                                                                NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                     No. 12-1525
                                    _____________

                           UNITED STATES OF AMERICA

                                            v.

                           KENDALE RAHMEL HOLLINS,
                                   a/k/a BOO,
                                                                    Appellant
                                      ___________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                             (D.C. No. 3-11-cr-00002-001)
                       District Judge: Honorable Kim R. Gibson
                                     ___________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  December 20, 2012

     Before:   McKEE, Chief Judge, SLOVITER, and VANASKIE, Circuit Judges.

                                (Filed: March 07, 2013)

                                      ___________

                              OPINION OF THE COURT
                                   ___________

VANASKIE, Circuit Judge.

      This appeal presents the question of whether conspiracy to commit robbery ―by

force however slight‖ constitutes a ―crime of violence‖ under the career offender


                                            1
provisions of the United States Sentencing Guidelines. Because we agree with the

District Court that Appellant‘s conspiracy to commit robbery conviction is a ―crime of

violence,‖ we will affirm the District Court‘s sentence and judgment.

                                             I.

       In the summer of 2010, Appellant Kendale Rahmel Hollins sold crack cocaine to a

confidential informant on three separate occasions. In total, 79.5 grams of crack cocaine

were sold. Hollins was indicted on February 8, 2011. Counts One and Two of the

Indictment alleged that Hollins distributed five grams or more of cocaine base on June 8,

2010 and June 16, 2010, respectively, in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(B)(iii). Count Three charged Hollins with distribution of less than twenty-eight

grams of cocaine base on August 11, 2010, in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(C). Hollins entered a plea of guilty to all Counts.

       Hollins‘ distribution of 79.5 grams of crack cocaine yielded a base offense level of

26. See U.S.S.G. § 2D1.1(c)(7). Following a three-level reduction for timely acceptance

of responsibility, Hollins‘ net offense level was 23. Hollins, however, had two prior

convictions that implicated the career offender enhancement under U.S.S.G § 4B1.1 – a

prior drug trafficking offense for delivery of cocaine and a conviction for conspiracy to

commit robbery under 18 Pa. Cons. Stat. Ann. §§ 903(a)(1) and 3701(a)(1)(v).

Application of the career offender enhancement resulted in a net offense level of 29, and

a criminal history category of VI.

       Hollins objected to being designated as a career offender, arguing that the

conspiracy conviction was not a crime of violence. The government contended that a

                                             2
conspiracy to commit robbery constituted a ―crime of violence‖ as that term is defined in

U.S.S.G.§ 4B1.2. The District Court agreed with the government, and set the advisory

guidelines imprisonment range at 151 to 188 months, instead of the 70 to 87 month range

produced by Hollins‘ offenses. Nevertheless, the District Court granted a substantial

downward variance, ultimately sentencing Hollins to 120 months of incarceration.

Hollins now appeals.

                                             II.

       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). Whether a prior offense

qualifies as a crime of violence for purposes of the career offender enhancement is a

question of law over which we exercise plenary review. United States v. Marrero, 677

F.3d 155, 159 (3d Cir. 2012) (citation omitted).

                                             A.

       Hollins first argues that under no circumstances may the crime of conspiracy

qualify as a crime of violence. Specifically, he asserts that under Pennsylvania law,

―conspiracy plainly does not have as an element the use, attempted use, or threatened use

of physical force against the person of another.‖ (Appellant‘s Br. at 23.) This argument

does not comport with the text of the Sentencing Guidelines. Application Note 1 to

U.S.S.G. § 4B1.2 specifically states that ―[f]or purposes of this guideline – ‗Crime of

violence‘ . . . include[s] the offense[] of . . . conspiring, and attempting to commit such

offenses.‖ (emphasis added). Accordingly, the fact that Hollins was convicted of

conspiracy to commit robbery does not preclude a determination that he committed a

                                              3
―crime of violence.‖ See United States v. Hawkins, 139 F.3d 29, 34 (1st Cir. 1998)

(citation omitted) (―We have also unequivocally held that conspiracy to commit a crime

of violence, as defined in the career offender guidelines, is itself a crime of violence for

purposes of its treatment under the Guidelines.‖).

       The Guidelines define ―crime of violence‖ as:

              [A]ny offense under federal or state law, punishable by
              imprisonment for a term exceeding one year, that—

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

                      (2) is burglary of a dwelling, arson, or extortion,
                      involves use of explosives, or otherwise involves
                      conduct that presents a serious potential risk of
                      physical injury to another.

U.S.S.G. § 4B1.2(a) (emphasis added). The first subsection of U.S.S.G. §4B1.2(a) is

referred to as the ―elements clause,‖ and the second subsection as the ―residual clause.‖

       The Pennsylvania robbery statute at issue here provides that: ―(1) A person is

guilty of robbery if, in the course of committing a theft, he . . . (v) physically takes or

removes property from the person of another by force however slight . . . .‖ 18 Pa. Cons.

