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UNITED STATES OF AMERICA v. JESSE CAREY
Case Number: 20-2723
Judge: Peter J. Phipps
Court: UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Philadelphia, PA - Criminal defense lawyer represented defendant with two federal drug offenses.
Carey’s two federal convictions in the District Court relate to drug-dealing activity
in Northeast Pennsylvania. See 18 U.S.C. § 3231 (conferring district courts with original
jurisdiction over cases arising under federal criminal law).
For the first of those convictions, Carey found the police as much as they found
him. While officers were executing a search warrant on Carey’s home in Plymouth,
Pennsylvania, Carey drove a purple Nissan Maxima into the driveway, only to reverse in
a failed attempt to flee. Upon detaining him, police searched Carey and his vehicle,3
discovering heroin, cocaine, marijuana, $2,086 in cash, drug paraphernalia, and three
A few months later, Carey committed another federal drug crime. As he
attempted to enter Mount Airy Casino, Carey produced an identification that casino
security personnel doubted. As they began to escort him to the security office, Carey
pushed a security officer to get away, but he was taken down. In that scuffle, a black
sock containing baggies of cocaine and heroin fell from his pocket. A later search of
Carey’s person yielded a digital scale, $9,777 in cash, two cellphones, and a fraudulent
United States passport.
Based on those events, a federal grand jury in Scranton returned a superseding
indictment against Carey for two counts of possession with intent to distribute narcotics
in violation of 21 U.S.C. § 841(a)(1). Through an open plea, Carey pleaded guilty to
both counts. The Presentence Investigation Report recommended a Sentencing
Guidelines range of 30 to 37 months’ imprisonment based on an offense level of 12 and a
Category VI criminal history. Carey’s Category VI criminal history – the highest
category – reflected several prior adult criminal convictions. Some of those were
violations of New Jersey law: for manufacturing and distributing cocaine; unlawful
possession of a handgun; possession or use of a controlled substance; theft; and
aggravated assault of a correctional officer. Others were offenses under Pennsylvania
law: for third-degree robbery and escape from work release. 4
Two of Carey’s prior state convictions caught the Government’s attention. Those
were his prior New Jersey conviction for manufacturing and distributing cocaine and his
third-degree Pennsylvania robbery conviction. The Government asserted that
manufacturing and distributing cocaine, in violation of New Jersey law, constitutes a
controlled-substance offense under the Guidelines. See U.S.S.G. § 4B1.2(b). It similarly
viewed third-degree Pennsylvania robbery as a crime of violence under the Guidelines.
See id. § 4B1.2(a). Based on that assessment of those two prior offenses, the
Government argued that Carey should be sentenced as a career offender – a designation
that would increase his sentence to a Guidelines range between 168 and 210 months’
imprisonment. Carey did not contest the New Jersey conviction as a controlled-substance
offense, but he disputed that third-degree Pennsylvania robbery constitutes a crime of
The District Court determined that third-degree Pennsylvania robbery constitutes a
crime of violence under the Guidelines. It reached that conclusion by analyzing thirddegree Pennsylvania robbery under both the elements clause and the enumerated-offense
clause of the crime-of-violence Guidelines provision. See U.S.S.G. § 4B1.2(a)(1)
(elements clause); id. § 4B1.2(a)(2) (enumerated-offense clause). With that
understanding, the District Court used the higher Guidelines range as the baseline but
then varied downward because Carey was a low-level drug dealer rather than a kingpin.
Ultimately, Carey received a below-Guidelines prison sentence of 144 months, which he
timely appealed. See 28 U.S.C. § 1291; 18 U.S.C. § 3742.5
The Guidelines impose three requirements for career-offender status. See
U.S.S.G. § 4B1.1. The first two are not in dispute here: Carey was eighteen at the time of
his current convictions, and his current convictions were each for a “controlled substance
offense,” which is one way of satisfying the second career-offender element. Id.
§ 4B1.1(a). The third element requires at least two prior felony convictions that each
qualify as either a controlled-substance offense or a crime of violence. See id. On
appeal, Carey does not challenge that his prior felony conviction for manufacturing and
distributing cocaine in violation of New Jersey law constitutes a controlled-substance
offense. But he argues that his prior Pennsylvania conviction for third-degree robbery is
not a crime of violence under the Guidelines.
On this record, Carey’s status as a career offender hinges on whether third-degree
Pennsylvania robbery satisfies either the elements clause or the enumerated-offense
clause of the crime-of-violence Guidelines provision. See U.S.S.G. § 4B1.2(a). Looking
only at the enumerated-offense clause, Carey is a career offender because third-degree
Pennsylvania robbery is a “robbery” within the meaning of that clause. Id. § 4B1.2(a)(2).
The crime-of-violence analysis starts with the elements of the prior conviction.
Here, the Pennsylvania statute criminalizing robbery lists elements in the alternative, and
by so doing, it defines multiple robbery crimes. See 18 Pa. Cons. Stat. § 3701(a)(1);
Mathis v. United States, 136 S. Ct. 2243, 2249 (2016); United States v. Peppers, 899 F.3d
211, 232 (3d Cir. 2018). For such a “divisible” statute, a court may review judicial 6
record evidence to ascertain a defendant’s precise prior conviction. Descamps v. United
States, 570 U.S. 254, 262 (2013); see also Shepard v. United States, 544 U.S. 13, 20
(2005). The state-court record shows that Carey pleaded guilty to third-degree robbery in
violation of 18 Pa. Cons. Stat. § 3701(a)(1)(v).
The next analytical step evaluates whether “the prior conviction substantially
corresponds to the generic definition of the [enumerated] offense.” United States v.
McCants, 952 F.3d 416, 428 (3d Cir. 2020) (citation and quotation marks omitted). Here,
the Guidelines enumerate robbery as an offense. See U.S.S.G. § 4B1.2(a)(2). Thus, the
precise question becomes whether third-degree Pennsylvania robbery substantially
corresponds to the generic robbery offense. To commit third-degree robbery under
Pennsylvania law, a person must “in the course of committing a theft, . . . physically
take or remove property from the person of another by force however slight.” 18 Pa.
Cons. Stat. § 3701(a)(1)(v) (emphasis added). By comparison, an accepted federal
generic definition of robbery is “the taking of property from another person or from the
immediate presence of another person by force or by intimidation.” McCants, 952 F.3d
at 428–29 (citation omitted). Critically, “generic robbery requires no more than de
minimis force.” United States v. Graves, 877 F.3d 494, 503 (3d Cir. 2017). These
articulations are similar, and Pennsylvania’s requirement of “force however slight”
substantially corresponds to the de minimis force needed for the generic offense.
Compare Commonwealth v. Brown, 484 A.2d 738, 741 (Pa. 1984) (defining “force
however slight” to encompass “any amount of force applied to a person while committing 7
a theft,” including both actual and constructive force), with Graves, 877 F.3d at 503
(defining “de minimis force” to require no injury to the victim). Accordingly, Carey’s
conviction for third-degree Pennsylvania robbery constitutes a crime of violence under
the enumerated-offense clause of the Sentencing Guidelines. See U.S.S.G. § 4B1.2(a)(2).
Outcome: Carey’s conviction for third-degree robbery in Pennsylvania, coupled with his
prior conviction for a controlled-substance offense, renders him eligible for the career offender enhancement. The District Court applied that enhancement, and we will
accordingly affirm Carey’s judgment of sentence