                                                    NOT PRECEDENTIAL
                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 16-4219
                                     _____________

                            UNITED STATES OF AMERICA

                                             v.

                 ANTHONY JEROME WHITE, a/k/a Dean Braithwaite,
                    a/k/a Carlos Valentine, a/k/a Anthony Brown

                                 Anthony Jerome White,
                                                 Appellant
                                   _______________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                                (D.C. No. 1-06-cr-266-01)
                         District Judge: Hon. Sylvia H. Rambo
                                    _______________

                                        Argued
                                   September 14, 2017

           Before: CHAGARES, JORDAN, and NYGAARD, Circuit Judges.


                                (Filed: September 7, 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.
Frederick W. Ulrich [ARGUED]
Office of Federal Public Defender
100 Chestnut Street – Ste. 306
Harrisburg, PA 17101
      Counsel for Appellant

Carlo D. Marchioli [ARGUED]
Kate L. Mershimer
United States Attorney’s Office
228 Walnut Street, Room 220
Harrisburg, PA 17108
       Counsel for Appellee



JORDAN, Circuit Judge.

       Anthony White appeals the District Court’s denial of his motion to correct

sentence filed pursuant to 28 U.S.C. § 2255. For the reasons that follow, we will affirm.

I.     Background

       On March 15, 2006, police and probation officers conducted a search for White,

who was wanted for a parole violation. After a brief chase, police apprehended him and

found crack cocaine along his flight path. As a result of that encounter, a grand jury

indicted White on five counts related to drugs and firearms. At a bench trial, White was

found guilty on all counts and the District Court sentenced him for Count 1 under the

Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), because he had three

predicate ACCA convictions, namely, two serious drug offenses and a violent felony.

But the Court did not specify whether it considered White’s prior Pennsylvania

conviction for aggravated assault with a deadly weapon to be a “violent felony” under the




                                             2
“elements” clause of the ACCA or under its now-unconstitutional “residual” clause.1

Ultimately, the Court imposed a 360-month term of imprisonment for Counts 1, 3, and 4;

a concurrent 120-month term for Count 5; and a consecutive 60-month term for Count 2.2

         White appealed the Court’s judgment of conviction, which we affirmed. United

States v. White, 320 F. App’x 120 (3d Cir. 2008). He did not appeal his sentence.

         Later, White filed his first § 2255 motion alleging trial errors by the District Court

and ineffective assistance of counsel. He again did not challenge his sentence. The

Court denied his petition.

         White then filed a flurry of motions. The Court deemed two such filings to be

§ 2255 motions, one based on recent changes to the Sentencing Guidelines and the other

based on ineffective assistance of counsel regarding a possible plea. The Court denied

both.3



         1
         As noted herein, the Supreme Court in Johnson v. United States, 135 S. Ct. 2551
(2015) invalidated the ACCA’s residual clause as being unconstitutionally vague.
         2
           The District Court found White guilty on all five counts: (1) felon in possession
of a firearm, in violation of 18 U.S.C. §§ 922(g) and 924(e); (2) possession of a firearm
in furtherance of drug trafficking, in violation of 18 U.S.C. § 924(c); (3) conspiracy to
possess with the intent to distribute, and distributing, crack cocaine and marijuana, in
violation of 21 U.S.C. § 846; (4) possession with intent to distribute, and distributing, 50
grams or more of crack cocaine and an unspecified amount of marijuana, in violation of
21 U.S.C. § 841(a)(1); and (5) possession of a firearm while in the United States as an
illegal alien, in violation of 18 U.S.C. § 922(g)(5)(A) and (B).

         The Court denied White’s second § 2255 motion, as the changes to the
         3

Sentencing Guidelines were effective during the pendency of his first § 2255 motion and,
in any case, would not have affected White’s criminal history score and not led to relief.
The Court denied White’s third § 2255 motion because he failed to obtain a certificate of
appealability.
                                                3
       Following the Supreme Court’s invalidation of the ACCA’s residual clause as

unconstitutionally vague in Johnson v. United States, 135 S. Ct. 2551 (2015), White filed

another successive § 2255 motion, this one based on Johnson. We granted a certificate of

appealability to allow that § 2255 motion because White had “made a prima facie

showing that his proposed § 2255 motion contains a new rule of constitutional law made

retroactive to cases on collateral review by the Supreme Court that was previously

unavailable.” (App. at 77.) See also Welch v. United States, 136 S. Ct. 1257, 1268

(2016) (applying Johnson retroactively).

