United States of America v. Shalen Thomas, a/k/a Dontae Thomas, a/k/a Dontae Baskins SHALEN THOMAS

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 10-2170
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UNITED STATES OF AMERICA
v.
SHALEN THOMAS,
a/k/a Dontae Thomas,
a/k/a Dontae Baskins
SHALEN THOMAS,
Appellant
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On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 08-cr-00435)
District Judge: Honorable Alan N. Bloch
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Submitted Under Third Circuit LAR 34.1(a)
June 23, 2011
Before: HARDIMAN, GREENBERG, Circuit Judges
and POLLAK * District Judge.
(Filed: June 23, 2011)
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OPINION OF THE COURT
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*The Honorable Louis H. Pollak, Senior Judge for the United States District Court
for the Eastern District of Pennsylvania, sitting by designation.

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HARDIMAN, Circuit Judge.
Shalen Thomas appeals his judgment of sentence following a guilty plea. He asks
us to revisit whether a prior conviction under Pennsylvania‘s misdemeanor resisting arrest
statute, 18 PA. CONS. STAT. ANN. § 5104, qualifies as a ―crime of violence‖ under the
United States Sentencing Guidelines (USSG), in light the Supreme Court‘s holding in
Johnson v. United States, 130 S. Ct. 1265 (2010). Because we find that Johnson does not
change our previous holding that resisting arrest in Pennsylvania is a crime of violence,
United States v. Stinson, 592 F.3d 460, 466 (3d Cir. 2010), and because the sentence
imposed was procedurally and substantively reasonable, we will affirm.
I
We write for the parties, who are well acquainted with the case, so we review only
briefly the essential facts and procedural history.
In July 2009, Thomas pleaded guilty to possession of a firearm by a convicted
felon, a violation of 18 U.S.C. § 922(g)(1). At sentencing, the District Court set his base
offense level at 24 because Thomas had committed the unlawful firearm possession
offense ―subsequent to sustaining at least two felony convictions of either a crime of
violence or a controlled substance offense.‖ USSG § 2K2.1(a)(2). Before pleading guilty
in this case, Thomas had been convicted in state court of possession and possession with
intent to deliver heroin and cocaine, a controlled substance offense. He had also been

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convicted in state court of resisting arrest, which the District Court found to be a crime of
violence. Although Thomas acknowledged the controlled substance offense, he argued
that because resisting arrest was not a crime of violence, his base offense level should
have been 20 under USSG § 2K2.1(a)(4)(A). The District Court rejected Thomas‘s
argument and, after further adjustments not relevant on appeal, calculated his final
offense level as 23 and his criminal history category as V, resulting in a Guidelines range
of 84-105 months imprisonment. Had Thomas prevailed in his objection, his final
offense level would have been 19, resulting in a Guidelines range of 57-71 months. After
considering Thomas‘s motions for departures and variances, which it denied, the District
Court sentenced Thomas to 105 months imprisonment and three years of supervised
release.
II
Thomas now appeals the District Court‘s denial of his objection to the calculation
of his base offense level, as well as the procedural and substantive reasonableness of his
sentence.
We review sentencing decisions for abuse of discretion, looking first for
procedural error and then examining the sentence for substantive reasonableness. United
States v. Wise, 515 F.3d 207, 217-18 (3d Cir. 2008). We review a district court‘s legal
interpretation of the Guidelines de novo. United States v. Grier, 475 F.3d 556, 561-68
(3d Cir. 2007) (en banc). ―If [an] asserted procedural error is purely factual, our review is

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highly deferential and we will conclude there has been an abuse of discretion only if the
district court‘s findings are clearly erroneous.‖ Wise, 515 F.3d at 217. In evaluating a
challenge to the substantive reasonableness of a sentence, we must affirm ―unless no
reasonable sentencing court would have imposed the same sentence on that particular
defendant for the reasons the district court provided.‖ United States v. Tomko, 562 F.3d
558, 568 (3d Cir. 2009) (en banc).
A
Pennsylvania‘s resisting arrest statute can be violated in the following two ways:
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. C.S. § 5104.
Under the Guidelines, a base offense level of 24 should be applied when
sentencing a defendant for an unlawful firearms possession offense ―if the defendant
committed any part of the offense subsequent to sustaining at least two felony convictions
of either a crime of violence or a controlled substance offense.‖ USSG § 2K2.1(a)(2).
―Crime of violence‖ is defined as
. . . any 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

