United States of America v. Melvin Stinson, a/k/a Tank Melvin Stinson

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-1717
UNITED STATES OF AMERICA
v.
MELVIN STINSON,
a/k/a Tank
Melvin Stinson,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. No. 2-07-cr-00170-1)
District Judge: Honorable Eduardo C. Robreno
Originally Submitted Under Third Circuit LAR 34.1(a) on
July 6, 2009
Opinion Filed July 28, 2009 and Vacated September 24, 2009
Argued on Panel Rehearing October 8, 2009
Before: SLOVITER, AMBRO, and JORDAN, Circuit Judges
(Filed January 14, 2010)
Thomas F. Burke
Law Office of William J. Brennan
Philadelphia, PA 19103

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Attorney for Appellant
Robert A. Zauzmer (Argued)
Assistant United States Attorney
Chief of Appeals
Maria M. Carrillo
Assistant United States Attorney
Philadelphia, PA 19106
Attorneys for Appellee
Sarah S. Gannett
Assistant Federal Defender
David L. McColgin (Argued)
Supervising Appellate Attorney
Leigh M. Skipper
Chief Federal Defender
Federal Community Defender Office for
Defender Association of Philadelphia
Federal Court Division
Philadelphia, PA l9l06
Attorneys for Amici Curiae
OPINION OF THE COURT
SLOVITER, Circuit Judge.
This matter is before us on this court’s grant of the
petition for panel rehearing filed on behalf of Appellant Melvin
Stinson supported by Amici Curiae Federal Public and
Community Defender Organizations for each District in the
Third Circuit. Because our prior opinion was vacated with the
order granting rehearing, we include here the relevant facts.
I.

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We have jurisdiction under 18 U.S.C. § 3742 and 281
U.S.C. § 1291. “We exercise plenary review over questions of law,
such as whether a crime is a crime of violence.” United States v.
Hull, 456 F.3d 133, 137 (3d Cir. 2006).
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Stinson, who was arrested by local police in a
Philadelphia bar pursuant to an arrest warrant for failing to
appear in court, was found to be in possession of 23 glass vials
of cocaine base, totaling approximately 1.5 grams, and a .357
Magnum revolver. Thereafter, Stinson pled guilty to possession
with intent to distribute cocaine base in violation of 21 U.S.C. §
841(a)(1), using and carrying a firearm during a drug trafficking
crime in violation of 18 U.S.C. § 924(c)(1), and possession of a
firearm by a convicted felon in violation of 18 U.S.C. §
922(g)(1).
The presentence investigation report (“PSR”) found
Stinson to be a career offender under the 2006 United States
Sentencing Guidelines based on his 1998 conviction for
distribution of a controlled substance and his 1994 conviction in
Pennsylvania for “simple assault.” The PSR also noted that
Stinson had been convicted in Pennsylvania of resisting arrest.
The District Court agreed that Stinson was a career offender and,
as a result, gave Stinson an enhanced offense level of 32, but
deducted 3 points for acceptance of responsibility. As a career
offender, Stinson had a criminal history category of VI and
received a Guidelines range of 262 to 327 months imprisonment.
He was sentenced to 262 months, the bottom of the range. This
matter is before us on Stinson’s challenge to that sentence.1
When this matter was originally before us, Stinson
claimed that the District Court (1) incorrectly considered his
simple assault crime to be a crime of violence under the relevant
sentencing provisions and (2) did not reasonably apply the 18
U.S.C. § 3553(a) factors when determining his sentence. See
United States v. Stinson, 574 F.3d 244, 245 (3d Cir. 2009),
vacated, 2009 U.S. App. LEXIS 21202, at *1 (3d Cir. 2009).
Stinson conceded that the District Court’s conclusion that his

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simple assault conviction qualified as a crime of violence was
required after our precedent in United States v. Dorsey, 174 F.3d
331 (3d Cir. 1999), noting in his brief that “it would seem to be
difficult to distinguish Dorsey from the case at bar, factually.”
Appellant’s Br. at 10. He argued only that “[t]he District Court
must make a specific finding as to whether the offense of
conviction [i.e., the simple assault] established a crime of
violence by reference to the charged conduct [in the assault
charge].” Appellant’s Br. at 12. We do not understand Stinson
to have argued that the sentencing court should inquire into the
specific conduct of this particular offender, which would be
contrary to the Supreme Court’s direction that courts must apply
the categorical approach to classify a prior conviction. See
Taylor v. United States, 495 U.S. 575, 600-02 (1990). Under
that approach, a court must ask “whether the elements of the
offense are of the type that would justify its [classification as a
crime of violence].” James v. United States, 550 U.S. 192, 202
(2007).
Where a statute criminalizes different kinds of conduct,
some of which would constitute crimes of violence while others
would not, the court must apply a modified categorical approach
by which a court may look beyond the statutory elements to
determine the particular part of the statute under which the
defendant was actually convicted. See Shepard v. United States,
544 U.S. 13, 26 (2005); Evanson v. Att’y Gen., 550 F.3d 284,
290-91 (3d Cir. 2008); see also United States v. Smith, 544 F.3d
781, 786 (7th Cir. 2008) (“Such an examination . . . is ‘only to
determine which part of the statute the defendant violated.’”
(quoting United States v. Howell, 531 F.3d 621, 623 (8th Cir.
2008))).
After the briefs in the original appeal were filed, the
Supreme Court issued its opinion in Begay v. United States, 128
S. Ct. 1581 (2008). Begay interpreted the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), which imposes
a special mandatory prison term on a felon who unlawfully
possesses a firearm and who has three or more prior convictions
for committing certain drug crimes or “violent felon[ies].”
Under the ACCA:

