United States of America v. Torey Dobbin, a/k/a Truck

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 17-3664
_____________
UNITED STATES OF AMERICA
v.
TOREY DOBBIN,
a/k/a Truck
Appellant
_____________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Crim. No. 1:14-cr-00015-001)
District Judge: Honorable Sylvia H. Rambo
_____________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
February 20, 2025
______________
Before: CHAGARES, Chief Judge, BIBAS and FISHER,
Circuit Judges.
(Filed: August 11, 2025)
______________

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M. Jason Asbell
Gibbel, Kraybill & Hess LLP
2933 Lititz Pike
P.O. Box 5349
Lancaster, PA 17606
Counsel for Appellant
Gerald M. Karam
Carlo D. Marchioli
United States Attorney’s Office
Sylvia H. Rambo U.S. Courthouse
1501 N. 6th Street, Box 202
Harrisburg, PA 17102
Counsel for Appellee
_____________
OPINION OF THE COURT
_____________
CHAGARES, Chief Judge.
Torey Dobbin appeals the denial of his motion to vacate
his sentence under 28 U.S.C. § 2255. Dobbin alleges that his
trial counsel was ineffective for failing to argue that the two
prior convictions used to designate Dobbin as a career offender
did not qualify as valid predicates under the United States
Sentencing Guidelines (“Guidelines” or “U.S.S.G.”). The
District Court denied relief without an evidentiary hearing. For
the reasons below, we will affirm.

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I.
A.
A two-count indictment charged Dobbin and two co-
defendants with robbing a Cracker Barrel restaurant in
Harrisburg, Pennsylvania. They allegedly committed a Hobbs
Act robbery and used firearms during a crime of violence,
violating 18 U.S.C. §§ 1951 and 924(c), respectively. Dobbin
pled guilty to both counts.
The United States Probation Department recommended
that Dobbin be designated as a career offender under the
Guidelines, as he had committed two “crime[s] of violence.”
U.S.S.G. § 4B1.1(a) (2014).1 Two prior robbery convictions
in Pennsylvania state court served as predicates for the
designation: one in Dauphin County and another in
Cumberland County. Dobbin objected to the career-offender
designation, arguing through counsel that the two predicates
should be treated as one. The District Court overruled his
objection and designated him as a career offender, sentencing
him to 210 months of imprisonment.
Dobbin first appealed directly to this Court. See United
States v. Dobbin, 629 F. App’x 448, 450 (3d Cir. 2015). His
appellate counsel, however, determined that the appeal
presented no issues of arguable merit and requested to
withdraw under Anders v. California, 386 U.S. 738 (1967).
1 This version of the Guidelines was in effect at the time of
Dobbin’s sentencing and therefore applies here. See 18 U.S.C.
§ 3553(a)(4)(A)(ii). Unless otherwise indicated, all citations
to the Guidelines refer to the 2014 version.

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After reviewing the Anders brief and Dobbin’s pro se brief, as
well as the Government’s submissions, this Court upheld
Dobbin’s sentence and granted counsel’s motion to withdraw.
Dobbin, 629 F. App’x at 452. We also dismissed Dobbin’s
claim for relief under the Supreme Court’s intervening
decision in Johnson v. United States (“Johnson 2015”), 576
U.S. 591, 606 (2015), in which the Court held that the
“residual clause” of the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii), was
unconstitutionally vague. See Dobbin, 629 F. App’x at 452;
see also United States v. Hopkins, 577 F.3d 507, 511 (3d Cir.
2009) (noting that because the Guidelines’ definition of a
“crime of violence” is sufficiently similar to ACCA’s
definition of a “violent felony,” “authority interpreting one is
generally applied to the other”). We reasoned that the record
did not indicate that the District Court relied on the residual
clause of the Guidelines, U.S.S.G. § 4B1.2(a)(2), to designate
Dobbin as a career offender. Dobbin, 629 F. App’x at 452.
We acknowledged Dobbin’s argument that “his
counsel’s failure to challenge the use of his prior state robbery
convictions as predicate offenses for career offender status was
ineffective assistance of counsel.” Id. But we declined to rule
on that claim, noting that Dobbin could instead pursue it
through a collateral proceeding under 28 U.S.C. § 2255. Id.
(citing United States v. Haywood, 155 F.3d 674, 678 (3d Cir.
1998)).
B.
Dobbin followed that course after an unsuccessful
petition for a writ of certiorari to the Supreme Court. Dobbin
v. United States, 578 U.S. 1017 (2016) (mem.). He filed a pro

