United States v. Juan Ramos

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________

No. 17-2720
________________

UNITED STATES OF AMERICA,
Appellant

v.

JUAN H. RAMOS
________________

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(E.D. Pa. No. 2-08-cr-00695-001)
District Judge: Honorable Michael M. Baylson
________________

Argued on May 15, 2018

Before: SMITH, Chief Judge, HARDIMAN and ROTH,
Circuit Judges

(Opinion filed: June 15, 2018)
Louis D. Lappen
Acting United States Attorney
Robert A. Zauzmer [ARGUED]
Assistant United States of Attorney
Chief of Appeals
Bernadette A. McKeon
Jeffery W. Whitt
Office of the United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Counsel for Appellant

Leigh M. Skipper
Chief Federal Defender
Brett Sweitzer
Chief of Appeals
Alexander C. Blumenthal
Assistant Federal Defender
Arianna J. Freeman [ARGUED]
Andrew J. Dalack
Federal Community Defender Office for the
Eastern District of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
Counsel for Appellee

________________

OPINION
________________

2
ROTH, Circuit Judge

INTRODUCTION

The government appeals the District Court’s
determination at sentencing that Juan Ramos is not a “career
offender” under Section 4B1.1 of the U.S. Sentencing
Guidelines. That determination was based on the conclusion
that Ramos’s prior state court conviction for aggravated
assault is not a predicate “crime of violence,” as that term is
defined in the Guidelines. We disagree with that conclusion.
Applying the modified categorical approach to
Pennsylvania’s divisible aggravated assault statute, we hold
that Ramos’s prior conviction for second-degree aggravated
assault with a deadly weapon, in violation of 18 Pa. C.S.
§ 2702(a)(4), is categorically a crime of violence. Because
the District Court did not designate Ramos a career offender
for sentencing purposes, we will vacate the judgment of
sentence and remand for resentencing.

BACKGROUND

Ramos’s status as a career offender is dictated by his
criminal record, which includes several prior felony
convictions. First, in July 1998, Ramos “threw a brick at the
nose of a 10-year-old child,” who then required medical
treatment at a local hospital.1 As a result, Ramos pled guilty

1
2010 Presentence Investigation Report (PSR) & 2017 PSR
¶ 40. Although we set out Ramos’s prior offense conduct by
way of background, the categorical approach requires courts
to ignore an offender’s conduct and analyze only the elements
of the statute of conviction. See, e.g., Mathis v. United States,
136 S. Ct. 2245, 2253 (2016).

3
to aggravated assault in the Philadelphia County Common
Pleas Court.2 Second, in October 1999, Ramos was
apprehended with 2.76 grams of heroin and subsequently
convicted in state court for manufacturing, delivering, or
possessing with intent to manufacture or deliver a controlled
substance, and knowingly possessing a controlled substance.3
And third, in August 2001, Ramos broke into a furniture store
and stole “several futons”; he later pled guilty to burglary in
state court.4

The instant offense conduct occurred in January 2008,
when Philadelphia police officers observed Ramos selling
crack cocaine out of a truck.5 The police arrested Ramos and
recovered a loaded handgun from the vehicle. A federal
grand jury indicted Ramos for various drug and weapons
offenses in November 2008.6 One year later, Ramos pled

2
2010 PSR & 2017 PSR ¶ 38. As discussed below, the bill
of information and plea documents, which we can consider
only if we apply the modified categorical approach, establish
that Ramos pled guilty to second-degree aggravated assault
with a deadly weapon, in violation of 18 Pa. C.S. §
2702(a)(4). See Supp. App. 6-7.
3
2010 PSR & 2017 PSR ¶¶ 41-42.
4
2010 PSR & 2017 PSR ¶¶ 43, 45.
5
2010 PSR & 2017 PSR ¶¶ 12-15.
6
Ramos was charged with: (i) possession with intent to
distribute cocaine base and aiding and abetting, in violation of
21 U.S.C. §§ 841(a)(1), (b)(1)(C) and 18 U.S.C. § 2; (ii)
possession of a firearm in furtherance of a drug-trafficking
crime and aiding and abetting, in violation of 18 U.S.C. §§
924(c), (2); and (iii) possession of a firearm by a convicted
felon, in violation of 18 U.S.C. § 922(g)(1). See 2010 PSR &

4
guilty to each of the charged offenses, stipulating in his plea
agreement that he was a career offender.7
At sentencing, the District Court concluded that
Ramos had three predicate drug or violent felony convictions
under the Armed Career Criminal Act (ACCA)—the three
state court convictions set out above—and was thus subject to
a 15-year mandatory minimum sentence. Factoring in
Ramos’s acceptance of responsibility, the District Court
determined that Ramos’s effective Guidelines range was 248-
to-295 months’ imprisonment—i.e., an advisory Guidelines
range of 188-to-235 months’ imprisonment combined with a
mandatory, consecutive 60-month sentence under 18 U.S.C.
§ 924(c).8 After granting the government’s motion for a
downward departure, the court sentenced Ramos to a 180-
month term of imprisonment.

