United States v. Mahone

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 10-2305
_____________

UNITED STATES OF AMERICA

v.

DENORRIS MAHONE,
Appellant

____________

On Appeal from the United States District Court
for the Western District of Pennsylvania
District Court No. 2-08-CR-00180-001
District Judge: The Honorable Gustave Diamond
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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
March 24, 2011

Before: FUENTES, SMITH, and GREENBERG,
Circuit Judges

(Filed: November 1, 2011)
1
Robert L. Eberhardt
Rebecca R. Haywood
Laura S. Irwin
Kelly R. Labby
Office of the United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219-0000
Counsel for Appellee

Elisa A. Long
Office of the Federal Public Defender
1001 Liberty Avenue
1500 Liberty Center
Pittsburgh, PA 15222-0000
Counsel for Appellant
_____________________

OPINION
_____________________

SMITH, Circuit Judge.

This appeal requires that we determine whether
Denorris Mahone‟s conviction for making terroristic threats
under § 2706 of Title 18 of the Pennsylvania Crimes Code
constitutes a “crime of violence” under United States
Sentencing Guideline (U.S.S.G.) § 2K2.1(a)(2). We
conclude, based on the record before us, that Mahone‟s
conviction qualifies as a crime of violence. For that reason,

2
we will affirm the judgment of the United States District
Court.

I.

Mahone pleaded guilty to being a felon in possession
of a firearm in violation of 18 U.S.C. § 922(g)(1). A
probation officer prepared a presentence report, which
determined that Mahone‟s base offense level under U.S.S.G.
§ 2K2.1(a)(2) was 24 because he had “at least two felony
convictions of either a crime of violence [(COV)] or a
controlled substance offense.” Mahone objected. He
acknowledged that he had a prior conviction for a controlled
substance offense. But he asserted that his base offense level
should have been only 20 because his 1994 conviction under
Pennsylvania law for making terroristic threats in violation of
18 Pa. Cons. Stat. § 2706 did not qualify as a COV.

Prior to sentencing, the District Court issued a
memorandum order and tentative findings and rulings. It
concluded that Mahone‟s terroristic threats conviction
qualified as a COV for purposes of U.S.S.G. § 2K2.1(a)(2).
Thereafter, it sentenced Mahone to a within-guideline
sentence of 80 months of imprisonment, followed by a three

3
year term of supervised release. This timely appeal
followed.1

II.

Mahone pleaded guilty to violating 18 U.S.C. §
922(g)(1). Appendix A to the Sentencing Guidelines
specifies that § 2K2.1 governs the computation of the offense
level for § 922(g)(1) offenses. Guideline 2K2.1(a)(2)
provides that the base offense level is “24, if the defendant
committed any part of the instant offense subsequent to
sustaining at least two felony convictions of either a [COV]
or a controlled substance offense[.]” The Commentary to §
2K2.1 instructs that COV “has the meaning given that term in
§ 4B1.2(a) and Application Note 1” to that guideline.
U.S.S.G. § 2K2.1, cmt. n.1. Section 4B1.2 of the Sentencing
Guidelines defines the term COV as, inter alia, “any offense .
. . that - (1) has as an element the use, attempted use, or

1
The District Court had jurisdiction under 18 U.S.C. § 3231.
We exercise appellate jurisdiction under 28 U.S.C. § 1291
and 18 U.S.C. § 3742(a). We exercise plenary review of the
District Court‟s determination that Mahone‟s conviction for
making terroristic threats constituted a COV under U.S.S.G.
§ 2K2.1(a)(2). United States v. Stinson, 592 F.3d 460, 462
n.1 (3d Cir. 2010).

4
threatened use of physical force against the person of
another[.]”2 U.S.S.G. § 4B1.2(a)(1).

