United States v. Ricardo Marrero

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________

No. 11-2351
___________

UNITED STATES OF AMERICA

v.

RICARDO MARRERO,

Appellant
__________

On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 09-cr-00208)
District Judge: Honorable Gustave Diamond
___________

Argued January 26, 2012
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 26, 2013
On Remand from the United States Supreme Court

Before: AMBRO, CHAGARES and
HARDIMAN, Circuit Judges.

(Filed: February 19, 2014)
Rebecca R. Haywood
Michael L. Ivory
Office of the United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219-0000
Attorneys for Plaintiff-Appellee

Lisa B. Freeland
Karen S. Gerlach
Office of Federal Public Defender
1001 Liberty Avenue
1500 Liberty Center
Pittsburgh, PA 15222-0000
Attorneys for Defendant-Appellant

____________

OPINION OF THE COURT
____________

HARDIMAN, Circuit Judge.

Ricardo Marrero appeals his judgment of sentence
after pleading guilty to two counts of bank robbery. Marrero
claims the District Court erred in classifying him as a “career
offender” under § 4B1.1 of the United States Sentencing
Guidelines. Because we agree with the District Court that
Marrero’s convictions for simple assault and third-degree
murder qualify as “crimes of violence,” we will affirm.

I

2
 In December 2010, Marrero pleaded guilty to two
counts of bank robbery in violation of 18 U.S.C. § 2113(a).
Thereafter, the Probation Office prepared a Presentence
Investigation Report (PSR), which recommended that
Marrero be sentenced as a career offender under § 4B1.1 of
the United States Sentencing Guidelines (USSG or
Guidelines) because he had three convictions for crimes of
violence: (1) third-degree murder under 18 Pa. Cons. Stat.
Ann. § 2502(c) in 1997; (2) simple assault under 18 Pa. Cons.
Stat. Ann. § 2701(a)(1) in 2004; and (3) the bank robberies in
this case.

The PSR described Marrero’s third-degree murder
conviction as follows. In 1997, a man named Guy Prange
approached Marrero and others outside a house in
Coatesville, Pennsylvania, and asked for drugs. He was told
they did not have any drugs. When Prange began walking
away, Marrero ran up and hit him from behind, knocking him
to the ground. Marrero then kicked Prange numerous times.
Prange died in the hospital twenty-five days later from
complications from a ruptured spleen. In September 2002,
Marrero pleaded guilty to murder in the third degree.

The PSR also indicated that Marrero pleaded guilty to
simple assault following two attacks on his wife in 2004. The
transcript of Marrero’s guilty plea colloquy states, in relevant
part:

[Assistant District Attorney]: Your
Honor, the defendant is charged with two
separate incidents of simple assault. On
Information 2804-04, the date of May 29 of
2004 . . . the defendant was seen placing his
hands on the victim’s neck. The victim’s name

3
 is Lucy Marrero. And he did, at that time,
threaten serious bodily injury. On Information
38 –

The Court: Do you admit those facts?

The Defendant: Yes, Sir.

[Assistant District Attorney]: On
Information 3839-04, the date was April 27,
2004, . . . the defendant grabbed Mrs. Marrero
by the neck, attempting to drag her upstairs to
the second floor. When she tried to make a
phone call, he ripped the phone cord out of the
wall as she was attempting to call 911.

The Court: Do you admit those facts?

The Defendant: Yes, Sir.

The Probation Office concluded that Marrero’s
convictions for third-degree murder and simple assault
constituted “crimes of violence” under the Guidelines.
Accordingly, the PSR classified Marrero as a career offender,
which increased his offense level from 21 to 32. After a
three-point reduction for acceptance of responsibility,
Marrero’s total offense level was 29. The career offender
enhancement also increased his criminal history category
from IV to VI. See USSG § 4B1.1(b). This resulted in a final
Guidelines range of 151 to 188 months’ imprisonment. Had
Marrero not been deemed a career offender, his Guidelines
range would have been 57 to 71 months.

Marrero objected to the career offender classification,
arguing that under Pennsylvania law neither third-degree

4
murder nor simple assault qualifies as a crime of violence
because “a conviction for mere recklessness cannot constitute
a crime of violence.” The District Court disagreed, holding
that he was a career offender under USSG § 4B1.1.
According to the District Court, Marrero’s simple assault
conviction was a crime of violence because: (1) our decision
in United States v. Johnson, 587 F.3d 203 (3d Cir. 2009),
established that intentional or knowing simple assault under
Pennsylvania law is a crime of violence; and (2) the transcript
of Marrero’s guilty plea colloquy “indicated that he pled
guilty to an intentional and knowing violation of the simple
assault statute.” As for Marrero’s third-degree murder
conviction, the District Court found that it constituted a crime
of violence because “murder” is expressly enumerated as
such in Application Note 1 to USSG § 4B1.2.

