United States of America v. James Henry Johnson

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-3693
UNITED STATES OF AMERICA
v.
JAMES HENRY JOHNSON,
Appellant
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 08-cr-00082-001)
District Judge: Honorable Donetta W. Ambrose
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 29, 2009
Before: SMITH, FISHER and NYGAARD, Circuit Judges.
(Filed: November 18, 2009)

-- 1 of 26 --

2
Renee Pietropaolo
Office of Federal Public Defender
1001 Liberty Avenue
1500 Liberty Center
Pittsburgh, PA 15222
Attorney for Appellant
Robert L. Eberhardt
Rebecca R. Haywood
Laura S. Irwin
Office of the United States Attorney
700 Grant Street, Suite 4000
Pittsburgh, PA 15219
Attorneys for Appellee
OPINION OF THE COURT
FISHER, Circuit Judge.
James Henry Johnson pled guilty to one count of
unlawful possession of a firearm by a person previously
convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). The
United States Probation Office assigned Johnson a base offense
level of 20 under the United States Sentencing Guidelines based
on his 2002 conviction under the Pennsylvania simple assault
statute (“PSAS”), 18 Pa. Cons. Stat. § 2701. Johnson
challenged that calculation, arguing that his simple assault
conviction did not constitute a “crime of violence” under the

-- 2 of 26 --

3
Guidelines. The District Court rejected that argument and
sentenced Johnson to 77 months’ imprisonment. Johnson
appeals, arguing that the District Court’s determination that his
simple assault conviction is a crime of violence cannot be
reconciled with the Supreme Court’s decision in Begay v.
United States, 553 U.S. __, 128 S. Ct. 1581 (2008). For the
reasons that follow, we will vacate Johnson’s sentence and
remand for resentencing.
I.
The facts giving rise to this case are relatively
straightforward. On November 1, 2006, Johnson was sitting in
a car parked in a grocery store parking lot in Pittsburgh,
Pennsylvania. Pittsburgh police officers received a tip regarding
Johnson’s whereabouts and arrested him pursuant to an
outstanding warrant issued in connection with unrelated charges.
Inside the car, the officers found a loaded firearm with an
obliterated serial number. Thereafter, Johnson was charged in
the Western District of Pennsylvania with one count of unlawful
possession of a firearm by a person convicted of a felony, in
violation of 18 U.S.C. § 922(g)(1). Johnson subsequently pled
guilty to that charge.
Before sentencing, the Probation Office prepared a
Presentence Report (“PSR”). Pursuant to U.S.S.G.
§ 2K2.1(a)(4)(A), the Probation Office calculated Johnson’s
base offense level as 20 based on his 2002 simple assault
conviction in the Allegheny County Court of Common Pleas,
which the Probation Office designated as a “crime of violence”
pursuant to U.S.S.G. § 4B1.2(a)(2). After giving Johnson a

-- 3 of 26 --

Johnson’s 2004 simple assault conviction was for a1
misdemeanor of the third degree, punishable by not more than
one year in prison. 18 Pa. Cons. Stat. 1104(3). Accordingly, it
does not qualify as a crime of violence under U.S.S.G. § 2K2.1.
4
four-level increase because the firearm he unlawfully possessed
had an obliterated serial number, and a three-level decrease to
reflect his acceptance of responsibility and his timely
notification of his intention to plead guilty, the Probation Office
calculated Johnson’s total offense level as 21. The PSR also
detailed Johnson’s criminal history. It noted that Johnson had
the following five prior convictions: a 2001 conviction for
fleeing or attempting to elude a police officer, possession or
distribution of marijuana, and a failure to yield to traffic signs;
a 2002 simple assault conviction; a 2002 conviction for
possession of a firearm without a license, unauthorized use of an
automobile and other vehicles, and driving without a license; a
2002 conviction for possession of a firearm without a license
and unauthorized use of an automobile; and a 2004 conviction
for simple assault. The Probation Office assigned Johnson a1
total of 11 criminal history points to reflect these prior
convictions. Three more points were added because Johnson’s
felon-in-possession conviction arose while he was on parole for
a previous offense and within two years of his release from
parole for another previous offense. Accordingly, Johnson was
assigned a total of 14 criminal history points, resulting in a
criminal history category of VI. Johnson’s total offense level of

