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United States Court of Appeals, Third Circuit.


No. 16-4378

Decided: January 08, 2018

Before: SHWARTZ and ROTH, Circuit Judges, and PAPPERT, District Judge.*

Were I a poet, I would opine that the “categorical approach” is an albatross hung round my neck. But were this “bird” really dead, I would feel no guilt for having killed it.1 Indeed, the categorical approach has of late received its share of deserved criticism. Chief Judge Carnes of the Eleventh Circuit lamented that the categorical approach had once again thrust him and his colleagues “down [a] rabbit hole ․ to a realm where we must close our eyes as judges to what we know as men and women.”2 In his concurrence in United States v. Chapman, Judge Jordan likened the categorical approach to “kudzu ․ which seems to be always enlarging its territory.”3 That kudzu quality infects the Majority's opinion here, which applies the categorical approach where it does not belong—namely, to instant offenses to which a defendant has pled guilty. I write separately in an attempt to curb the misapplication of the doctrine.

In this case, Andre Lewis pled guilty to one count of unarmed robbery and two counts of attempted unarmed robbery “knowingly and unlawfully by force and violence, and by intimidation.” App. 19-20. Those are the instant offenses in this case, not prior convictions. In United States v. Robinson, we held that, in circumstances such as these, where an instant offense is tried to conviction or where the underlying facts are admitted in a guilty plea, “[t]he remedial effect of the ‘categorical approach’ is not necessary.”4 That is because “the record of all necessary facts [is] before the district court” and “[t]he defendant suffers no prejudice” when the categorical approach is not applied.5 To further explain that conclusion, we examined the history of the categorical approach and its rationale.6 A reminder of that history is warranted here.

Twenty-seven years ago, Taylor v. United States spawned the categorical approach. There, the Supreme Court considered whether two prior convictions for second-degree burglary were “violent felony” convictions under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), so that they triggered the statute's sentencing enhancement.7 The central question in Taylor was “whether the sentencing court in applying § 924(e) must look only to the statutory definitions of the prior offenses, or whether the court may consider other evidence concerning the defendant's prior crimes.”8 The Court opted for the former approach—the categorical approach—largely because of “the practical difficulties and potential unfairness of a factual approach” for prior convictions, some of which may have occurred in the distant past.9

The problem Taylor was trying to solve was an epistemic and evidentiary one: How is a “trial court ․ to determine what [a defendant's prior] conduct was”?10 The Court recognized that a factual inquiry years after a prior conviction was fraught with risk and—in the face of an incomplete or otherwise undependable factual record—would effectively require a fresh trial.11 Even in the case of prior guilty pleas, the Court acknowledged that “there often is no record of the underlying facts” and “it would seem unfair to impose a sentence enhancement” where a sentencing court cannot glean from the record whether a defendant had pleaded guilty to a lesser offense, instead of the violent felony.12 For that reason, the Court embraced the categorical approach as a means of analyzing prior convictions.

That practical concern does not apply when a defendant has admitted the facts underlying an instant offense before the very judge who will be sentencing him. Indeed, since Taylor, every landmark Supreme Court decision to apply and develop the categorical approach has done so in the context of prior convictions only. See, e.g., Shepard v. United States, 544 U.S. 13, 23 (2005) (analyzing prior Massachusetts burglary convictions entered upon guilty pleas and recognizing that the categorical approach served as a means of avoiding “collateral trials” on prior convictions); Johnson v. United States, 559 U.S. 133, 144-145 (2010) (using the modified categorical approach to analyze a defendant's seven-year-old battery conviction); Descamps v. United States, 133 S. Ct. 2276, 2281 (2013) (“To determine whether a past conviction is for [a violent felony], courts use what has become known as the ‘categorical approach.’ ” (emphasis added)); Mathis v. United States, 136 S. Ct. 2243, 2247 (2016) (“To determine whether a past conviction is for [a violent felony], courts compare the elements of the crime of conviction with the elements of the ‘generic’ version of the listed offense ․” (emphasis added)).