Stat. Ann. § 3701(a)(1)(v). The career offender enhancement is appropriate if this

offense qualifies as a ―crime of violence‖ under either the elements clause or the residual

clause of U.S.S.G. § 4B1.2(a).

       Hollins argues that his prior conviction did not meet the elements clause definition

for a crime of violence, asserting that ―conspiracy to commit robbery by force however

slight does not have ‗as an element the use, attempted use, or threatened use of physical

                                               4
force against the person of another . . . .‘‖ (Appellant‘s Br. at 15.) (quoting U.S.S.G. §

4B1.2(a)(1)). We specifically rejected this argument in United States v. Cornish, 103

F.3d 302 (3d Cir. 1997), stating:

              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).1

Id. at 309.

       Significant doubt, however, has been cast on our holding in Cornish by Johnson v.

United States, 130 S. Ct. 1265 (2010). In Johnson, the Court observed ―that in the

context of a statutory definition of ‗violent felony,‘ the phrase ‗physical force‘ means

violent force—that is, force capable of causing physical pain or injury to another person.‖

Id. at 1271. The Court held in Johnson that a prior battery conviction under Florida law

was not a ―violent felony‖ under the elements clause of the ACCA definition of that term


       1
         A number of the cases we cite in our analysis, like Cornish, involve
enhancements under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), rather
than the United States Sentencing Guidelines career offender enhancement, U.S.S.G §
4B1.1. Because of the significant similarity of the definitions of ―violent felony‖ under
the ACCA and ―crime of violence‖ under the Sentencing Guidelines, these precedents
―nevertheless bind our analysis.‖ Marrero, 677 F.3d at 160 n.1 (citations omitted).
                                              5
found in 18 U.S.C. § 924(e)(2)(B), because the Florida Supreme Court defined battery as

―any intentional physical contact, ‗no matter how slight.‘‖ Id. at 1270 (citation omitted).

If, as the Court in Johnson concluded, ―any intentional physical contact, ‗no matter how

slight,‘‖ id., does not fall within the elements clause of the definition of ―violent felony‖

found in ACCA – ―any crime . . . that has as an element the use, attempted use, or

threatened use of physical force against the person of another,‖ 18 U.S.C. 924(e)(2)(B)(i),

it stands to reason that ―physically tak[ing] or remov[ing] property from the person of

another by force however slight,‖ 18 Pa. Cons. Stat. Ann. § 3701(a)(1)(v) (emphasis

added), fails to qualify as a ―crime of violence‖ under the similarly-phrased elements

clause of U.S.S.G. § 4B1.2(a)(1). This is especially true in light of the fact that the

Pennsylvania Supreme Court, like the Florida Supreme Court in the battery context,

previously held that ―any amount of force applied to a person while committing a theft

brings that act within the scope of robbery under [§ 3701(a)(1)(v)],‖ and ―[t]he 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). If under Johnson ―physical force‖ under the elements clause must mean

something more than any minor contact, robbery by force, however slight, no longer

satisfies this particular definition of a crime of violence.

                                              D.




                                               6
       We turn then to the definition of crime of violence in the residual clause set forth

in U.S.S.G. § 4B1.2(a)(2).2 As the Eleventh Circuit observed in United States v. Welch,

683 F.3d 1304 (11th Cir. 2012), Johnson does not impact our analysis ―under the residual

clause,‖ which separately examines whether ―the conduct encompassed by the elements

of the offense, in the ordinary case, presents a serious potential risk of injury to another.‖

Id. at 1313 (quoting James v. United States, 550 U.S. 192, 208 (2007)) (internal quotation

marks omitted).

       In United States v. Polk, 577 F.3d 515, 518 (3d Cir. 2009), we recognized that to

qualify as a crime of violence under the residual clause, ―an offense must (1) present a

serious potential risk of physical injury and (2) be ‗roughly similar, in kind as well as

degree of risk posed, to . . . burglary, arson, extortion, or use of explosives. . . .‘‖

(Quoting Begay v. United States, 553 U.S. 137, 143 (2008)). In other words, at least in

the context of a crime that requires knowing or intentional conduct, such as

Pennsylvania‘s robbery in the third degree, as opposed to strict liability crimes or crimes

based only upon negligence or recklessness,3 a crime of violence is one that categorically