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se motion to vacate his sentence under § 2255, alleging
ineffective assistance of counsel. Court-appointed counsel
supplemented his motion, arguing that trial counsel was
ineffective for failing to argue that neither predicate offense
was a crime of violence under the Guidelines. As for the
Dauphin County predicate, Dobbin asserted that he ultimately
pled guilty to burglary, not the initial charge of robbery. And
regarding the Cumberland County predicate, Dobbin argued
that his plea colloquy does not reveal which subsection of the
Pennsylvania robbery statute he violated, leaving open the
possibility that he was convicted of committing a robbery that
would not be a crime of violence. Dobbin also argued that the
principal conviction for Hobbs Act robbery was not a crime of
violence either.
The Government responded with various state court
records. Among other things, those records included plea
agreements from Dauphin County, suggesting that Dobbin was
convicted of both robbery and burglary. Other records the
Government provided include reports of judicial criminal
proceedings from the Administrative Office of the
Pennsylvania Courts (“JCP reports”), commitment documents
indicating restitution amounts (“DC-300B forms”), and forms
from the Pennsylvania Commission on Sentencing. The
Government also provided charging documents from
Cumberland County, which cite a subsection of the
Pennsylvania robbery statute that constitutes a crime of
violence. Appendix (“App.”) 96–97 (citing 18 Pa. Cons. Stat.
§ 3701(a)(1)(ii)).
The District Court denied Dobbin’s § 2255 motion
without an evidentiary hearing in 2017. It first reasoned that
state court records showed that he pled guilty to robbery as well

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as burglary in Dauphin County. The District Court likewise
found that records from Cumberland County showed that
Dobbin pled guilty to robbery there as well, specifically
violating 18 Pa. Cons. Stat. § 3701(a)(1)(ii). Both predicates
sufficed to designate Dobbin as a career offender, the District
Court concluded, because this Court had held that “any
conviction for robbery under the Pennsylvania robbery statute,
regardless of the degree, has as an element the use of force
against the person of another.” App. 7–8 (quoting United
States v. Cornish, 103 F.3d 302, 309 (3d Cir. 1997), abrogated
by, Johnson v. United States (“Johnson 2010”), 559 U.S. 133
(2010), as recognized in, United States v. Peppers, 899 F.3d
211 (3d Cir. 2018)). The District Court likewise rejected
Dobbin’s Hobbs Act robbery argument, holding that Third
Circuit precedent controlled the issue.
Dobbin timely appealed and asked this Court to issue a
certificate of appealability (“COA”). See 28 U.S.C.
§ 2253(c)(1). We first stayed the appeal pending disposition
of United States v. Harris, 68 F.4th 140 (3d Cir.), reh’g en banc
denied, 88 F.4th 458 (3d Cir. 2023) (mem.).2 After lifting the
stay, we granted Dobbin’s motion for a COA in part, only as to
his claims about the Dauphin and Cumberland County
predicates.
2 The decision in Harris ultimately shed little light on
Dobbin’s appeal, as the Court did not address whether a first-
degree robbery under Pennsylvania law constituted a crime of
violence. See 68 F.4th at 148 n.7.

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II.
The District Court had jurisdiction over this action
under 28 U.S.C. § 2255. This Court has jurisdiction under 28
U.S.C. §§ 1291 and 2253. “In a federal habeas corpus
proceeding, we exercise plenary review of the district court’s
legal conclusions and apply a clearly erroneous standard to the
court’s factual findings.” Lambert v. Blackwell, 134 F.3d 506,
512 (3d Cir. 1997). We review the denial of a § 2255
evidentiary hearing for abuse of discretion. See United States
v. Booth, 432 F.3d 542, 545 (3d Cir. 2005). A district court
“abuses its discretion if it fails to hold an evidentiary hearing
when the files and records of the case are inconclusive as to
whether the movant is entitled to relief.” Id. at 546.
Sixth Amendment claims alleging ineffective assistance
of counsel must adhere to the framework outlined in Strickland
v. Washington, 466 U.S. 668, 687–88 (1984), which requires a
defendant to show both that counsel’s performance was
deficient and that such deficiency prejudiced him. See also
Hill v. Lockhart, 474 U.S. 52, 58 (1985) (applying this
framework to challenges to guilty pleas). In the sentencing
context, a defendant “must demonstrate that, but for his trial
attorney’s alleged ineffectiveness, he would have likely
received a lower sentence.” Booth, 432 F.3d at 546–47. A
§ 2255 evidentiary hearing is therefore not warranted if “the
movant’s Strickland claim fails as a ‘matter of law.’” United
States v. Arrington, 13 F.4th 331, 335 (3d Cir. 2021) (quoting
United States v. Dawson, 857 F.2d 923, 929 (3d Cir. 1988)).

