA. The Indiana
statute generally prohibited “knowingly or intentionally . . .

2
Because we find the District Court erred in looking to the
factual conduct underlying the flight conviction, we need not
address Jones’s further argument that the District Court also
erred by reciting facts alleged in separate counts of the state
court information and stated in other counts of the plea
colloquy.

14
flee[ing] from a law enforcement officer after the officer has,
by visible or audible means, identified himself and ordered
the person to stop.” Id. at 2271 (quoting Ind. Code 35-44-3-
3(a)(3)). The statute contained multiple distinct offenses,
including: (1) engaging in flight while using a vehicle, and (2)
engaging in flight while “operat[ing] a vehicle in a manner
that creates a substantial risk of bodily injury to another
person.” Id. (quoting Ind. Code 35-44-3-3(b)(A)-(B)(1)).
Both of these offenses were graded as “Class D” felonies
under Indiana law. Id.

In Sykes, the defendant argued that because he was
convicted under the simple vehicular flight provision, and not
the aggravated counterpart, his conviction necessarily did not
involve a substantial risk of violence, and thus did not
constitute a violent felony. Id. at 2276. The Supreme Court
rejected this argument, relying in part on the fact that both the
simple and aggravated offenses were graded as Class D
felonies, reflecting a legislative judgment that both types of
violations significantly risked violence. Id. Jones urges here
that, because in Sykes both crimes were felonies and his
offense is only a misdemeanor, Sykes requires a finding in his
favor.

Admittedly, the statute in this case sets forth both a
misdemeanor and a felony. It is a second-degree
misdemeanor for a driver to “willfully fail[] or refuse[] to
bring his vehicle to a stop, or . . . otherwise flee[] or attempt[]
to elude a pursuing police officer, when given a visual and
audible signal to bring the vehicle to a stop . . . .” 75 Pa.
Cons. Stat. § 3733(a). However, vehicular flight is a third-
degree felony if it also “endangers a law enforcement officer
or member of the general public due to the driver engaging in

15
a high-speed chase . . . .” Id. § 3733(a.2)(2)(iii). Jones was
initially charged with the third-degree felony provision, but
later pled to a second-degree misdemeanor violation of the
statute.

The Sykes Court took note of this precise situation,
where “a crime is a lesser included offense . . . in cases where
that offense carries a less severe penalty than the offense that
includes it.” 131 S. Ct. at 2277. However, the Court stated it
was not deciding whether such a lesser-graded offense would
also constitute a violent felony. Id. Thus, we are left without
specific guidance as to whether the fact that Jones’s
conviction was a misdemeanor matters in determining
whether it is a crime of violence.

Even without such guidance, however, we reject the
notion that the misdemeanor versus felony distinction is
controlling here. The language of the misdemeanor
provision, as noted above, prohibits willfully fleeing from law
enforcement in a vehicle. The language of the Sykes court
was unequivocal in describing the significant risks associated
with intentional vehicular flight. The Court explained that
“[e]ven if the criminal attempting to elude capture drives
without going at full speed or going the wrong way, he
creates the possibility that police will, in a legitimate and
lawful manner, exceed or almost match his speed or use force
to bring him within their custody. A perpetrator’s
indifference to these collateral consequences has violent—
even lethal—potential for others.” Id. at 2273. In support,
the Court cited numerous statistics showing the high rate of
crashes and injuries which result from car chases with police,
and the relatively lower risk of violence associated with

16
burglary and arson, which are enumerated in the ACCA as
violent felonies. Id. at 2274-75.