In May 2016, Ramos sought post-conviction relief
pursuant to 28 U.S.C. § 2255, arguing that, under Johnson v.
United States (Johnson II),9 his prior burglary conviction was
no longer a career offender predicate and, therefore, his
career-offender designation and sentence were invalid. Both

2017 PSR ¶ 1. In addition, the government filed an
information pursuant to 21 U.S.C. § 851, charging Ramos
with a Notice of Prior Conviction. See 2010 PSR & 2017
PSR ¶ 2.
7
See 2010 PSR ¶¶ 1-6, 22-31.
8
These figures were based on a determination that Ramos’s
Total Offense Level was a 31 and that he was a career
offender with a Category VI criminal history. 2010 PSR
¶¶ 22-31, 67-70.
9
135 S. Ct. 2551, 2563 (2015) (striking down the “residual
clause” of the ACCA as unconstitutionally vague).

5
the government and the District Court agreed that Ramos’s
sentence was invalid under Johnson II.10 Accordingly, the
District Court vacated Ramos’s sentence and held a
resentencing hearing in July 2017.
Although the government conceded that Ramos was
not a career offender under the ACCA, it nonetheless took the
position at resentencing that Ramos remained a career
offender under the Guidelines—which require only two
predicate drug or violent felony convictions, as opposed to
the three convictions required by the ACCA.11 The
government thus recommended that the court again impose a
180-month sentence. Ramos countered that he was not a
career offender under the Guidelines because his prior
aggravated assault conviction was not a predicate crime of
violence. Proceeding from that premise, Ramos contended
that his effective Guidelines range was 97-to-106 months’
imprisonment.12 The District Court adopted Ramos’s
proposed Guidelines calculation, ruling from the bench that
Ramos was not a career offender because there was doubt as
to whether aggravated assault under Pennsylvania law
qualifies as a crime of violence.13 Having concluded that
Ramos was not a career offender, the District Court sentenced
Ramos to a 105-month term of imprisonment—more than six

10
Dist. Ct. Dkt. No. 56 (granting joint motion for § 2255
relief).
11
Compare U.S.S.G. § 4B1.1(a), with 18 U.S.C. § 924(e).
12
This calculation was based on a determination that, after
excluding the ACCA enhancement or any consideration of his
prior aggravated assault conviction, Ramos had a Total
Offense Level of 17 and a Category IV criminal history.
13
App. 60-61 (transcript of resentencing).

6
years less than his initial sentence and the sentence
recommended by the government.

In September 2017, the government appealed the
District Court’s conclusion that Ramos was not a career
offender under the Guidelines. Several days after the
government filed its opening brief, the District Court issued a
memorandum, reiterating its position that Ramos was not a
career offender on the ground that his aggravated assault
conviction was not a crime of violence, but disavowing its
earlier rationale for that conclusion.14

DISCUSSION15

The sole issue we must resolve on appeal is whether
Ramos is a career offender under Section 4B1.1 of the
Guidelines. Ramos argues that he is not a career offender—a
designation that applies only to defendants with at least two
predicate drug or violent felony convictions16—because only
one of his prior felony convictions (i.e., his 1999 drug

14
Supp. App. 1-5 (“The Court acknowledges that it erred in
relying on the rule of lenity . . ..”).
15
The District Court had jurisdiction under 18 U.S.C. §
3231, and we have jurisdiction pursuant to 18 U.S.C. §
3742(b)(2) and 28 U.S.C. § 1291. We exercise plenary
review over the District Court’s legal determination that
Ramos is not a career offender. United States v. Chapman,
866 F.3d 129, 131 (3d Cir. 2017).
16
See U.S.S.G. § 4B1.1(a).

7
conviction) qualifies as a career offender predicate.17
According to Ramos, his 1998 aggravated assault conviction
cannot qualify as a career offender predicate since it is not a
“crime of violence” within the meaning of the Guidelines.
The government, by contrast, argues that Ramos is a career
offender because his aggravated assault conviction was for a
crime of violence. To resolve this appeal, we must determine
whether Ramos’s 1998 aggravated assault conviction
qualifies as a predicate crime of violence under the
Guidelines.

