                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-3-1997

United States v. Cornish
Precedential or Non-Precedential:

Docket 95-2086,95-2101




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                   UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT

                               ___________

                       Nos. 95-2086 & 95-2101
                            ___________


                      UNITED STATES OF AMERICA

                                   v.

                          ANTHONY CORNISH,
                       a/k/a JERJUAN MITCHALL

                                        United States of America,
                                           Appellant at No. 95-2086

                                        Anthony Cornish,
                                           Appellant at No. 95-2101

                               ___________

             Appeal from the United States District Court
               for the Eastern District of Pennsylvania
                     (D.C. Crim. No. 94-cr-00378)
                              ___________

                               Argued
                           June 12, 1996
             BEFORE: SCIRICA and ROTH, Circuit Judges,
         and RESTANI, Judge, Court of International Trade.*

                      (Filed     January 3, l997)
                               ___________

Michael R. Stiles
United States Attorney
Walter S. Batty, Jr.
Assistant United States Attorney
Clement J. McGovern, III (Argued)
Special Assistant United States Attorney
615 Chestnut Street, Room 1250
Philadelphia, PA 19106

     COUNSEL FOR APPELLANT/CROSS-APPELLEE



     *   *
          Honorable Jane A. Restani, Judge, United States Court
of International Trade, sitting by designation.



                                   1
Maureen Kearney Rowley
Chief Federal Defender
Elaine DeMasse
Senior Appellate Counsel
Robert Epstein (Argued)
Assistant Federal Defender
437 Chestnut Street, Suite 800
Lafayette Building
Philadelphia, PA 19106

     COUNSEL FOR APPELLEE/CROSS-APPELLANT

                          ____________

                      OPINION OF THE COURT
                          ____________


RESTANI, Judge.
     This action is before the court on appeal by the United

States and cross-appeal by defendant Anthony Cornish a/k/a

Jerjuan Mitchall ("Cornish").    The government contests the

district court's determination that Cornish's prior third degree

robbery conviction is not a "violent felony" for sentence

enhancement purposes, while Cornish challenges the district

court's jury instructions with regard to the stipulated fact of

Cornish's prior felony conviction.    We find no error in the

district court's jury instructions, but find that the district

court did err in failing to apply the enhanced penalties provided

by 18 U.S.C. § 924(e) and USSG § 4B1.4 and remand for

resentencing.


                           BACKGROUND

     On April 16, 1994, two police officers were on routine

patrol in a marked police vehicle when they observed a car being

operated in a reckless manner.   (Supp. App. 50a-52a)   The

officers attempted to stop the vehicle, but the vehicle reversed


                                 2
its direction and fled.        They pursued the vehicle, using their

lights and sirens in an attempt to stop the vehicle.           (Supp. App.

53a)       While fleeing the police, the driver of the vehicle, later

identified as Cornish, threw a gun out of the driver's side

window, jumped out of the vehicle, and fled on foot.           (Supp. App.

54a)       The vehicle continued forward a short distance and came to

rest after hitting a fence.        (Supp. App. 54a)     One officer

recovered the weapon, a .38 caliber Colt handgun, while two

others apprehended Cornish several blocks away as he attempted to

climb over a fence.        (Supp. App. 54a-55a, 187a)

       On September 21, 1994, Cornish was indicted by a federal

grand jury on a single count of possession of a firearm by a

convicted felon pursuant to 18 U.S.C. § 922(g) (1994).1

Following a jury trial, Cornish was found guilty on February 15,

1995.       At the sentencing hearing, the district court held that

Cornish's prior conviction for third degree robbery is not a

"violent felony" pursuant to 18 U.S.C. § 924(e) (1994)2 and U.S.
       1
        18 U.S.C. § 922(g) provides in relevant part, "[i]t shall
be unlawful for any person-- (1) who has been convicted in any
court of, a crime punishable by imprisonment for a term exceeding
one year; . . . to ship or transport in interstate or foreign
commerce, or possess in or affecting commerce, any firearm or
ammunition . . . ."
       2     2
                 18 U.S.C. § 924(e)(1) provides in relevant part that:

  In the case of a person who violates [18 U.S.C. § 922(g)]
     and has three previous convictions by any court
     referred to in [18 U.S.C. § 922(g)(1)] for a violent
     felony . . . committed on occasions different from one
     another, such person shall be fined not more than
     $25,000 and imprisoned not less than fifteen years, the
     court shall not suspend the sentence of, or grant a
     probationary sentence to, such person with respect to
     the conviction under [18 U.S.C. § 922(g)].