Our sister circuit courts who have addressed this
situation have uniformly held that lesser, lower-graded flight
offenses are violent felonies under the ACCA (or crimes of
violence under the guidelines). In response, Jones argues that
the statutes in those cases contained narrow aggravated flight
provisions, such that the lesser flight counterparts still
encompassed substantially risky crimes. For instance, Jones
points out that in United States v. Doyle, 678 F.3d 429, 432
(6th Cir. 2012), Tennessee’s aggravated flight law only
applied where “the flight or attempt to elude creates a risk of
death or injury to innocent bystanders or other third parties,”
such that the simple flight provision at issue still
encompassed flights which posed a risk to pursuing police
officers. Further, in both United States v. Hudson, 673 F.3d
263 (4th Cir. 2012), and United States v. Petite, 703 F.3d
1290 (11th Cir. 2013), the Courts of Appeals found Florida’s
lesser-included flight statute to be a violent felony, noting that
the aggravated flight provision criminalized only those flights
involving high-speed chases, such that the lesser provision
covered still-risky lower-speed chases. By contrast, Jones
urges that the Pennsylvania aggravated flight provision is
very broad, encompassing risk to police officers, third parties,
and lower-speed chases, so that misdemeanor flight under
Pennsylvania law must relate to conduct that does not involve
substantial risk, and thus cannot constitute a crime of violence
under the sentencing guidelines.

While Jones’s characterization of these cases is
accurate to a point, those courts were also guided, as we are,
by the unambiguous language of Sykes concerning the danger

17
posed by vehicular flight. For instance, the Eleventh Circuit
noted that “[t]he Supreme Court could not have been clearer
in concluding that vehicle flight from a law enforcement
officer is an extraordinarily risky enterprise . . . .” Petite, 703
F.3d at 1296-97. Similarly, the Fourth Circuit recognized that
“intentional vehicular flight in any manner poses a potential
level of risk that is sufficient to render the offense a violent
felony.” Hudson, 673 F.3d at 268 (emphasis in original); see
also Doyle, 678 F.3d at 435 (finding that in vehicular flight,
the “expected confrontation between suspect and police
officer places property and persons at serious risk of injury.”)
Thus, while these courts were properly concerned with the
differentiation between the grades of offenses in the statutes
at issue, they also were mindful of the profound risks which
are part and parcel of intentional flight from the police, as
detailed in Sykes.

And, the language of the Pennsylvania misdemeanor
provision itself rebuts Jones’s contention that it would
involve only non-dangerous conduct. Indeed, it encompasses
exactly the type of conduct Sykes considered, intentional
flight. The felony of aggravated flight, 75 Pa. Cons. Stat. §
3733(a)(2)(iii), encompasses flight which “endangers a law
enforcement officer or member of the general public due to
the driver engaging in a high-speed chase.” The
Pennsylvania Superior Court opinion In re R.C.Y., relied upon
by Jones, states that “the legislature included this term [high-
speed chase] to indicate that the enhanced penalties applied
only in cases where the defendant’s actions created an
extraordinary danger to the public at large or to police
officers.” 27 A.3d 227, 230 (Pa. Super. Ct. 2011). Thus,
while the felony provision is aimed at extraordinary danger,
the misdemeanor provision nonetheless encompasses the

18
danger inherent in willful flight from, or eluding of, police
after being signaled by police to stop. This clearly fits within
the definition of a crime of violence, as it “involves conduct
that presents a serious potential risk of physical injury to
another.” U.S.S.G. § 4B1.2(a)(2).

As Sykes explained, “[r]isk of violence is inherent to
vehicle flight. Between the confrontations that initiate and
terminate the incident, the intervening pursuit creates high
risks of crashes. It presents more certain risk as a categorical
matter than burglary.” Sykes, 131 S. Ct. at 2274. “Unlike
burglaries, vehicle flights from an officer by definitional
necessity occur when police are present, are flights in
defiance of their instructions, and are effected with a vehicle
that can be used in a way to cause serious potential risk of
physical injury to another.” Id.; see also Commonwealth v.
Ruffin, 16 A.3d 537 (Pa. Super. Ct. 2011) (describing a
misdemeanor flight conviction under § 3733 involving a
flight from police, where the defendant put his car into
reverse and caused a collision with a police vehicle).
Accordingly, when intentional vehicular flight from law
enforcement does not “create[] an extraordinary danger,” but
nonetheless falls under Pennsylvania’s misdemeanor flight
provision, we hold that such flight still categorically “presents
a serious potential risk of physical injury to another,”
constituting a crime of violence under the sentencing
guidelines. See In re R.C.Y., 27 A.3d at 230; U.S.S.G.
§ 4B1.2(a)(2). 3 We therefore conclude that the District

3
Jones’s argument pertaining to United States v. Lewis, 330
Fed. App’x 353 (3d Cir. 2009) does not alter our conclusion.
“It is well established that we are not bound by our own non-

19
Court’s error in applying the modified categorical approach
was harmless and we will affirm the District Court’s ruling
that Jones’s misdemeanor flight conviction qualified as a
crime of violence.