-- 4 of 26 --

Absent a finding that Johnson had a prior conviction2
constituting a crime of violence, Johnson’s base offense level
would have been 14 and his total offense level would have been
15, resulting in an advisory Guidelines range of 41 to 51
months.
5
21 and criminal history category of VI resulted in an advisory
Guidelines range of 77 to 96 months’ imprisonment.2
At sentencing, Johnson objected to several aspects of the
PSR. In pertinent part, Johnson objected to the application of
U.S.S.G. § 2K2.1(a)(4)(A) in the calculation of his base offense
level. He asserted that his 2002 simple assault conviction did
not qualify as a “crime of violence” under U.S.S.G.
§ 4B1.2(a)(2) in light of Begay. He pointed out that count one
of the criminal information in the simple assault case charged
him with intentional, knowing and reckless conduct, and that,
aside from the information, the government had introduced no
other evidence on the basis of which to determine his particular
mens rea when he committed that crime. Johnson contended
that reckless conduct could never constitute a crime of violence
in light of Begay because such conduct, by definition, is not
purposeful. The government urged the District Court not to
make a blanket ruling to that effect, and asked the Court to infer
from the criminal information alone that Johnson’s simple
assault conviction evinced the sort of conduct that could be
considered a violent crime under Begay. The government noted
that while a sentencing court could consider the plea agreement
and the plea colloquy, among other things, to determine a
defendant’s actual mens rea, in Johnson’s case the former was

-- 5 of 26 --

6
“not particularly helpful” and the latter was “not available[.]”
(App. 100.) After hearing the parties’ respective positions, the
District Court ruled as follows:
I do not read or see Begay as broadly as the
defense does. I do not believe that Begay
instructs that this type of underlying offense can
never be a crime of violence. A crime is violent
if it presents a serious risk of injury to another
person. In this case, Mr. Johnson’s plea to simple
assault demonstrates from the charging document
and the statute itself that it presented a serious risk
of injury to another person. And I do believe that
it is similar in kind as well as in the degree of risk
posed by the commission of other crimes. And
it’s similar in kind because it involves purposeful,
violent and aggressive behavior. So, that is my
ruling in this case. It would keep the offense
level at a 21.
(App. 102-03.)
The District Court accepted the PSR’s calculations and
was unpersuaded by Johnson’s other objections. The Court
sentenced Johnson to 77 months’ imprisonment and three years
of supervised release.
This timely appeal followed. Johnson argues that:
(1) his 2002 simple assault conviction is not a “crime of
violence” under U.S.S.G. § 4B1.2(a)(2); (2) his sentence is

-- 6 of 26 --

7
procedurally unreasonable; and (3) his sentence is substantively
unreasonable.
II.
The District Court had jurisdiction under 18 U.S.C.
§ 3231. This Court has jurisdiction under 28 U.S.C. § 1291 and
18 U.S.C. § 3742. We exercise plenary review over the legal
question whether a particular crime constitutes a crime of
violence. United States v. McQuilkin, 97 F.3d 723, 727 (3d Cir.
1996). In interpreting the Guidelines, we look to their “plain
and unambiguous language[,]” United States v. Swan, 275 F.3d
272, 279 (3d Cir. 2002) (quotation marks and citation omitted),
but commentary to the Guidelines “is authoritative unless it
violates the Constitution or federal statute or is inconsistent with
or is a plainly erroneous reading of that provision[.]” United
States v. Remoi, 404 F.3d 789, 795 (3d Cir. 2005) (per curiam)
(citing Stinson v. United States, 508 U.S. 36 (1993)). We
review the District Court’s sentence for reasonableness under
the abuse-of-discretion standard. See Gall v. United States, 552
U.S. __, 128 S. Ct. 586, 594, 597 (2007); United States v.
Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc).
III.
The Guidelines provide that a defendant’s base offense
level is 20 if the defendant “committed any part of the instant
offense subsequent to sustaining one felony conviction of . . . a
crime of violence[.]” U.S.S.G. § 2K2.1(a)(4)(A). The
Guidelines define a “crime of violence” as