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[T]he term “violent felony” means any crime punishable
by imprisonment for a term exceeding one year, or any act
of juvenile delinquency involving the use or carrying of a
firearm, knife, or destructive device that would be
punishable by imprisonment for such term if committed
by an adult, that –
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another . . . .
18 U.S.C. § 924(e)(2)(B). Begay focused on the meaning of the
latter clause, i.e., “or otherwise involves conduct that presents a
serious potential risk of physical injury to another,” which has
been called “the residual clause.” See 128 S. Ct. at 1586.
In our original opinion we declined to address the effect
of Begay on the District Court’s characterization of Stinson’s
conviction for simple assault as a crime of violence under
U.S.S.G. § 4B1.1(a), reasoning that it was “an issue that would
benefit from initial briefing and exploration before a trial judge
[in light of the subsequent decision in Begay].” Stinson, 574
F.3d at 246. We nevertheless affirmed the sentence on the basis
that resisting arrest, of which Stinson was also convicted, was a
crime of violence under the Sentencing Guidelines.
Thereafter, another panel of this court decided the issue
of the characterization of “simple assault” that we had declined
to reach in Stinson and held that “an intentional or knowing
violation of the [Pennsylvania simple assault statute] is a crime
of violence under U.S.S.G. § 4B1.2(a)(2).” United States v.
Johnson, 587 F.3d 203, 212 (3d Cir. 2009). Under the
Pennsylvania simple assault statute, a person is guilty who
“attempts to cause or intentionally, knowingly, or recklessly
causes bodily injury to another.” 18 Pa. Cons. Stat. Ann. §
2701(a)(2). Although the criminal information charged Johnson
with intentional and knowing conduct, the Johnson court was

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unable to decide whether Johnson’s simple assault conviction
was a crime of violence because it was unclear, “based on the
information alone, whether Johnson actually admitted to acting
intentionally or knowingly.” Id. In light of the Government’s
position “that reckless conduct, standing alone, is not the type of
purposeful conduct that can constitute a crime of violence under
§ 4B1.2(a)(2)’s residual clause,” we vacated Johnson’s sentence
and remanded to the sentencing court. Id. at 210. We included a
reminder that the Supreme Court’s decision in Shepard
foreclosed the court from inquiring into the facts underlying the
earlier conviction but required the court to determine the part of
the Pennsylvania simple assault statute to which Johnson pled
guilty. Id. at 209.
In this case, as in Johnson, the record fails to show the
part of Pennsylvania’s simple assault statute on which Stinson’s
1994 conviction was based. We therefore turn from the simple
assault issue to analyze instead whether Stinson’s conviction for
resisting arrest qualifies as a categorical crime of violence. If so,
the District Court did not err in denominating Stinson a career
offender.
II.
In his motion for panel rehearing, Stinson raises three
challenges to his sentence. He argues that the Pennsylvania
resisting arrest statute, 18 Pa. Cons. Stat. Ann. § 5104,
is not a categorical crime of violence after Begay; that the court
should not have affirmed the career offender sentence based on
Stinson’s prior conviction for resisting arrest; and that the
court’s holding that resisting arrest is a crime of violence is at
odds with United States v. Hopkins, 577 F.3d 507 (3d Cir. 2009).
We turn to consider these arguments.
Under the United States Sentencing Guidelines:
The term “crime of violence” means any offense under
federal or state law, punishable by imprisonment for a
term exceeding one year, that –