In resolving the question of whether making terroristic
threats in violation of 18 Pa. Cons. Stat. § 2706 satisfies the
definition of COV in U.S.S.G. § 4B1.2(a)(1), we must
employ the “formal categorical approach” applied by the
Supreme Court in Taylor v. United States, 495 U.S. 575
1990).3 This approach mandates that we look “only to the

2
A prior conviction will not qualify as a COV under
U.S.S.G. § 4B1.2(a) unless it is a federal or state offense
“punishable by imprisonment for a term exceeding one year.”
U.S.S.G. § 4B1.2(a). That requirement is not in dispute here.
3
The definition of COV in U.S.S.G. § 4B1.2(a)(1) is the
same as the definition of “violent felony” in the Armed
Career Criminal Act (ACCA), 18 U.S.C. §924(e)(2)(B)(i).
The guidelines definition of COV in § 4B1.2(a)(1) is also the
same as the definition of COV in 18 U.S.C. §§ 16(a) and §
924(c)(3), except that those sections encompass crimes
involving a use of force against the “property of another,” not
just crimes against the person of another. As a result,
“authority interpreting one [of these other statutory
provisions] is generally applied to the other[.]” United States
v. Hopkins, 577 F.3d 507, 511 (3d Cir. 2009); see also United
States v. Polk, 577 F.3d 515, 519 n.1 (3d Cir. 2009)
(observing that the Supreme Court has treated the definitions
of “violent felony” in the ACCA and “crime of violence”
under the “Career Offender Guidelines” as “close enough that
5
statutory definition[] of the prior offense[], and not to the
particular facts underlying” that conviction. Id. at 600. Our
inquiry focuses on the “elements and the nature of the offense
of conviction,” not the details of the crime actually
committed. Leocal v. Ashcroft, 543 U.S. 1, 7 (2004).

The offense of making terroristic threats is set forth in
18 Pa. Cons. Stat. § 2706. In 1994, when Mahone pleaded
guilty to violating § 2706, the statute made it unlawful for a
person to

threaten[] to commit any crime of violence with
intent to terrorize another or to cause evacuation
of a building, place of assembly, or facility of
public transportation, or otherwise to cause
serious public inconvenience, or in reckless
disregard of the risk of causing such terror or
inconvenience.

18 Pa. Cons. Stat. § 2706 (1972).4

precedent under the former must be considered in dealing
with the latter”).
4
The federal sentencing guideline § 4B1.2(a)(1) and
Pennsylvania statute 18 Pa. Cons. Stat. § 2706 both contain
the term “crime of violence.” We use the acronym COV to
refer to the federal sentencing guideline enhancement. In
discussing the components of the Pennsylvania offense of
making terroristic threats, we refer to “crime of violence”
without abbreviation.
6
 Like the offense of burglary in Taylor, 495 U.S. at
599, the statutory offense of making terroristic threats in §
2706 is broader than the definition of COV in § 4B1.2(a)(1).
Section 2706 encompasses some crimes that could be
committed by using, attempting to use, or threatening to use
“physical force against the person of another,” as well as
against another person‟s property. A property offense,
however, does not qualify as a COV for purposes of the
sentencing guidelines. As a result, it cannot be said that the
offense of making terroristic threats under § 2706
categorically qualifies as a COV under § 4B1.2(a)(1).

Our inquiry does not end at this point, however, for
there are two exceptions to the formal categorical approach.
In Singh v. Ashcroft, we explained that the first exception
applies when the terms of the federal statute enumerating
categories of crimes, which warrant application of the
sentencing enhancement, “invite inquiry” into the
circumstances surrounding the conviction at issue. 383 F.3d
144, 161 (3d Cir. 2004); see Nijhawan v. Holder, 129 S.Ct.
2294, 2301 (2009) (recognizing that some statutes require
application of a “circumstance specific approach”). The
second exception arises when the “statute of conviction” is
“phrased in the disjunctive,” Singh, 383 F.3d at 162, and it is
unclear “what elements formed the basis for a defendant‟s
underlying conviction.” Evanson v. Attorney Gen., 550 F.3d
284, 291 (3d Cir. 2008). “Statutes phrased in the disjunctive
are akin to, and can be readily converted to, statutes
structured in outline form, with a series of numbered or letter
elements.” Id. The “disjunctive wording or outline
formatting” presents either (1) separate subsections that

7
describe distinct offenses with distinct punishments, id., or (2)
“alternate types of conduct” or “variations of the same
offense, with no difference in punishment.” Id.; see also
Garcia v. Attorney Gen., 462 F.3d 287, 293 n.9 (3d Cir.
2006).