-- 7 of 26 --

The parties apparently agree that no other provision of3
U.S.S.G. § 4B1.2(a) reaches the PSAS, and their briefing is
limited to the applicability vel non of the residual clause. In this
opinion, we consider only the residual clause.
8
any offense . . . 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.
U.S.S.G. § 4B1.2(a) (emphasis supplied). The commentary to
§ 4B1.2 offers a list of crimes that constitute crimes of violence,
including “murder, manslaughter, kidnapping, aggravated
assault, forcible sex offenses, robbery, arson, extortion,
extortionate extension of credit, and burglary of a dwelling.”
U.S.S.G. § 4B1.2 cmt. 1. In this case, we consider only the
portion of § 4B1.2(a)(2) italicized above, which we have
referred to as the “residual clause.” United States v. Hopkins,
577 F.3d 507, 510 (3d Cir. 2009).3
In United States v. Dorsey, 174 F.3d 331 (3d Cir. 1999),
we held that a conviction under the PSAS is a crime of violence
under § 4B1.1 of the Guidelines. Id. at 333. As both parties

-- 8 of 26 --

This circuit’s Internal Operating Procedure 9.1 provides:4
“It is the tradition of this court that the holding of a panel in a
precedential opinion is binding on subsequent panels. Thus, no
subsequent panel overrules the holding in a precedential opinion
of a previous panel. Court en banc reconsideration is required
to do so.” That rule notwithstanding, “a panel of our Court may
decline to follow a prior decision of our Court without the
necessity of an en banc decision when the prior decision
conflicts with a Supreme Court decision.” United States v.
Tann, 577 F.3d 533, 541 (3d Cir. 2009) (citations omitted).
Dorsey, issued many years before Begay, did not consider
whether the crimes in the PSAS were similar both in kind and in
degree of risk to the enumerated crimes, as required by Begay.
Therefore, to the extent any portion of Dorsey conflicts with
Begay, we are not bound by that portion of Dorsey.
9
recognize, the analytical framework we employed in Dorsey has
been altered by the Supreme Court’s decision in Begay. Post-4
Begay, to qualify as a crime of violence the crime in question
“must (1) present a serious potential risk of physical injury and
(2) be ‘roughly similar, in kind as well as degree of risk posed,
to the examples [burglary, arson, extortion, or use of explosives]
themselves.’” United States v. Polk, 577 F.3d 515, 518 (3d Cir.
2009) (emphasis and alteration in original) (quoting Begay, 128
S. Ct. at 1585-86). A crime is similar in kind to one of the
enumerated examples if it “typically involve[s] purposeful,
violent, and aggressive conduct.” Begay, 128 S. Ct. at 1586

-- 9 of 26 --

The Begay Court in fact addressed the definition of a5
violent felony under the Armed Career Criminal Act, 18 U.S.C.
§ 924(e)(2)(B)(ii). We have recognized that the definitions of
“violent felony” in that act and “crime of violence” in the
Guidelines are “close enough that precedent under the former
must be considered in dealing with the latter.” United States v.
Polk, 577 F.3d 515, 519 n.1 (3d Cir. 2009) (citation omitted);
see also United States v. Hopkins, 577 F.3d 507, 511 (3d Cir.
2009) (“[T]he definition of a violent felony under the [Armed
Career Criminal Act] is sufficiently similar to the definition of
a crime of violence under the Sentencing Guidelines that
authority interpreting one is generally applied to the other[.]”
(footnote and citations omitted)). Our sister circuits have made
similar observations. See United States v. Hart, 578 F.3d 674,
677 n.3 (7th Cir. 2009); United States v. Charles, 576 F.3d
1060, 1068 n.2 (10th Cir. 2009); United States v. Pratt, 568 F.3d
11, 19 n.7 (1st Cir. 2009); United States v. Wilson, 562 F.3d
965, 967-68 (8th Cir. 2009); United States v. Archer, 531 F.3d
1347, 1350 n.1 (11th Cir. 2008).
10
(internal quotation marks and citations omitted). “If the crime5
of conviction is materially different in terms of these
characteristics, it does not come within the residua[l] clause.”
Hopkins, 577 F.3d at 514 (internal quotation marks omitted).
We generally use a 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
inclusion within the residual provision, without inquiring into