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(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.
U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 4B1.2(a)
(2006) (emphasis added). The definition in the Sentencing
Guidelines is sufficiently similar to the definition of a violent
felony under the ACCA that authority interpreting one is
generally applied to the other. See Hopkins, 577 F.3d at 511.
Therefore, we are guided by the Supreme Court’s decision in
Begay analyzing the term “violent felony” under the ACCA.
That decision also underlies our analysis of Stinson’s
challenge to the District Court’s characterization of him as a
career offender. Under the Sentencing Guidelines, Stinson is a
career offender if he: (1) was at least eighteen years old when
the instant offense occurred; (2) the instant offense of conviction
is a crime of violence or a controlled substance offense; and (3)
he “has at least two prior felony convictions of either a crime of
violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a)
(2006) (emphasis added). The first two requirements are
satisfied as Stinson was at least 18 years old and the instant
offense of conviction was a controlled substance offense. We
therefore focus on the third requirement: Stinson’s prior
convictions.
Stinson has prior convictions for distribution of a
controlled substance, simple assault, and resisting arrest.
Stinson does not challenge that his 1998 conviction for
distribution of a controlled substance qualifies as a prior
conviction for career offender purposes. In light of our
elimination of simple assault at this stage, if we are to affirm
Stinson’s sentence, as the Government urges, we must find that
resisting arrest under Pennsylvania law is a crime of violence.

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In Taylor v. United States, 495 U.S. 575 (1990), the
Supreme Court considered how prior convictions should be
analyzed for career offender purposes. After careful
consideration, it concluded that a court should apply a
categorical approach, and “look only to the fact of conviction
and the statutory definition of the prior offense.” Id. at 602. We
thus look to the statutory definition of resisting arrest under
Pennsylvania law.
The Pennsylvania Code states that:
A person commits a misdemeanor of the second degree if,
with the intent of preventing a public servant from
effecting a lawful arrest or discharging any other duty, the
person [1] creates a substantial risk of bodily injury to the
public servant or anyone else, or [2] employs means
justifying or requiring substantial force to overcome the
resistance.
18 Pa. Cons. Stat. Ann. § 5104 (2006).
The Pennsylvania statute specifies two types of conduct
by which a defendant could resist arrest. One specified conduct
is when the defendant resists arrest by “creat[ing] a substantial
risk of bodily injury” to the officer or another. Id. This is
“conduct that presents a serious potential risk of physical injury
to another,” and thus fits squarely within the definition of a
crime of violence in the residual clause of U.S.S.G. §
4B1.2(a)(2) (2006). The other specified conduct of resisting
arrest under the Pennsylvania statute is the action of a defendant
who “employs means justifying or requiring substantial force to
overcome the resistance.” 18 Pa. Cons. Stat. Ann. § 5104. In
order to ascertain whether this conduct fits within the Guidelines
definition of a “crime of violence,” we must focus on whether it
also falls within the residual clause of U.S.S.G. § 4B1.2(a), that
is whether it “involves conduct that presents a serious potential
risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2)
(2006).
Justice Breyer’s opinion in Begay provides needed clarity

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on the residual clause. As explained there, the conduct falls
within the residual clause if it poses a degree of risk that is
similar to the degree of risk posed by the enumerated offenses
(“burglary of a dwelling, arson, extortion [or] involves use of
explosives”), and is similar in kind to those offenses. Begay,
128 S. Ct. at 1586. Begay further explains that an offense is
similar in kind to the enumerated offenses if it “typically
involve[s] purposeful, violent, and aggressive conduct.”
Id.(internal quotations and citations omitted). This leads us to
inquire whether the second specified conduct in the
Pennsylvania resisting arrest statute, i.e., “employ[ing] means
justifying or requiring substantial force to overcome the
resistance,” 18 Pa. Cons. Stat. Ann. § 5104, involves
“purposeful, violent, and aggressive conduct,” Begay, 128 S. Ct.
at 1586 (internal quotations and citations omitted).
We conclude that it does. Such conduct poses as great or
greater a risk as burglary or extortion. Unlike those enumerated
offenses, resisting arrest necessarily involves confronting the
authority of a police officer who is likely armed and charged
with defending the public. Because the police officer is duty-
bound to effectuate the arrest, the offense engenders a significant
risk of conflict and, correspondingly, a significant risk of injury.
Resisting arrest by “employ[ing] means justifying or
requiring substantial force to overcome” is, by definition,
purposeful, aggressive and violent. 18 Pa. Cons. Stat. Ann. §
5104. It is “purposeful” because under the statute the crime
must have been “with the intent of preventing a public servant
from effecting a lawful arrest or discharging any other duty . . .
.” Id. (emphasis added). The refusal to yield to a public
official’s exercise of authority creates a substantial risk of injury
and is at least as aggressive and violent as burglary of a
dwelling. When “employ[ing] means justifying or requiring
substantial force to overcome,” an arrestee is knowingly
engaging in conflict with another. Id. (emphasis added).
Stinson counters that conduct that may fall within the
second clause of the Pennsylvania resisting arrest statute could
permit conviction for passive resistance, behavior that meets

