United States of America v. Sahbree Hurtt

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 23-1961
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UNITED STATES OF AMERICA
v.
SAHBREE HURTT,
Appellant
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 4-21-cr-00172-009)
District Judge: Honorable Matthew W. Brann
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Submitted Under Third Circuit L.A.R. 34.1(a):
May 7, 2024
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Before: PORTER, MONTGOMERY-REEVES, ROTH
Circuit Judges.
(Filed: June 24, 2024)
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Andrew J. Shubin
Shubin Law Office
310 S. Burrowes St.
State College, PA 16801
Counsel for Appellant
Christian T. Haugsby
Carlo D. Marchioli
Office of the United States Attorney
1501 N. 6th St., 2nd Floor
P.O. Box 202
Harrisburg, PA 17102
Counsel for Appellee
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OPINION OF THE COURT
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PORTER, Circuit Judge.
Sahbree Hurtt was convicted of a drug-related offense.
The District Court determined that his prior convictions for
aggravated assault and drug trafficking constitute a “crime of
violence” and “controlled substance offense,” respectively,
under the U.S. Sentencing Guidelines (“USSG”). As a result,
Hurtt qualified as a “career offender” under the USSG, and the
District Court imposed corresponding sentencing
enhancements. For the reasons that follow, we will affirm.

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I
In December 2022, Hurtt pleaded guilty to possession
of heroin, fentanyl, and cocaine with intent to distribute, 21
U.S.C. § 841(a)(1). The U.S. Probation Office’s presentencing
report (“PSR”) stated that Hurtt had two prior convictions in
Pennsylvania qualifying him as a career offender under the
USSG: (1) a conviction for an aggravated assault, a violation
of 18 Pa. Cons. Stat. Ann. § 2702(a), and (2) a conviction for
trafficking cocaine base and heroin, a violation of 35 Pa. Stat.
Ann. § 780-113(a)(30). Hurtt objected to his status as a career
offender, contending that neither conviction constituted a
career-offender predicate.
The government presented judicial records from Hurtt’s
prior convictions detailing his statutory offenses. For Hurtt’s
aggravated assault conviction, the government submitted
Hurtt’s written plea colloquy and multiple sentencing orders
indicating that Hurtt was convicted specifically under
subsection (a)(6) of Pennsylvania’s aggravated-assault statute.
And for Hurtt’s drug-tracking conviction, the government
submitted Hurtt’s written plea colloquy indicating that his
conviction involved possession of cocaine base with intent to
deliver.
The District Court determined that Hurtt had prior
convictions under § 2702(a)(6) and § 780-113(a)(30), the latter
as it relates only to possession of cocaine base with intent to
deliver. And it determined that Hurtt qualifies as a career
offender under the USSG because his convictions qualify as a
“crime of violence” and “controlled substance offense,”
respectively. It then imposed corresponding enhancements and
sentenced Hurtt to 120 months’ imprisonment. Hurtt appealed,
challenging his status as a career offender.

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II
The District Court had jurisdiction under 18 U.S.C.
§ 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a). “Whether a conviction constitutes a
predicate career offender offense under the [USSG] is a
question of law subject to plenary review.” United States v.
Womack, 55 F.4th 219, 236 (3d Cir. 2022).
III
Under the USSG, a defendant is subject to certain
sentencing enhancements if he qualifies as a “career offender.”
USSG § 4B1.1(b). “A defendant is career offender if . . . [he]
has at least two prior felony convictions of either a crime of
violence or a controlled substance offense.” USSG
§ 4B1.1(a).1
“Ordinarily, to determine whether a prior conviction
qualifies as a crime of violence or controlled substance offense,
we apply [the] categorical approach.” United States v.
Williams, 898 F.3d 323, 333 (3d Cir. 2018). “We consider only
the elements of the crime of conviction and assess whether they
fall within the bounds of a crime of violence or controlled
substance offense, as defined under the [USSG].” Id. “If the
statute of conviction has the same elements as the [USSG’s
definitions], . . . then the prior conviction is a categorical match
1 To qualify as a career offender, a defendant must also be “at
least eighteen years old at the time [he] committed the instant
offense of conviction” and the “instant offense of conviction
[must be] a felony that is either a crime of violence or a
controlled substance offense.” USSG § 4B1.1(a). Hurtt does
not dispute that those elements are satisfied.