2. Enhancement for Assault on Official Victim

Jones next argues that the District Court erred by
applying a six-level enhancement pursuant to U.S.S.G. §
3A1.2(c)(1). That provision permits an increase in sentence
where, “in a manner creating a substantial risk of serious
bodily injury, the defendant . . . having reasonable cause to
believe that a person was a law enforcement officer, assaulted
such officer during the course of the offense or immediate
flight therefrom.” Application Note 4 to that Guideline states
in relevant part: “Subsection (c) applies in circumstances
tantamount to aggravated assault (i) against a law
enforcement officer, committed in the course of, or in
immediate flight following, another offense . . . .”

The parties do not dispute that Jones reasonably
understood that Officer Onderko and Baney were law
enforcement officers as required by the first clause of §
3A1.2(c)(1). Rather, the issue on appeal concerns whether
Jones actually assaulted a law enforcement officer pursuant to
the enhancement. Jones claims that “assault,” under
§ 3A1.2(c)(1), requires assaultive conduct whereby he caused
an official victim to actually experience apprehension of
immediate bodily injury. Jones contends that the facts of this
case fail to support any such finding. The Government

precedential opinions.” Castillo v. Attorney Gen. U.S., 729
F.3d 296, 310 n.4 (3d Cir. 2013).

20
responds that the act of producing a gun while running from
law enforcement constitutes assault, because such an act
could reasonably cause fear.

Section 3A1.2(c)(1) does not define assault, and its
precise meaning is a matter of first impression in our Court.
However, several of our sister circuit courts have attempted to
parse the language of this enhancement. For instance, in
United States v. Lee, 199 F.3d 16 (1st Cir. 1999), a defendant
physically struggled with officers in attempting to escape
from a traffic stop, while repeatedly reaching for a loaded gun
in his waistband. Id. at 16-17. In determining whether such
conduct amounted to assault, the court in Lee held, and the
parties agree, that assault under § 3A1.2(c)(1) should
generally “be read as a reference to common law criminal
assault.” 4 Id. at 17.

Lee has been cited approvingly by several other circuit
courts for the proposition that the definition of common law
assault applies to § 3A1.2(c)(1), and we are aware of no court
of appeals that has held to the contrary. See United States v.
Olson, 646 F.3d 569, 572 (8th Cir. 2011) (“We join those
circuits that have concluded that the term ‘assault’ in the
Official Victim enhancement is a reference to common-law
criminal assault.”); United States v. Hampton, 628 F.3d 654,
660 (4th Cir. 2010) (noting with approval that “application of
the common law meaning of ‘assault’ provides us with the

4
At that time, the assault enhancement was designated §
3A1.2(b). Any differences in the wording of the current
enhancement are immaterial. For the sake of clarity, we refer
to the enhancement under its current numbering, §
3A1.2(c)(1), regardless of its designation in any opinion.

21
same result we reach by considering its common meaning”);
United States v. Robinson, 537 F.3d 798, 803 (7th Cir. 2008).
In addition, we previously adopted the common-law
definition of assault where that term was undefined in a
federal statute. See United States v. McCulligan, 256 F.3d 97,
102 (3d Cir. 2001). Thus, in interpreting § 3A1.2(c)(1), we
hold in accord with our sister circuits that assault is defined
according to its common-law definition.
Thus, we adopt the concept of assault as generally
outlined in Lee:

Common law assault
embraces two different crimes:
one is attempted battery, that is,
an intended effort to cause bodily
harm to another which falls short
of success . . . regardless of
whether the intended victim
knows of the attempt . . . The
other branch of assault is an act
which is intended to, and
reasonably does, cause the victim
to fear immediate bodily harm;
such “menacing” constitutes
assault even if no physical harm
is attempted, achieved, or
intended.