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III.
Central to Dobbin’s challenge is his designation as a
career offender during sentencing. To qualify as a career
offender, a defendant must have “at least two prior felony
convictions of either a crime of violence or a controlled
substance offense,” among other things. U.S.S.G. § 4B1.1(a).
The 2014 Guidelines define a “crime of violence” as:
[A]ny offense under federal or state law,
punishable by imprisonment for a term
exceeding one year, that —
(1) has as an element the use, attempted use,
or threatened use of physical force against
the person of another, or
(2) is burglary of a dwelling, arson, or
extortion, involves use of explosives, or
otherwise involves conduct that presents
a serious potential risk of physical injury
to another.
Id. § 4B1.2(a). Subparagraph (1) is known as the “elements
clause,” as it requires a qualifying crime to include an element
involving physical force. The first part of subparagraph (2) is
known as the “enumerated offenses clause,” listing various
generic crimes that would also qualify.3 The last clause of
3 The first application note to § 4B1.2 lists additional crimes
that qualify as crimes of violence, including “murder,
manslaughter, kidnapping, aggravated assault, forcible sex
offenses, robbery, arson, extortion, extortionate extension of

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subparagraph (2) is known as the “residual clause,” a catchall
provision covering other kinds of violent convictions.4
We employ the categorical approach to determine
whether a previous conviction qualifies as a crime of violence
under the Guidelines. See United States v. Wilson, 880 F.3d
80, 83–84 (3d Cir. 2018). As applied to the elements clause,
the categorical approach requires us to “ask whether the
offense in question ‘always’ involves the use, attempted use,
or threatened use of force.” Delligatti v. United States, 145 S.
Ct. 797, 803 (2025) (quoting United States v. Taylor, 596 U.S.
845, 850 (2022)). Even someone convicted for actually using
physical force may not have committed a crime of violence
under the elements clause if the statute does not necessarily
require force (or the attempt or threat of it) to commit the
crime. See United States v. Ramos, 892 F.3d 599, 606 (3d Cir.
2018) (“[T]he 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
credit, and burglary of a dwelling.” U.S.S.G. § 4B1.2 cmt. n.1.
Though robbery is listed and thus “‘enumerated’ for purposes
of the crime-of-violence analysis,” a robbery conviction
qualifies as a crime of violence under the enumerated offenses
clause only if it matches the “generic” definition of the offense.
United States v. Marrero, 743 F.3d 389, 398–99 (3d Cir. 2014),
abrogated on other grounds by, Johnson 2015, 576 U.S. 591.
4 Although ACCA’s residual clause was declared
unconstitutionally vague in Johnson 2015, the Court
subsequently held in Beckles v. United States, 580 U.S. 256,
259 (2017), that the parallel language of § 4B1.2(a)(2) was not
subject to vagueness challenges.

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engaging in no more than ‘the minimum conduct criminalized
by the state statute.’” (quoting Moncrieffe v. Holder, 569 U.S.
184, 191 (2013))).
When the statute of conviction is divisible into
alternative criminal offenses, as here, the modified categorical
approach applies. See Mathis v. United States, 579 U.S. 500,
505–06 (2016). That approach requires a court to look not only
at the statute, but also charging documents, plea agreements
and colloquies, and comparable judicial records to identify
which specific statutory provision served as the basis of
conviction. See United States v. Abdullah, 905 F.3d 739, 744
(3d Cir. 2018). The categorical approach then applies to that
particular subsection.
A divisible statute relevant here is Pennsylvania’s
robbery statute. See Peppers, 899 F.3d at 232. When Dobbin
was convicted of his prior felonies, that statute provided:
(1) A person is guilty of robbery if, in the course
of committing a theft, he:
(i) inflicts serious bodily injury upon another;
(ii) threatens another with or intentionally puts
him in fear of immediate serious bodily
injury;
(iii) commits or threatens immediately to
commit any felony of the first or second
degree;
(iv) inflicts bodily injury upon another or
threatens another with or intentionally puts
him in fear of immediate bodily injury; or

