                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                       No. 16-1648
                                      _____________

                            UNITED STATES OF AMERICA

                                             v.

                                    JOHN L. KNIGHT,

                                                       Appellant
                                     ______________

                     On Appeal from the United States District Court
                              for the District of New Jersey
                         (District Court No. 2:15-cr-00004-001)
                          District Judge: Hon. Jose L. Linares
                                     ______________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  February 9, 2017
                                  ______________

              Before: McKEE, RENDELL, and FUENTES, Circuit Judges.

                             (Opinion filed: August 23, 2017)

                               _______________________

                                       OPINION*
                                ______________________




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

       John L. Knight appeals his sentence, arguing that the District Court erred in

counting his prior robbery convictions as crimes of violence under U.S.S.G. § 2K2.1. For

the reasons that follow, we will affirm the sentencing judgment.

                                             I

       Knight was charged with being a felon in possession of a weapon in January 2015.

His sentencing was based, in part, on the Probation Department’s determination that

Knight’s prior convictions—including one for aggravated assault and two for first-degree

robbery (which constituted a single count)—qualified as “crimes of violence” under

U.S.S.G. § 2K2.1(a)(2). Section 2K2.1 increases a defendant’s base offense level when

the defendant has prior convictions that constitute “crime[s] of violence,” as defined in

U.S.S.G. 4B1.2(a)(1).1

       Knight filed a motion in District Court pursuant to Fed. R. Crim. P. 35 to correct

his sentence. The District Court determined that Knight’s prior first-degree robbery

convictions were, in fact, crimes of violence under § 4B1.2(a)(1), but the aggravated

assault conviction was not.2 The District Court ultimately sentenced Knight to 55


1
  Section 2K2.1 does not define “crime of violence” in its text; instead, its commentary
says that “‘[c]rime of violence’ has the meaning given that term in § 4B1.2(a) and
Application Note 1 of the Commentary to § 4B1.2.” U.S.S.G. § 2K2.1, cmt. n.1. That
commentary is “a binding interpretation of the phrase ‘crime of violence’” in § 2K2.1.
Stinson v. United States, 508 U.S. 36, 47 (1993). Accordingly, Section 2K2.1
incorporates § 4B1.2(a) of the United State Sentencing Guidelines Manual and
Application Note 1 to § 4B1.2, as if those provisions were expressly set forth in the text
of § 2K2.1 itself.
2
  United States v. Knight, 2016 WL 223701 (D.N.J. Jan. 9, 2016).

                                             2
months’ imprisonment and three years’ supervised release and imposed a $100 special

assessment fee. This appeal followed.3

                                            II.

                                     A. Background

       Knight challenges only the District Court’s determination that his prior New

Jersey robbery convictions qualify as crimes of violence.4 The relevant New Jersey

robbery statute reads:

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

              1. Inflicts bodily injury or uses force upon another; or
              2. Threatens another with or purposely puts him in fear of immediate bodily
              injury; or
              3. Commits or threatens immediately to commit any crime of the first or
              second degree.

       An act shall be deemed to be included in the phrase “in the course of committing a
       theft” if it occurs in an attempt to commit theft or in immediate flight after the
       attempt or commission.

       (b) Grading. Robbery is a crime of the second degree, except that it is a
       crime of the first degree if in the course of committing the theft the actor
       attempts to kill anyone, or purposely inflicts or attempts to inflict serious
       bodily injury, or is armed with, or uses or threatens the immediate use of a
       deadly weapon.5



3
  The Government withdrew its cross-appeal. Gov’t Br. 1.
4
  The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. This Court has
jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. “Whether a prior
conviction constitutes a crime of violence for purposes of the career offender Guideline is
a question of law over which we exercise plenary review.” United States v. Brown, 765
F.3d 185, 188 (3d Cir. 2014).
5
  N.J. Stat. Ann. § 2C:15-1 (West 2017).

                                             3
Knight’s prior robbery convictions included one under subsection (a)(1) and one under

subsection (a)(2).6 Both were aggravated to first degree under subsection (b).

