                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 17-2507
                                      _____________

                            UNITED STATES OF AMERICA

                                             v.

                                       HENG KHIM,

                                               Appellant
                                       ____________

                 On Appeal from the United States District Court for the
                           Eastern District of Pennsylvania
                             (D.C. No. 16-cr-00245-001)
                         District Judge: Hon. Jan E. DuBois

                    Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                     June 11, 2018

           Before: CHAGARES, GREENBERG, and FUENTES, Circuit Judges.

                                 (Filed September 4, 2018)


                                       ____________

                                         OPINION
                                       ____________




       
        This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
CHAGARES, Circuit Judge.

       Heng Khim appeals from his sentence following a guilty plea for distributing

controlled substances and possessing a firearm, in violation of 18 U.S.C. §§ 841(a)(1),

(b)(1)(C), 922(g)(1), 922(g)(5)(A). At sentencing, over Khim’s objection, the District

Court found that Khim was a career offender under the Sentencing Guidelines, and thus

sentenced him to a term of 100 months of imprisonment. Khim argues that the District

Court erred in so determining, because his prior conviction for first-degree felony

robbery under Pennsylvania law is not “a crime of violence” under the Sentencing

Guidelines. We disagree, and will affirm the sentence set by the District Court. Khim

also argues that the District Court erroneously determined that it did not have the

authority to order this his sentence run concurrently with his yet-to-be-imposed state

sentence. Because we agree, we will remand only for the District Court to consider

whether to order a concurrent or consecutive sentence.

                                             I.

       We write solely for the parties and therefore recite only the facts necessary to our

disposition. Following an undercover investigation during which government informants

obtained narcotics from Khim, Khim was arrested and a search warrant recovered a

handgun, ammunition, and drug paraphernalia from his room. Khim was charged with

three counts of distribution of controlled substances, in violation of 18 U.S.C. § 841(a)(1)

and (b)(1)(C), one count of possession of a firearm by a convicted felon, in violation of

18 U.S.C. § 922(g)(1), and one count of possession of a firearm by an illegal alien, in

violation of 18 U.S.C. § 922(g)(5)(A). Khim pled guilty to all counts.

                                             2
       Khim had two prior felony convictions in violation of Pennsylvania law, one for

robbery and the other for drug dealing. At sentencing, relying on these two prior

convictions, the District Court found that Khim was a career offender under United States

Sentencing Guidelines (“U.S.S.G.”) § 4B1.1(b)(3). Khim objected to the classification of

his robbery conviction as a crime of violence. The District Court rejected Khim’s

challenge after hearing argument from the parties. After applying a downward variance

from the recommended Guidelines range of 151 to 188 months of imprisonment, the

District Court sentenced Khim to 100 months of imprisonment. Khim’s counsel then

asked the District Court to order that his sentence run concurrently with the state sentence

Khim was expected to receive for an upcoming hearing on a parole violation. The

District Court denied Khim’s request, stating that Khim’s federal sentence “can’t run

concurrently or consecutively to a sentence that has not been imposed,” because that

“amounts to a recommendation and I’m not going to do that.” Appendix (“App.”) 308.

This timely appeal followed.

                                            II.1

       Khim argues that the District Court erred by classifying him as a career offender

because his Pennsylvania robbery conviction did not qualify as a crime of violence under

the Sentencing Guidelines. He also argues that the District Court erred in stating that it

did not have the power to set his sentence to run concurrently with his future state


       1
         The District Court had jurisdiction under 18 U.S.C. § 3231 and we have
appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We review the
District Court’s legal determination that Khim is a career offender de novo. See United
States v. Ramos, 892 F.3d 599, 613 (3d Cir. 2018).
                                             3
sentence. The Government argues that the District Court properly determined that his

Pennsylvania robbery conviction qualified as a crime of violence. However, the

Government agrees that the District Court erred in stating that it could not recommend

that Khim’s sentence run concurrently with his yet-to-be-set state sentence and the case

should be remanded on that ground only. We will address each issue in turn.