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(v) physically takes or removes property from
the person of another by force however
slight.
18 Pa. Cons. Stat. § 3701(a)(1) (1976).5 To determine whether
a prior robbery conviction qualifies as a crime of violence, a
court must therefore use the modified categorical approach to
deduce which subsection served as the basis of conviction and
whether that kind of robbery is a crime of violence. See United
States v. Blair, 734 F.3d 218, 225 (3d Cir. 2013). Using that
approach, this Court has held that robbery under subsection (ii)
constitutes a crime of violence. United States v. Henderson,
80 F.4th 207, 215 (3d Cir. 2023), cert. denied, 144 S. Ct. 1379
(2024) (mem.).
Dobbin contends that he has made colorable claims that
neither the Dauphin County predicate nor the Cumberland
County predicate constitutes a crime of violence, and asserts
that he is entitled to an evidentiary hearing in the District Court.
Under 28 U.S.C. § 2255(b), an evidentiary hearing is required
“[u]nless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief.” A
district court therefore must “consider[ ] as true all appellant’s
5 “Robbery under subsection (a)(1)(iv) is a felony of the
second degree; robbery under subsection (a)(1)(v) is a felony
of the third degree; otherwise, it is a felony of the first degree.”
18 Pa. Cons. Stat. § 3701(b). In Pennsylvania, the maximum
term of imprisonment is twenty years for a first-degree felony,
ten for a second-degree felony, and seven for a third-degree
felony. Id. § 1103; see also id. § 1101(2)–(3) (setting
maximum fines of $25,000 for first- or second-degree felonies
and $15,000 for third-degree felonies).

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nonfrivolous factual claims” and then “determine whether, on
the existing record, those claims that are nonfrivolous
conclusively fail to show ineffective assistance of counsel.”
Arrington, 13 F.4th at 334 (alteration in original) (quoting
Dawson, 857 F.2d at 927–28).
A.
Dobbin first argues that he was convicted of burglary,
not robbery, in Dauphin County. To that end, he furnishes a
guilty plea colloquy from Dauphin County that refers only to
burglary and other lesser crimes. See App. 181. He faults the
District Court for declining to address this plea colloquy and
instead referring to other documents to find that he was
convicted of robbery. An evidentiary hearing is therefore
required, according to Dobbin, to settle the matter of which
felony he committed.
But the state court records the Government supplied tell
a fuller story. One JCP report revealed that Dobbin indeed pled
guilty to robbery, receiving a sentence of 6½ to 20 years of
imprisonment. Another JCP report describes Dobbin’s guilty
plea for burglary, for which he received a sentence of 1 to 10
years of imprisonment to run consecutive to his robbery
sentence. One DC-300B form provides that Dobbin was
sentenced for committing robbery under 18 Pa. Cons. Stat.
§ 3701(a)(1)(ii), while another DC-300B form with a different
case number provided that Dobbin was sentenced for
committing burglary under 18 Pa. Cons. Stat. § 3502. One
restitution form indicated that Dobbin was to pay restitution to
Restaurant Management Corp. under the case number
associated with robbery, while another ordered restitution to
Peter’s Mountain Sport Supply under the case number

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associated with burglary. These forms correspond to the plea
agreements the Government provided: one for burglary and
the other for robbery. The first notes that in August 1997,
Dobbin and his co-conspirators broke into a Peter’s Mountain
Sports Supply and burglarized the store. Yet the other plea
agreement describes how weeks later, Dobbin and others
carried out an armed robbery of a Hardee’s Restaurant,
violating 18 Pa. Cons. Stat. § 3701(a)(1)(ii). Dobbin signed
both plea agreements.
But those documents, Dobbin says, may not be the kind
of sufficiently reliable documents permitted under Shepard v.
United States, 544 U.S. 13 (2005), to establish that he
committed a crime of violence, rather than the guilty plea
colloquy he provided. In Shepard, the Supreme Court limited
the kinds of documents a court could review to ascertain
whether a defendant had committed a “violent felony” under
ACCA. Id. at 15–16. Looking to court records may be
necessary to deduce which subpart of the statute formed the
basis of a conviction. But the Court explained that “respect for
congressional intent and avoidance of collateral trials” require
a sentencing court to take “only a restricted look beyond the
record of conviction under a nongeneric statute.” Id. at 23.
When employing the modified categorical approach, a court is
therefore “limited to the terms of the charging document, the
terms of a plea agreement or transcript of colloquy between
judge and defendant in which the factual basis for the plea was
confirmed by the defendant, or to some comparable judicial
record of this information.” Id. at 26.
The strictures of Shepard, however, do not apply to
determining the fact of a prior conviction. In Shepard, the
Supreme Court restricted the scope of documents used to show