Having found the career offender designation
appropriate in Marrero’s case, the District Court agreed with
the Probation Office that his applicable Guidelines range was
151 to 188 months’ imprisonment. Marrero sought a below-
Guidelines sentence, and the Government opposed that
request. Applying the factors set forth in 18 U.S.C.
§ 3553(a), the District Court determined that a substantial
downward variance was warranted and sentenced Marrero to
96 months’ imprisonment and three years of supervised
release.

Marrero timely appealed and has raised one issue: his
classification as a career offender. If either of his prior
offenses is not a crime of violence, Marrero’s sentence, which
was based in part on his career offender designation, cannot
stand. See, e.g., United States v. Keller, 666 F.3d 103, 109
(3d Cir. 2011); United States v. Friedman, 658 F.3d 342, 359
(3d Cir. 2011). We affirmed the sentence in United States v.

5
Marrero, 677 F.3d 155 (3d Cir. 2012), and Marrero filed a
petition for writ of certiorari. The Supreme Court granted the
petition, vacated our judgment, and remanded for further
consideration in light of its recent decision in Descamps v.
United States, 133 S. Ct. 2276 (2013). Marrero v. United
States, 133 S. Ct. 2732 (2013).1 Following remand, we
requested, and the parties submitted, letter briefs regarding
the impact of Descamps on Marrero’s appeal. Having
reviewed Descamps and the parties’ arguments, this appeal is
ripe again.

II

The District Court had jurisdiction pursuant to 18
U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291
and 18 U.S.C. § 3742(a)(1). Whether a prior conviction
constitutes a crime of violence for purposes of the career
offender Guideline is a question of law over which we
exercise plenary review. E.g., Johnson, 587 F.3d at 207.

III

Our legal analysis begins with the text of the relevant
Guidelines. Under USSG § 4B1.1, one is a career offender if:

(1) [he] was at least eighteen years old at the
time [he] 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) [he] has at
least two prior felony convictions of either a

1
Justice Alito, joined by Justice Kennedy, dissented
from the Court’s order.

6
 crime of violence or a controlled substance
offense.

Under the Guidelines, “crime of violence”

means 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 use of explosives, or
otherwise involves conduct that presents
a serious potential risk of physical injury
to another.

USSG § 4B1.2(a). Finally, Application Note 1 to USSG
§ 4B1.2 provides that “‘[c]rime of violence’ includes murder,
manslaughter, kidnapping, aggravated assault, forcible sex
offenses, robbery, arson, extortion, extortionate extension of
credit, and burglary of a dwelling.”

A

The first question presented is whether Marrero’s
Pennsylvania simple assault conviction is a qualifying offense
for purposes of the career offender Guideline. See USSG
§ 4B1.1. Under Pennsylvania law, “[a] person is guilty of
[simple] assault if he: (1) attempts to cause or intentionally,
knowingly or recklessly causes bodily injury; (2) negligently
causes bodily injury to another with a deadly weapon; [or] (3)
attempts by physical menace to put another in fear of

7
imminent bodily injury.” 18 Pa. Cons. Stat. Ann. § 2701(a).
Apart from “aggravated assault,” assault is not enumerated in
either § 4B1.2(a)(2) of the Guidelines or the application note
thereto, and neither party argues that Marrero’s simple assault
conviction could qualify as a crime of violence under
§ 4B1.2(a)(1). Therefore, we must determine whether
Marrero’s simple assault offense was a crime of violence
under the so-called “residual clause” in § 4B1.2(a)(2), which
refers to offenses that “otherwise involve[] conduct that
presents a serious potential risk of physical injury to another.”

As we noted in Johnson, the Supreme Court’s decision
in Begay v. United States, 553 U.S. 137 (2008), altered the
analytical framework for residual clause cases.2 587 F.3d at

2
Although Begay and several related cases involved
sentencing enhancements under the Armed Career Criminal
Act (ACCA), 18 U.S.C. § 924(e), rather than the career
offender Guideline, they nevertheless bind our analysis.
“Precedent . . . requires the application of case law
interpreting ‘violent felony’ in ACCA to ‘crime of violence’
in U.S.S.G. § 4B1.2[] because of the substantial similarity of
the two sections.” United States v. Herrick, 545 F.3d 53, 58
(1st Cir. 2008); accord, e.g., Hopkins v. United States, 555
U.S. 1132 (2009) (mem.) (remanding a career offender case
for consideration after the Supreme Court’s ACCA opinion in
Chambers v. United States, 555 U.S. 122 (2009)); United
States v. Hopkins, 577 F.3d 507, 511 (3d Cir. 2009) (“[T]he
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 . . . .”).