-- 10 of 26 --

11
the specific conduct of this particular offender.” James v.
United States, 550 U.S. 192, 202 (2007) (emphasis omitted).
Where a statute criminalizes different kinds of conduct, some of
which would constitute crimes of violence while others would
not, a court may look beyond the statutory elements to determine
the particular part of the statute of which the defendant was
actually convicted. See Evanson v. Attorney Gen. of the United
States, 550 F.3d 284, 290-91 (3d Cir. 2008); Singh v. Ashcroft,
383 F.3d 144, 147-48 (3d Cir. 2004); 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.’” (emphasis in original and other citation omitted)
(quoting United States v. Howell, 531 F.3d 621, 623 (8th Cir.
2008))). In conducting such an inquiry, a court is “generally
limited to examining the statutory definition, charging
document, written plea agreement, transcript of plea colloquy,
and any explicit factual finding by the trial judge to which the
defendant assented.” Shepard v. United States, 544 U.S. 13, 16
(2005). “This rule is not meant to circumvent the categorical
approach by allowing courts to determine whether the actual
conduct of the individual defendant constituted a purposeful,
violent and aggressive act.” Smith, 544 F.3d at 786 (citations
omitted).
To determine categorically whether a conviction under
the PSAS qualifies as a crime of violence, we begin with the
statutory text. See United States v. Siegel, 477 F.3d 87, 91 (3d
Cir. 2007). However, under the categorical approach we must
first determine how broadly to read that statute. See Chambers
v. United States, 555 U.S. __, 129 S. Ct. 687, 690 (2009)
(“Th[e] categorical approach requires courts to choose the right

-- 11 of 26 --

The PSAS specifies that “[s]imple assault is a6
misdemeanor of the second degree” unless committed in two
circumstances, 18 Pa. Cons. Stat. § 2701(b), neither of which is
relevant here. Under Pennsylvania law, a crime is considered “a
misdemeanor of the second degree if it is so designated in this
title or if a person convicted thereof may be sentenced to a term
of imprisonment, the maximum of which is not more than two
years.” 18 Pa. Cons. Stat. § 106(b)(7). A misdemeanor of the
second degree is punishable by imprisonment for a maximum
term of two years. 18 Pa. C. S. § 1104(2). Accordingly, the
crime of simple assault satisfies the first part of the Guidelines’
definition of “crime of violence” because it is punishable by a
term of imprisonment exceeding one year.
12
category. And sometimes the choice is not obvious.”). It is
undisputed that Johnson pled guilty only to subsection (a)(1) of
the PSAS. As a consequence, we focus our analysis on that
subsection alone.
Subsection (a)(1) of the PSAS imposes criminal liability
on an individual “if he . . . (1) attempts to cause or intentionally,
knowingly or recklessly causes bodily injury to another[.]” 18
Pa. Cons. Stat. § 2701(a)(1). The statute plainly criminalizes6
distinct types of conduct, all of which could constitute simple
assault. Under these circumstances, we may resort to the
materials outlined in Shepard to determine, not the factual
circumstances of Johnson’s conduct, but the specific part of
§ 2701(a)(1) to which Johnson in fact pled guilty. See, e.g.,
Siegel, 477 F.3d at 92 (“Clearly, the statute invites inquiry into
the underlying facts of the case because we are unable to

-- 12 of 26 --

The information also charged Johnson with two7
additional counts. The parties agree that Johnson pled guilty
only to the count reproduced above.
13
determine from the face of the statute which crime or crimes
Siegel pleaded guilty to. . . . Commonly, the best way to resolve
the question raised by a conviction under a statute phrased in the
disjunctive, or structured in outline form, will be to look to the
charging instrument or to the plea colloquy.” (citation omitted)).
Here, the criminal information filed against Johnson
charged, in relevant part, as follows:
The actor attempted to cause or intentionally,
knowingly or recklessly caused bodily injury to
Pamela Hall, that is to say the actor struck and/or
choked and/or otherwise assaulted the victim, in
violation of . . . 18 Pa. C.S. § 2701(a)(1).
(App. 126.)7
As the parties both acknowledge, the subsection of the
PSAS to which Johnson pled guilty criminalizes intentional,
knowing and reckless conduct. On appeal, Johnson renews his
position that, because the criminal information does not specify
his mens rea when he committed simple assault, and because the
government presented no other evidence, such as his plea
colloquy, to establish his mens rea, the District Court erred in
concluding that his simple assault conviction constituted a crime
of violence. He restates his view that a crime committed