199 F.3d at 18 (emphasis added) (citations omitted). In
rendering its decision, the Lee court first held that attempted
battery was inapplicable, as there had been no finding of
intent on the part of the defendant to shoot at the police
officers, “and it is not clear that the evidence would readily

22
lend itself to such a finding unless the judge discredited Lee’s
own statement as to his intent.” Id. However, the court
determined that the second type of assault, an act which
would reasonably cause fear, reflected the defendant’s
actions, as the defendant’s “efforts to free his gun did cause
[the officer] to fear – quite reasonably so, in our view – and
the district judge so found.” Id. at 20. 5

Just as the court in Lee, we can readily dispose of the
first prong of assault, attempted battery. The Government
does not claim, and the District Court here made no finding,
that Jones withdrew the gun with the intent to harm either
Officer Onderko or Officer Baney. The most that can be said
is that the District Court granted a separate enhancement, not
appealed here, under § 2K2.1(b)(6), which involves the use of
a firearm in connection with another felony offense. The
Court granted the enhancement on the ground that the
defendant “used or possessed the firearm at issue while
resisting arrest.” (App. 306.) In connection with that ruling
the Court stated, “I find it reasonable to infer from the
circumstances surrounding his flight and efforts to resist
arrest that he drew the firearm at that precise moment in order
to further his efforts to escape. At a minimum, drawing a
firearm at that moment certainly had the potential to facilitate

5
Significant for our analysis below, the facts of Lee indicate
that the officers were aware of the threat that the defendant
was reaching for a gun. See, 199 F.3d at 17 (“[T]he officers
screamed to each other that Lee was reaching for his waist
and they sought to grab his hands.”)

23
his resisting arrest.” 6 (App. 305.) Such statements do not
constitute a finding that Jones withdrew the gun with the
intent to harm Officer Onderko or Baney, and the evidence
does not support such a finding. Accordingly, attempted
battery, which requires a finding that the defendant intended
to harm another, is inapplicable here.

The second type of assault, dubbed “menacing” in Lee,
presents a closer question. Such assault requires that the
defendant intends to and reasonably does cause fear. The
“intends to” element, for purposes of this provision, should be
satisfied if the defendant has “ample reason to know that fear
will be caused,” such that “the lack of purpose to cause fear
should not matter.” Lee, 199 F.3d at 19. We will not dwell
on the intent requirement as it is clearly satisfied in this case.
But, the “reasonably does cause fear” aspect is more
troubling. Jones argues that he did not commit assault in part
because he did not actually frighten Officer Onderko. By
contrast, the Government notes that Officer Baney saw Jones
withdraw the handgun and that the gun had a profound impact
on Officer Baney.

However, the Government argued below only that
Jones assaulted Officer Onderko, and never claimed that

6
Similarly, the District Court also overruled Jones’s objection
which sought to modify the PSR to state that Jones
intentionally threw the gun away when he was tackled by
Officer Onderko. However, the District Court made no
affirmative finding as to Jones’s intent when he produced the
gun.

24
Officer Baney was a victim of an assault. 7 The Government
has therefore waived any claim on appeal that Officer Baney
was assaulted during the foot-chase.

Accordingly, the sole question is whether Jones
assaulted Officer Onderko by “menacing.” As noted above,
Officer Onderko was pursuing Jones on foot from behind, and
he could see that Jones was “digging, either in his pockets or
in his waistband,” but Officer Onderko could not tell what
Jones was reaching for. (App. 262.) When asked whether he
would have done anything differently if he had known Jones
had a gun, Officer Onderko responded, “I would not have
tackled him.” (App. 264.) That clearly indicates that Officer
Onderko did not realize Jones had a gun and thus did not
experience fear.

7
See (Gov. Supp. Sentencing Mem., App. 104 (“Defendant
resisted arrest and assaulted Officer Onderko.”); id. at App.
105 (arguing that § 3A1.2(c)(1) “applies here, based on
Defendant’s resisting arrest and assaultive conduct against
Officer Onderko . . . .”); Sentencing Transcript, November
28, 2012, App. 284 (Government attorney claiming, “his
mens rea goes to his knowing or having reasonable cause to
believe that Officer Onderko, whom he assaulted, was a law
enforcement officer.”); id. at App. 202 (Defense attorney
noting “the only one he’s alleged to have committed an
aggravated assault on is Officer Onderko.”); Gov. Post-
Hearing Brief, App. 181 (“Thus, section 3A1.2 applies if the
Defendant either assaulted Officer Onderko when Defendant
drew his weapon, or if Defendant assaulted Officer Onderko
thereafter, in his ‘immediate flight’ from the offense.”)).