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neither of Begay’s standards of violence and aggressiveness. To
support his expansive view of the statute, Stinson relies heavily
on a single case, Commonwealth v. Thompson, 922 A.2d 926
(Pa. Super. Ct. 2007). Although defendant in that case
contended that she used “passive resistance” to the officers’
attempts to place her in custody after she and her husband
“interlocked their arms and legs and refused to respond to the
[officer’s] verbal commands to release their hands,” 922 A.2d at
927, it is evident that the Pennsylvania Superior Court focused
on other conduct. The court looked to “the statutory language of
section 5104 criminalizing resistance behavior that requires
substantial force to surmount.” Id. at 928.
The question whether a defendant committed the offense,
i.e., guilty or not, must be distinguished from the question
whether the Pennsylvania offense is a categorical crime of
violence. The defendant in Thompson was hardly passive as she
argued. She “approached [the officer], yelling and waving her
hands in an attempt to scare the horse [on which he was riding] .
. . [and] hit the horse’s nose, causing the animal to rear up.” Id.
at 927. Moreover, the defendant in Thompson “struggl[ed] with
the officers for a few minutes.” Id. Thus, Thompson’s behavior
squarely fit within the Pennsylvania resisting arrest statute.
The Pennsylvania courts have not construed the resisting
arrest statute to cover passive resistance. Passive resistance is
the antithesis of an act of violence. Protestors who gather in
large numbers or in small groups to support a cause, whether it
be animal rights, opposition to abortion, more vigorous
environmental enforcement, or the conflict in Afghanistan, and
who passively resist when the authorities seek to dissolve the
group, are not engaging in violent or aggressive action.
Although the language of Pennsylvania’s resisting arrest
statute “does not require the aggressive use of force such as
striking or kicking of the officer,” Commonwealth v. Miller, 475
A.2d 145, 146 (Pa. Super. Ct. 1984), we have found no decision
under Pennsylvania law that affirmed a conviction for resisting
arrest based on a defendant’s inaction or simply “lying down” or
“going limp.” Counsel arguing before us on this appeal could

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We need not dwell on Stinson’s argument that our2
conclusion that resisting arrest is a crime of violence is contrary to
our opinion in Hopkins, 577 F.3d at 515, where we held that
second degree misdemeanor “escape” pursuant to 18 Pa. Cons.
Stat. Ann. § 5121 does not qualify as a crime of violence for career
offender purposes. The information to which Hopkins pled guilty
charged that he “unlawfully remove[d] himself from official
detention or fail[ed] to return to official detention following
temporary leave granted for a specific purpose or limited period.”
577 F.3d at 513. We held that misdemeanor escape “is conduct
materially less violent and aggressive than the enumerated
offenses.” Id. at 514. Such is not the case with resisting arrest.
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cite to none in response to our questions. In fact, there are
several cases in which Pennsylvania courts have recognized that
resisting arrest does not extend to “minor scuffle[s] incident to
an arrest.” Commonwealth v. Rainey, 426 A.2d 1148, 1150 (Pa.
Super. Ct. 1981); see also Miller, 475 A.2d at 146 (“The intent
of [Pennsylvania’s resisting arrest statute] is ‘to confine the
offense to forcible resistance that involves some substantial
danger to the person.’” (quoting Pa. Crimes Code Ann. § 5104
(1974)). It is only when a defendant who was “struggling and2
pulling, trying to get away from [the arresting officer who was
physically restraining him],” that he was convicted of resisting
arrest, and such cases are rare. Commonwealth v. Trego, 33 Pa.
D. & C.3d 352, 353 (Pa. Ct. Com. Pl. 1984).
Having satisfied ourselves that the crime of resisting
arrest in Pennsylvania does not encompass passive resistance, we
must determine whether the “ordinary” or “typical” fact scenario
underlying resisting arrest convictions in Pennsylvania is
sufficiently “purposeful, violent, and aggressive” to qualify as
crimes of violence after Begay. See Begay, 128 S. Ct. at 1586
(noting that the enumerated crimes all “typically” involve
purposeful, violent, and aggressive conduct); see also James v.
United States, 550 U.S. 192, 208 (2007) (“[T]he proper inquiry
is whether the conduct encompassed by the elements of the
offense, in the ordinary case, presents a serious potential risk of
injury to another” comparable to the enumerated offenses). We

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For the reasons set forth, we reject Stinson’s contention3
that we would benefit from further briefing or record development
at the trial level.
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conclude that the “ordinary” case meets this definition. Our
examination of the statute and the Pennsylvania cases
interpreting it demonstrate why that is so.
We therefore affirm the District Court’s holding that
Stinson was a career offender, but we do so on the alternate
ground that his prior conviction for resisting arrest, a categorical
crime of violence, provided the second predicate offense to his
designation as a career offender.3

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