8
207. Reasoning that the residual clause must be interpreted
with reference to the enumerated crimes that precede it—
namely, burglary, arson, extortion, and crimes involving the
use of explosives—the Supreme Court concluded that the
residual clause “covers only similar crimes, rather than every
crime that ‘presents a serious potential risk of physical injury
to another.’” Begay, 553 U.S. at 142 (quoting 18 U.S.C.
§ 924(e)(2)(B)(ii)). Accordingly, “[p]ost-Begay, to qualify as
a crime of violence [under the residual clause] the crime in
question ‘must (1) present a serious potential risk of physical
injury and (2) be “roughly similar, in kind as well as degree
of risk posed, to the examples [of burglary, arson, extortion,
or use of explosives] themselves.”’” Johnson, 587 F.3d at
207–08 (third alteration in original) (quoting United States v.
Polk, 577 F.3d 515, 518 (3d Cir. 2009)). And “[a] crime is
similar in kind to one of the enumerated examples if it
‘typically involve[s] purposeful, violent, and aggressive
conduct.’” Id. at 208 (quoting Begay, 553 U.S. at 144–45).

To determine whether Marrero’s case satisfies the
residual clause, we first apply the categorical approach
prescribed by the Supreme Court in United States v. Taylor,
495 U.S. 575, 602 (1990). This approach requires us to ask
“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);
accord Johnson, 587 F.3d at 208. In Begay, the Court
concluded that the offense of driving under the influence of
alcohol did not meet these residual-clause criteria. 553 U.S.
at 144–48. After Begay, “a conviction for mere recklessness
cannot constitute a crime of violence” under the residual
clause. United States v. Lee, 612 F.3d 170, 196 (3d Cir.

9
2010). As we have explained, the Begay Court’s “repeated
invocation of ‘purposefulness,’ and the contrast the Court
drew between that state of mind and negligence or
recklessness, suggest that a crime committed recklessly is not
a crime of violence.” Johnson, 587 F.3d at 210 n.8. Our
sister circuits that have considered this question have reached
the same conclusion. See id. (listing cases).

We have previously applied Begay and Taylor to
determine whether a conviction for simple assault under
Pennsylvania law qualifies as a crime of violence under the
residual clause of USSG § 4B1.2(a)(2). In Johnson, we held
that only “an intentional or knowing violation of subsection
(a)(1) of [§ 2701] may qualify as a crime of violence ‘in the
ordinary case.’” 587 F.3d at 210–12. We reasoned that
“there can be no doubt that simple assault is at least as violent
and aggressive as the enumerated crimes because a defendant
who intentionally or knowingly commits [simple assault]
intends to impair the victim’s physical condition or cause her
substantial pain, [and] no such objective is required by the
enumerated crimes.” Id. at 212.

Whether Marrero’s prior conviction was for intentional
or knowing simple assault, rather than merely reckless or
negligent iterations of the crime, depends on the statutory
elements of which Marrero was actually convicted. Id. at
208; accord United States v. Stinson, 592 F.3d 460, 462 (3d
Cir. 2010). To make this determination, we apply a modified
categorical approach, in which we are “generally limited to
examining the statutory definition, 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). Whether one of these Shepard-approved

10
documents “contains sufficient information to permit a
conclusion about the character of the defendant’s previous
conviction will vary from case to case.” Johnson, 587 F.3d at
213.

Marrero contests the applicability of the modified
categorical approach, arguing that Pennsylvania’s simple
assault statute is “indivisible.” This definitional argument is
essential to Marrero’s appeal because Descamps held that
“sentencing courts may not apply the modified categorical
approach when the crime of which the defendant was
convicted has a single, indivisible set of elements.”
Descamps, 133 S. Ct. at 2282. On the other hand, courts may
apply the modified categorical approach to “divisible
statutes,” which “set[] out one or more elements of the
offense in the alternative . . . .” Id. at 2281. Unlike the
California statute at issue in Descamps, see Cal. Penal Code §
459, a defendant may be convicted of Pennsylvania simple
assault if his actions were accompanied by one of three
different mental states—intent, knowledge, or recklessness.
Because the Pennsylvania statute “list[s] potential offense
elements in the alternative,” it is “divisible,” and the modified
categorical approach applies. See Descamps, 133 S. Ct. at
2283.3

3
Our Court and other Courts of Appeals have applied
the modified categorical approach to examine divisible
statutes that feature multiple mens rea elements in order to
determine whether a defendant was convicted of a crime of
violence. See, e.g., Johnson, 587 F.3d at 214 (advocating use
of modified categorical approach to examine Shepard-
approved documents that might “demonstrate the mens rea to
which [defendant] pled guilty”); see also United States v.