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whether a prior conviction could be characterized as a violent
felony under the modified categorical approach. That legal
question is distinct from the factual question of whether a prior
conviction exists in the first place. “Establishing the fact of a
prior crime is a more discrete inquiry that is not as susceptible
to the lengthy and cumbersome collateral trials” that the
Supreme Court sought to avoid in Shepard. United States v.
Bryant, 571 F.3d 147, 154 (1st Cir. 2009). Courts of Appeals
from our sister circuits agree that courts may consider non-
Shepard documents to establish the fact of a conviction, rather
than its character as a crime of violence. See, e.g., id.; United
States v. Witherspoon, 974 F.3d 876, 879 (8th Cir. 2020);
United States v. Ortega-Calderon, 814 F.3d 757, 760 (5th Cir.
2016); United States v. Carter, 591 F.3d 656, 661–62 (D.C. Cir.
2010); United States v. Felix, 561 F.3d 1036, 1045 (9th Cir.
2009); United States v. Sanders, 470 F.3d 616, 623–24 (6th
Cir. 2006); United States v. Zuniga-Chavez, 464 F.3d 1199,
1204 (10th Cir. 2006). We join them today.
Dobbin points to alleged inaccuracies in the DC-300B
forms and the JCP reports, but these imperfections, even if true,
do not amount to clear error. He notes a few typos in the name
of the prosecutor and the fine amount on the forms, but “we do
not look at whether the evidence was infallible, only whether
it had ‘sufficient indicia of reliability to support its probable
accuracy.’” Zuniga-Chavez, 464 F.3d at 1204 n.4 (quoting
U.S.S.G. § 6A1.3(a) (2003)). The state records the District
Court consulted show convincingly that Dobbin received two
different sentences: one for burglarizing a supply store, and
the other for robbing a restaurant. This record evidence
satisfies us that there was no clear error in the District Court’s
factual findings.

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The District Court therefore had sufficient factual
evidence before it to conclude that Dobbin was convicted of
not only burglary, but also robbery in Dauphin County. That
robbery, a violation of 18 Pa. Cons. Stat. § 3701(a)(1)(ii),
qualified as a crime of violence as defined by the elements
clause of the Guidelines. See Henderson, 80 F.4th at 215.
Because “the files and records of the case conclusively
show[ed]” that Dobbin was “entitled to no relief,” 28 U.S.C.
§ 2255(b), the District Court did not abuse its discretion as to
this predicate.6
B.
1.
Dobbin next argues that his Cumberland County
predicate does not qualify as a crime of violence either. He
points to the use of the term “recklessly” in the charging
document to suggest that he could have committed a robbery
with a mens rea of only recklessness. As the Supreme Court
6 The Government asserts that, in the alternative, Dobbin’s
burglary conviction alone would have qualified as a crime of
violence under the residual clause of the Guidelines. See Gov’t
Br. 23; cf. James v. United States, 550 U.S. 192 (2007)
(holding that an attempted burglary under Florida law was a
violent felony under ACCA’s residual clause), overruled by,
Johnson 2015, 576 U.S. 591. Because we conclude that the
District Court’s factual findings were sufficient to establish
that Dobbin committed robbery in violation of 18 Pa. Cons.
Stat. § 3701(a)(1)(ii) in Dauphin County, we need not
determine whether his burglary conviction was a standalone
crime of violence as well.