                                      3
Sentencing Guidelines Manual ("USSG") § 4B1.4 (1995).    On

November 16, 1995, Cornish was sentenced to 108 months

incarceration, five years supervised release, and a $50 special

assessment.


                          STANDARD OF REVIEW

     As Cornish did not object to the district court's jury

instructions below, our review is limited to plain error under

Fed. R. Crim. P. 52(b).    See United States v. Retos, 25 F.3d
1220, 1228-29 (3d Cir. 1994).    We have plenary review over the

district court's interpretation and application of the sentencing

guidelines to the facts found.    See United States v. Collado, 975

F.2d 985, 990 (3d Cir. 1992).


                              DISCUSSION
                                  I.


     Cornish claims that the district court violated his

constitutional rights protected by the Fifth and Sixth Amendments

to United States Constitution when it instructed the jury to

"accept" the stipulated fact of his prior felony conviction.       By

so instructing the jury, Cornish argues that the court improperly

removed that element of the crime from the jury's consideration.

     The Fifth Amendment guarantees that no one will be deprived

of liberty "without due process of law," and the Sixth Amendment

ensures that, "[i]n all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an impartial

jury."   U.S. Const. amend. V & VI.   The Supreme Court has held

that, "these provisions require criminal convictions to rest upon


                                  4
a jury determination that the defendant is guilty of every

element of the crime with which he is charged, beyond a

reasonable doubt."     United States v. Gaudin, 115 S. Ct. 2310,
2313 (1995).   A necessary corollary to this rule is that, "a

trial judge is prohibited from entering a judgment of conviction

or directing the jury to come forward with such a verdict,

regardless of how overwhelmingly the evidence may point in that

direction."    United States v. Martin Linen Supply Co., 430 U.S.

564, 572-73 (1977) (citations omitted).

     Prior to trial, the parties entered into two stipulations.

The first stipulation provided that, if called to testify, an

agent from the Bureau of Alcohol, Tobacco & Firearms would state

that the firearm in question was shipped or transported in

interstate commerce.    (Supp. App. 187a-88a)   The second

stipulation provided that Cornish was previously convicted of a

crime punishable by imprisonment for a term exceeding one year.

(Supp. App. 188a)    These stipulations were formally introduced

into evidence at the close of the government's case.    (Supp. App.

189a)

     Prior to jury deliberations, the district court instructed

the jury as follows:
  The Government is required to prove beyond a reasonable
     doubt every essential element . . . of a crime charged
     in order to justify a verdict of guilty.
. . . The three essential elements or necessary parts of
     this criminal charge or offense are as follows: First,
     at the time of the offense, defendant had previously
     been convicted of a crime punishable by imprisonment of
     more than a year. And here it's agreed that on April
     16th, 1994, defendant had been previously convicted of
     such a crime. . . .
  The second element is that the defendant knowingly
     possessed a firearm or gun, and the third is that


                                  5
     interstate or foreign commerce was affected to some
     degree . . . . (Supp. App. 304-05a)


The district court also instructed the jury as to various types

of evidence:   "Evidence is the testimony of the witnesses, the

exhibits received into evidence, and also as you know certain

facts were agreed to by stipulation and are therefore to be

accepted by you without any evidence."   (Supp. App. 308a)

After a suggestion by defense counsel, the court concluded its

charge with:
  Of course, members of the jury, I gave you a choice of
     accepting either the Government's or the defendant's
     evidence, but I also instructed you that you can reject
     anybody's evidence. So you really have in that sense a
     third choice. You can accept or reject anyone's
     testimony, any of the evidence. (Supp. App. 312a)


     Cornish contends that the district court committed

reversible error when it effectively directed a verdict for the

government on the prior felony conviction element of the §

922(g)(1) offense.   Cornish relies on the reasoning in the Sixth

Circuit's opinion in United States v. Mentz, 840 F.2d 315, 318
(6th Cir. 1988), in which the defendant was convicted of two

counts of bank robbery.   A security officer from each bank

testified that the banks were federally insured.    Id.   The Sixth

Circuit held that the district court's jury instruction that both

banks were federally insured improperly directed a verdict in

favor of the government on an essential element of the crime

because the judge's conclusive statement left no room for the

jury to believe otherwise.   Id. at 320 & n.8.   Cornish argues

that in the present case, the district court similarly erred when

it instructed the jury that it must "accept" the stipulated fact


                                6
of Cornish's prior felony conviction.