I. Legal Framework: Career Offender Status,
Crimes of Violence, and the Categorical and Modified
Categorical Approaches

A. The Career Offender and Crime of Violence
Provisions of the Guidelines

Under the Guidelines, a defendant is designated a
“career offender” and thus subject to enhanced sentencing
exposure if, as relevant here, “the defendant has at least two
prior felony convictions of either a crime of violence or a
controlled substance offense.”18 Because the parties agree
that Ramos’s 1999 drug conviction is a predicate controlled
substance offense, Ramos is a career offender so long as his
prior aggravated assault conviction is a predicate crime of
violence.

17
It is undisputed that Ramos’s 1999 state court drug
conviction qualifies as a career offender predicate “controlled
substance offense.” See U.S.S.G. § 4B1.2(b).
18
U.S.S.G. § 4B1.1(a); see United States v. Graves, 877
F.3d 494, 501 (3d Cir. 2017).

8
 Section 4B1.2 of the Guidelines sets out two separate
definitions of the term “crime of violence.” Any federal or
state offense, punishable by a term of imprisonment
exceeding one year, is a crime of violence if the offense:

(1) has as an element the use, attempted use, or
threatened use of physical force against the person
of another, or

(2) is murder, voluntary manslaughter, kidnapping,
aggravated assault, a forcible sex offense, robbery,
arson, extortion, or the use or unlawful possession
of a firearm described in 26 U.S.C. § 5845(a) or
explosive material as defined in 18 U.S.C. §
841(c).19

The first definition is known as the “elements clause,” and the
second definition is known as the “enumerated offenses
clause.”20

B. The Categorical and Modified Categorical
Approaches

To determine whether a prior conviction qualifies as a
predicate crime of violence, courts use the categorical
approach or, when applicable, the modified categorical
approach. Both approaches require us to “compare the

19
U.S.S.G. § 4B1.2(a).
20
See United States v. Wilson, 880 F.3d 80, 84 (3d Cir.
2018). Because we hold that Ramos’s aggravated assault
conviction is a crime of violence under the elements clause,
we do not address the enumerated offenses clause.

9
elements of the statute under which the defendant was
convicted to the [G]uidelines’ definition of crime of
violence.”21 When conducting that analysis under the
elements clause, as here, we ask whether the use, attempted
use, or threatened use of physical force against another person
is categorically an element of the offense of conviction.22 If
the statute forming the basis of the defendant’s conviction
necessarily has such an element, then the statute proscribes a
predicate crime of violence within the meaning of the
Guidelines.23 But if the statute of conviction lacks such an
element, it “sweeps more broadly” than the Guidelines’
definition, and a prior conviction under the statute cannot
serve as a career offender predicate—even if the defendant
actually committed the offense by using, attempting to use, or
threatening to use physical force against another person.24

It may appear counterintuitive that a defendant who
actually uses physical force against another person when
committing a felony does not, by definition, commit a violent

21
Wilson, 880 F.3d at 83 (internal quotation marks
omitted); Chapman, 866 F.3d at 133 (quoting Descamps v.
United States, 570 U.S. 254, 257 (2013)); see United States v.
Robinson, 844 F.3d 137, 141 (3d Cir. 2016) (explaining the
various rationales for the categorical approach).
22
U.S.S.G. § 4B1.2(a)(1); see Chapman, 866 F.3d at 134
(quoting United States v. Brown, 765 F.3d 185, 189 (3d Cir.
2014)); see also United States v. Castleman, 134 S. Ct. 1405,
1415 (2014).
23
Chapman, 866 F.3d at 134.
24
Brown, 765 F.3d at 189 (citing Descamps, 570 U.S. at
261); Chapman, 866 F.3d at 134; see Mathis, 136 S. Ct. at
2251-52.

10
crime under the elements clause. But that outcome is dictated
by the categorical approach, which is concerned only with the
elements of the statute of conviction, not the specific offense
conduct of an offender.25 In fact, the categorical approach
requires courts not only to ignore the actual manner in which
the defendant committed the prior offense, but also to
presume that the defendant did so by engaging in no more
than “the minimum conduct criminalized by the state
statute.”26 This academic focus on a hypothetical offender’s
hypothetical conduct is not, however, an “invitation to apply
legal imagination” to the statute of conviction.27 Rather, there
must be legal authority establishing that there is “a realistic
probability, not a theoretical possibility, that the State would
apply its statute to conduct” falling outside of the Guidelines’
definition of a crime of violence.28