       The Federal Sentencing Guidelines define “crime of violence” as “any offense

under federal or state law, punishable by imprisonment for a term exceeding one year,

that . . . has as an element the use, attempted use, or threatened use of physical force

against the person of another.”7 We recently clarified in United States v. Chapman that

“use of physical force” in that definition “does not require that the person employing

force directly apply harm to—i.e., strike—the victim.”8 Instead, we held, “the ‘use’ of

‘physical force,’ as used in § 4B1.2(a)(1), involves the intentional employment of

something capable of causing physical pain or injury to another person, regardless of

whether the perpetrator struck the victim’s body.”9

       Here, the District Court, observing that N.J. Stat. Ann. § 2C:15-1 was divisible,

applied the “modified categorical approach”10 and concluded that first-degree robbery



6
  The District Court apparently considered only whether a violation of (a)(1) aggravated
in the first degree qualified as a crime of violence. See App. 25.
7
  U.S.S.G. § 4B1.2(a)(1). A prior felony conviction separately qualifies if it is for an
offense expressly enumerated in § 4B1.2(a)(2) or Application Note 1.
8
  United States v. Chapman, --- F.3d ---, No. 16-1810, 2017 WL 3319287, at *3 (3d Cir.
Aug. 4, 2017).
9
  Id.
10
   When a statute is divisible—i.e., when it “comprises multiple, alternative versions of
the crime,” Descamps v. United States, 133 S. Ct. 2276, 2281 (2013)—a sentencing court
“may look to a limited class of extra-statutory documents to determine which version of
the offense was the basis of conviction,” Brown, 765 F.3d at 191. This is known as the
modified categorical approach. Shepard v. United States, 544 U.S. 13, 16 (2005). Under
that approach, the sentencing court is permitted to consult, for example, the “charging
document, written plea agreement, transcript of plea colloquy, and any explicit factual

                                              4
always qualified as a crime of violence under New Jersey law.11 It also found that

Knight’s Shepard documents demonstrated that he had, in fact, pled guilty to first-degree

robbery (N.J. Stat. Ann. § 2C:15-1(b)).12

                                        B. Analysis

       Although the District Court did not conclude as much, the Government argues that

N.J. Stat. Ann. § 2C:15-1(b) is, itself, divisible.13 That is, each way of aggravating

second-degree robbery into first-degree robbery under the New Jersey statute requires

proof of an element not required for the other way of committing that crime.

       We agree with the Government.14 Accordingly, we may, under the modified

categorical approach, consult available Shepard documents to determine whether Knight

necessarily admitted elements to a crime that would qualify as a predicate crime-of-


finding by the trial judge to which the defendant assented”—those which have been
referred to as Shepard documents. Id.
11
   The District Court specifically found that “[r]egardless of which subsection an
individual is convicted under (i.e., subsection (a)(1), (a)(2), or (a)(3)), if a conviction
under N.J.S.A. § 2C:15-1 is in the first degree under subsection (b), it will always be a
crime of violence.” App. 26. The District Court found particularly compelling the fact
that N.J. Stat. Ann. § 2C:15-1(b), based on its text, essentially had the “use, attempted
use, or threatened use of physical force” as an element if robbery was found in the first
degree. App. 26 (quoting U.S.S.G. § 4Bl .2(a)(l)). Id.
12
   Consulting the Model Penal Code, the District Court also determined that New Jersey’s
first-degree robbery was not “overbroad” and that its elements “sufficiently correspond[]
to first-degree robbery as commonly understood” such that it “qualifies as a predicate
offense for sentencing purposes.” App. 27–28.
13
   The District Court found only that N.J. Stat. Ann. § 2C:15-1, as a whole, was divisible.
14
   See N.J. Stat. Ann. § 2C:15-1(b) (West 2017) (“Robbery is a crime of the second
degree, except that it is a crime of the first degree if in the course of committing the theft
the actor attempts to kill anyone, or purposely inflicts or attempts to inflict serious bodily
injury, or is armed with, or uses or threatens the immediate use of a deadly weapon.”
(emphasis added)).

                                              5
violence.15 The Shepard documents Knight provided for his New Jersey robbery

convictions include his plea colloquy. That clearly establishes that the aggravator he

admitted for both first-degree robbery convictions was a threat to use a deadly weapon.