       At the District Court, White argued that his prior Pennsylvania conviction for

aggravated assault with a deadly weapon no longer qualified as a “violent felony” due to

Johnson’s invalidation of the residual clause. The Court, however, denied White’s most

recent § 2255 motion based solely on the “concurrent sentence doctrine.”4 The District

Court nevertheless granted White a certificate of appealability, and he has timely

appealed.

II.    Discussion5



       4
          “Under the concurrent sentence doctrine, we have discretion to avoid resolution
of legal issues affecting less than all of the counts in an indictment where at least one
count will survive and the sentences on all counts are concurrent.” United States v.
McKie, 112 F.3d 626, 628 n.4 (3d Cir. 1997).
       5
         We have jurisdiction pursuant to 28 U.S.C. § 2253(a). We review legal
determinations de novo. United States v. Doe, 810 F.3d 132, 142 (3d Cir. 2015). Our
review of the gatekeeping requirements of § 2255(h) is de novo. United States v.
Peppers, No. 17-1029, 2018 WL 3827213, at **5, 6 (3d Cir. Aug. 13, 2018). We
exercise plenary review over the determination of whether White qualifies as an Armed
Career Offender. United States v. Chapman, 866 F.3d 129, 131 (3d Cir. 2017).
                                            4
       There are two issues on appeal. First, the government argues that the District

Court lacked jurisdiction to review White’s successive § 2255 motion. Second, White

argues that Johnson’s invalidation of the ACCA’s residual clause may make him

ineligible for enhanced sentencing under that statute, preventing application of the

concurrent sentence doctrine. We conclude that that the District Court had jurisdiction to

review White’s successive § 2255 motion and that the Court properly sentenced White

under the ACCA.

       A.     The District Court Had Jurisdiction to Review White’s Successive
              § 2255 Motion.

       The government argues that the District Court lacked jurisdiction to review

White’s successive § 2255 motion because White did not establish that his enhanced

sentence was based on the ACCA’s residual clause. That argument, however, is

foreclosed by our recent opinion in United States v. Peppers, --- F.3d ---, No. 17-1029,

2018 WL 3827213, (3d Cir. Aug. 8, 2018), in which we held that “the jurisdictional

gatekeeping inquiry for second or successive § 2255 motions based on Johnson requires

only that a defendant prove he might have been sentenced under the now-unconstitutional

residual clause of the ACCA, not that he was in fact sentenced under that clause.” Id. at

*1 (emphasis added). Here, the District Court did not specify which clause was the basis

for classifying White’s aggravated assault conviction as a “violent felony.” Accordingly,

White has established that he might have been sentenced under the residual clause, and

he has thus satisfied § 2255’s jurisdictional gatekeeping requirement.

       B.     White’s Conviction for Aggravated Assault with a Deadly Weapon Is a
              “Violent Felony” Under the ACCA’s Elements Clause.
                                             5
       White argues that Johnson’s invalidation of the ACCA’s residual clause may

make him ineligible for enhanced sentencing under that statute, preventing the

application of the concurrent sentence doctrine. But recent precedent undermines that

argument too. In United States v. Ramos, 892 F.3d 599 (3d Cir. 2018), we held that

second degree aggravated assault with a deadly weapon, under Pennsylvania law, is

categorically a crime of violence under the Sentencing Guidelines. Id. at 612. Our prior

opinions have interpreted a “violent felony” under the ACCA and a “crime of violence”

under the Sentencing Guidelines as interchangeable concepts. See United States v.

Hopkins, 577 F.3d 507, 511 (3d Cir. 2009) (“While the Court was not called upon to

construe the career offender provision of the Sentencing Guidelines, the definition of a

violent felony under the ACCA is sufficiently similar to the definition of a crime of

violence under the Sentencing Guidelines that authority interpreting one is generally

applied to the other”); see also United States v. Wilson, 880 F.3d 80, 83 (3d Cir.), cert.

denied, 138 S. Ct. 2586 (2018) (concluding that “bank robbery by intimidation does

indeed qualify as a ‘crime of violence’ under § 4B1.2(a)(1) or the nearly identically

worded ‘elements’ clause of the ACCA”). Accordingly, White’s conviction for

aggravated assault was properly classified as a “violent felony,” and the District Court

rightly sentenced him under the ACCA.6

III.   Conclusion



       6
         We may affirm the District Court on any grounds supported by the record.
Kossler v. Crisanti, 564 F.3d 181, 186 (3d Cir. 2009).
                                              6
      For the foregoing reasons, we will affirm the District Court’s denial of White’s

motion to correct his sentence under § 2255.




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