11
 In the alternative, Marrero argues that the District
Court’s inquiry was limited to determining only the elements
of § 2701(a) to which he pleaded guilty. He claims that the
District Court exceeded this boundary by looking to specific
facts established during the colloquy rather than solely to any
statutory elements set forth in the record. In support, Marrero
cites a statement by the Court of Appeals for the Seventh
Circuit in United States v. Woods, 576 F.3d 400 (7th Cir.
2009), that “the additional materials permitted by Shepard
may be used only to determine which crime within a statute
the defendant committed, not how he committed the crime,”
id. at 405.

Our inquiry under Shepard’s modified categorical
approach is not as constrained as Marrero suggests. It is well-
established that where a statute sets forth “multiple,
alternative versions of the crime,” Descamps, 133 S. Ct. at
2284, the sentencing court may resort to Shepard-approved
documents to “determine which statutory phrase (contained
within a statutory provision that covers several different
generic crimes) covered a prior conviction.” Nijhawan v.
Holder, 557 U.S. 29, 37 (2009); accord Descamps, 133 S. Ct.
at 2284; Johnson v. United States, 130 S. Ct. 1265, 1273
(2010); Chambers v. United States, 555 U.S. 122, 126 (2009).

Espinoza, 733 F.3d 568, 571 (5th Cir. 2013); United States v.
Johnson, 675 F.3d 1013, 1017–18 (6th Cir. 2012) (examining
indictment and jury instructions to establish whether
defendant was charged and convicted of purposeful or
reckless conduct); United States v. Ossana, 638 F.3d 895, 903
(8th Cir. 2011); United States v. Clinton, 591 F.3d 968, 973
(7th Cir. 2010).

12
In Nijhawan, the Supreme Court expounded upon the proper
inquiry in these cases, explaining:

[S]ometimes a separately numbered subsection
of a criminal statute will refer to several
different crimes, each described separately.
And it can happen that some of these crimes
involved violence while others do not. A single
Massachusetts statute section entitled “Breaking
and Entering at Night,” for example,
criminalizes breaking into a “building, ship,
vessel or vehicle.” Mass. Gen. Laws, ch. 266,
§ 16 (West 2006). In such an instance, we have
said, a court must determine whether an
offender’s prior conviction was for the violent,
rather than the nonviolent, break-ins that this
single five-word phrase describes (e.g.,
breaking into a building rather than a vessel), by
examining “the indictment or information and
jury instructions,” or, if a guilty plea is at issue,
by examining the plea agreement, plea
colloquy, or “some comparable judicial record”
of the factual basis for the plea.

557 U.S. at 33. Moreover, Shepard authorizes sentencing
courts to look to “any explicit factual finding by the trial
judge to which the defendant assented,” which includes far
more than merely the precise statutory provision to which the
defendant pleaded guilty. See Shepard, 544 U.S. at 16
(emphasis added).

Applying these principles to Marrero’s case, we
conclude that the District Court properly examined Marrero’s
simple assault plea colloquy transcript—a Shepard-approved

13
document—to determine whether he pleaded guilty to
intentional, knowing, or reckless assault. Pennsylvania’s
simple assault statute expressly lists those three different
ways of violating § 2701(a). Upon examining the plea
colloquy transcript, the District Court correctly concluded
that Marrero’s conviction was for intentional (or, at the very
least, knowing) simple assault. Marrero admitted to placing
his hands around his wife’s neck and attempting to pull her up
a flight of stairs. This constituted intent to cause bodily
injury, which we have already held qualifies as a crime of
violence. Johnson, 587 F.3d at 212.