-- 13 of 26 --

In Dorsey, we rejected the defendant’s argument that a8
conviction for reckless conduct is not a crime of violence. We
14
recklessly cannot be considered a crime of violence. In its brief,
the government initially argued that Johnson’s particular mens
rea when he violated the PSAS is not relevant because all three
states of mind enumerated in the statute satisfy Begay. The
government urged us to find that the crime of which Johnson
was convicted is “typically” committed intentionally.
(Appellee’s Br. 28.) However, in a letter submitted pursuant to
Federal Rule of Appellate Procedure 28(j), the government tells
us it has changed course:
[S]ince the filing of the government’s brief, the
Department of Justice has clarified its 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. Thus, to the extent that the government
has argued that reckless conduct is sufficient to
satisfy this standard, the government no longer
rests on this position.
(Appellee’s Rule 28(j) letter, Sept. 16, 2009.)
In light of the government’s new position that reckless
conduct does not qualify as a crime of violence, we have no
occasion to consider whether Johnson’s simple assault
conviction is a crime of violence to the extent he acted
r e c k l e s s l y . A c c o r d i n g l y , o u r8

-- 14 of 26 --

relied in part on pre-Begay circuit precedent to hold that “purely
reckless crimes may count as predicate offenses for purposes of
career offender guideline.” 174 F.3d at 333 (citations omitted).
Although we need not revisit the issue in this case, we question
whether reckless conduct may amount to a crime of violence
post-Begay. In Begay, the Court made plain that only
“purposeful, violent, and aggressive conduct” may constitute a
violent felony under the Armed Career Criminal Act. 128 S. Ct.
at 1586 (internal quotation marks omitted). The Court
distinguished that sort of conduct from drunk driving – the prior
conviction of the petitioner in that case – which the Court noted
“is a crime of negligence or recklessness, rather than violence
or aggression.” Id. at 1587 (emphasis supplied) (quotation
omitted); see Polk, 577 F.3d at 519 (“Post-Begay, the distinction
between active and passive crimes is vital . . . .”). At the end of
its decision the Begay Court summarized its holding as follows:
[W]e hold only that, for purposes of the particular
statutory provision before us, a prior record of
DUI, a strict liability crime, differs from a prior
record of violent and aggressive crimes
committed intentionally such as arson, burglary,
extortion, or crimes involving the use of
explosives. The latter are associated with a
likelihood of future violent, aggressive, and
purposeful “armed career criminal” behavior in a
way that the former are not.
128 S. Ct. at 1588. The Court’s repeated invocation of
15

-- 15 of 26 --

“purposefulness,” and the contrast the Court drew between that
state of mind and negligence or recklessness, suggest that a
crime committed recklessly is not a crime of violence. Indeed,
nearly every court of appeals that has considered the issue has
held that reckless conduct does not qualify as a crime of
violence post-Begay. See United States v. Baker, 559 F.3d 443,
453 (6th Cir. 2009) (Tennessee reckless endangerment statute);
United States v. Roseboro, 551 F.3d 226, 242-43 (4th Cir. 2009)
(South Carolina failure to stop for a blue light violation,
requiring a reckless or negligent state of mind); United States v.
Smith, 544 F.3d 781, 786-87 (7th Cir. 2008) (Indiana criminal
recklessness); United States v. Gray, 535 F.3d 128, 131-32 (2d
Cir. 2008) (New York reckless endangerment); see also United
States v. Herrick, 545 F.3d 53, 57-60 (1st Cir. 2008) (Wisconsin
motor vehicle homicide statute, requiring criminal negligence);
but see Begay, 128 S. Ct. at 1590 (Scalia, J., concurring) (noting
that “one of the enumerated crimes [in the Armed Career
Criminal Act] – the unlawful use of explosives – may involve
merely negligent or reckless conduct” (citations omitted));
United States v. Zuniga, 553 F.3d 1330, 1334-35 (10th Cir.
2009) (finding it “reasonable to surmise that those who possess
deadly weapons in a penal institution typically intend to possess
them,” and thus concluding that the Texas statute criminalizing
that conduct, whether intentional, knowing or reckless, satisfied
Begay). Furthermore, in pre-Begay cases, we held in other
contexts that a PSAS violation is not a crime of violence
because such a violation may be committed with a mens rea
lower than intent. See United States v. Otero, 502 F.3d 331, 335
(3d Cir. 2007) (concluding that a PSAS violation is not a crime
16