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explosives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another.
This definition is substantially similar to the definition of ―violent felony‖ under the
Armed Career Criminal Act (ACCA), and ―authority interpreting one is generally applied
to the other.‖ United States v. Hopkins, 577 F.3d 507, 511 (3d Cir. 2009).
In United States v. Stinson, we held that a conviction for resisting arrest under
Pa.C.S. § 5104 qualified as a crime of violence. 592 F.3d at 464-66. Stinson held that
both means of violating the statute—―[1] creat[ing] a substantial risk of bodily injury to
the public servant or anyone else, or [2] employ[ing] means justifying or requiring
substantial force to overcome the resistance‖—fit within the second clause of the
definition, known as the ―residual clause,‖ because the statute did not cover passive
resistance and criminalized only ―purposeful, violent, and aggressive‖ acts that presented
a serious potential risk of physical injury to another. Id. (quoting United States v. Begay,
553 U.S. 137, 144 (2008)).
Shortly after Thomas was sentenced, the United States Supreme Court decided
Johnson v. United States, which held that a conviction for simple battery in Florida was
not a violent felony for purposes of ACCA because the phrase ―physical force‖ in the first
clause of ACCA‘s definition means ―violent force—that is force capable of causing
physical pain or injury to another person.‖ Johnson v. United States, 130 S. Ct. 1265,
1271 (2010) (emphasis in original). Thomas argues that a conviction for resisting arrest

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in Pennsylvania no longer qualifies as a crime of violence, because § 5104 also does not
require that the defendant have used violent force.
Thomas‘s argument fails because our holding in Stinson was not that a conviction
under § 5104 fulfilled the first clause of the definition of ―crime of violence,‖ but rather
that it fulfilled the residual clause, in which the phrase ―physical force‖ does not appear.
Johnson held only that the Florida battery statute in question did not describe a violent
felony under ACCA‘s first clause, because the Government had disclaimed any reliance
on the residual clause in that case. Id. at 1274. Nor can we assume, as Thomas urges,
that because the Guidelines‘ definition is directed at classifying crimes of violence, it
must include violent force as an element; the presence of the phrase ―physical force‖ in
the first clause and its absence in the residual clause are significant. See Leocal v.
Ashcroft, 543 U.S. 1, 10 n.7 (2004) (explaining that physical force is required to fulfill the
residual clause of a different definition of crime of violence—18 U.S.C. § 16(b), which
encompasses conduct ―that, by its nature, involves a substantial risk that physical force
against the person or property of another may be used‖—and distinguishing it from the
Guidelines‘ residual clause which does not mention physical force) (emphasis added).
For these reasons, the District Court did not err in finding that Thomas‘s previous
conviction for resisting arrest qualified as a crime of violence under the Guidelines, or in
calculating his base offense level accordingly.

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B
Thomas also argues that his sentence was procedurally and substantively
unreasonable. We disagree.
The only procedural defect Thomas alleges is that the District Court failed to
address his request for a downward variance to avoid an unwarranted sentencing
disparity. See 18 U.S.C. § 3553(a)(6). Specifically, he argues that similar convictions for
resisting arrest in other states would likely not have counted as crimes of violence,
resulting in a different base offense level and sentence for a defendant with a similar
criminal history in a different state. First, we note that various states classify, define, and
punish resisting arrest differently, Pennsylvania is not alone in doing so in a way that
qualifies it as a crime of violence. See United States v. Jenkins, 631 F.3d 680, 684-85
(4th Cir. 2011) (holding that resisting arrest in Maryland is a crime of violence under the
Guidelines‘ residual clause); United States v. Almenas, 553 F.3d 27, 32-35 (1st Cir. 2009)
(holding same in Massachusetts); United States v. Hudson, 577 F.3d 883, 886 (8th Cir.
2009) (holding same for resisting arrest by fleeing in a dangerous manner in Missouri);
see also N.J. STAT. ANN. § 2C:29-2 (defining resisting arrest in New Jersey in terms that
closely track USSG § 4B1.2(a)). Second, while the District Court did not explicitly state
that it was addressing Thomas‘s motion for a variance on the basis of 18 U.S.C. §
3553(a)(6), it did address his general request for a variance under 18 U.S.C. § 3553(a).
Furthermore, the Court adequately explained—in both the written tentative findings

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adopted at sentencing, and orally at sentencing—why Thomas‘s resisting arrest
conviction counted as a crime of violence and why his specific history made it
particularly appropriate, so it cannot be said that the District Court did not consider
whether any disparity was unwarranted.
Likewise, to the extent that Thomas‘s argument that his sentence was substantively
unreasonable relies on the supposedly unwarranted disparity, it also fails. Nor can we
find that the sentence as a whole was substantively unreasonable, considering the totality
of the § 3553(a) factors as viewed by the District Court. See Grier, 475 F.3d at 571 (―The
touchstone of ‗reasonableness‘ is whether the record as a whole reflects rational and
meaningful consideration of the factors enumerated in 18 U.S.C. § 3553(a).‖) As the
District Court found, a sentence at the top of the Guidelines range was warranted given
the nature and circumstances of the offense and Thomas‘s criminal history. The District
Court reasonably understood the offense of conviction as a recent chapter in an escalating
criminal history that already included convictions for illegally possessing firearms,
possessing controlled substances, and aggravated assault.
Accordingly, the District Court did not err procedurally or substantively in
imposing Thomas‘s sentence.
III
For the foregoing reasons, we will affirm the District Court‘s judgment of
sentence.

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