B

Because Marrero could not properly be designated a
career offender unless both of his state convictions were
“crimes of violence,” we now consider whether his third-
degree murder conviction so qualified. Under Pennsylvania’s
general homicide statute, 18 Pa. Cons. Stat. Ann. § 2501(a),
“[a] person is guilty of criminal homicide if he intentionally,
knowingly, recklessly or negligently causes the death of
another human being.” Section 2501(b) classifies homicides
as either “murder, voluntary manslaughter, or involuntary
manslaughter.” Pennsylvania recognizes three types of
murder:

(a) Murder of the first degree—A criminal
homicide constitutes murder of the first degree
when it is committed by an intentional killing.

(b) Murder of the second degree—A criminal
homicide constitutes murder of the second
degree while defendant was engaged as a

14
 principal or an accomplice in the perpetration of
a felony.

(c) Murder of the third degree—All other kinds
of murder shall be murder of the third degree.
Murder of the third degree is a felony of the
first degree.

Id. § 2502. Although the statute itself only defines third-
degree murder as a catch-all without describing the elements
of the offense, the Pennsylvania Superior Court has specified
that third-degree murder is “an unlawful killing with malice
but without specific intent to kill.” Commonwealth v.
Dunphy, 20 A.3d 1215, 1219 (Pa. Super. Ct. 2011); accord
Commonwealth v. Tielsch, 934 A.2d 81, 84 n.3 (Pa. Super.
Ct. 2007). And “malice” is defined as

“wickedness of disposition, hardness of heart,
cruelty, recklessness of consequences, and a
mind regardless of social duty, although a
particular person may not be intended to be
injured,” [and] malice may be found where the
defendant consciously disregarded an
unjustifiable and extremely high risk that his
actions might cause serious bodily injury.

Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa. Super.
Ct. 2001) (quoting Commonwealth v. Cottam, 616 A.2d 988,
1004 (Pa. Super. Ct. 1992)); see also Commonwealth v.
Kling, 731 A.2d 145, 148 (Pa. Super. Ct. 1999) (“A defendant
must display a conscious disregard for almost certain death or
injury such that it is tantamount to an actual desire to injure or
kill; at the very least, the conduct must be such that one could

15
reasonably anticipate death or serious bodily injury would
likely and logically result.”).

Based on this definition, Marrero cites Begay to argue
that third-degree murder cannot be a crime of violence
because malice, the essential mens rea, might entail
recklessness only. Marrero’s reliance upon Begay is
misplaced, however, because Begay’s prohibition on counting
reckless crimes as crimes of violence applies only in residual
clause cases. See, e.g., Sykes v. United States, 131 S. Ct.
2267, 2275–76 (2011) (describing Begay as a decision
“concerning the reach of ACCA’s residual clause”); United
States v. Angiano, 602 F.3d 828, 829 (7th Cir. 2010) (finding
Begay “inapposite” to a case involving the enumerated
offense of burglary of a dwelling under § 2L1.2 of the
Guidelines because “Begay . . . only classified the prior
convictions under the residual clause”); United States v.
Patillar, 595 F.3d 1138, 1140 (10th Cir. 2010) (describing
Begay as a case interpreting the residual clause); see also
United States v. Peterson, 629 F.3d 432, 437 (4th Cir. 2011)
(holding that the generic definition for the enumerated crime
of violence of “manslaughter” was a “homicide that ‘is
committed recklessly’” (quoting Model Penal Code § 210.3
(1962))). Thus, Begay does not control this case. Rather,
whether Marrero’s third-degree murder conviction qualifies
as a crime of violence depends on the enumeration of
“murder” in Application Note 1 to § 4B1.2.

Application Note 1 expressly states that the term
“‘[c]rime of violence’ includes murder.” Consistent with the
categorical approach prescribed by Taylor for predicate
offenses expressly listed as “crimes of violence,” we
previously held that “no inquiry into the facts of the predicate
offense is permitted when a predicate conviction is

16
enumerated as a ‘crime of violence’ in [then-]Application
Note 2 to § 4B1.2.” United States v. McQuilkin, 97 F.3d 723,
728 (3d Cir. 1996) (holding that a defendant’s aggravated
assault conviction, even though based on reckless conduct,
counted as a crime of violence because aggravated assault
was enumerated in the application note); accord United States
v. McClenton, 53 F.3d 584 (3d Cir. 1995) (holding that
burglary of an unoccupied hotel room was a crime of violence
because burglary of a dwelling was enumerated in § 4B1.2).
Since we decided McQuilkin, nothing has called into question
our prior conclusion that offenses listed in what is now
Application Note 1 to § 4B1.2 should be considered
“enumerated” offenses for purposes of the crime-of-violence
analysis.