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and can serve as a predicate offense.” United States v. Brasby,
61 F.4th 127, 134 (3d Cir. 2023). But “if the statute sweeps
more broadly than the [USSG’s definitions], then a conviction
under that statute cannot serve as a predicate offense.” Id.
Under limited circumstances, we may apply a variant of
the categorical approach known as the “modified categorical
approach.” Id. This approach applies when a defendant’s
statute of conviction describes “multiple crimes,” rendering the
statute “divisible.” Id. (internal quotation marks and quoted
source omitted). In that case, we may review “a restricted set
of documents”—referred to as Shepard documents—“to
identify the specific statutory offense that provided the basis
for the prior conviction.” Id. (internal quotation marks and
quoted source omitted); see Shepard v. United States, 544 U.S.
13, 26 (2005). We then apply the categorical approach,
comparing the elements of the offense to the USSG’s
definitions of “crime of violence” and “controlled substance
offense.” Brasby, 61 F.4th at 134.
A. Hurtt’s Aggravated-Assault Conviction Constitutes
a “Crime of Violence.”
Hurtt argues that his prior conviction under
Pennsylvania’s aggravated-assault statute, 18 Pa. Cons. Stat.
Ann. § 2702(a), does not constitute a “crime of violence” under
the USSG. Section 2702(a) contains nine different subsections,
each “criminaliz[ing] different conduct.” United States v.
Ramos, 892 F.3d 599, 609 (3d Cir. 2018). Hurtt does not
dispute that § 2702(a) is “divisible” and subject to the modified
categorical approach. Id. at 610 (holding that § 2702(a) is
“divisible”). Instead, he contends that Shepard documents do
not clearly indicate which subsection of § 2702(a) that he
violated and, even if they do, his statutory offense is not a

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categorial match to the USSG’s definition of a “crime of
violence.” Neither argument has merit.
First, we agree with the District Court that Hurtt
violated subsection (a)(6) of Pennsylvania’s aggravated-
assault statute. To make this determination, we may consult
“judicial records of the convicting court.” United States v.
Bentley, 49 F.4th 275, 291 (3d Cir. 2022). These records
include “the charging document, written plea agreement,
transcript of plea colloquy, and any explicit factual finding by
the trial judge to which the defendant assented.” Ramos, 892
F.3d at 607 (internal quotation marks and quoted source
omitted). Importantly, they also include the convicting court’s
sentencing orders. United States v. Henderson, 841 F.3d 623,
631 (3d Cir. 2016) (stating that “the District Court properly
looked to [the defendant’s] . . . sentencing order”); see
Shepard, 544 U.S. at 26 (holding that courts may consult “the
charging document . . . or . . . some comparable judicial record
of this information”) (emphasis added). The records must
“speak plainly” to what specific offense the defendant violated.
Henderson, 841 F.3d at 631 (internal quotation marks and
quoted source omitted).
Here, the government presented evidence of Hurtt’s
written plea colloquy, which described his aggravated-assault
conviction as a second-degree felony. Section 2702(a)(6)
constitutes a second-degree felony under Pennsylvania law. 18
Pa. Cons. Stat. Ann. § 2702(b). The government also presented
the convicting court’s sentencing order and its revised
sentencing order revoking Hurtt’s parole. Each document
expressly states that Hurtt violated § 2702(a)(6). So, taken
together, these Shepard documents speak plainly to Hurtt’s
conviction under § 2702(a)(6).

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Second, we agree with the District Court that Hurtt’s
conviction under § 2702(a)(6) constitutes a “crime of
violence” under USSG § 4B1.2(a)(1). Section 2702(a)(6)
reads: “A person is guilty of aggravated assault if he . . .
attempts by physical menace to put any . . . officers [or other
statutorily listed individuals] . . . in fear of imminent serious
bodily injury.” Section 4B1.2(a)(1) defines “crime of violence”
as “any [felony] offense under federal or state law . . . [that]
has as an element the use, attempted use, or threatened use of
physical force against the person of another.”2
In Singh v. Gonzales, we considered whether a
subsection of Pennsylvania’s simple-assault statute, 18 Pa.
Cons. Stat. Ann. § 2701(a)(3), constitutes a “crime of violence”
within the meaning of 18 U.S.C. § 16(a). 432 F.3d 533 (3d Cir.
2006). Like § 2702(a)(6), § 2701(a)(3) prohibits any
“attempt[] by physical menace to put [an individual] in fear of
imminent serious bodily injury.” And like § 4B1.2(a)(1),
§ 16(a) defines “crime of violence” in part as any “offense that
has as an element the use, attempted use, or threatened use of
physical force against the person . . . of another.” We explained
that, in order to violate § 2701(a)(3), an individual must engage
in some “physical act” committed with “a mental state of
specific intent” to “threaten another with corporeal harm.”
Singh, 432 F.3d at 539. We then concluded that there is no
“conceiv[able] . . . situation” where a violation of § 2701(a)(3)
“would not, at the very least, constitute the attempted or
threatened use of physical force” under § 16(a). Id. at 540.
2 The USSG also defines “crime of violence” based on certain
enumerated offenses. USSG § 4B1.2(a)(2). That alternative
definition is not at issue here.