-- 16 of 26 --

of violence under U.S.S.G. § 2L1.2); Popal v. Gonzales, 416
F.3d 249, 254 (3d Cir. 2005) (holding that an alien’s PSAS
conviction was not a crime of violence under 18 U.S.C. § 16(a)
that would render the alien removable as an aggravated felon).
17
categorical assessment of the PSAS focuses only on whether an
intentional or knowing violation of subsection (a)(1) of that
statute may qualify as a crime of violence “in the ordinary case.”
James, 550 U.S. at 208. We have no trouble concluding that
such a violation would qualify.
At the first step of our inquiry under Begay, we ask
whether intentional or knowing simple assault presents a serious
potential risk of physical injury. We easily answer that question
in the affirmative. In the ordinary case, a violation of the PSAS
poses a degree of risk of physical injury because the defendant
must cause or attempt to cause bodily injury to the victim. In
other words, the statute itself contemplates bodily harm to the
victim as a prerequisite to conviction. See Commonwealth v.
Smith, 848 A.2d 973, 976 (Pa. Super. Ct. 2004) (“Bodily injury
is an element of Simple Assault[.]”). In short, we cannot
imagine a scenario in which simple assault under Pennsylvania
law could not present a risk of physical injury. Cf. James, 550
U.S. at 207-08 (“[The Armed Career Criminal Act] does not
require metaphysical certainty. . . . One can always hypothesize
unusual cases in which even a prototypically violent crime might
not present a genuine risk of injury. . . . But that does not mean
that [such an] offense[] . . . [is] categorically nonviolent.”).

-- 17 of 26 --

Johnson argues that Pennsylvania simple assault is not9
similar in kind to the enumerated crimes because it is not a
crime against property. That argument is singularly
unconvincing. As the Tenth Circuit has observed,
although Begay discusses the fact that Congress
intended that § 924(e)(2)(B)(ii) cover physically
risky property crimes, the dispositive section of
18
We likewise find that the other requirements articulated
in Begay – that the defendant’s crime must present a degree of
risk similar to that presented by the enumerated crimes and also
be similar in kind to those offenses – are readily satisfied in this
case. As noted above, the PSAS predicates criminal liability on
a finding that the defendant caused or attempted to cause bodily
injury to the victim. Pennsylvania law defines “ bodily harm”
as “[i]mpairment of physical condition or substantial pain.” 18
Pa. Cons. Stat. § 2301. A conviction under that statute therefore
poses a risk of injury that is more or less comparable to the
enumerated crimes. See James, 550 U.S. at 199 (holding that
attempted burglary is a “violent felony” under the Armed Career
Criminal Act because, like the enumerated crimes, it “create[s]
significant risks of bodily injury or confrontation that might
result in bodily injury” (emphasis added)). Indeed, a conviction
under the PSAS in most instances poses a greater risk of bodily
injury than that presented by extortion, for instance, one of the
enumerated crimes.
Simple assault under Pennsylvania law is also similar in
kind to the enumerated crimes. That crime, to the extent it is9

-- 18 of 26 --

the Begay opinion specifically holds, instead, that
the [Armed Career Criminal Act]’s residual
language includes prior convictions for offenses
that, like burglary, arson, extortion or crimes
involving explosives, concern conduct that is
purposeful, violent, and aggressive.
United States v. West, 550 F.3d 952, 967 (10th Cir. 2008)
(internal quotation marks and citation omitted). We agree.
Nothing in Begay unequivocally establishes that the residual
clause is restricted to crimes against property, and no case law
interpreting that provision post-Begay suggests as much.
19
committed intentionally or knowingly, is by definition
purposeful. Cf. United States v. Harrison, 558 F.3d 1280, 1295
(11th Cir. 2009) (finding that Florida’s “Willful Fleeing Statute”
requires conduct that is “purposeful and intentional”), cited with
approval in Hopkins, 577 F.3d at 514-15; see also Begay, 128
S. Ct. at 1587 (equating “crimes involving intentional or
purposeful conduct”); see also, e.g., United States v. Wilson, 568
F.3d 670, 674 (8th Cir. 2009) (concluding that Missouri’s child
abuse statute “satisfies Begay’s purposeful conduct requirement
based on the offense’s mens rea of knowingly inflicting cruel
and inhuman punishment” (emphasis in original) (citation
omitted)); United States v. Almenas, 553 F.3d 27, 34 (1st Cir.
2009) (concluding that “[t]he purposefulness requirement is
easily met” by Massachusetts’ resisting arrest statute because
“[b]oth methods of resisting arrest require the offender to act
knowingly”); United States v. Rooks, 556 F.3d 1145, 1151 (10th
Cir. 2009) (“Begay’s instruction that the proscribed conduct be