First, basic interpretative principles and a plain reading
of Application Note 1 compel the same conclusion now as we
reached in McQuilkin. “[C]ommentary in the Guidelines
Manual that interprets or explains a guideline is authoritative
unless it violates the Constitution or a federal statute, or is
inconsistent with, or a plainly erroneous reading of, that
guideline.” Stinson v. United States, 508 U.S. 36, 38 (1993);
accord Johnson, 587 F.3d at 207. Application Note 1 does
not conflict with federal law and is not an erroneous reading
of USSG § 4B1.2. It merely supplements the numbered
provisions of § 4B1.2 and unambiguously states that “‘crime
of violence’ includes” ten specific crimes. USSG § 4B1.2
cmt. n.1 (emphasis added); cf. Taylor, 495 U.S. at 597 (“[I]f
Congress had meant to include only an especially dangerous
subclass of burglaries as predicate offenses, it is unlikely that
it would have used the unqualified language ‘is burglary . . .’
in § 924(e)(2)(B)(ii) [of ACCA].”).

17
 Furthermore, several of our sister circuits have
concluded or suggested that the ten offenses listed in
Application Note 1 are “enumerated” for purposes of the
crime-of-violence analysis. See United States v. Lockley, 632
F.3d 1238, 1242 (11th Cir. 2011) (finding that robbery is an
enumerated offense); Peterson, 629 F.3d at 436–37 (treating
“manslaughter” in U.S.S.G. § 4B1.2(a) cmt. 1 as an
enumerated offense); Patillar, 595 F.3d at 1140 (“Nor is
larceny from the person one of the offenses enumerated in
either § 4B1.2(a)(2) . . . or the application note, see id.
§ 4B1.2 cmt n.1 . . . .” (emphasis added)); United States v.
Walker, 595 F.3d 441, 443–44 (2d Cir. 2010) (“[The]
application note specifically includes ‘robbery’ as a ‘crime of
violence’ under § 4B1.2(a). . . . [T]he Supreme Court held in
Taylor that where a specific offense—in Taylor, burglary—is
listed as a qualifying violent felony, ‘then the trial court need
find only that the state statute corresponds in substance to the
generic meaning of burglary.’” (quoting Taylor, 495 U.S. at
599)); United States v. Otero, 495 F.3d 393, 401 (7th Cir.
2007) (“Given that robbery is enumerated as a ‘crime of
violence’ under the Guidelines and [the defendant’s]
conviction for strong-armed robbery was classified as an
adult conviction, the district court did not err in finding that
[the defendant] qualified as a career offender.”).

Consistent with these precedents, we reaffirm that
offenses listed in Application Note 1 are “enumerated” for
purposes of the crime-of-violence analysis. The District
Court reached the same conclusion, but erred when it held
that the enumeration of “murder” was alone sufficient to
render third-degree murder under Pennsylvania law a crime
of violence. As we shall explain, the Court should have

18
proceeded to apply the additional steps set forth by the
Supreme Court in Taylor.

In Taylor the Court concluded that Congress did not
intend for offenses enumerated as crimes of violence to take
on whatever meaning state statutes ascribe to them; rather,
Congress sought to use “uniform, categorical definitions . . .
regardless of technical definitions and labels under state law.”
Taylor, 495 U.S. at 590. The Court reasoned that it was
“implausible that Congress intended the meaning of
‘burglary’ for purposes of [ACCA’s] § 924(e) to depend on
the definition adopted by the State of conviction.” Id. The
Court thus identified a generic definition of burglary that
Congress likely intended in the statute, id. at 596–99, and
sought to compare that definition with “burglary” under
Missouri law, id. at 602. Unable to discover in the record
which Missouri statute formed the basis for Taylor’s prior
convictions, it remanded for further proceedings. Id.

The Taylor analysis must be applied in enumerated-
offense cases like this one. “Where, as here, the Guidelines
specifically designate a certain offense as a ‘crime of
violence,’ we compare the elements of the crime of
conviction to the generic form of the offense as defined by the
States, learned treatises, and the Model Penal Code.”
Lockley, 632 F.3d at 1242; accord Peterson, 629 F.3d at 435–
37; United States v. Ramon Silva, 608 F.3d 663, 665 (10th
Cir. 2010); Walker, 595 F.3d at 443–44; United States v.
Watkins, 54 F.3d 163, 166 (3d Cir. 1995) (comparing a
Pennsylvania burglary statute to the “generic” definition of
burglary announced in Taylor). In other words, “[f]irst, a
court must distill a ‘generic’ definition of the predicate
offense based on how the offense is defined ‘in the criminal
codes of most states.’” Peterson, 629 F.3d at 436 (emphasis