     Cornish claims that because a jury has the power to reject a

stipulation, the appropriate jury instruction regarding

stipulations is to the effect that the jury may, but is not
required to, accept the stipulation as evidence and consider that

fact as proved.   Cornish cites the Devitt and Blackmar model

charge which provides that:
  When the attorneys on both sides stipulate or agree as to
     the existence of a fact, you may accept the stipulation
     as evidence and regard that fact as proved. You are
     not required to do so, however, since you are the sole
     judge of the facts.


Hon. Edward J. Devitt, Hon. Charles B. Blackmar, Michael A.

Wolff, and Kevin F. O'Malley, Federal Jury Practice and

Instructions, Civil and Criminal, § 12.03, at 333 (1992).

Cornish argues that the district court's failure to similarly

instruct the jury constituted a structural defect in his trial,

requiring reversal, irrespective of the evidence or whether a

contemporaneous objection was made.

     The government counters that the district court's jury

instruction did not amount to a directed verdict in favor of the

government on an essential element of the crime as the district

court never instructed the jury to not consider the prior felony

conviction element.   The government contends that the court

simply informed the jury of the three elements that required

proof beyond a reasonable doubt and accurately stated that the

parties had agreed to the existence of a prior felony conviction.

 The government distinguishes the Sixth Circuit's opinion in

Mentz from the present case, in that Mentz did not involve a


                                7
stipulation by the parties to an element of the crime, but the

district court's assessment of the sufficiency of the evidence

presented on an element of the crime.

     We note that Courts of Appeal for the Fourth and Tenth

Circuit have recently addressed this issue in United States v.
Muse, 83 F.3d 672 (4th Cir.), cert. denied, 117 S. Ct. 261

(1996), and United States v. Mason, 85 F.3d 471 (10th Cir.

1996).3    In Muse, the defendant was also prosecuted under 18

U.S.C. § 922(g)(1).      83 F.3d at 673-74.   Muse argued that the

district court erroneously instructed the jury on the effect of

certain stipulations, similar to the stipulations in the present

case.     Id. at 677.   The Fourth Circuit found that, "[w]hile a

valid stipulation relieves the prosecution of the burden of

producing any other evidence in order to establish the fact

stipulated, it does not relieve the prosecution from the burden

of 'proving every element of the crime' beyond a reasonable

doubt." Id. at 679. The court concluded that:
  In view of the special evidentiary character of a
     stipulation--more potent than an admission but less
     draconian than a "guilty plea"--and the power of the
     jury to "acquit for any reason," developing the proper
     language for a jury instruction regarding the effect of
     stipulations as to an element of a criminal offense
     requires a trial court to walk a careful line. The
     government is entitled to have the court inform the
     jury of the powerful effect of a stipulation but a
     court cannot direct a verdict, even a partial verdict,
     3
        We also note that the Sixth Circuit Court of Appeal has
considered this issue in United States v. Jones, 65 F.3d 520 (6th
Cir.), vacated and reh'g en banc granted, 73 F.3d 616 (6th Cir.
1995). Although the Sixth Circuit originally held that the
district court's jury instruction with regard to the stipulation
that Jones was a previously convicted felon constituted
reversible error, the Sixth Circuit has not yet issued its
opinion en banc.



                                   8
      against the defendant.


Id. at 680 (citation omitted).    While noting that no appellate

case has set forth the proper language for a jury instruction in

this situation, the court approvingly cited the model jury

instructions for the Eighth and Ninth Circuits which both include

language that, given a stipulation, the jury "should . . . treat

[the stipulated] facts as having been proved."         Id.   The court

then held that the district court's instruction to the jury that

it must "consider" the elements and that it "should" find that

the government established those elements through the

stipulations was not erroneous.       Id.

      The Tenth Circuit took a somewhat different approach.