25
 Officer Baney’s testimony noted the simultaneous
nature of the events at issue. As he stated at sentencing, “I
saw the weapon being pulled, I yelled gun, and that is exactly
when in a simultaneous action Officer Onderko tackled Mr.
Jones.” Officer Baney further agreed that at the “moment of
impact” Jones’s arm went up and “the gun [went] flying.”
(App. 219.)

Seeking to clarify the language of the criminal
complaint drafted by Officer Baney, the Government further
focused on the precise timing of the events at issue.
Government counsel inquired, “[w]hat about the sense of
timing that comes from that sentence, when you have the
phrase throw a gun and was tackled. Did you intend, are you
expressing that those happened at separate points in time?”
Officer Baney replied, “[n]o, I’m just expressing that it
happened at that time.” Government counsel further asked,
“[y]our understanding of the event, was that it was a
simultaneous gun flying in the air at the moment of tackle?”
Officer Baney responded unequivocally, “[y]es.” (App. 227-
28).

Taken together, Officer Baney’s testimony establishes
that he yelled “gun,” “exactly when in a simultaneous action
Officer Onderko tackled Mr. Jones,” and that “it was a
simultaneous gun flying in the air at the moment of tackle[.]”
(App. 219, 227-28.) Therefore, according to his own
testimony, Officer Baney shouted “gun” at the same moment
that the firearm flew out of Jones’s hand.

For his part, Officer Onderko never saw the gun in
Jones’s hand, in the air, or even on the ground until Jones was
finally apprehended. As Officer Onderko testified at

26
sentencing: “I did not see the gun until it was recovered.”
(App. 269.) Further, nothing in the record indicates that
Officer Onderko suspected that Jones had a gun during the
pursuit. 8 Finally, because Officer Baney yelled “gun” at the
same moment that the gun flew out of Jones’s hand, Officer
Onderko was not aware of the presence of a firearm until it
was no longer in Jones’s possession. The facts thus present a
relatively unusual scenario, an alleged “menacing” assault
where the victim was unaware of any menace until it had
ceased.

A helpful framework for analyzing such an assault is
found in one of the few cases presenting roughly similar facts,
United States v. Acosta-Sierra, 690 F.3d 1111 (9th Cir. 2012).
In that case, the defendant threw a rock at federal Customs
and Border Protection Officer. As the Ninth Circuit
recounted, “[t]he rock did not strike Officer Lopez, though it
came within two feet of hitting his head. Officer Lopez did
not see [the defendant] throw the rock or observe it travel
through the air. In fact, Officer Lopez only became aware of
the rock when he heard it hit the metal gate behind him . . . .”

8
The following exchange took place at sentencing:

Counsel for Government: And as you see him then reaching
for something at his waistband, you don’t know what he’s
grabbing for?

Officer Onderko: No, I do not.

Counsel for Government: Just digging around for something.

Officer Onderko: That’s correct. (App. 263.)

27
Id. at 1115. The defendant was charged with assault on a
federal officer, in violation of 18 U.S.C. § 111(a)(1) and (b).
Id.

Because “assault” was not defined in the federal
statute, the Ninth Circuit adopted a common law definition
similar to that utilized above for § 3A1.2(c)(1). Id. at 1117.
The Acosta-Sierra court further held that “a victim’s
apprehension of immediate bodily injury must be determined
by an objective standard of reasonableness . . . the evidence
must permit an inference that a reasonable person ‘standing in
the official’s shoes,’ that is, observing what the official
observed, would have apprehended imminent bodily injury.”
Id. at 1119-20. This objective standard also aligns with the
common-law test adopted for § 3A1.2(c)(1) in Lee: “an act
which is intended to, and reasonably does, cause the victim to
fear immediate bodily harm . . . .” 199 F.3d at 18.