19
omitted) (quoting Taylor, 495 U.S. at 598). “Second, after
finding the generic form of the predicate offense, a court must
determine whether the defendant’s prior conviction
constituted a conviction of the generic offense . . . by
comparing the elements of the crime of conviction with the
generic offense.” Id. So long as the statutory definition of
the prior conviction “substantially corresponds” to the generic
definition of the offense, the defendant’s prior offense
qualifies as a crime of violence. Taylor, 495 U.S. at 602;
accord, e.g., Ramon Silva, 608 F.3d at 665. “But if the statute
sweeps more broadly than the generic crime, a conviction
under that law cannot” constitute a conviction of the generic
offense. Descamps, 133 S. Ct. at 2283. We apply this
enumerated-offense approach to cases, like this one, in which
the crime of conviction is listed in either § 4B1.2(a)(2) or
Application Note 1 to § 4B1.2.

In Marrero’s case, we begin by adopting a generic
definition for “murder.” The goal of a generic definition of
an enumerated offense is to capture the “offense as
envisioned by the Guidelines’ drafters,” Lockley, 632 F.3d at
1242, by looking to the Model Penal Code (MPC), state laws,
and learned treatises. See, e.g., Taylor, 495 U.S. at 598;
Lockley, 632 F.3d at 1242; Peterson, 629 F.3d at 436; Walker,
595 F.3d at 446. As far as we are aware, no federal court has
yet adopted a generic definition of murder for the crime-of-
violence analysis.

The MPC is an ideal starting point. Section 210.2 of
the MPC provides that criminal homicide constitutes murder
when:

(a) it is committed purposely or knowingly;
or

20
 (b) it is committed recklessly under
circumstances manifesting extreme indifference
to the value of human life. Such recklessness
and indifference are presumed if the actor is
engaged or is an accomplice in the commission
of, or an attempt to commit, or flight after
committing or attempting to commit robbery,
rape or deviate sexual intercourse by force or
threat of force, arson, burglary, kidnapping or
felonious escape.

Similarly, Black’s Law Dictionary defines “murder” as “[t]he
killing of a human being with malice aforethought.” Id. at
1114 (9th ed. 2009). “Depraved-heart murder” is “a murder
resulting from an act so reckless and careless of the safety of
others that it demonstrates the perpetrator’s complete lack of
regard for human life.” Id. “Unintentional murder” is “[a]
killing for which malice is implied because the person acted
with intent to cause serious physical injury or knew that the
conduct was substantially certain to cause death or serious
physical injury.” Id. at 1114–15.

As with burglary in Taylor, 495 U.S. at 598, state-law
definitions of murder vary widely but share a common
definitional strand. The majority of state murder statutes
criminalize at least three types of murder: (1) intentional
killing; (2) killing during the commission of a felony; and (3)
killing that, although unintentional, occurs in the course of
dangerous conduct that demonstrates a reckless or malignant
disregard for serious risks posed to human life.4 We
4
All fifty states and the District of Columbia recognize
intentional or premeditated murder, and forty-four states and
the District of Columbia define a felony murder offense. At

21
least thirty states define a form of unintentional murder
involving a substantial likelihood of death, indifference (often
“extreme indifference”) to the value of human life, an
abandoned, malignant, or depraved heart, express or implied
malice, or recklessness. See Ala. Code § 13A-6-2 (2011);
Alaska Stat. Ann. §§ 11.41.100, .110 (West 2007); Ariz. Rev.
Stat. Ann. §§ 13-1104 to -1105 (West 2010); Ark. Code Ann.
§§ 5-10-102 to -103 (West 2008); Cal. Penal Code §§ 187–
188 (West 2012); Colo. Rev. Stat. Ann. § 18-3-102 (West
2004); Conn. Gen. Stat. Ann. §§ 53a-54a, -54c (West 2007);
Del. Code Ann. tit 11, §§ 635–636 (West 2010); D.C. Code
§ 22-2101 (2001); Fla. Stat. Ann. § 782.04 (West 2007); Ga.
Code Ann. § 16-5-1 (West 2009); Haw. Rev. Stat. § 707-701
(West 2008); Idaho Code Ann. §§ 18-4001, -4003 (West
2011); 720 Ill. Comp. Stat. Ann. 5/9-1 (West 2002); Ind.
Code Ann. § 35-42-1-1 (West 2004); Iowa Code Ann.
§§ 701.1–.3 (West 2003); Kan. Stat. Ann. §§ 21-5402 to -
5403 (West 2008); Ky. Rev. Stat. Ann. § 507.020 (West
2006); La. Rev. Stat. Ann. § 14:30–:30.1 (West 2007); Me.
Rev. Stat. Ann. tit. 17, §§ 201–202 (2006); Md. Code Ann.,
Criminal Law §§ 2-201, -204 (West 2002); Mass. Gen. Laws
Ann. ch. 265, § 1 (West 2008); Mich. Comp. Laws Ann.
§§ 750.316–.317 (West 2004); Minn. Stat. Ann. §§ 609.185,
.195 (West 2009); Miss. Code Ann. § 97-3-19 (West 2011);
Mo. Ann. Stat. §§ 565.020–.021 (West 1999); Mont. Code
Ann. § 45-5-102 (2009); Neb. Rev. Stat. §§ 28-303 to -304
(2009); Nev. Rev. Stat. Ann. § 200.010 (West 2000); N.H.
Rev. Stat. Ann. §§ 630:1-a to -b (2007); N.J. Stat. Ann.
§ 2C:11-3 (West 2005); N.M. Stat. Ann. § 30-2-1 (West
2003); N.Y. Penal Law §§ 125.25, .27 (McKinney’s 2009);
N.C. Gen. Stat. Ann. § 14-17 (West 2000); N.D. Cent. Code
Ann. § 12.1-16-01 (West 2008); Ohio Rev. Code Ann.

