United States of America v. Victorious Minter

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 24-2220
UNITED STATES OF AMERICA
v.
VICTORIOUS MINTER,
Appellant
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 3:22-cr-00135-001)
District Judge: Honorable Robert D. Mariani
Submitted under Third Circuit L.A.R. 34.1(a)
on May 22, 2025
Before: PHIPPS, CHUNG and ROTH, Circuit Judges
(Opinion filed: January 16, 2026)

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Elliot A. Smith
Office of Federal Public Defender
201 Lackawanna Avenue
Suite 317
Scranton, PA 18503
Counsel for Appellant
Christian T. Haugsby
Carlo D. Marchioli
Office of United States Attorney
Middle District of Pennsylvania
Sylvia H. Rambo United States Courthouse
1501 N 6th Street, 2nd Floor
P.O. Box 202
Harrisburg, PA 17102
Counsel for Appellee
________________
OPINION OF THE COURT
________________
ROTH, Circuit Judge
Victorious Minter was convicted of unlawfully
possessing a firearm and sentenced to 100 months’
incarceration. Because a recent Supreme Court ruling
forecloses his only colorable argument on appeal, we will
affirm his judgments of conviction and of sentence.
I.

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On January 5, 2022, Scranton police received a report
that a man matching Minter’s description had brandished a gun
at another driver during a road-rage incident. Shortly
afterwards, officers pulled over Minter (who was driving with
his partner and infant son) and noticed a loaded Glock .22
semi-automatic pistol in plain view. At the time, Minter had
numerous prior felony convictions (including one for which he
remained on state parole). He was accordingly charged, tried,
and convicted of unlawful possession of a firearm by a felon,
in violation of 18 U.S.C. § 922(g)(1). At sentencing, the
District Court calculated his guidelines offense level at 30, and
his criminal history category at 4, yielding an effective
guidelines sentence of 120 months.1 The District Court then
imposed a below-guidelines sentence of 100 months. Minter
appealed.
II.
The District Court had original jurisdiction under 18
U.S.C. § 3231. We have appellate jurisdiction under 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742(a). “We review anew the District
Court’s legal conclusions, including its determination that a
conviction constitutes a ‘crime of violence’ under the
Guidelines.”2
III.
1 Although Minter’s guidelines range would ordinarily have
been 151–188 months, this would have exceeded the 120
month statutory maximum for his offense.
2 United States v. Payo, 135 F.4th 99, 104 (3d Cir. 2025).

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Minter brings two challenges to his conviction, neither
of which need occupy us for long. First, he argues that the
District Court improperly held (and instructed the jury) that the
interstate commerce element of § 922(g)(1) could be met by
proving the firearm in question had previously crossed a border
or state line. Second, he argues that § 922(g)(1)
unconstitutionally infringes upon his right to bear arms under
the Second Amendment. Minter concedes that both challenges
are foreclosed by binding circuit precedent, and raises them
solely to preserve the issues for potential en banc or Supreme
Court review.3 We will accordingly affirm his conviction,
deeming his challenges so-preserved.4
IV.
U.S.S.G § 2K2.1(a)(1) provides for a heightened base
offense level where a § 922(g)(1) defendant has (among other
criteria) previously sustained “at least two felony convictions
of either a crime of violence or a controlled substance
offense.”5 As relevant to this appeal, “crimes of violence” are
felonies which have “as an element the use, attempted use, or
3 See United States v. Singletary, 268 F.3d 196, 205 (3d Cir.
2001) (holding that proof that “the gun ha[s] traveled in
interstate commerce, at some time in the past, [is] sufficient to
satisfy the interstate commerce element” of § 922(g)(1));
United States v. Quailes, 126 F.4th 215, 224 (3d Cir. 2025)
(holding that Ҥ 922(g)(1) is constitutional as applied to
convicts on parole or probation”).
4 See 3d Cir. I.O.P. 9.1 (“It is the tradition of this court that the
holding of a panel in a precedential opinion is binding on
subsequent panels.”).
5 Emphasis added.