                                              A.

       The career offender provision in the Sentencing Guidelines provides for an

enhanced sentence for a “defendant [who] 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). The

parties agree that Khim’s prior drug conviction qualifies as a “controlled substance

offense,” and thus whether Khim qualifies as a career offender depends on whether his

prior felony conviction for Pennsylvania robbery constitutes a crime of violence. The

Sentencing Guidelines define a crime of violence as “any offense under federal or state

law, punishable by imprisonment for a term exceeding one year,” if that offense either:

       (1) has as an element the use, attempted use, or threatened use of physical
       force against the person of another, [(the “elements clause”)] or
       (2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a
       forcible sex offense, robbery, arson, extortion, or the use or unlawful possession
       of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined
       in 18 U.S.C. § 841(c) [(the “enumerated offenses clause”)].

U.S.S.G. § 4B1.2(a).

       At the time of Khim’s robbery conviction in 2002, the Pennsylvania statute

provided that:

       (1) A person is guilty of robbery if, in the course of committing a theft, he:


                                               4
              (i) inflicts serious bodily injury upon another;

              (ii) threatens another with or intentionally puts him in fear of
              immediate serious bodily injury;

              (iii) commits or threatens immediately to commit any felony of the
              first or second degree;

              (iv) inflicts bodily injury upon another or threatens another with or
              intentionally puts him in fear of immediate bodily injury; or

              (v) physically takes or removes property from the person of another
              by force however slight.

18 Pa. Cons. Stat. § 3701(a) (June 24, 1976 to May 16, 2010). As relevant here, the

grading provision provides that robbery under subsections (a)(1)(i) through (iii)

constitutes “a felony of the first degree.” Id. § 3701(b).

       To determine whether a prior conviction qualifies as a crime of violence, we use

“the categorical approach.” United States v. Ramos, 892 F.3d 599, 606 (3d Cir. 2018).

Under this approach, “we ask whether the use, attempted use, or threatened use of

physical force against another person is categorically an element of the offense of

conviction.” Id. If that statute “necessarily has such an element,” then it constitutes a

crime of violence, if it does not, then it “cannot serve as a career offender predicate—

even if the defendant actually committed the offense by using, attempting to use, or

threatening to use physical force against another person.” Id.

       However, if the statute of conviction is “divisible,” then we “may resort to the

‘modified categorical approach.’” Id. at 606-07 (quoting Descamps v. United States, 570

U.S. 254, 257, 262 (2013)). Under the modified categorical approach, a court may “look

beyond the statute of conviction for a limited purpose” to “consult a specific set of extra-

                                              5
statutory documents to identify the specific statutory offense that provided the basis for

the prior conviction.” Ramos, 892 F.3d at 607. These extra-statutory materials are

commonly known as Shepard documents. See Shepard v. United States, 544 U.S. 13, 26

(2005). The court can then “assess whether that offense categorically qualifies as a

crime of violence.” Ramos, 892 F.3d at 607. Then, “[a]fter applying the modified

categorical approach to determine the specific crime of conviction,” we “resort[] to the

traditional ‘categorical approach’ that requires comparing the criminal statute to the

relevant generic offense.” United States v. Peppers, No. 17-1029, ___ F.3d ___, 2018

WL 3827213 at *14 (3d Cir. August 13, 2018) (citing Mathis v. United States, 136 S. Ct.

2243, 2249 (2016)).