-- 19 of 26 --

20
purposeful is easily satisfied here, as the statute on its face
requires knowing and intentional conduct by the defendant.”).
Finally, there can be no doubt that simple assault is at
least as violent and aggressive as the enumerated crimes because
a defendant who intentionally or knowingly commits that
offense intends to impair the victim’s physical condition or
cause her substantial pain, while no such objective is required by
the enumerated crimes. Cf. Begay, 128 S. Ct. at 1586
(“[B]urglary is an unlawful or unprivileged entry into a building
or other structure with intent to commit a crime. . . . [A]rson is
causing a fire or explosion with the purpose of, e.g., destroying
a building of another or damaging any property to collect
insurance. . . . [E]xtortion is purposely obtaining property of
another through threat of, e.g., inflicting bodily injury[.]” (other
alterations, internal quotation marks and citations omitted)).
In sum, an intentional or knowing violation of the PSAS
is a crime of violence under U.S.S.G. § 4B1.2(a)(2).
Accordingly, Johnson is subject to U.S.S.G. § 2K2.1(a)(4)(A)’s
base offense level calculation so long as one of the materials
authorized by Shepard establishes that he admitted to acting
with one of those intents.
In its Rule 28(j) letter, the government resubmits its
request that we find that Johnson’s PSAS conviction constitutes
a crime of violence based only on the criminal information. In
the government’s view, the language of the information makes
sufficiently clear that Johnson’s conviction was based on
intentional as opposed to reckless conduct. We do not see in the
information the degree of clarity urged by the government. The

-- 20 of 26 --

Although raised by neither party, we note that in United10
States v. Siegel, 477 F.3d 87 (3d Cir. 2007), we held that a
defendant admits the PSR’s factual allegations by failing to
object to them. Id. at 93-94 (“[F]acts averred in the PSR
acceded to by Siegel avoid the ‘collateral trial[]’ and ‘judicial
factfinding’ preempted by the Court’s holding in Shepard.”).
The PSR in this case outlines the facts giving rise to
Johnson’s 2002 simple assault conviction:
[T]he defendant got into a physical altercation
with Pamela Hall, the mother of his children. He
struck Ms. Hall in the side of the head with a
candlestick, causing a one inch cut to her
head. . . . In addition, the defendant removed a
silver handgun from his waistband, pointed it at
Ms. Hall, and stated, “I should shoot you in the
head right now.”
(PSR ¶ 28.)
21
information largely tracks the statutory language in § 2701(a)(1),
thereby charging Johnson with different types of simple assault.
Admittedly, the information’s allegation that Johnson “struck
and/or choked” his victim strongly suggests that his conduct was
intentional and knowing. Under the particular circumstances
presented here, however, we do not believe that we can
conclusively determine, based on the information alone, whether
Johnson actually admitted to acting intentionally or knowingly.10

-- 21 of 26 --

Based on the PSR’s factual account – to which Johnson
apparently did not object – it is difficult to conceive that
Johnson did not commit simple assault intentionally and
knowingly. Still, what matters is the mens rea to which Johnson
actually pled guilty. Significantly, that question cannot be
answered on the basis of the PSR either. As a consequence,
Siegel does not govern the outcome of this case.
22
Accordingly, we must decline the government’s invitation to
engage in what is, at least in this particular case, a speculative
exercise that could implicate the very concerns the Supreme
Court has expressed in explaining the prohibition on inquiries
into the factual predicates of a defendant’s crime under these
circumstances. See Shepard, 544 U.S. at 25-26 (explaining that
such a factual inquiry risks running afoul of the Sixth and
Fourteenth Amendments as interpreted in Jones v. United States,
526 U.S. 227 (1999) and Apprendi v. New Jersey, 530 U.S. 466
(2000)). Of course, the question whether a particular charging
document contains sufficient information to permit a conclusion
about the character of a defendant’s previous conviction will
vary from case to case. We do not foreclose the possibility that
language of the kind at issue here may suffice in another case.
The government also asks us, in the event we do not find
Johnson’s simple assault conviction to be a crime of violence
based exclusively on the information, to remand this case to the
District Court for consideration of Johnson’s plea colloquy. The
government maintains that the transcript, previously unavailable
for logistical reasons, is now ready for review and clarifies the
mens rea to which Johnson actually pled guilty.