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threatened use of physical force against the person of
another.”6 The District Court found that § 2K2.1(a)(1) applied
because Minter had previously been convicted of: (1)
possession of a controlled substance with intent to deliver
(under Pennsylvania law), and (2) unlawful wounding (under
Virginia law). Minter argues that this determination
improperly treated his unlawful wounding conviction as a
“crime of violence.”7
Minter does not (and cannot) dispute that this
conviction—which involved a stabbing—involved force, and
would be considered violent under any conventional definition.
But this does not end our inquiry, because § 2K2.1(a)(1) is one
of those peculiar provisions requiring us to “use the much-
maligned categorical approach,”8 under which “we not only
ignore the actual manner in which the defendant committed the
prior offense, but also presume that the defendant did so by
engaging in no more than the minimum conduct criminalized
6 U.S.S.G. § 4B1.2(a)(1). The government has not argued that
any of Minter’s prior offenses qualify as crimes of violence
under the alternative, enumerated-offense, definition provided
in U.S.S.G. § 4B1.2(a)(2).
7 At sentencing, Minter also challenged the District Court’s
determination that his Pennsylvania drug conviction qualified
as a “controlled substance offense.” Minter did not renew this
argument on appeal, so we do not consider it. See generally
Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist., 877
F.3d 136, 145 (3d Cir. 2017).
8 See United States v. Vines, 134 F.4th 730, 733 (3d Cir.
2025).

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by the state statute.”9 So we must close our eyes to Minter’s
actual conduct, and decide whether all unlawful wounders can
be said to have committed crimes of violence.
We look then to the minimum conduct criminalized by
Virginia’s unlawful wounding statute, which is “unlawfully”
“by any means caus[ing any person] bodily injury, with the
intent to maim, disfigure, disable, or kill.”10 Minter argues that
these elements sweep too broadly for a crime of violence,
because they can theoretically be met without an affirmative
act. He relies heavily on our holding in United States v. Mayo11
that Pennsylvania’s aggravated assault statute was not
9 See United States v. Henderson, 80 F.4th 207, 210–11 (3d
Cir. 2023) (cleaned up); see also Mathis v. United States, 579
U.S. 500, 513 (2016) (noting that the “means by which [the
defendant] committed his prior crimes” are “irrelevant”).
10 See Va. Code. Ann. § 18.2-51. The government suggests
that unlawful wounding under § 18.2-51 may be a divisible
offense, such that the minimal elements of Minter’s conviction
were actually “unlawfully” “shoot[ing,] stabb[ing,] cut[ting,]
or wound[ing] any person.” See id.; see generally United
States v. Peppers, 899 F.3d 211, 227–28 (3d Cir. 2018)
(discussing the “modified categorical approach” used for
analyzing divisible offenses). The government acknowledges
that it did not raise this argument before the District Court, let
alone provide it with Shepard documentation supporting a
narrower conviction, so we do not consider this argument on
appeal. See Peppers, 899 F.3d at 232 (declining to apply the
modified categorical approach where neither the government
nor the appellant provided the sentencing court with the
appellant’s Shepard documents).
11 901 F.3d 218 (3d Cir. 2018).