United States v. Mason, 85 F.3d 471 (10th Cir. 1996).         In Mason,

the defendant was prosecuted under 18 U.S.C. § 922(g) and the

parties stipulated to the prior felony conviction and interstate

commerce elements of the crime.       Id. at 471-72.   On appeal, Mason

argued that the district court improperly invaded the province of

the jury by removing the stipulated elements from the jury's

consideration, relying on the Sixth Circuit's opinion in United

States v. Jones, 65 F.3d 520 (6th Cir. 1995).      85 F.3d at 472.

Finding no error in the district court's jury instructions, the

Tenth Circuit reasoned that:
[T]he jury need not resolve the existence of an element when
     the parties have stipulated to the facts which
     establish that element. . . . [T]he judge has not
     removed the consideration of an issue from the jury;
     the parties have. More specifically, by stipulating to
     elemental facts, a defendant waives his right to a jury
     trial on that element.


Id.   The Tenth Circuit also rejected what it deemed the


                                  9
underlying premise in Jones--jury nullification.      Id. at 473.

The court reasoned that although a jury in a criminal case has

the practical power to render a verdict at odds with the evidence

or the law, a jury does not have the lawful power to reject

stipulated facts because such a power, if exercised, would

conflict with the jurors' sworn duty to apply the law to the

facts, regardless of outcome.    Id. (citing United States v.

Trujillo, 714 F.2d 102, 105 (11th Cir. 1983)).      In conclusion,

the court stated that its holding "simply reaffirms that a

defendant may waive this right to a jury determination on a

particular issue when it is in his interest to do so."      Id. at

474.

       Although it is possible to waive constitutional rights,

neither Supreme Court precedent nor the Federal Rules of Criminal

Procedure provide clear guidance on how to accomplish properly a

partial waiver of the right to trial by jury.      We need not

resolve that issue, however, in this case.4

       As noted, Cornish did not object to the jury instruction at

trial.     Therefore, we review for plain error.   United States v.

Sokolow, 91 F.3d 396, 408 (3d Cir. 1996); Fed. R. Crim. P. 52(b).

 The Supreme Court has defined plain error:
There must be an "error" that is "plain" and that"affect[s]
     substantial rights." Moreover, Rule 52(b) leaves the
     decision to correct the forfeited error within the
     sound discretion of the Court of Appeals, and the court
       4
        See Lyng v. Northwest Indian Cemetery Prot. Assn., 485
U.S. 439, 445-46 (1988) ("fundamental and longstanding principle
of judicial restraint requires that courts avoid reaching
constitutional questions in advance of the necessity of deciding
them"); United States v. Breyer, 41 F.3d 884, 892 (3d Cir. 1994)
(same).



                                  10
     should not exercise that discretion unless the error
     "seriously affect[s] the fairness, integrity or public
     reputation of the judicial proceedings.


United States v. Olano, 507 U.S. 725, 732 (1993) (quoting United
States v. Young, 470 U.S. 1, 15 (1985)).    See also Henderson v.

Kibbe, 431 U.S. 145, 154 (1977) ("It is the rare case in which an

improper instruction will justify reversal of a criminal

conviction when no objection has been made in the trial court.").

     Here, there is no doubt that Cornish was convicted of

robbery on three prior occasions.    These satisfy the prior

conviction element of 18 U.S.C. § 922(g).    Nor is there any doubt

that Cornish entered into the stipulation voluntarily.

Apparently Cornish agreed to the stipulation to shield the jury

from hearing the factual background of his prior robbery

convictions.   Under this set of circumstances, the district

court's jury instruction could not have seriously affected the

fairness, integrity or public reputation of the judicial

proceedings.   Therefore, in exercising our discretion under Rule

52(b), we may affirm the district court.

     We would reach the same conclusion were we to apply a

harmless error standard because the district court's instruction

did not affect the defendant's substantial rights and was

harmless beyond a reasonable doubt.   Chapman v. California, 386

U.S. 18, 24 (1967); 28 U.S.C. § 2111; Fed. R. Crim. P. 52(a).