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has held, crimes requiring only a mens rea of recklessness
cannot be crimes of violence under the elements clause. See
Borden v. United States, 593 U.S. 420, 435 (2021) (plurality
opinion) (explaining that “the ‘against’ phrase in that clause
modifies the ‘use of physical force,’” which together
“exclude[] recklessness”); id. at 446 (Thomas, J., concurring in
the judgment). Dobbin thus asserts that his trial counsel could
have argued that his robbery conviction could have been under
subsections (i) or (iv), either of which he says allows for a mens
rea of recklessness and thus would not qualify as a crime of
violence. The Government counters with Shepard documents
from Cumberland County, suggesting that Dobbin pled guilty
to a violation of § 3701(a)(1)(ii).
The Government first argues, however, that this Court’s
decision on direct appeal forecloses Dobbin’s argument.
Because we noted that “Dobbin was convicted of violating 18
Pa. [Cons. Stat.] § 3701(a)(1)(ii),” Dobbin, 629 F. App’x at
452, the Government contends that Dobbin cannot revisit the
issue of what kind of robbery he committed in Cumberland
County. Dobbin responds that on direct appeal, this Court
expressly declined to consider that argument, which invoked
ineffective assistance of counsel.
Dobbin is correct on this score. It is true that a § 2255
petitioner generally “may not relitigate issues that were
adjudicated . . . on direct appeal.” United States v. Palumbo,
608 F.2d 529, 533 (3d Cir. 1979) (per curiam). But our
conclusion with respect to Dobbin’s robbery convictions
focused solely on whether Johnson 2015 provided an avenue
to relief. We held that Dobbin’s sentence did not rely on the
residual clause of the Guidelines (which, in retrospect, would
have been proper anyway under the Supreme Court’s later

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decision in Beckles), Dobbin, 629 F. App’x at 452, but we had
no occasion to address whether ineffective assistance of
counsel resulted in some other proposed error. We “decline[d]
to rule on the ineffective assistance claim,” id., which Dobbin
has properly pursued through the collateral proceeding at issue
in this appeal. We will therefore turn to the merits of Dobbin’s
argument regarding his Cumberland County predicate.
2.
Our precedent once dictated that every kind of robbery
under Pennsylvania law was a crime of violence under the
elements clause. We reasoned that “any conviction for robbery
under the Pennsylvania robbery statute, regardless of the
degree, has as an element the use of force against the person of
another.” Cornish, 103 F.3d at 309 (holding that third-degree
robbery, a violation of § 3701(a)(1)(v), qualified as a violent
felony under ACCA). But in Johnson 2010, the Supreme Court
clarified that the phrase “physical force” in the elements clause
of ACCA (and mirrored in the Guidelines) “means violent
force — that is, force capable of causing physical pain or injury
to another person.” 559 U.S. at 140. We accordingly
recognized that “Johnson 2010 abrogated our holding in
Cornish with respect to third degree robbery under
Pennsylvania law.” Peppers, 899 F.3d at 233.
Yet the District Court’s reliance on Cornish does not
mean that we must vacate its judgment. Cornish involved only
third-degree robbery, which requires “physically tak[ing] or
remov[ing] property from the person of another by force
however slight.” 18 Pa. Cons. Stat. § 3701(a)(1)(v). Our
recognition that not all robberies under Pennsylvania law are
crimes of violence does not mean that none is. In Henderson,

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we concluded that robbery under § 3701(a)(1)(ii) “qualifies as
a crime of violence” because “it contemplates a level of force
that is capable of causing physical pain or injury.” 80 F.4th at
212; see also Stokeling v. United States, 586 U.S. 73, 83 (2019)
(“Johnson [2010] did not purport to establish a force threshold
so high as to exclude even robbery from ACCA’s scope.”).
We must therefore assess, under the modified
categorical approach, which subsection of Pennsylvania’s
robbery statute applied to Dobbin’s conviction for robbery in
Cumberland County and whether that kind of robbery is a
crime of violence. Here is where Shepard’s limitations apply.
Unlike for the Dauphin County predicate, the dispute over the
Cumberland County predicate is a legal one (how to
characterize a prior conviction) rather than a factual one
(whether this conviction occurred). The District Court was
therefore restricted in its review of state court records, as are
we. Only “the terms of the charging document, the terms of a
plea agreement or transcript of colloquy between judge and
defendant in which the factual basis for the plea was confirmed
by the defendant, or . . . some comparable judicial record of
this information” can inform our analysis of which subsection
Dobbin’s conviction falls under. Shepard, 544 U.S. at 26.
Those state court records, though limited, reveal that
Dobbin indeed pled guilty to violating § 3701(a)(1)(ii) in
Cumberland County. The Cumberland County court document
memorializing Dobbin’s plea refers to robbery broadly,
without reference to any subsection. But the criminal
information charged Dobbin with two counts of robbery,
stating that he “intentionally, knowingly or recklessly, in the
course of committing a theft, threaten[ed] another with or
intentionally put another in fear of immediate serious bodily