Applying this standard, the court noted that “Officer
Lopez did not see [the defendant] before he threw the rock
and did not realize what had happened until after the threat of
imminent bodily harm had passed. A reasonable person
observing what Officer Lopez observed, therefore, would not
have been aware of any threat.” Acosta-Sierra, 690 F.3d at
1121. Thus, the court held, “[b]ecause Officer Lopez did not
become aware of the threat until after it had dissipated, a
reasonable person in his position would not have apprehended
immediate bodily injury.” Id. at 1123. The Ninth Circuit
concluded that assault, founded on reasonable apprehension
of harm, did not apply to the defendant’s actions.

We similarly conclude that, given the consistent
reporting of the events in the record, whereby Officer

28
Onderko did not see the gun, no assault occurred. 9 We need
not decide whether, as Jones contends, an official must
subjectively experience apprehension for § 3A1.2(c)(1) to
apply. This is because, at minimum, such fear must be
objectively reasonable. See Lee, 199 F.3d at 18; United
States v. Olson, 646 F.3d 569, 574 (8th Cir. 2011) (finding
that fear of officers “was reasonable,” in applying assault
enhancement); United States v. Ford, 613 F.3d 1263, 1269
(10th Cir. 2010) (“The evidence easily supports the district
court’s finding that the gunshots placed the officers in
reasonable apprehension of being shot.”) That is, a court
must find that a defendant’s actions would cause fear in a
reasonable person standing in the shoes of the official victim.
This reasonableness evaluation incorporates the observations
actually made by the official, and does not permit a court to
presume additional knowledge or sight. The record
established that as Officer Onderko was unaware and did not
suspect that Jones possessed a gun, a reasonable person in his
position would not have experienced fear, and thus Jones did
not commit an assault. We therefore conclude that the
Government failed to carry its burden to show by a
preponderance of the evidence that this enhancement should
apply. See United States v. Diallo, 710 F.3d 147, 151 (3d Cir.
2013) (“[T]he government always bears the burden of
proving by a preponderance of the evidence that the facts
support a sentencing enhancement . . . .”)

Adopting the Government’s position would elevate
any conduct that might cause fear to the level of assault,

9
We also find that the issue of timing was exhaustively
addressed at sentencing, and further evidentiary development
on this point upon remand is not warranted.

29
regardless of whether any official victim felt, or would
reasonably have felt, apprehension. This standard would read
the element of “assault” out of the guideline, instead
enhancing sentences for any conduct that creates a risk of
bodily harm, even though such acts are already addressed by
other enhancements. See e.g., U.S.S.G. § 3C1.2 (“Reckless
Endangerment During Flight”). We decline to render the
critical requirement of assault a nullity.

The reasoning of the District Court in granting the
enhancement does not alter our conclusion. The District
Court found that “[c]ourts have repeatedly held that section
3A1.2 official victim enhancement is properly applied in
situations where a defendant who is fleeing or scuffling with
police officers attempts to produce or utilize a firearm
because ‘simply reaching for a loaded gun is enough to create
a substantial risk of serious bodily injury to another person.’”
(App. 17) (quoting United States v. Easter, 553 F.3d 519, 524
(7th Cir. 2009)). However, Easter concerned a different
guideline enhancement, “Reckless Endangerment During
Flight,” which applies, “[i]f the defendant recklessly created a
substantial risk of death or serious bodily injury to another
person in the course of fleeing from a law enforcement officer
. . . .” U.S.S.G. § 3C1.2. Section 3A1.2(c)(1), the
enhancement at issue here, requires not simply the creation of
a risk of bodily harm, but that the defendant actually assaults
a law enforcement officer. Reckless endangerment is far
different from assault, yet the District Court did not address
the elements of an assault. Under any of the potentially
applicable standards of review, this constitutes reversible
error.

30
 We also note that this case is factually distinguishable
from most of the existing case law. The Government and
District Court both cited cases applying the assault
enhancement where a defendant reached for a gun near a law
enforcement official, but critically, the facts in such cases
supported a finding of reasonable fear on the part of the
official victim. For instance, the District Court cited at length
an unpublished Tenth Circuit opinion, United States v.
Boysel, 208 F.3d 227 (10th Cir. 2000), which concerned a
traffic stop wherein the defendant attempted to draw his gun
near a police officer. There, the Tenth Circuit noted that the
defendant exited his vehicle in an aggressive manner, and the
officer saw the defendant “‘very quickly reach[] behind the
small of his back, with his palm facing out, not to pull up a T-
shirt, but as to go for a weapon.’” Id. at *1. The Tenth
Circuit concluded that under such circumstances “a similarly
situated reasonable person would have experienced
apprehension,” and upheld the enhancement for assault. Id. at
*2. Unlike the official in Boysel, Officer Onderko was
unaware of any threat until it had passed.