     As noted by the Fourth Circuit in Muse, the model jury

instructions in some circuits require the district court to

instruct the jury that they "should" accept as proven the facts

to which the parties have stipulated.    See, e.g., Manual of Model


                                11
Criminal Jury Instructions for the District Courts of the Eighth
Circuit (1992) § 2.03 ("The government and the defendant[s] have

stipulated -- that is, they have agreed -- that certain facts are

as counsel have just stated.   You should therefore treat those

facts as having been proved."); Ninth Circuit Manual of Model

Jury Instructions Criminal (1995) § 2.04 ("The parties have

agreed to certain facts that have been stated to you.   You should

therefore treat these facts as having been proved.").   These

formulations avoid the hazard, apparent or not, of directing a

verdict on a factual issue and would be shielded from

constitutional challenge.

                               II.

      Prior to trial, the government filed a Notice of Defendant's

Prior Convictions for Enhanced Sentencing Under Title 18, United

States Code, Section 924(e) (Supp. App. 314a-15a) and attached

certified copies of the defendant's prior convictions5 contending
      5   5
          The government submitted certified copies of Cornish's
three prior robbery convictions to establish the following record
of convictions:

1.   On or about November 28, 1983, in Philadelphia Common
      Pleas Court, case #8306-2147, Cornish was convicted of
      second degree felony robbery charges and sentenced to a
      term of imprisonment.

2.   On or about October 25, 1984, in Philadelphia Common
      Pleas Court, case #8312-2836, Cornish was convicted of
      third degree felony robbery charges and sentenced to a
      term of imprisonment.

3.   On or about July 30, 1986, in Philadelphia Common Pleas
      Court, case #8505-0939, Cornish was convicted of second
      degree felony robbery charges and sentenced to a term
      of imprisonment.

(Supp. App. 314a-15a; App. 14a-21a)



                                12
that they constituted "violent felonies" as defined by 18 U.S.C.

§ 924(e)(2)(B).6    Cornish filed objections to the Presentence

Investigation Report challenging the United States Probation

Office's conclusion that he was subject to an enhanced sentence

pursuant to § 924(e).    Cornish conceded that his convictions for

robbery on November 28, 1983 and July 30, 1986 were "violent

felonies" under § 924(e)(2)(B), but objected to the inclusion of

his October 25, 1984 third degree robbery conviction as a

"violent felony."    (Supp. App. 317a-18a)   In that instance,

Cornish was convicted of robbery, a third degree felony pursuant

to 18 Pa. Cons. Stat. Ann. § 3701(a)(1)(v) (West 1983).7
     6   6
          18 U.S.C. § 924(e)(2)(B) Code defines a "violent
felony" as:

[A]ny crime punishable by imprisonment for a term exceeding
     one year, . . . that--

(i) has as an element the use, attempted use, or threatened
          use of physical force against the person of
          another; or

(ii) is burglary, arson, or extortion, involves use of
          explosives, or otherwise involves conduct that
          presents a serious potential risk of physical
          injury to another.
     7   7
             The Pennsylvania robbery statute provides:

(a) Offense defined.--
  (1) A person is guilty of robbery if, in the course of
     committing a theft, he:
(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.
  (2) An act shall be deemed "in the course of committing a


                                  13
     The district court did not consider Cornish's conviction for

third degree robbery a "violent felony" pursuant to 18 U.S.C. §

924(e)(2)(B)(i) and thus, calculated Cornish's offense level as

23 with a criminal history category of IV, resulting in a

sentencing range of 100 to 124 months and an actual sentence of

108 months incarceration.   United States v. Cornish, No. 94-378,
at 2 (E.D. Pa. Mar. 28, 1996).    Had Cornish been classified as an

armed career criminal pursuant to 18 U.S.C. § 924(e), his offense

level would have been 33 with a resulting sentencing range of 235

to 293 months and subject to a 15 year mandatory minimum.     Id.;

see also USSG § 4B1.4(b)(3)(B).    The government challenges the

district court's ruling that Cornish's third degree felony

robbery conviction was not a "violent felony" and failure to

apply the enhanced penalties of § 924(e).

     The Supreme Court has considered the meaning of a "burglary"

as a "violent felony" under 18 U.S.C. § 924(e) in Taylor v.