       Knight relies on United States v. Johnson,16 to now argue that his first-degree

robbery convictions cannot qualify as crimes of violence because they were for offenses

that do not require the kind of violent force that the Supreme Court requires. In Johnson,

the Supreme Court explained that “physical force” (as used to define a “violent felony” in

the statute there) was “force capable of causing physical pain or injury to another person”

and that the term, “violent,” itself, “connotes a substantial degree of force.”17 Knight

then points to United States v. Jones,18 a case decided after Johnson. There, the U.S.

Court of Appeals for the Second Circuit concluded that a New York first-degree robbery

statute did not qualify as a crime of violence.

       Knight maintains that the “mere threat of a deadly weapon—not its use, just its

mention—categorically fails to require any force, much less violent physical force.” 19

He further concludes that the issue is “not whether [he] committed the robberies using

15
   See Chapman, 2017 WL 3319287, at *4.
16
   559 U.S. 133 (2010).
17
   Id. at 140. Johnson involved a sentencing enhancement under the Armed Career
Criminal Act (ACCA), 18 U.S.C. § 924(e), not the career offender Guideline, but it still
instructs our analysis here. “Precedent . . . requires the application of case law
interpreting ‘violent felony’ in [the] ACCA to ‘crime of violence’ in [Guideline]
§ 4B1.2[] because of the substantial similarity of the two sections.” United States v.
Marrero, 743 F.3d 389, 395 n.2 (3d Cir. 2014) (first and fourth alteration in original)
(quoting United States v. Herrick, 545 F.3d 53, 58 (1st Cir. 2008)), abrogated on other
grounds by United States v. Calabretta, 831 F.3d 128, 135 (3d Cir. 2016).
18
   No. 15-1518, 2016 WL 3923838 (2d Cir. July 21, 2016).
19
   Appellant’s Br. 27.

                                              6
physical force but whether the [New Jersey first-degree robbery] statute permits

conviction without the use of physical force.”20

       We disagree. “[U]se” of “physical force” necessarily encompasses threatening the

immediate use of a deadly weapon, which Knight admitted when he pled guilty. In

Chapman, we concluded that 18 U.S.C. § 876(c), which prohibits mailing “any threat to

kidnap any person or any threat to injure the person of the addressee or of another,”

constituted a crime of violence under § 4B1.1(a) of the Guidelines.21 As we explained in

Chapman, an argument like Knight’s “allows no room for murder or voluntary

manslaughter to qualify as crimes of violence because both offenses can be committed

without the perpetrator striking the victim.”22

       Although our analysis differs slightly from the District Court’s reasoning, we are

convinced that purposely threatening another with what is perceived to be a deadly

weapon is threatening the victim with “physical force,” as that phrase is defined in

Johnson.23 Knight’s first-degree robbery convictions under N.J. Stat. Ann. § 2C:15-1(b)




20
   Appellant’s Reply Br. 4.
21
   Chapman, 2017 WL 3319287, at *2.
22
   Id. at *6 (concluding that “[t]his would substantially undermine Congress’s goal of
imposing substantial prison terms on repeat violent offenders” (internal quotation marks
and citation omitted)).
        Jones concerned a different offense than Knight’s. In addition, the Second Circuit
vacated that opinion. See United States v. Jones, 838 F.3d 296, 296 (2d Cir. 2016).
23
   See Singh v. Gonzalez, 432 F.3d 533, 539–41 (3d Cir. 2006) (discussing the
perpetrator’s intent to threaten a victim with physical injury).

                                              7
therefore qualify as crimes of violence under U.S.S.G. § 4B1.2(a)(1) and, by extension,

U.S.S.G. § 2K2.1(a).24

                                            III

       For the foregoing reasons, we will affirm Knight’s sentence.




24
  Given the basis for our conclusion, we need not reach the issue of whether Knight’s
robbery convictions fall within the generic definition of robbery or whether it remains an
enumerated offense under the Guidelines. We further decline to rule whether N.J. Stat.
Ann. § 2C:15-1(a)(1) and § 2C:15-1(a)(2) individually qualify as crimes of violence.

                                            8