-- 22 of 26 --

23
In his response to the government’s Rule 28(j) letter,
Johnson objects to the notion of a remand, arguing in essence
that the government should not be given the opportunity to
present now what it should have presented earlier in these
proceedings. He relies on our decision in United States v.
Dickler, 64 F.3d 818 (3d Cir. 1995), in which we held that, as a
general matter,
where the government has the burden of
production and persuasion as it does on issues like
enhancement of the offense level . . ., its case
should ordinarily have to stand or fall on the
record it makes the first time around. It should
not normally be afforded a second bite at the
apple.
Id. at 832 (emphasis supplied and internal quotation marks and
citations omitted). We clarified, however, that there is “no
constitutional or statutory impediment to the district court’s
providing the government with an additional opportunity to
present evidence on remand if it has tendered a persuasive
reason why fairness so requires.” Id. (emphasis supplied and
citations omitted).
In this case, the government states that its earlier inability
to produce the plea colloquy before the District Court was a
result of personnel turnover in the office that provides
transcription services for the court in which Johnson’s simple
assault conviction arose. Under the particular circumstances
presented here, we believe that the government has tendered an

-- 23 of 26 --

Given this disposition, we do not reach Johnson’s11
challenge to the procedural and substantive reasonableness of
his sentence.
We note that our resolution of this case is roughly12
consistent with the Seventh Circuit’s decision in United States
v. Smith, 544 F.3d 781 (7th Cir. 2008). The defendant in that
case had a prior conviction for criminal recklessness under an
Indiana statute that defined “criminal recklessness” as follows:
“(b) A person who recklessly, knowingly, or intentionally
performs: (1) an act that creates a substantial risk of bodily
injury to another person; or (2) hazing; commits criminal
recklessness.” Ind. Code § 35-42-2-2(b). The Seventh Circuit
held, in light of Begay, that “crimes requiring only a mens rea
of recklessness cannot be considered violent felonies under the
residual clause of the [Armed Career Criminal Act].” Id. at 786.
The court noted, however, that the Indiana statute at issue
24
adequate explanation and that it should not be foreclosed from
presenting the transcript of Johnson’s plea colloquy.
IV.
For the foregoing reasons, we will vacate Johnson’s
sentence and remand for resentencing. On remand, the District11
Court may not inquire into the factual predicate of Johnson’s
simple assault conviction. Instead, the Court is restricted to
considering the materials outlined by the Supreme Court in
Shepard for the sole purpose of determining to which part of the
PSAS Johnson actually pled guilty. See United States v.12

-- 24 of 26 --

criminalized both non-purposeful as well as purposeful conduct.
Id. The court explained, as we have explained, that in such
instances a sentencing court is permitted to review certain
records, per Shepard, to ascertain “whether the jury actually
convicted the defendant of (or, in the case of a guilty plea, the
defendant expressly admitted to) violating a portion of the
statute that constitutes a violent felony.” Id. (emphasis and
citations omitted). The court explained that such an approach
could not be followed in that particular case:
As likely will be true in many instances of
convictions under a statute that contemplates
reckless behavior, the juries that convicted Mr.
Smith of criminal recklessness were not asked to
determine whether he acted knowingly or
intentionally; Mr. Smith also did not admit to
acting with that intent. Therefore, under the
categorical approach, we cannot look to the facts
of his particular convictions to determine for
ourselves whether his conduct was knowing or
intentional, on the one hand, or merely reckless on
the other.
Id. at 787.
For the reasons already discussed, we cannot determine,
based on the instant record, whether Johnson admitted to any
particular type of intent during his plea colloquy. Therefore,
unlike the Smith Court, the District Court in this case may be
25

-- 25 of 26 --

able to make that determination on remand.
We reiterate that our holding does not reach the13
question whether reckless conduct, either under the PSAS or as
a general matter, may qualify as a crime of violence.
26
Woods, 576 F.3d 400, 405 (7th Cir. 2009) (“[T]he additional
materials permitted by Shepard may be used only to determine
which crime within a statute the defendant committed, not how
he committed that crime.” (emphasis in original)). In the event
those materials do not demonstrate the mens rea to which
Johnson pled guilty, his simple assault conviction cannot qualify
as a crime of violence in this case in light of the government’s
representation that it does not seek to define that conviction as
a crime of violence to the extent it is premised on reckless
conduct.13

-- 26 of 26 --