22
incorporate each of these pervasive aspects of contemporary,
widely accepted definitions of murder. Cf. Taylor, 495 U.S.
at 598 (concluding that “[a]lthough the exact formulations
vary, the generic, contemporary meaning of burglary [should]
contain[] at least” several common elements appearing in the
examined sources). Accordingly, we hold that murder is
generically defined as causing the death of another person
either intentionally, during the commission of a dangerous
felony, or through conduct evincing reckless and depraved
indifference to serious dangers posed to human life.

We further hold that the meaning of third-degree
murder under Pennsylvania law “substantially corresponds”
to the third prong of this generic definition. In Pennsylvania,
third-degree murder is “an unlawful killing with malice but
without specific intent to kill.” Dunphy, 20 A.3d at 1219.
Malice, in turn, involves “hardness of heart, cruelty, and
recklessness of consequences.” DiStefano, 782 A.2d at 582.
Malice exists “where the defendant consciously disregarded
an unjustifiable and extremely high risk that his actions might

§ 2903.02 (West 2006); Okla. Stat. Ann. tit. 21, §§ 701.7–.8
(West 2002); Or. Rev. Stat. Ann. § 163.005 (West 2003); 18
Pa. Cons. Stat. Ann. § 2502 (1998); R.I. Gen. Laws Ann.
§ 11-23-1 (West 2012); S.C. Code Ann. § 16-3-10 (2003);
S.D. Codified Laws §§ 22-16-4, -7 (2006); Tenn. Code Ann.
§ 39-13-202 (West 2011); Tex. Penal Code Ann. § 19.02(b)
(West 2003); Utah Code Ann. § 76-5-203 (West 2004); Vt.
Stat. Ann. tit. 13, § 2301 (West 2007); Va. Code Ann.
§§ 18.2-32 to -33 (West 2012); Wash. Rev. Code
§§ 9A.32.030, .050 (West 2009); W. Va. Code Ann. § 61-2-1
(West 2002); Wis. Stat. Ann. §§ 940.01-.03 (West 2005);
Wyo. Stat. Ann. §§ 6-2-101, -104 (West 2007).

23
cause serious bodily injury.” Id. Pennsylvania courts have
held that the “reckless disregard for consequences” essential
to malice requires that the defendant “display a conscious
disregard for almost certain death or injury such that it is
tantamount to an actual desire to injure or kill; at the very
least, the conduct must be such that one could reasonably
anticipate death or serious bodily injury would likely and
logically result.” Kling, 731 A.2d at 148. This mens rea
requirement for third-degree murder mirrors the “reckless and
depraved indifference to the serious dangers posed to human
life” in the generic definition we have identified. Thus, third-
degree murder under Pennsylvania law is equivalent to the
enumerated offense of “murder” and therefore qualifies as a
crime of violence under the Guidelines.

IV

Because Marrero’s third-degree murder and simple
assault convictions both qualify as crimes of violence under
USSG § 4B1.2, he was properly designated a career offender
under USSG § 4B1.1. It follows that Marrero’s Guidelines
range was properly calculated and that the District Court did
not err. Accordingly, we will affirm.

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