This elements-only analysis is confined to the statute
of conviction. If, however, that statute is “divisible,” a court
may resort to the “modified categorical approach.”29 Serving
as a tool that “merely helps implement the categorical
approach,” the modified categorical approach allows a court

25
Mathis, 136 S. Ct. at 2251-52; Taylor v. United States,
495 U.S. 575, 600 (1990).
26
Moncrieffe v. Holder, 569 U.S. 184, 191 (2013); see
Mathis, 136 S. Ct. at 2253 (explaining that the categorical
approach “treats such facts as irrelevant”).
27
Moncrieffe, 569 U.S. at 191 (internal quotation marks
omitted).
28
See id.
29
Descamps, 570 U.S. at 257, 262 (explaining that a statute
is divisible if it “comprises multiple, alternative versions of
the crime”).

11
to look beyond the statute of conviction for a limited purpose,
but “is not meant to supplement the categorical approach.”30
In the case of a “divisible” statute, the court may consult a
specific set of extra-statutory documents to identify the
specific statutory offense that provided the basis for the prior
conviction. These materials include the “charging document,
written plea agreement, transcript of plea colloquy, and any
explicit factual finding by the trial judge to which the
defendant assented.”31 This approach permits the court to
assess whether that offense categorically qualifies as a crime
of violence.32 While the modified categorical approach
allows courts to look beyond the text of a divisible statute for
that limited purpose, it does not permit courts to scour the
record to ascertain the factual conduct giving rise to the prior
conviction.33

II. Ramos Is a Career Offender Because His
Aggravated Assault Conviction Is Categorically a
Crime of Violence Under the Guidelines

In light of the foregoing legal framework, we can
resolve whether Ramos is a career offender by answering
three questions. Is Pennsylvania’s aggravated assault statute
divisible? If so, does the limited set of extra-statutory
materials that we may consult under the modified categorical

30
Robinson, 844 F.3d at 143 (internal quotation marks
omitted).
31
Brown, 765 F.3d at 189-90 (quoting Taylor, 495 U.S. at
602; Shepard v. United States, 544 U.S. 13, 16 (2005)).
32
Descamps, 570 U.S. at 263-64; see Mathis, 136 S. Ct. at
2256.
33
Mathis, 136 S. Ct. at 2253-54.

12
approach establish with certainty which subsection of
Pennsylvania’s aggravated assault statute provided the basis
for Ramos’s conviction? And, if so, does that specific
aggravated assault offense categorically qualify as a predicate
crime of violence under the Guidelines? Because we answer
each of those questions in the affirmative, we conclude that
Ramos is a career offender.
A. Pennsylvania’s Aggravated Assault Statute Is
Divisible

The presentence investigation reports (PSRs) state that,
in 1998, Ramos pled guilty in Pennsylvania court to
aggravated assault, without specifying the aggravated assault
offense that he committed.34 Accordingly, we must begin our
categorical analysis by examining the text of Pennsylvania’s
aggravated assault statute, 18 Pa. C.S. § 2702, which at the
time of Ramos’s guilty plea provided as follows:

(a) Offense defined.—A person is guilty of aggravated
assault if he:

(1) attempts to cause serious bodily injury to
another or causes such injury intentionally,
knowingly or recklessly under circumstances
manifesting extreme indifference to the value of
human life;

(2) attempts to cause or intentionally, knowingly
or recklessly causes serious bodily injury to any of
the officers agents, employees or other persons
enumerated in subsection (c) [listing twenty-six
protected classes of individuals, including police

34
2010 PSR & 2017 PSR ¶ 38.

13
 officers, firefighters, judges, prosecutors, and other
public officials], or to an employee of an agency,
company or other entity engaged in public
transportation, while in the performance of duty.

(3) attempts to cause or intentionally or
knowingly causes bodily injury to any of the
officers, agents, employees or other persons
enumerated in subsection (c), in the performance of
duty;

(4) attempts to cause or intentionally or
knowingly causes bodily injury to another with a
deadly weapon;

(5) attempts to cause or intentionally or
knowingly causes bodily injury to a teaching staff
member, school board member, or other employee
or student of [various educational institutions]; or

(6) attempts by physical menace to put any of the
officers, agents, employees or other persons
enumerated in subsection (c), while in the
performance of duty, in fear of imminent serious
bodily injury.35

35
18 Pa. C.S. § 2702(a)(1)-(6) (1998); see id. § 2301
(defining “Deadly weapon,” “Bodily injury,” and “Serious
bodily injury”); see also id. § 901(a) (defining “attempt”).
Because, “[u]nder the categorical approach, we look to the
elements of the statute as it existed at the time of the prior
conviction,” United States v. Dahl, 833 F.3d 345, 355 (3d Cir.