Mindful of that history and rationale, we held in Robinson that the categorical approach need not be applied when the facts underlying an instant offense “have either been found by [a] jury or admitted by the defendant in a plea.”13 The Majority chooses to ignore Robinson and instead points to United States v. Chapman, where this Court used the categorical approach to analyze a guilty plea to an instant offense.14 Robinson preceded Chapman; to the extent Chapman conflicts with Robinson, Robinson still controls. Our Internal Operating Procedures command as much and require en banc consideration for the holding in a precedential opinion to be overruled.15

The Majority's preferred approach would have sentencing judges “ignore facts already known and instead proceed with eyes shut.”16 That willful blindness—which may allow violent offenders to evade accountability—has been lambasted before 17 and I do so again today. If the albatross around my neck cannot be slayed, I will at least have the noose around its neck tightened.18


1.   I recognize that Samuel Taylor Coleridge's albatross, in The Rime of the Ancient Mariner, was already dead when it was hung round the mariner's neck. I take some artistic license with the metaphor.

2.   United States v. Davis, 875 F.3d 592, 595 (11th Cir. 2017).

3.   866 F.3d 129, 136 (3d Cir. 2017) (Jordan, J., concurring).

4.   844 F.3d 137, 141 (3d Cir. 2016).

5.   Id. at 141, 143.

6.   Id. at 141-143.

7.   495 U.S. 575 (1990).

8.   Id. at 600.

9.   Id. at 601. The Taylor Court also considered the text and legislative history of the ACCA, which are not germane here. This case is about Lewis's status as a “career offender” under § 4B1.1 of the Federal Sentencing Guidelines. Since Taylor, the reach of the categorical approach has extended to the Sentencing Guidelines and immigration, among other contexts. See, e.g., United States v. Brown, 765 F.3d 185, 188-89 (3d Cir. 2014) (“Sentencing courts examining a prior conviction to determine whether it is a federally defined ‘crime of violence’ must apply a categorical approach.” (emphasis added)); Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1567-68 (2017) (using the approach to analyze whether an alien's prior conviction qualified as an “aggravated felony” under the Immigration and Nationality Act).

10.   495 U.S. at 601.

11.   Id.

12.   Id. at 601-02.

13.   844 F.3d at 143.

14.   866 F.3d at 131-34.

15.   3d Cir. I.O.P. 9.1 (2017).

16.   866 F.3d at 138 (Jordan, J., concurring).

17.   See, e.g., Mathis v. United States, 136 S. Ct. 2243, 2269 (2016) (Alito, J., dissenting) (“A real-world approach would avoid the mess that today's decision will produce.”); United States v. Faulls, 821 F.3d 502, 516 (4th Cir. 2016) (Shedd, J., concurring) (“[T]he categorical approach is the antithesis of individualized sentencing; we do not consider what the individual to be sentenced has actually done, but the most lenient conduct punished by his statute of conviction. This flaw is even more apparent in cases like this one, involving instant offenses. ․”); United States v. Doctor, 842 F.3d 306, 312-313 (4th Cir. 2016) (Wilkinson, J., concurring) (remarking that the categorical approach “has pushed criminal sentencing to the very last place that sentencing ought to be, that is at an untenable remove from facts on the ground”).

18.   Our recently published opinion in United States v. Graves provides a separate basis for today's result. We held that the enumerated crime of “robbery” in the Federal Sentencing Guidelines requires no more than de minimis force, force “which pose[s] no threat of injury to another.” No. 16-3995 at 15, 20 (3d Cir. Dec. 13, 2017). Accordingly, bank robbery under 18 U.S.C. 2113(a)—the offense to which Lewis pled guilty—necessarily qualifies as “robbery” under Section 4B1.2 of the Guidelines, a “crime of violence.”

ROTH, Circuit Judge, concurring in the judgment.