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Our decision in Singh compels the conclusion that
§ 2702(a)(6) and § 4B1.2(a)(1) are a categorical match.
Section 2702(a)(6) and § 2701(a)(3) are nearly identical, and
thus we construe them in the same manner. See United States
v. Dawson, 32 F.4th 254, 263 (3d Cir. 2022) (stating in the
context of the categorical approach that “when similar
language is used in related statutes in functionally equivalent
ways, we presume the same meaning applies”). As with
§ 2701(a)(3), we understand § 2702(a)(6) to require, at a
minimum, some “physical act” with the “mental state of
specific intent” to “threaten [an officer or other statutorily
listed individual] with corporeal harm.” Singh, 432 F.3d at 539.
And like our categorical comparison between § 2701(a)(3) and
§ 16(a), “[w]e cannot reasonably conceive of [any] situation”
where a defendant could violate § 2702(a)(6) without, at the
very least, engaging in “the attempted or threatened use of
physical force” against the person of another under
§ 4B1.2(a)(1). Id. at 540. Accordingly, we conclude that
Hurtt’s conviction under § 2702(a)(6) constitutes a “crime of
violence” under § 4B1.2(a)(1) and is a career-offender
predicate.
B. Hurtt’s Drug Conviction Constitutes a “Controlled
Substance Offense.”
Hurtt argues that his prior conviction under
Pennsylvania’s drug-trafficking statute, 35 Pa. Stat. Ann.
§ 780-113(a)(30), does not constitute a “controlled substance
offense” under the USSG. Section 780-113(a)(30) prohibits the
“manufacture, delivery, or possession with intent to
manufacture or deliver, a controlled substance.” An individual
may be convicted under § 780-113(a)(30) in multiple ways,
“depend[ing] on the type of controlled substance” at issue in
the offense. United States v. Abbott, 748 F.3d 154, 158 (3d Cir.

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2014). Again, Hurtt does not dispute that § 780-113(a)(30) is
“divisible” and subject to the modified categorical approach.
Id. (finding that § 780-113(a)(30) is “divisible”). Instead, he
argues that Shepard documents do not clearly identify which
controlled substance was at issue in his offense, and even if
they do, his offense is not a categorical match to the USSG’s
definition of a “controlled substance offense.” We again find
no merit to either argument.
First, we agree with the District Court that Hurtt
violated § 780-113(a)(30) for possession of cocaine base with
intent to deliver. Hurtt’s PSR states that “[he] possessed . . .
cocaine base (crack) in a quantity sufficient to indicate intent
to deliver.” SA203. The government then presented evidence
of Hurtt’s written plea colloquy from his state-court
proceedings, which states that Hurtt “poss[essed] with int[ent]
to . . . deliver [the] controlled substance—crack.” SA111. The
District Court properly relied on this Shepard document.
Ramos, 892 F.3d at 607 (stating that a written plea colloquy is
a permissible Shepard document). And it “speak[s] plainly” to
Hurtt’s conviction under § 780-113(a)(30) for possession of
cocaine base with intent to deliver. Henderson, 841 F.3d at 631
(internal quotation marks and quoted source omitted).
Second, we agree with the District Court that Hurtt’s
conviction under § 780-113(a)(30) constitutes a “controlled
substance offense” under USSG § 4B1.2(b)(1). Pennsylvania’s
drug-trafficking statute punishes “possession [of cocaine base]
with intent to . . . deliver” with a maximum imprisonment of
ten years. § 780-113(a)(30); 35 Pa. Stat. Ann. § 780-
113(f)(1.1). Section 4B1.2(b)(1) defines “controlled substance
offense” as any “offense under federal or state law, punishable
by imprisonment for a term exceeding one year, that . . .

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prohibits . . . the possession of a controlled substance . . . with
intent to manufacture, import, export, distribute, or dispense.”
In United States v. Glass, we held that Ҥ 780-
113(a)(30) does not sweep more broadly than § 4B1.2 . . . and
may serve as a predicate offense.” 904 F.3d 319, 324 (3d Cir.
2018). That includes convictions under § 780-113(a)(30) when
the controlled substance at issue is cocaine base. Id. (holding
that Glass’s conviction under § 780-113(a)(30) for
“manufacturing, delivering, or possessing cocaine” was a
“controlled substance offense”). Accordingly, Hurtt’s
conviction under § 780-113(a)(30) for possession of cocaine
base with intent to deliver constitutes a “controlled substance
offense” under § 4B1.2(b)(1).
Nevertheless, Hurtt argues that his cocaine-based
offense under § 780-113(a)(30) is not a categorical match to
§ 4B1.2(b)(1) because Pennsylvania law defines “cocaine”
broader than federal law. However, we recently rejected this
very argument, holding that, under § 4B1.2(b)(1), “a
‘controlled substance’ . . . is a drug regulated by either state or
federal law.” United States v. Lewis, 58 F.4th 764, 771 (3d Cir.
2023) (emphasis added). So whether Pennsylvania law defines
“cocaine” broader than federal law is “irrelevant.” Id.
Hurtt further argues that § 780-113(a)(30) is broader
than § 4B1.2(b)(1) because § 780-113(a)(30) prohibits the
“administering” of a controlled substance, while federal law
does not. Once again, however, we already rejected this
argument, holding that § 780-113(a)(30) “say[s] nothing about
prohibiting the administration of controlled substances” and in
fact “expressly excludes the possibility that ‘administering’ . . .
falls within its scope.” Womack, 55 F.4th at 239 (emphasis
added). So Hurtt’s argument again lacks merit.

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* * *
The District Court properly concluded that Hurtt
qualifies as a career offender under the USSG because his prior
convictions under § 2702(a)(6) and § 780-113(a)(30)
constitute a “crime of violence” and “controlled substance
offense,” respectively. We will therefore affirm the District
Court’s judgment.

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