14
Under the statute’s grading provision, 18 Pa. C.S. § 2702(b),
convictions under subsections (a)(1) and (a)(2) are classified
as first-degree felonies, while convictions under subsections
(a)(3) through (a)(6) are second-degree felonies. Offenders
convicted of first-degree aggravated assault are subject to
lengthier maximum sentences than their counterparts
convicted of second-degree aggravated assault.36

The PSRs setting out Ramos’s criminal history state
only that he pled guilty to aggravated assault and therefore do
not enable us to discern the specific subsection of § 2702(a)
providing the basis for his guilty plea. If Pennsylvania’s
aggravated assault statute is divisible, however, we may apply
the modified categorical approach to fill that gap in the
record.37

A determination of a statute’s divisibility turns on the
distinction between “means” and “elements.” Elements are
the constituent parts of a criminal offense that a jury must
find beyond a reasonable doubt to convict; or, alternatively,
that a defendant necessarily admits when pleading guilty.38
Means, on the other hand, are merely the factual ways that a
criminal offense can be committed; they are “extraneous to

2016), we confine our analysis to the version of the statute in
effect in 1998.
36
18 Pa. C.S. § 1103(1)-(2) (allowing courts to sentence an
offender convicted of a first-degree felony to “not more than
20 years,” and an offender convicted of a second-degree
felony to “not more than ten years”).
37
See, e.g., Brown, 765 F.3d at 191.
38
Mathis, 136 S. Ct. at 2248, 2256; see Descamps, 570 U.S.
at 261-62.

15
the crime’s legal requirements” and thus “need neither be
found by a jury nor admitted by a defendant.”39 A divisible
statute sets out one or more elements in the alternative, most
often using disjunctive language to list multiple, alternative
criminal offenses.40 Each alternative offense listed in a
divisible statute must be proven beyond a reasonable doubt to
sustain a conviction. An indivisible statute, by comparison,
sets forth a single set of elements that define a single crime,
regardless of whether the statute lists separate factual means
of satisfying a particular element.41 The modified categorical
approach applies only to divisible statutes.

Pennsylvania’s aggravated assault statute, 18 Pa. C.S.
§ 2702, is divisible in two different ways. For one, the statute
proscribes two alternative degrees of aggravated assault,
which are subject to different maximum sentences.42 The
Supreme Court has held that where “statutory alternatives
carry different punishments then, under Apprendi, they must
be elements” (i.e., separate, divisible offenses), not means.43
That is because any fact that increases the penalty for a crime
(other than the fact of a prior conviction) must be submitted
to a jury.44 Pennsylvania’s aggravated assault statute sets out
divisible forms of aggravated assault: first- and second-

39
Mathis, 136 S. Ct. at 2248.
40
Descamps, 570 U.S. at 262.
41
Mathis, 136 S. Ct. at 2248-49.
42
18 Pa. C.S. §§ 1103(1)-(2), 2702(b).
43
Mathis, 136 S. Ct. at 2256 (citing Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000)).
44
Apprendi, 530 U.S. at 490.

16
degree aggravated assault.45 Moreover, the statute is further
divisible into four, alternative second-degree aggravated
assault offenses. Using disjunctive language, the statute lists
alternative “elements”—subsections (a)(3), (4), (5), and (6)—
not merely alternative factual means by which an offender
can commit the single, overarching crime of second-degree
aggravated assault.46 Put differently, each subsection of §
2702(a) criminalizes different conduct and sets forth different

45
The parties skip this initial step in the divisibility
analysis. They overlook the first-degree provisions of the
statute entirely and ask us to assume that Ramos was
convicted of second-degree aggravated assault—even though
the PSRs stated only that Ramos was convicted of
“aggravated assault.” 2010 PSR & 2017 PSR ¶ 38. From the
PSRs, we have no way of knowing whether Ramos was
convicted of first- or second-degree aggravated assault unless
we examine the bill of information and plea document, which
we can do only if the statute is divisible. By skipping this
step, the parties overlook that the modified categorical
approach applies here.
The fact that the aggravated assault statute is divisible
into first- and second-degree offenses alone would permit us
to review the bill of information and plea document to
determine the specific subsection of § 2702(a) to which
Ramos pled guilty. See United States v. Blair, 734 F.3d 218,
225-26 (3d Cir. 2013); see also Brown, 765 F.3d at 196.
46
See, e.g., Brown, 765 F.3d at 192 (holding that
Pennsylvania’s similarly disjunctive terroristic threats statute,
18 Pa. C.S. § 2706(a), is divisible).