       A statute is divisible if it “sets out one or more elements of the offense in the

alternative.” Descamps, 570 U.S. at 257. We have held that “[g]iven the clearly laid out

alternative elements of the Pennsylvania robbery statute, it is obviously divisible and,

therefore, a sentencing court can properly look to the kinds of documents listed by the

Supreme Court in Taylor [v. United States, 495 U.S. 575 (1990)] and Shepard to

determine which subsection was the basis of [the defendant’s] prior convictions.” United

States v. Blair, 734 F.3d 218, 225 (3d Cir. 2013). Khim spends much of his brief arguing

that the Pennsylvania robbery statute is not divisible, and that our holding on this point in

Blair has been abrogated by subsequent decisions of the Supreme Court such as Mathis,

136 S. Ct. 2243. However, our holding in Blair that 18 Pa. Cons. Stat. 3701(a)(1) is

divisible has not been abrogated. In a recent opinion, we relied on Blair and reaffirmed

that the Pennsylvania robbery statute is divisible. See Peppers, ___ F.3d ___, 2018 WL

                                              6
3827213 at *15 (quoting Blair, 734 F.3d at 225 and Mathis, 136 S. Ct. at 2256); cf.

Ramos, 892 F.3d at 609 (holding that Pennsylvania’s similarly structured aggravated

assault statute is divisible).2 Thus, we apply the modified categorical approach to 18 Pa.

Cons. Stat. § 3701(a)(1).

        Under the modified categorical approach, we consult certain extra-statutory

materials to identify the offense of Khim’s conviction, that is, the specific subsection of

§ 3701(a)(1) that provided the basis for his conviction. Ramos, 892 F.3d at 610. Jury

instructions are one of the materials to which we can look under the modified categorical

approach. See Taylor v. United States, 495 U.S. 575, 602 (1990); see also Shepard, 544

U.S. at 25-26. Here, the state trial court’s instruction to the jury during Khim’s robbery

trial stated that:

        In order to find the defendant guilty as to first degree robbery, you must be
        satisfied that the following two elements have been proven beyond a reasonable
        doubt: First, that the defendant intentionally put [the victim] in fear of
        immediate serious bodily injury, and, second, that the defendant did so in the
        course of committing a theft.
                Serious bodily injury is bodily injury that creates a substantial risk of
        death or that causes serious permanent disfigurement or protracted loss or
        impairment of any bodily member or organ.

App. 359 (emphasis omitted).




        2
         In Peppers the Shepard documents shed no light on the specific subsection of 18
Pa. Cons. Stat. § 3701(a)(1) that the defendant there had been convicted of, so we
resorted to the categorical approach. See Peppers, ___ F.3d ___, 2018 WL 3827213 at
*15 (“Without Shepard documents, the categorical and modified categorical approaches
are the same, and the sentencing court is forced to proceed under the categorical
approach. Here, that is exactly what is required.”).
                                               7
       This instruction makes clear that Khim was convicted under § 3701(a)(1)(ii),

which requires proof that the defendant “threaten[ed] another with or intentionally put[]

him in fear of immediate serious bodily injury.” 18 Pa. Cons. Stat. § 3701(a)(1)(ii).

Thus, Khim qualifies as a career offender if a conviction under § 3701(a)(1)(ii)

categorically is a crime of violence.3

       As noted, under the elements clause, a crime of violence is any offense that “has

as an element the use, attempted use, or threatened use of physical force against the

person of another.” U.S.S.G. § 4B1.2(a)(1). The Supreme Court has held that the phrase

“physical force” “refers to force exerted by and through concrete bodies” that is “capable

of causing physical pain or injury to another person.” Johnson v. United States, 559 U.S.

133, 138-40 (2010). Thus, “a crime is a violent one under the elements clause so long as

it has an element that can be satisfied only through the use, threatened use, or attempted

use of force against another person that is capable of causing that person physical pain or

injury.” Ramos, 892 F.3d at 611 (citing Johnson, 559 U.S. at 138-43).