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injury.” App. 255. This language most closely tracks
§ 3701(a)(1)(ii), which the information cites on the following
page.
Dobbin’s point that the information refers to
recklessness is well taken but ultimately unavailing. We have
noted that both clauses of § 3701(a)(1)(ii) require a knowing
or intentional state of mind: “[T]he first clause’s use of the
phrase ‘threatens another’ addresses a specific type of act,
namely a communication that conveys an intent to harm . . . .
The second clause uses the phrase ‘intentionally puts him in
fear.’” Henderson, 80 F.4th at 215 n.8 (quoting 18 Pa. Cons.
Stat. § 3701(a)(1)(ii)). Adopting Dobbin’s reading that the
word “recklessly” alone outweighs the statutory citation to
subsection (ii) would require an illogical construction of the
information: that he “intentionally, knowingly or recklessly,
in the course of committing a theft, . . . intentionally put
another in fear of immediate serious bodily injury.” App. 255.
Mistaken language notwithstanding, Dobbin could not have
been convicted under any portion of subsection (ii) with a mens
rea of recklessness under Pennsylvania law.
Dobbin’s theory that he was possibly convicted of a
reckless robbery under a different subsection of Pennsylvania
law introduces more anomalies than it purports to resolve. He
first suggests § 3701(a)(1)(i) as an alternative. But that
provision requires “inflict[ing] serious bodily injury upon
another,” which is alleged nowhere in the record. He next
proposes that § 3701(a)(1)(iv) is a possibility. That provision
is closer to this case, but it requires only the infliction or threat
of bodily injury, not serious bodily injury as in subsection (ii)
and as alleged in the information. More to the point, a robbery
under subsection (iv) constitutes only a second-degree felony,

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while a robbery under subsection (ii) is a felony of the first
degree. See 18 Pa. Cons. Stat. § 3701(b). But Dobbin was
subject to a maximum of twenty years of imprisonment for a
first-degree felony according to the information. See App. 255
(listing “F1,” “$25,000.00,” and “20 Years” next to Dobbin’s
robbery charge). 7 No other subsection of Pennsylvania’s
robbery statute fits Dobbin’s conviction except for subsection
(ii).
Our precedent applying the modified categorical
approach aligns with this conclusion. We addressed and
disposed of a similar argument in United States v. McCants,
952 F.3d 416 (3d Cir. 2020). The defendant in McCants
likewise argued that he could have been convicted under
another subsection of New Jersey’s robbery statute that did not
require violent force. See id. at 427–28 (citing N.J. Stat. Ann.
§ 2C:15-1(a)(3)). The charging documents in that case did
“not state explicitly which subsection of the statute McCants
was convicted under,” but a review of the plea colloquy
revealed that he admitted to threatening or attempting to
threaten another with force in committing the robbery. Id. at
427. That admission “most closely match[ed]” the subsection
of the New Jersey robbery statute that qualified as a crime of
violence. Id. at 428 (citing N.J. Stat. Ann. § 2C:15-1(a)(2)).
And the legal impossibility of recklessness applying to
Dobbin’s conviction distinguishes this case from others this
Court has encountered. For example, we noted the inclusion
7 Other charges on the information confirm that this
nomenclature aligns with a first-degree felony charge. See,
e.g., App. 256 (listing “F3,” “$15,000.00,” and “7 Years” next
to a charge of carrying firearms without a license, a third-
degree felony under 18 Pa. Cons. Stat. § 6106(a)(1)).

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of similar language in an indictment alleging simple assault
under Pennsylvania law. See United States v. Otero, 502 F.3d
331, 335 n.5 (3d Cir. 2007). But unlike robbery under
subsection (ii), simple assault can be committed recklessly and
was thus not a crime of violence. See id. at 334–35 (quoting
18 Pa. Cons. Stat. § 2701(a)(1)).
Here we face the inverse scenario of McCants, where a
plea colloquy broadly outlines Dobbin’s guilty plea for
robbery, but the charging documents more specifically lay out
his violation of § 3701(a)(1)(ii). The lesson remains the same.
The District Court could reference this “limited class of
documents” under Shepard to “determine which of a statute’s
alternative elements formed the basis of the defendant’s prior
conviction.” Descamps v. United States, 570 U.S. 254, 262
(2013); see also United States v. Tucker, 703 F.3d 205, 216 (3d
Cir. 2012) (“Shepard itself affirmed that ‘the details of a
generically limited charging document . . . in any sort of case’
are sufficient to establish a predicate.” (quoting Shepard, 544
U.S. at 21)). An errant reference to recklessness does not
overcome subsection (ii)’s tracked language, associated
penalties, and direct citation in the information. Because a
conviction for robbery under that subsection is a crime of
violence, the District Court did not err as to the Cumberland
County predicate either.8
8 Dobbin likewise suggests in a footnote that the Dauphin
County predicate suffers from the same flaw as the
Cumberland County predicate. See Dobbin Br. 22 n.5. We
reject this argument for many of the same reasons discussed
above. As in the information for the Cumberland County
predicate, the information for the Dauphin County predicate
cites § 3701(a)(1)(ii) directly and includes the same language