United States, 495 U.S. 575, 577 (1990).    In Taylor, the Court

was asked to determine whether a conviction for second-degree

burglary under Missouri law was sufficient to qualify as a

"violent felony."   Id. at 578.   The Court rejected the view of

the court of appeals that Congress intended the meaning of

"burglary" under § 924(e)(2)(B)(ii) to be dependent on the

     theft" if it occurs in an attempt to commit theft or in
     flight after the attempt or commission.
(b) Grading.-- Robbery under subsection (a)(1)(iv) is a felony of
     the second degree; robbery under subsection (a)(1)(v) is a
     felony of the third degree; otherwise, it is a felony of the
     first degree.

18 Pa. Cons. Stat. Ann. § 3701.



                                  14
definition adopted by the state of conviction.      Id. at 590.   Such

a definition would lead to § 924(e)'s sentence enhancement to be

applied inconsistently for the same conduct by defendants

prosecuted in states that define burglary differently.       Id. at

590-91. The Court found that:
[T]he only plausible interpretation of § 924(e)(2)(B)(ii) is
     that, like the rest of the enhancement statute, it
     generally requires the trial court to look only to the
     fact of conviction and the statutory definition of the
     prior offense. This categorical approach, however, may
     permit the sentencing court to go beyond the mere fact
     of conviction in a narrow range of cases where a jury
     was actually required to find all the elements of
     generic burglary.


Id. at 602 (footnote omitted).      In conclusion, the Court held

that, "an offense constitutes 'burglary' for purposes of a §

924(e) sentence enhancement if either its statutory definition

substantially corresponds to 'generic' burglary, or the charging

paper and jury instructions actually required the jury to find

all the elements of generic burglary in order to convict the

defendant."   Id.

     This circuit has addressed the issue of what constitutes a

"violent felony" pursuant to 18 U.S.C. § 924(e)(2)(B) in United

States v. Preston, 910 F.2d 81 (3d Cir. 1990), cert. denied, 498

U.S. 1103 (1991).      In Preston, the court considered whether the

defendant's prior conviction for criminal conspiracy to commit a

robbery constituted a "violent felony" pursuant to 18 U.S.C. §

924(e).   Id. at 84.    The court approved of the use of a

categorical approach to determine which prior convictions may be

considered by a sentencing court under § 924(e).     Id. at 85.       The

court noted that, "[w]hen necessary, a sentencing court may refer


                                   15
to the relevant indictment or information papers and the jury

instructions in the prior conviction along with the certified

record of conviction, but the inquiry should not extend beyond

these documents."   Id. (citation omitted).    In holding that the

crime of conspiracy to commit robbery was a "violent felony"

within the meaning of § 924(e)(2)(B)(i), the court noted that

robbery is a "violent felony" for purposes of § 924(e).    Id. at

86 (citing United States v. Palmer, 871 F.2d 1202, 1204 (3d Cir.)

(federal attempted bank robbery conviction "clearly" is a

"violent felony" under § 924(e)), cert. denied, 493 U.S. 890

(1989); United States v. Dickerson, 901 F.2d 579, 584 (7th Cir.

1990) (conviction under state robbery statute constitutes a per

se violent felony for purposes of § 924(e)).    Because the court

found that the elements of criminal conspiracy to commit robbery

subsume the elements of robbery, the court held that the use of

threat or physical force was a part of McAllister's prior

conviction for the crime of conspiracy to commit a robbery.

Preston, 910 F.2d at 86-87.

     The government further claims that this circuit ruled on

whether a Pennsylvania robbery conviction constitutes a "violent

felony" under § 924(e) in a more recent case dealing with what

proof is required to demonstrate the fact of prior convictions

necessary for § 924(e).   United States v. Watkins, 54 F.3d 163

(3d Cir. 1995).   In Watkins, the defendant argued for a per se

rule that certified copies of the judgments of conviction should

be required in every case before a sentencing court may determine

that the defendant's prior convictions are "violent felonies."


                                16
Id. at 168.    The court noted that Watson was forced to make this

broad argument because the information in his presentence report

enabled the district court to clearly ascertain the statutes of

conviction, Pennsylvania's burglary and robbery statutes,

encompass only conduct that falls within the scope of §

924(e)(2)(B)(i) and (ii).   Id.   The court stated that, "[w]e have

previously held that conviction under [18 Pa. Cons. Stat. Ann. §

3701] necessarily involves the 'use or threat of physical force'

which qualifies for ACCA treatment as a 'violent felony.'    Id. at

168 n.2 (citing Preston, 910 F.2d at 86-87).