17
(albeit overlapping) elements that must be proven beyond a
reasonable doubt.47

Ramos resists the application of the modified
categorical approach by citing two non-precedential state
court decisions, Commonwealth v. Cassell48 and
Commonwealth v. Moore.49 Ramos argues that these cases
stand for the proposition that § 2702(a) lists indivisible
means, not elements, because juries in Pennsylvania do not
need to agree unanimously on which subsection of the
second-degree aggravated assault statute has been violated.
We are not persuaded that these cases “definitively” answer
the question of divisibility.50, 51 To the contrary, various

47
See PENNSYLVANIA SUGGESTED STANDARD CRIMINAL
JURY INSTRUCTIONS §§ 15.2702A-15.2702L (Pa. Bar. Inst.,
3d ed. 2016) (listing the elements of each of the separate
offenses listed in § 2702(a) and instructing that the jury “must
find that each of [those] elements has been proven beyond a
reasonable doubt”).
48
No. 1300 EDA 2015, 2016 WL 6135379 (Pa. Super. Oct.
21, 2016).
49
No. 1247 EDA 2013, 2015 WL 7078781 (Pa. Super. June
4, 2015).
50
These cases stand only for the long-standing rule that
Pennsylvania courts will not overturn a guilty verdict based
on a flawed (or imprecise) criminal information that
nonetheless provided the defendant with sufficient notice of
the nature of the charges. See, e.g., Commonwealth v. Jones,
912 A.3d 268, 289 (Pa. 2006). Neither decision can be read
as tacit approval of the imprecision in the underlying charging
documents.

18
Pennsylvania authorities establish that § 2702(a) lists
divisible aggravated assault offenses in the alternative, not
merely alternative means of committing aggravated assault.52
We conclude that § 2702(a) is divisible. Thus, we will
apply the modified categorical approach.

B. Ramos Pled Guilty to Second-Degree
Aggravated Assault with a Deadly Weapon, in
Violation of 18 Pa. C.S. § 2702(a)(4)

The defining feature of the modified categorical
approach is that it allows courts to consult certain extra-
statutory materials for the limited purpose of identifying the
offense of conviction—here, the specific subsection of §
2702(a) that provided the basis for Ramos’s guilty plea.
These materials must establish the offense of conviction with
“certainty.”53

51
See United States v. Henderson, 841 F.3d 623, 628 (3d
Cir. 2016).
52
See, e.g., PENNSYLVANIA SUGGESTED STANDARD
CRIMINAL JURY INSTRUCTIONS §§ 15.2702A-15.2702L;
Commonwealth v. Rhoads, 8 A.3d 912, 918 (Pa. Super. 2010)
(concluding that the offenses listed in § 2702(a)(1) and (a)(4)
do “not share identical statutory elements” because the latter
requires proving that the offender caused injury or attempted
to cause injury “with a deadly weapon” (citing
Commonwealth v. Ferrari, 593 A.2d 846, 848-49 (Pa. Super.
1991)); Commonwealth. v. Taylor, 500 A.2d 110, 114 (Pa.
Super. 1985) (“[T]he proof required for subsection (a)(1) and
subsection (a)(4) [of § 2702] is substantially different . . ..”).
53
Henderson, 841 F.3d at 631-32 (citing Mathis, 136 S. Ct.
at 2257).

19
 Despite Ramos’s efforts to inject ambiguity into the
record, the charging and plea documents plainly establish that
he pled guilty to second-degree aggravated assault with a
deadly weapon, in violation of § 2702(a)(4). The bill of
information charges Ramos with two offenses: first-degree
aggravated assault, in violation of § 2702(a)(1); and second-
degree aggravated assault, in violation of § 2702(a)(4).54 The
information cites these specific subsections of the statute and
sets out the charges using the exact language of those
provisions. The plea document states, “Guilty as F2,” which
in widely understood prosecutorial parlance means that
Ramos pled guilty to a second-degree felony.55 Viewing both
documents in tandem, then, we are left with only one
conclusion: Ramos pled guilty to the only second-degree
felony with which he was charged, namely, second-degree
aggravated assault with a deadly weapon, in violation of
§ 2702(a)(4).

C. Second-Degree Aggravated Assault with a
Deadly Weapon, in Violation of § 2702(a)(4), Is
a Crime of Violence Under the Elements Clause

Having identified the offense of conviction, we
examine the elements of that offense to determine whether it
categorically qualifies as a predicate crime of violence. We

54
Supp. App. 7. The criminal information further clarifies
that the “deadly weapon” used during the commission of the
§ 2702(a)(4) offense was “a brick.” Id.
55
Supp. App. 6; see generally Commonwealth v. Spruill, 80
A.3d 453, 455 (Pa. 2013) (explaining that “F1s” are first-
degree felonies and “F2s” are second-degree felonies).