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categorically violent, because it could be violated by certain
acts of omission (like a parent starving their child).12 We
rejected the government’s argument that, because aggravated
assault required a perpetrator to cause (or attempt to cause) the
infliction of serious bodily injury, even acts of omission
involved the use of physical force as such injury could not be
inflicted in its absence.13 While recognizing that the Supreme
Court held in United States v. Castleman14 that it “is impossible
to cause bodily injury without applying force in the common-
law sense,” we noted that Castleman expressly reserved
whether this was true for crime-of-violence provisions which
differed from the common-law definition in that they required
the offending force to be “violent force.”15 In other words, we
concluded that although inflicting serious bodily injury
involved common-law physical force, it did not necessarily
involve “physical force” as the term is used in the Armed
Career Criminal Act (ACCA).16 Our holding presupposed that
12 Mayo, 901 F.3d at 227–28. Although Mayo addressed the
crime of violence provision in 18 U.S.C. § 924(e)(2)(B)(i),
rather than § 4B1.2(a)(1), the two provisions are materially
identical, and decisions addressing one of them are “binding
on our analysis” for the other. See United States v. Harris, 68
F.4th 140, 144 n.3 (3d Cir. 2023).
13 Mayo, 901 F.3d at 228–29.
14 572 U.S. 157 (2014).
15 Mayo, 901 F.3d at 228–29 (emphasis added) (quoting
Castleman, 572 U.S. at 170).
16 See 18 U.S.C. § 924(e)(2)(B).

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the Supreme Court would not extend Castleman to such
provisions if given the chance.17
The government, for its part, argues that despite its
apparent similarity to the provision at issue in Mayo, Virginia’s
unlawful wounding statute cannot in fact be violated by
omission. We need not decide whose reading of the statute is
better. While this appeal was pending, the Supreme Court
decided in Delligatti v. United States18 that the “knowing or
intentional causation of injury or death, whether by act or
omission, necessarily involves the use of physical force against
17 See Mayo, 901 F.3d at 228–29. We have since reaffirmed
Mayo’s holding repeatedly, see, e.g., Harris, 68 F.4th at 146;
United States v. Jenkins, 68 F.4th 148, 152 n.6 (3d Cir. 2023),
while also repeatedly noting the oddity of treating
prototypically violent assault offenses as “non-violent.” See
Mayo, 901 F.3d at 230 (“We recognize that the result we reach
here is wholly unsatisfying and counterintuitive . . . [b]ut that’s
the categorical approach for you.”); Harris, 68 F.4th at 148
(noting that our holding was “counterintuitive” but was “the
consequence of the [categorical approach’s] restricted, and
perhaps sometimes under-inclusive, application”); Jenkins, 68
F.4th at 155 (“The categorical approach requires this upside-
down result even though criminal sentences should be
governed by justice and fairness, not formalism. . . . What a
world.”); see also United States v. Harris, 88 F.4th 458, 459
(3d Cir. 2023) (Jordan, J., joined by Chagares, C.J. and
Hardiman, Krause, Bibas, Porter, & Matey, J.J., concurring in
denial of rehearing en banc) (“[W]e are unable to explain how
our holding in this case satisfies basic notions of right and
wrong.”).
18 604 U.S. 423 (2025).

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another person.”19 In reaching this conclusion, the Supreme
Court rejected our reasoning in Mayo that Castleman’s logic
did not extend to the ACCA’s definition of “physical force.”20
And although Delligatti addressed the crime-of-violence
provision in 18 U.S.C. § 924(c)(3)(A), we see no basis for
distinguishing that provision from its similarly worded
siblings.21 As such, even assuming Minter’s conviction was
improper under our holding in Mayo, our holding in Mayo is
no longer good law.22 Because Minter raises no other
challenges to his sentence, we will therefore affirm his
sentence as well.
IV.
Minter’s challenges to his conviction are barred by
circuit precedent. And his challenge to his sentence has now
been barred by Supreme Court precedent. For these reasons,
we will affirm his judgments of conviction and of sentence.
19 Id. at 439.
20 See id. at 429–30.
21 Unlike § 4B1.2(a)(1) (which is at issue here), and
§ 924(e)(2)(B)(i) (which we considered in Mayo), §
924(c)(3)(A) can be satisfied by violence against property. We
see no reason that distinction should matter for the purpose of
this appeal, and the provisions are otherwise materially
identical.
22 See Fisher v. Hollingsworth, 115 F.4th 197, 206 (3d Cir.
2024) (“Respect for our own precedents must succumb when a
prior holding of our Court conflicts with a subsequent Supreme
Court holding.” (cleaned up)).

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