United States of America v. Lee Sokalsky

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 25-1196
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UNITED STATES OF AMERICA
v.
LEE SOKALSKY,
Appellant
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 3:15-cr-00040-001)
District Judge: Honorable Robert D. Mariani
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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
on September 15, 2025
Before: RESTREPO, McKEE, and RENDELL, Circuit Judges
(Opinion filed: November 10, 2025)
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OPINION
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This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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McKEE, Circuit Judge.
Lee Sokalsky challenges the District Court’s denial of his motion to modify or
vacate his sentence pursuant to 28 U.S.C. § 2255.1 We granted a certificate of
appealability on the question of whether trial counsel rendered ineffective assistance by
failing to object to Sokalsky’s 2001 aggravated assault convictions as career-offender
predicates under the U.S. Sentencing Guidelines. For the reasons that follow, we will
affirm the District Court.
I.
To claim ineffective assistance of counsel, Sokalsky must satisfy the two-prong
test set forth by the Supreme Court in Strickland v. Washington.2 First, Sokalsky must
“show that [the] counsel’s performance was deficient[,]” and second, “that the deficient
performance prejudiced the defen[dant].”3 “To meet the first prong, counsel’s
performance must fall ‘below an objective standard of reasonableness considering all the
circumstances.’”4 To establish prejudice under the second prong, a defendant is required
to demonstrate “that the decision reached would reasonably likely have been different
absent the errors.”5
1 The facts of this case are known to the parties and are recounted only to the extent
necessary to explain the disposition of this case.
2 Strickland v. Washington, 466 U.S. 668, 687 (1984).
3 McKernan v. Superintendent Smithfield SCI, 849 F.3d 557, 564 (3d Cir. 2017) (citing
Strickland, 466 U.S. at 687).
4 Id. (quoting Jacobs v. Horn, 395 F.3d 92, 102 (3d Cir. 2005)).
5 Strickland, 466 U.S. at 696.

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II.
Central to Sokalsky’s ineffective counsel challenge is whether Sokalsky has “two
prior felony convictions of either a crime of violence or a controlled substance offense”
as required to be deemed a career offender under the Sentencing Guidelines.6 Sokalsky
alleges that his second degree aggravated assault conviction under 18 Pa.C.S.A. §
2702(a)(4) does not qualify as a valid career offender predicate where it “merged” for
sentencing purposes with his higher-graded § 2702(a)(1) conviction.7 Sokalsky argues
that, as a result of the merger, he received a “no penalty sentence” on the § 2702(a)(4)
conviction, and thus the conviction may not serve as one of the two predicates required
for career offender status under U.S.S.G. § 4B1.1(a).
However, we need not reach the question of whether Sokalsky’s § 2702(a)(4)
conviction is a valid predicate, because it is clear under this Court’s precedent in United
States v. Brasby that Sokalsky’s § 2702(a)(1) conviction is a valid predicate under the
enumerated offenses clause of U.S.S.G. § 4B1.2(a).8 In Brasby, this Court applied the
categorical approach to conclude that New Jersey’s aggravated assault statute qualifies as
a “crime of violence” under the enumerated offenses clause.9 The analysis in Brasby
6 U.S.S.G. § 4B1.1(a). It is undisputed that Sokalsky’s 2009 conviction in Pennsylvania
state court for manufacturing, delivering, or possessing with intent to manufacture or
deliver a controlled substance, see 35 Pa. Cons. Stat. § 780-113(a)(30), qualifies as a
“controlled substance offense” for career-offender purposes. See United States v. Glass,
904 F.3d 319, 324 (3d Cir. 2018).
7 See 42 Pa. C. S. § 9765.
8 See 61 F.4th 127, 142–43 (3d Cir. 2023).
9 Id.

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applies with equal force to Sokalsky’s § 2702(a)(1) offense, which is identical in its
operative terms to New Jersey’s aggravated assault statute: they both criminalize
completed or attempted aggravated assault resulting in serious bodily injury that is
committed with extreme-indifference recklessness.10 These elements match the generic
federal offense, and thus § 2702(a)(1) constitutes a “crime of violence” under the
Guidelines.
Because Brasby establishes that Sokalsky’s § 2702(a)(1) offense is a crime of
violence, Sokalsky had two prior felony convictions of a crime of violence or a controlled
substance offense as required to be classified a career offender.11 Thus, Sokalsky’s
collateral challenge fails under Strickland, as Sokalsky was not prejudiced by counsel’s
failure to object to the use of Sokalsky’s § 2702(a)(1) conviction as a career offender
predicate.12
III.
For the foregoing reasons, we will affirm the District Court.
10 See United States v. Olinsky, 2023 WL 2945899, at *3 (3d Cir. Apr. 14, 2023) (citing
Brasby and concluding that § 2702(a)(1) is a career offender predicate offense).
11 See U.S.S.G. § 4B1.1(a).
12 See United States v. Vines, 134 F.4th 730, 740 (3d Cir. 2025) (“We will not treat
counsel’s failure to raise a meritless argument as prejudicial.”).

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