20
now hold that a § 2702(a)(4) conviction is categorically a
crime of violence under the elements clause of the
Guidelines.

The elements clause defines the term “crime of
violence” to encompass any state offense that “has as an
element the use, attempted use, or threatened use of physical
force against the person of another.”56 The phrase “physical
force,” according to the Supreme Court, “refers to force
exerted by and through concrete bodies” that is “capable of
causing physical pain or injury to another person.”57
Accordingly, a crime is a violent one under the elements
clause so long as it has an element that can be satisfied only
through the use, threatened use, or attempted use of force
against another person that is capable of causing that person
physical pain or injury.58 That remains true regardless of
whether an offender could be convicted under the statute for
applying force directly (e.g., hitting a victim with a bat) or
applying force indirectly (e.g., throwing a brick at a victim).59

56
U.S.S.G. § 4B1.2(a)(1). Additionally, any offense must
be a felony “punishable by imprisonment for a term
exceeding one year” to qualify as a “crime of violence.” Id. It
is undisputed, however, that § 2702(a)(4) is a second-degree
felony offense subject to a maximum term of imprisonment of
ten years. See 18 Pa. C.S. §§ 1103, 2702(b).
57
Johnson v. United States (Johnson I), 559 U.S. 133, 138-
40 (2010); see Castleman, 134 S. Ct. at 1410.
58
See Johnson I, 559 U.S. at 138-43; see also Castleman,
134 S. Ct. at 1412 (“Minor uses of force may not constitute
‘violence’ in the generic sense.”).
59
Chapman, 866 F.3d at 132-33.

21
 Armed with that interpretation of the elements clause,
we can examine the text of § 2702(a)(4) and readily conclude
that second-degree aggravated assault with a deadly weapon
categorically involves the use or attempted use of physical
force. Section § 2702(a)(4) criminalizes “attempt[ing] to
cause or intentionally or knowingly caus[ing] bodily injury to
another with a deadly weapon.”60 “Bodily injury” is
statutorily defined as “[i]mpairment of physical condition or
substantial pain.”61 And “deadly weapon” is defined to
include any firearm, device “designed as a weapon and
capable of producing death or seriously bodily injury,” or
device or instrument used in a manner “calculated or likely to
produce death or serious bodily injury.”62 Taken together, the
“minimum conduct” sufficient to sustain a § 2702(a)(4)
conviction is an attempt to cause another person to experience
substantial pain with a device capable of causing serious
bodily injury.63 As a practical and legal matter, an offender
can do so only by attempting to use physical force against
another person.64 Because § 2702(a)(4) categorically has

60
18 Pa. C.S. § 2702(a)(4); see also id. § 901 (defining
“criminal attempt”).
61
Id. § 2301.
62
Id.
63
PENNSYLVANIA SUGGESTED STANDARD CRIMINAL JURY
INSTRUCTIONS §§ 15.2702E-15.2702F (Pa. Bar. Inst., 3d ed.
2016); see Moncrieffe, 569 U.S. at 191 (requiring courts to
assume the conviction rested on the “minimum conduct
criminalized by the state statute”).
64
Chapman, 866 F.3d at 133; see Castleman, 134 S. Ct. at
1416-17 (Scalia, J., concurring) (“It is impossible to cause
bodily injury without using force ‘capable of’ producing that
result.” (quoting Johnson I, 559 U.S. at 140)).

22
“physical force” as an element, a prior § 2702(a)(4)
conviction is a crime of violence.

This conclusion is dictated by the Supreme Court’s
recent decision in United States v. Castleman—a case
involving statutory language that is identical (in relevant part)
to the language at issue here. There, the defendant pled guilty
to “having ‘intentionally or knowingly cause[d] bodily injury’
to the mother of his child.”65 The question on appeal, as here,
was whether that conviction “necessarily had, as an element,
the use or attempted use of physical force.”66 Answering that
question in the affirmative, the Supreme Court explained that
a conviction under a statute proscribing “the knowing or
intentional causation of bodily injury” is a conviction that
“necessarily involves the use of physical force.”67 That
analysis establishes here that second-degree aggravated
assault with a deadly weapon, which similarly requires
proving the attempted, knowing, or intentional causation of
bodily injury, is categorically a violent crime.