Other cases cited by the District Court and
Government are even further afield. In United States v. Hill,
583 F.3d 1075, 1079-80 (8th Cir. 2009), an assault
enhancement was upheld where the district court found that,
“[t]he defendant was attempting to draw a weapon in order to
discharge that weapon at the officer . . . The defendant
stopping, turning towards the officer as he attempted to draw
the weapon creates a clear inference that the defendant was
attempting to use that weapon against the officer . . . .” Such
findings readily support an assault via attempted battery,
where, unlike assault by menacing, the defendant intends to

31
physically harm another but fails in the effort. 10 Here, the
District Court made no finding that Jones intended to harm
the officers, and attempted battery therefore cannot apply.

The final case cited by the District Court, United
States v. Powell, 6 F.3d 611 (9th Cir. 1993), also dealt with a
traffic stop where the defendant exited the car holding a gun.
While that case did not focus on the assaultive conduct at
issue, the Ninth Circuit did recount that the officer saw the
firearm, “screamed, ‘Gun!’ and attacked [the defendant] in an
effort to separate [the defendant] from the weapon.” Id. at
612. Such facts indicate that the officer was aware of the
threat and would reasonably have feared for his safety in such
a situation. Again, none of the cases cited above presents an
analogous situation to this case, where the alleged assault
victim was wholly unaware of the assaultive threat. Under
these rather unique circumstances, we hold that Officer
Onderko was not assaulted, under § 3A1.2(c)(1), by Jones’s
production of the gun. 11

10
It is immaterial whether the intended victim is aware of an
attempted battery, all that is required is an intent on the part
of the perpetrator to cause bodily harm. See Lee, 199 F.3d at
18.
11
The Government does not contend on appeal that Jones’s
struggle with and flight from Officer Onderko constituted
assault, nor that Officer Onderko’s leg injury was the result of
assault. Cf. United States v. Hampton, 628 F.3d 654, 660-62
(4th Cir. 2010) (finding completed battery in defendant’s
struggle with police, constituting assault under §
3A1.2(c)(1)). Accordingly, we do not address such
arguments.

32
 We stress that our holding today is narrow and highly
fact-specific, as indeed are many of the cases concerning an
enhancement pursuant to § 3A1.2(c)(1). We do not diminish
the risks faced and fear experienced by law enforcement
when confronted with a suspect attempting to withdraw a
firearm. Rather, our holding in this case simply reflects the
common-sense conclusion that if an officer is unaware that a
defendant is attempting to withdraw a gun, that officer has not
been assaulted by this conduct under § 3A1.2(c)(1). 12
The District Court therefore erred in applying the
enhancement and we will vacate the judgment of sentence
and remand for re-sentencing.

3. Reasonableness of Guidelines and Defense
Counsel’s Argument

Jones makes two final, somewhat related, arguments.
His first contention is that the District Court improperly
presumed that the guideline sentence range should apply.
That is, a district court judge “may not presume that the
Guidelines range is reasonable. He must make an
individualized assessment based on the facts presented.” Gall
v. United States, 552 U.S. 38, 50 (2007) (citation omitted).

Jones’s argument is premised on a few statements
made by the District Court at sentencing, which asked

12
Again, as noted above, an attempted battery-type assault
may be found if, unlike here, the record reflects that the
defendant intended to cause bodily harm, regardless of
whether the victim was aware of the attempt.