When the enumerating statute invites inquiry or the
statute of conviction is phrased in the disjunctive, the
sentencing court applies a modified approach, rather than the
formal categorical approach. Taylor, 474 U.S. at 602. This
modified approach permits a court to look “beyond the mere
fact of conviction,” Taylor 495 U.S. at 602, in order to
determine which statutory variation was the basis for the
conviction. Johnson v. United States, __ U.S. __, 130 S. Ct.
1265, 1273 (2010). If the prior conviction was the result of a
guilty plea, as it was in Mahone‟s case, this modified
categorical approach allows the court to examine the
charging document, the terms of a plea agreement, or the
transcript of a plea colloquy to determine whether a
defendant‟s “plea of guilty [to an offense]. . . necessarily
admitted elements” which constitute a COV under U.S.S.G.
§ 4B1.2(a)(1). Shepard v. United States, 544 U.S. 13, 26
(2005).

In this case, the exception for disjunctive statutes of
conviction applies. In 1998, the Pennsylvania Legislature
amended § 2706, placing the original definition of the offense
of making terroristic threats in subsection (a) and adding
subsections (b) and (c), which pertained to restitution and the
preservation of private remedies. Pub. L. 534, No. 76 § 1
(June 18, 1998). The following year, § 2706 was further
amended by breaking the substantive description of the
8
offensive conduct in subsection (a) into numbered parts, i.e.,
an outline. See Pub. L. 915, No. 59, § 2 (Dec. 15, 1999). As
amended, § 2706(a) provides:

(a) Offense defined.--A person commits the
crime of terroristic threats if the person
communicates, either directly or indirectly, a
threat to:

(1) commit any crime of violence
with intent to terrorize another;

(2) cause evacuation of a building,
place of assembly or facility of
public transportation; or

(3) otherwise cause serious public
inconvenience, or cause terror or
serious public inconvenience with
reckless disregard of the risk of
causing such terror or
inconvenience.

18 Pa. Cons. Stat. § 2706(a) (1999). We conclude that the
Pennsylvania Legislature‟s division of the 1972 statute into
numbered sections in the 1999 amendment reflects that
§ 2706 was divisible, describing three variations of the same
offense.

Because the version of § 2706 that existed in 1994 at
the time of Mahone‟s conviction could be converted into an
outline form, our “next step . . . is to determine whether a

9
violation of some of those sections, but not others, would
constitute” a COV. Joseph v. Attorney Gen., 465 F.3d 123,
128 (3d Cir. 2006). Viewed in outline form, it is only
§ 2706(a)(1) which might qualify as a COV under federal law
as it is the only variation that requires at a minimum the
“threatened use of physical force against the person of
another.” See U.S.S.G. § 4B1.2(a)(1) (emphasis added); see
also United States v. Ortiz-Gomez, 562 F.3d 683, 685 (5th
Cir. 2009) (noting that it “is apparent from [the statute‟s] face
that one or more of those offenses do not have as an element
the . . . threatened use of physical force against the person of
another”). Parts (2) and (3) of subsection (a) of the
Pennsylvania statute could be proven by establishing that
there was a threat to use force against the property of another,
as opposed to the “person of another.” Furthermore,
§ 2706(a)(1) is the only subpart that would always require a
showing of intentional conduct as opposed to reckless or
negligent conduct, which would be insufficient to establish
the intent necessary for a COV. See Singh v. Gonzales, 432
F.3d 533, 539 (3d Cir. 2005) (explaining that the “use of
force” component for a COV under § 16(a), which is similar
to U.S.S.G. § 4B1.2(a)(1), “requires specific intent” and that
“mere recklessness is insufficient”) (citing Tran v. Gonzales,
414 F.3d 464, 470 (3d Cir. 2005)); United States v. Otero,
502 F.3d 331, 335 (3d Cir. 2007) (reiterating that categorical
crimes of violence require intentional conduct “against
another rather than reckless or grossly negligent conduct”).