       Examining the text of § 3701(a)(1)(ii), we readily conclude that first-degree felony

robbery during which a defendant “threatens another with or intentionally puts him in

fear of immediate serious bodily injury,” categorically involves the use or attempted use

of physical force. 18 Pa. Cons. Stat. § 3701(a)(1)(ii). “Serious bodily injury” is defined

as “[b]odily injury which creates a substantial risk of death or which causes serious,



       3
         Because Khim focuses his entire argument on this issue on the question of whether
§ 3701(a)(1) is divisible, he does not provide any argument on whether § 3701(a)(1)(ii)
qualifies as a crime of violence under the elements clause of the Sentencing Guidelines.
                                             8
permanent disfigurement, or protracted loss or impairment of the function of any bodily

member or organ.” Id. § 2301. “Bodily injury” is in turn defined as “[i]mpairment of

physical condition or substantial pain.” Id. Taken together, then, the minimum conduct

sufficient to sustain a conviction under § 3701(a)(1)(ii) is a threat that intentionally puts

another in fear of immediate “impairment of physical condition or substantial pain” that

“creates a substantial risk of death or which causes serious, permanent disfigurement, or

protracted loss or impairment of the function of any bodily member or organ.” Id. As a

practical matter, a defendant can only do so using “force exerted by and through concrete

bodies” that is “capable of causing physical pain or injury to another person.” 559 U.S. at

138-40. See, e.g., United States v. Chapman, 866 F.3d 129, 135 (3d Cir. 2017) (rejecting

the argument that the “threat of serious bodily injury . . . does not necessarily require a

threat to use violent force”), cert. denied, 138 S. Ct. 1582 (2018); Singh v. Gonzales, 432

F.3d 533, 540 (3d Cir. 2006) (“We cannot reasonably conceive of a situation wherein

such an act . . . intended to place another in fear of imminent serious bodily injury, would

not, at the very least, constitute the attempted or threatened use of physical force . . . .);

see also, e.g., United States v. Verwiebe, 874 F.3d 258, 261 (6th Cir. 2017) (“[C]rimes

requiring proof of serious physical injury necessarily require proof of violent physical

force.”); United States v. Calvillo-Palacios, 860 F.3d 1285, 1290 (9th Cir. 2017) (holding

that statutes that penalized “intentionally or knowingly threatening another with

imminent bodily injury,” and the causation of “serious bodily injury,” satisfied the

elements clause (citations omitted) (emphases omitted)).



                                               9
       Accordingly, we will affirm the District Court’s classification of Khim as a career

offender under U.S.S.G. § 4B1.1.4

                                              B.

       We exercise plenary review of an interpretation of sentencing law. See United

States v. Grier, 475 F.3d 556, 570 (3d Cir. 2007) (en banc). Khim argues that the District

Court erred by denying his request to and failing to recognize that it had the authority to

order that his sentence run concurrently with a possible impending state sentence for a

parole violation. The Government agrees that the District Court erred by failing to

recognize that it had the authority to so order, and that a remand on this issue is warranted.

       We also agree. As the parties point out — although Khim failed to raise this case

before the District Court — the Supreme Court held in Setser v. United States that a

sentencing court may in fact direct that its sentence run concurrently with or consecutively

to a state sentence that has not yet been imposed. 566 U.S. 231, 244 (2012) (“[I]t was

within the District Court’s discretion to order that [the defendant’s] sentence run

consecutively to his anticipated state sentence in the probation revocation proceeding

. . . .”). Because the District Court’s statements on the issue indicate that it may have

been unaware that it had the authority to direct that its sentence run concurrently with the

as-yet-to-be-imposed state court sentence, see App. 307-08, we will remand so that the

District Court can consider this question in light of Sester. In doing so we offer no


       4
         Because we hold that Khim’s conviction under § 3701(a)(1)(ii) is categorically a
crime of violence under the elements clause, we do not reach the Government’s argument
that any first degree robbery conviction under § 3701(a)(1)(i)-(iii) qualifies as a crime of
violence under the enumerated offenses clause of the career offender Guideline.
                                              10
opinion on whether the District Court should direct that its sentence run concurrently

with or consecutively to Khim’s as-yet-to-be-imposed state sentence.

                                               III.

       For the foregoing reasons we will affirm the District Court in all respects except

for its denial of Khim’s request that his sentence run concurrently with the state sentence

that had not yet been opposed. On that issue only we will remand for the District Court

to consider the question in light of Sester.




                                               11