In response, Ramos relies on Commonwealth v.
Thomas to argue that aggravated assault under Pennsylvania
law does not necessarily involve the use, threatened use, or
attempted use of force.68 In Thomas, the defendant starved
her four-year-old son to death and was subsequently
convicted of first-degree aggravated assault, in violation of

65
Castleman, 134 S. Ct. at 1409.
66
Id. at 1413-14 (internal quotation marks omitted).
67
Id. at 1414 (emphasis added); see Chapman, 866 F.3d at
133 (applying the Castleman standard when determining if a
defendant is a career offender under the Guidelines).
68
867 A.2d 594 (Pa. Super. 2005).

23
§ 2702(a)(1). In denying her challenge to the sufficiency of
the evidence supporting her conviction, the Superior Court
observed that “evidence of the use of force or the threat of
force is not an element of the crime of aggravated assault.”69
Focusing on that quote and the defendant’s offense conduct in
Thomas, Ramos argues that his conviction is not a crime of
violence because the aggravated assault statute allows for
conviction based merely on inaction (e.g., child neglect), and
thus does not require any affirmative act of physical force.
But there is a fatal flaw in that reasoning: Thomas has no
bearing on the issue of whether second-degree aggravated
assault with a deadly weapon is a crime of violence because
Thomas addressed only a conviction for first-degree
aggravated assault under § 2702(a)(1)—a wholly separate
criminal offense containing materially different elements than
the offense at issue here.70 Ramos cites no authorities
establishing that an offender’s inaction alone would be
sufficient to sustain a § 2702(a)(4) conviction. And it is
nearly impossible to conceive of a scenario in which a person
could knowingly or intentionally injure, or attempt to injure,

69
Thomas, 867 A.2d at 597.
70
Id.; see Rhoads, 8 A.3d at 918. Unlike § 2702(a)(4), the
first-degree aggravated assault provision at issue in Thomas
does not require the use of a deadly weapon and allows for
conviction where a person, inter alia, “attempts to cause
serious bodily injury to another, or causes such injury . . .
recklessly under the circumstances manifesting extreme
indifference to the value of human life.” 18 Pa. C.S.
§ 2702(a)(1) (emphasis added).

24
another person with a deadly weapon without engaging in at
least some affirmative, forceful conduct.71

For these reasons, we conclude that Ramos’s prior
conviction for second-degree aggravated assault with a deadly
weapon, in violation of 18 Pa. C.S. § 2702(a)(4), is
categorically a crime of violence under the elements clause of
the Guidelines.
D. Ramos Is a Career Offender Under the
Guidelines

The foregoing analysis establishes that the District
Court erred by concluding that Ramos was not a career
offender under Section 4B1.1 of the Guidelines—a
conclusion that resulted in a miscalculation of Ramos’s
advisory Guidelines range.72 The parties agree that Ramos’s
1999 drug conviction is a predicate controlled substance
offense, and we have concluded that Ramos’s prior
aggravated assault conviction is a predicate crime of violence.
Ramos therefore should have been designated a career
offender for sentencing purposes.

CONCLUSION

71
Moncrieffe, 569 U.S. at 191 (admonishing that the
categorical approach is not an “invitation to use legal
imagination” (internal quotation marks omitted)).
72
Compare U.S.S.G. § 4B1.1(b) (providing that a “career
offender’s criminal history category in every case . . . shall be
Category VI”), with App. 63 (determining at sentencing that
Ramos had a Category IV criminal history).

25
 The U.S. Sentencing Commission has concluded that
offenders with at least two drug or violent felony convictions
should be subject to sentences that reflect the seriousness of
their past criminal conduct. Although faithful application of
the categorical approach at times results in outcomes that
frustrate this policy objective,73 our holding today does not:
Ramos is a career offender because his prior conviction for
second-degree aggravated assault with a deadly weapon, in
violation of 18 Pa. C.S. § 2702(a)(4), is categorically a
predicate crime of violence. Because the District Court’s
calculation of Ramos’s advisory Guidelines range did not
reflect his career-offender status, we will vacate the judgment
of sentence and remand for resentencing.

73
See e.g., Mathis, 136 S. Ct. at 2258 (Kennedy, J.,
concurring) (explaining that the court’s holding is “a stark
illustration of the arbitrary and inequitable results produced
by applying an elements based approach to this sentencing
scheme”); Chapman, 866 F.3d at 134 (Jordan, J., concurring)
(critiquing this aspect of the categorical approach); United
States v. Faust, 853 F.3d 39 (1st Cir. 2017) (Lynch, J.,
concurring) (same); United States v. Parnell, 818 F.3d 974,
982-83 (9th Cir. 2016) (Watford, J., concurring) (similar).

26