We cannot conclude at this step in our analysis that the
statutory variation in § 2706(a)(1) categorically qualifies as a
COV under U.S.S.G. § 4B1.2(a)(1) because this variation of

10
the statute contains the undefined term “crime of violence.”
18 Pa. Cons. Stat. § 2706(a)(1); see Bovkun v. Ashcroft, 283
F.3d 166, 170 (3d Cir. 2002) (observing that the
“Pennsylvania Legislature has not defined the meaning of the
term „crime of violence‟ as it is used in Section 2706”).5
Because the state statute invites inquiry into the criminal
offense Mahone threatened to commit, we must again apply
the modified categorical approach to determine what was the
underlying crime of violence. Singh, 383 F.3d at 161.

5
We recognize that we determined in Bovkun that the crime
of making terroristic threats in violation of 18 Pa. Cons. Stat.
§ 2706 qualified as an aggravated felony under 8 U.S.C.
§ 1101(a)(43) because it was a COV under 18 U.S.C. § 16.
283 F.3d at 170. There, we noted that § 2706, the state statute
of conviction, had subsequently been amended and
subdivided into subsections (1) – (3). 283 F.3d at 169 n.4.
This amendment did not change our analysis, we explained,
because the threat to commit a crime of violence had to be
shown in every case.
Bovkun is not controlling here as it preceded our
decision in Singh, 383 F.3d at 162, which explained how to
properly analyze a divisible statute. Furthermore, the
definition of COV in § 16 of the Federal Crimes Code
includes not only offenses that have as an element the use of
physical force against another person, but also against the
property of another. Thus, crimes of violence under § 16
sweep more broadly than the COV definition in U.S.S.G.
§ 4B1.2(a)(1). Our analysis is limited to crimes involving the
use of physical force against the person of another.
11
 In Ortiz-Gomez, the Fifth Circuit considered whether
the District Court erred by concluding that the defendant‟s
prior conviction for making terroristic threats in violation of
Pennsylvania‟s statute, 18 Pa. Cons. Stat. § 2706, qualified as
a COV. 562 F.3d at 683. The Fifth Circuit determined that §
2706(a)(1) was the basis for the defendant‟s conviction. It
recognized, however, that it had to look further to determine
the predicate crime of violence that the defendant had
threatened to commit. 562 F.3d at 685. The charging
document and the plea/sentence form, however, did not
specify the predicate crime of violence that Ortiz-Gomez
threatened to commit. Because the term “crime of violence”
in § 2706 was undefined, the Court considered a definition of
this phrase set forth in another Pennsylvania criminal statute,
which listed several “crimes of violence,” including arson.
Id. at 685-86 (citing 42 Pa. Cons. Stat. § 9714(g)). Because
the offense of arson could be proven “regardless of whether a
person is present,” the Court reasoned that arson does not
have as an element the threatened use of physical force
against a person, which is required for a COV under the
sentencing guidelines. Id. at 686. Accordingly, the Court
concluded that “a conviction for terroristic threats under
section 2706(a)(1) that does not specify the predicate
offense,” does not qualify as a COV under the sentencing
guideline at issue. Id. Consistent with this conclusion, the
Court vacated Ortiz-Gomez‟s sentence, which had been
enhanced erroneously on the basis that his Pennsylvania state
conviction for making terroristic threats under § 2706 was a
COV, and remanded for resentencing.

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 Consistent with Shepard‟s instruction, we consider the
charging document and the guilty plea colloquy, 544 U.S. at
26, to determine the “specific part of [§ 2706] to which
[Mahone] in fact pled guilty,” United States v. Johnson, 587
F.3d 203, 209 (3d Cir. 2009), and, if that part was subsection
(a)(1), to ascertain whether there was any specification of the
predicate crime of violence. Unlike the charging documents
in Ortiz-Gomez, which did not specify the predicate offense,
Count 1 of Mahone‟s charging document stated: “The actor
threatened to commit the violent crime of criminal homicide
with intent to terrorize D. Connolly in violation of Section
2706 of the Pennsylvania Crimes Code, Act of December 6,
1972, 18 PA. C. S. § 2706.” The plea colloquy for this
offense contains a factual recitation by the prosecutor, which
indicates that D. Connolly was a Pittsburgh Police Officer
who responded to a domestic dispute. Mahone resisted arrest.
Once subdued, he “threatened to kill the officers, specifically,
Officer Connolly, when he got out of jail.” The Court asked
Mahone whether, having heard the evidence that was
introduced against him, he was “pleading guilty because you
are guilty?” Mahone responded: “Yes, I am.”