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3.
Even if Pennsylvania law allowed for a reckless version
of robbery under subsection (ii), contra our holding in
Henderson, we would still be compelled to affirm. The
Supreme Court’s decision in Borden makes clear that reckless
crimes cannot qualify as crimes of violence under the elements
clause. 593 U.S. at 445 (plurality opinion). The Supreme
Court also suggested that reckless crimes could not qualify
under the residual clause either. See United States v. Lee, 612
F.3d 170, 196 (3d Cir. 2010) (citing Begay v. United States,
553 U.S. 137, 144–45 (2008)). But the enumerated offenses
clause allows for some reckless offenses to qualify as crimes
of violence. Manslaughter, for instance, is listed in the
application note to the Guidelines and thus enumerated as a
crime of violence, but that offense may be committed
on “inflict[ing] or threaten[ing] to inflict serious bodily injury
upon another or intentionally put[ting] another in fear of
immediate serious bodily injury.” App. 131.
The Government also argues that robberies under
subsections (i) and (iv) would qualify as a crime of violence
under the enumerated offenses clause, asserting that such
robberies match the definition of generic robbery used in the
application note of the Guidelines. See Gov’t Br. 33–46; see
also United States v. Ball, 870 F.3d 1, 5–6 (1st Cir. 2017)
(holding that robbery under 18 Pa. Cons. Stat. § 3701(a)(1)(iv)
is a crime of violence under both the enumerated offenses
clause and the residual clause of the Guidelines). We need not
address this argument, as we conclude that Dobbin committed
a crime of violence by violating § 3701(a)(1)(ii) in
Cumberland County.

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recklessly. See Model Penal Code § 210.3(1)(a) (describing
manslaughter as a homicide “committed recklessly”) (A.L.I.
1985). This Court has accordingly held that other reckless
crimes under Pennsylvania law, such as third-degree murder
and aggravated assault, were crimes of violence under the
enumerated offenses clause. See Marrero, 743 F.3d at 398;
United States v. McQuilkin, 97 F.3d 723, 727–28 (3d Cir.
1996). And just like murder, manslaughter, and aggravated
assault, robbery is listed in the application note to the
Guidelines. U.S.S.G. § 4B1.2 cmt. n.1. So Dobbin’s robbery
conviction under § 3701(a)(1)(ii), even if premised on only
reckless conduct, may still qualify as a crime of violence under
the enumerated offenses clause.
But we need not decide whether a violation of
§ 3701(a)(1)(ii) falls under the enumerated offenses clause.
Dobbin, as the movant, bears the burden of showing that his
Strickland claim is cognizable. See Peppers, 899 F.3d at 235.
While Dobbin argues that robbery under subsections (i) or (iv)
do not qualify under the enumerated offenses clause, he makes
no such argument for subsection (ii). That argument was thus
forfeited. See Barna v. Bd. of Sch. Dirs. of Panther Valley Sch.
Dist., 877 F.3d 136, 147 (3d Cir. 2017) (“‘[F]orfeiture is the
failure to make the timely assertion of a right,’ an example of
which is an inadvertent failure to make an argument.”
(alteration in original) (quoting United States v. Olano, 507
U.S. 725, 733 (1993))). Dobbin’s robbery conviction in
Cumberland County therefore remains a valid predicate
offense alongside his robbery conviction in Dauphin County.
* * * * *

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Dobbin committed two crimes of violence — a robbery
in Dauphin County and a robbery in Cumberland County —
and was correctly designated as a career offender under the
Guidelines. His trial counsel therefore was not ineffective in
failing to argue against this designation on Dobbin’s proposed
grounds.
IV.
For the foregoing reasons, we will affirm the judgment
of the District Court.

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