33
defense counsel to list “factors . . . that in your view support
variance below the 120-month guideline range.” (App. at
322.) Further, the District Court stated, “[i]n fashioning a
sentence, I’m required to consider, in addition to the advisory
guidelines range, the various factors set forth under 3553(a),
and I’ve attempted to do that here.” (App. 21-22.) Jones
argues that such statements demonstrate that the Court
presumed the guidelines to be reasonable, absent some
affirmative reason to vary from them.
We have repeatedly acknowledged that a district court,
“may vary upward or downward from the range suggested by
the Guidelines.” United States v. Wright, 642 F.3d 148, 152
(3d Cir. 2011). Thus, we cannot conclude that in simply
asking defense counsel to support his argument for a
variance, a court is improperly presuming the guidelines to be
reasonable. Cf. Nelson v. United States, 555 U.S. 350, 350-51
(2009) (finding reversible error where district judge stated
that “the Guidelines are considered presumptively
reasonable . . . .”). Further, we find that the District Court
thoughtfully performed the individualized analysis and
consideration of § 3553(a) factors required at sentencing.
(App. 325-30.) The record thus confirms that the District
Court at no point presumed the guidelines range to be
reasonable, and we accordingly reject Jones’s argument on
this ground.

Lastly, Jones contends that the District Court failed to
address his argument that it did not promote respect for the
law or provide just punishment to increase his sentence due to
enhancements based on uncharged conduct. He made a
related argument that a high sentence sends the wrong
message to the community because it signals to offenders that
entering a plea (or cooperating with authorities generally)

34
does not lead to leniency. A sentencing “court must
acknowledge and respond to any properly presented
sentencing argument which has colorable legal merit and a
factual basis.” United States v. Begin, 696 F.3d 405, 411 (3d
Cir. 2012) (quoting United States v. Ausburn, 502 F.3d 313,
329 (3d Cir.2007)).

It is well established that “conduct not formally
charged or not an element of the offense can be considered at
sentencing . . . .” United States v. Baird, 109 F.3d 856, 863
(3d Cir. 1997). The Supreme Court has further held that “a
jury’s verdict of acquittal does not prevent the sentencing
court from considering conduct underlying the acquitted
charge, so long as that conduct has been proved by a
preponderance of the evidence.” United States v. Watts, 519
U.S. 148, 157 (1997). After reviewing the District Court’s
reasons for its sentence, we conclude that it sufficiently
considered and addressed Jones’s arguments.

Defense counsel initially stated that it was “wrong” to
increase Jones’s sentence because of a finding, under the
guidelines, that he had assaulted a police officer. The Court
responded, “You have a fundamental disagreement with the
enhancements . . . under the guidelines, correct?” (App. 315.)
To this defense counsel responded in part, “[o]ne of the
biggest problems I have with the guidelines, is the
government uses it to get around the Constitution. The idea
that if you think he committed an aggravated assault, charge
him with that . . . .” (App. 315.)

Later, when defense counsel again reiterated his
argument concerning the finding of uncharged offenses, the
Court again stated, “[b]ut your point is, so I can make sure I

35
digest it and think about it appropriately. Your point is, not
only in this case, but in every case where an enhancement
applies, isn’t that really your point?” (App. 323.) Defense
counsel then argued in part, “I would say anybody who pleads
guilty should not get the statutory maximum. That’s just
fundamentally wrong.” (App. 323.)

In outlining its sentence, the District Court again
addressed defense counsel’s argument about promoting
respect for the law and providing just punishment. The Court
first recounted in detail Jones’s lengthy and violent criminal
history before stating:

I’ve also considered the
sentencing goal of promoting
respect for the law and the related
goal of imposing a sentence that is
sufficient, but not greater than
necessary, to effectuate the
sentencing goals.

I do not dispute that the
guideline range here, driven by
the enhancements, is significant.
And clearly much more
significant than it otherwise
would have been without them.
But the defendant finds himself in
that range because of his conduct
and no other reason.

(App. 329.) We conclude that the District Court’s thorough
questioning and thoughtful discussion at sentencing refutes

36
any contention that it somehow ignored defense counsel’s
argument. cf. Begin, 696 F.3d at 411 (finding that the district
court “asked no questions” concerning an argument of
defense counsel, in holding that the court failed to address it).
We, thus, reject Jones’s argument to the contrary.

III.

For the reasons stated above, we affirm in part and
reverse in part the District Court’s judgment of sentence. The
sentence is vacated and the case is remanded for resentencing.

37