These materials demonstrate that Mahone‟s guilty plea
was to the variation of the statute codified in § 2706(a)(1),
which, depending on the predicate offense, may constitute a
COV under U.S.S.G. § 4B1.2(a)(1). Furthermore, Mahone‟s
charging document specified that the predicate “crime of
violence” was “criminal homicide,” which is defined in 18
Pa. Cons. Stat. § 2501. That statutory provision states that
“[a] person is guilty of criminal homicide if he intentionally,

13
knowingly, recklessly or negligently causes the death of
another human being.” Id. (emphasis added).

Citing the disjunctive nature of § 2501, Mahone
contends that the offense of criminal homicide cannot qualify
as a COV because it could be proven by either reckless or
negligent conduct, neither of which would satisfy the mens
rea required for a COV. Superficially, this argument may
seem to have some merit. But we conclude that the only
variations of the criminal homicide statute that could serve as
the predicate crime of violence for purposes of § 2706 is the
act of intentionally or knowingly causing the death of
another. This is so because a person cannot threaten to
terrorize another with a reckless act. See Knapik v. Ashcroft,
384 F.3d 84, 91 (3d Cir. 2004) (explaining that “[a] person
cannot intend to commit a criminally reckless act. He or she
either acts recklessly or does not.”). Similarly, a person
cannot threaten to terrorize another with subsequent negligent
conduct. See Otero, 502 F.3d at 335 (reiterating that a
categorical COV requires intentional conduct and that grossly
negligent conduct cannot be a basis for a COV). In short, it is
oxymoronic to suggest that one can intend to threaten another
with an unintentional act.

Having determined that neither recklessly nor
negligently causing the death of another may constitute the
predicate offense of criminal homicide necessary for a
conviction for making terroristic threats under § 2706(a)(1),
there remains one issue for our determination. Does the
predicate offense of criminal homicide by intentionally and
knowingly causing the death of another have as an element
the “use, attempted use or threatened use of physical force . . .
14
against the person of another” that is required for a COV
under U.S.S.G. § 4B1.2(a)(1)? In considering this, we find
the Supreme Court‟s decision in Johnson instructive. 130 S.
Ct. at 1265. There, the Court had to determine whether the
mere intentional touching of another person, which would be
sufficient to constitute a technical battery under Florida state
law, was a “violent felony” for purposes of the ACCA. The
Court declared that in the “context of a statutory definition of
„violent felony,‟ the phrase „physical force‟ means violent
force – that is, force capable of causing physical pain or
injury to another person.”6 130 S. Ct. at 1271. We conclude
that threatening to use force that is capable of causing the
death of another satisfies the “physical force” element
necessary for a COV under U.S.S.G. § 4B1.2(a)(1).

To recap, application of the formal categorical
approach demonstrated that the offense of making terroristic
threats in violation of 18 Pa. Cons. Stat. § 2706 is broader
than the definition of COV under U.S.S.G. § 4B1.2(a)(1).
Because § 2706 is phrased in the disjunctive, we applied the
modified categorical approach, outlining § 2706 to determine
if there was a variation that could constitute a COV. We
concluded that there may be such a variation if the conviction
is threatening to commit a crime of violence with intent to
terrorize another person. We recognized, however, that a

6
As noted above, supra note 3, the ACCA definition of
“violent felony” requires, like the guideline at issue here, that
the conviction “has as an element the use, attempted use, or
threatened use of physical force against the person of
another.” 18 U.S.C. § 924(e)(2)(b)(i).
15
modified approach must also be employed to determine
whether the underlying state crime of violence could satisfy
the requirements for a federal COV. Employing this
modified approach to the predicate offense of criminal
homicide in § 2501, we concluded that Mahone‟s charging
document and his plea colloquy demonstrated that his
conviction under § 2706 for threatening to commit criminal
homicide constituted a COV under U.S.S.G. § 4B1.2(a)(1)
because it always “has as an element the . . . threatened use of
physical force against the person of another[.]”

For the above stated reasons, we will affirm the
judgment of the District Court.

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