     Cornish argues that Preston and Watkins are inapposite as

neither involved a conviction for robbery in the third degree.

Cornish states that both Preston and Watkins involved armed

robberies, which necessarily gave rise to a risk of substantial

bodily injury.    See Preston, 910 F.2d at 84; Watkins, 54 F.3d at

164-65.    Cornish claims that emphasis should instead be placed on

a case from the D.C. Circuit which dealt with a crime more

closely resembling the third degree robbery for which he was

convicted.    See United States v. Mathis, 963 F.2d 399 (D.C. Cir.

1992).    In Mathis, the court held that a robbery conviction under

section 22-2901 of the D.C. Code did not constitute a "violent

felony" for purposes of 18 U.S.C. § 924(e).    Id. at 409.   The

D.C. Code provision at issue provided that:
  Whoever by force or violence, whether against resistance
     or by sudden or stealthy seizure or snatching, or by
     putting in fear, shall take from the person or
     immediate actual possession of another anything of
     value, is guilty of robbery . . . .


Id. at 401 n.6 (citing D.C. Code Ann. § 22-2901 (1973)).     The


                                  17
defendant, with an accomplice, robbed a woman on a moving bus by

"sandwiching" her between them and through "stealthy seizure"

took $30 from her purse.   Id.    The court of appeals agreed with

the district court's interpretation of the statutory language and

found that the statute had been specifically amended to include

"an unlawful taking of property from the person of another, by

sudden or stealthy seizure or snatching, without violence or

putting in fear, and with the exercise of only sufficient force

to accomplish the actual taking of the property."      Id. at 408

(quoting Turner v. United States, 16 F.2d 535, 536 (D.C. Cir.

1926)).   The court then held that "stealthy seizure" under

section 22-2901 is not a "violent felony" within the meaning of §

924(e), "because the proof required to satisfy the element of

force in the local statute falls below that which Congress

intended in enacting § 924(e)."     Id. at 409.   The court, however,

remanded the case to the district court for an examination of the

record of the defendant's robbery conviction (i.e., the jury

instructions and charging papers) to see whether it satisfies the

uniform, federal standard of "use of force" thereby qualifying as

a "violent felony" under § 924(e).     Id. at 410.

     The Supreme Court of Pennsylvania has held that:
[A]ny amount of force applied to a person while committing a
     theft brings that act within the scope of robbery under
     [18 Pa. Cons. Stat. Ann.] § 3701(1)(a)(v). . . .
  The degree of actual force is immaterial, so long as it is
     sufficient to separate the victim from his property in,
     on or about his body.


Commonwealth v. Brown, 484 A.2d 738, 741 (Pa. 1984).     In Brown,

the defendant ran up from behind the victim, quickly grabbed her



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purse, and ran away.    Id. at 740.    The Pennsylvania Supreme Court

found that the force used by Brown was a "harmful touching of the

person, accompanied with sufficient force to compel the victim to

part with the conscious control of her property, and supports a

robbery conviction under § 3701."      Id. at 742.   Moreover, the

court stated that, "[t]his conduct substantially differs from the

case of the thief who merely takes the property of another with

intent permanently to deprive him thereof, using no force or

threat of force on the victim--like the pick-pocket (Chapter 39

of the Crimes Code)."    Id.   Unlike the D.C. statute, "stealthy

seizure" is not included in Pennsylvania's robbery statute.

     Cornish was convicted of third degree robbery pursuant to 18

Pa. Cons. Stat. Ann. § 3701(a)(1)(v), which requires that in the

course of committing a theft, a person "physically takes or

removes property from the person of another by force however

slight."    18 Pa. Cons. Stat. Ann. § 3701(a)(1)(v) (emphasis

added).    Based on a literal reading of the statute, the

interpretation of § 3701 by the Pennsylvania Supreme Court, and

this circuit's decisions in Watkins and Preston, we find that any

conviction for robbery under the Pennsylvania robbery statute,

regardless of the degree, has as an element the use of force

against the person of another.     We hold that Cornish's conviction

for third degree robbery is a "violent felony" pursuant to 18

U.S.C. § 924(e)(2)(B)(i) and the district court erred in failing

to apply the enhanced penalties of § 924(e).     Accordingly, the

case is remanded for resentencing consistent with this opinion.




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