       2
         Significantly, unlike in Johnson, where the government disclaimed reliance on
the residual clause definition of ―violent felony‖ found in ACCA, 130 S. Ct. at 1274, the
government preserved this argument before the District Court in the matter before us.
(See A. 143.)
       3
         In Begay, the Court stated that the listed crimes of burglary, arson, extortion, and
use of explosives had common attributes of ―purposeful, ‗violent,‘ and ‗aggressive‘
conduct,‖ and so it was proper to consider whether driving under the influence, the crime
at issue in Begay, involved such conduct. In Sykes v. United States, 131 S. Ct. 2267,
2276 (2011), however, the Court explained that the ―purposeful, violent and aggressive
conduct‖ analysis was limited to crimes that involved ―strict liability, negligence or
                                                7
poses a serious risk of physical injury similar to the risks posed by one of the enumerated

crimes in the residual clause – burglary, arson, extortion, or use of explosives. Indeed, a

number of other Courts of Appeals have concluded that it is the risk of physical injury

posed by the crime in question, and not the degree of force used or threatened, that is

controlling. See, e.g., United States v. Chitwood, 676 F.3d 971, 979 (11th Cir. 2012)

(conviction under Georgia‘s false imprisonment statute qualifies as a crime of violence

for career offender enhancement); United States v. Meeks, 664 F.3d 1067, 1070 (6th Cir.

2012) (wanton endangerment under Kentucky law involves both intentional conduct and

risk of physical injury akin to the enumerated offenses so as to qualify as a crime of

violence); United States v. Rodriguez, 659 F.3d 117, 119 (1st Cir. 2011) (―Because

larceny from the person ‗requires theft from either the victim's person or the victim's

immediate vicinity,‘ . . . ‗a sufficiently serious potential for confrontation and physical

injury invariably exists‘ such that larceny from the person qualifies as a crime of

violence.‖) (quoting United States v. De Jesus, 984 F.2d 21, 24 (1st Cir.1993)) ; United

States v. Watson, 650 F.3d 1084, 1093 (8th Cir. 2011) (―[P]ossession of a firearm while

committing a drug trafficking offense presents a serious potential risk of physical injury

to another, and . . . such risk is similar, in kind as well as degree of risk posed, to the

enumerated offenses.‖).

       We must therefore decide whether robbery by force however slight is a crime that

creates a risk of physical injury similar to burglary, arson, extortion, or the use of


recklessness.‖ Robbery does not fall within the category of crimes to which the Court in
Sykes relegated the ―purposeful, violent, and aggressive conduct‖ analysis.
                                               8
explosives. We must answer this question utilizing the categorical approach. See James,

550 U.S. at 202. That is, ―we consider whether the elements of the offense are of the type

that would justify its inclusion within the residual provision, without inquiring into the

specific conduct of this particular offender.‖ Id.

       The Eleventh Circuit in Welch considered a crime akin to Pennsylvania‘s robbery

in the third degree. 683 F.3d at 1311. At issue in Welch was Florida‘s ―robbery by

sudden snatching,‖ which in terms of seriousness is ―in between larceny and robbery.‖ Id.

at 1311 (citation omitted) (internal quotation marks omitted). The Eleventh Circuit held

that this crime ―ordinarily involves substantial risk of physical injury to the victim,‖

because ―[t]he victim‘s natural reaction is likely to be to try to hold on to his or her

money or property, leading in many cases to serious injury.‖ Id. at 1313. In support of

this observation, the Eleventh Circuit cited McCloud v. State, 355 So. 2d 257, 258 (Fla.

1976), where the victim died from injuries sustained in a fall after a purse snatching.

       Hollins admits that 18 Pa. Cons. Stat. Ann. § 3701(a)(1)(v), like the Florida

offense at issue in Welch, is essentially ―purse snatching.‖ (Appellant‘s Br. at 15.)

Hollins contends, however, that we should not follow Welch ―because the Florida statute

construed there differs from the Pennsylvania statute at issue here in at least one critical

respect.‖ (Reply Br. at 15.) As Hollins explains, Pennsylvania courts, unlike Florida

courts, ―interpret the phrase taking ‗from the person of another‘ to include a taking from

the presence or control of the victim, explicitly rejecting the idea that the phrase requires

the taking to be from the victim‘s actual physical possession.‖ (Reply Br. at 15.) (citation

omitted).

                                               9
       We find this distinction insignificant. Of the enumerated offenses in the residual

clause – burglary, arson, extortion, or the use of explosives – robbery by force however

slight is most similar to burglary. In James, the Supreme Court explained that the risk of

physical injury in a burglary springs as much from the response of any occupant of the

building or person coming to the scene, as it does from the perpetrators:

              The main risk of burglary arises not from the simple physical
              act of wrongfully entering onto another's property, but rather
              from the possibility of a face-to-face confrontation between
              the burglar and a third party—whether an occupant, a police
              officer, or a bystander—who comes to investigate. That is,
              the risk arises not from the completion of the burglary, but
              from the possibility that an innocent person might appear
              while the crime is in progress.

550 U.S. at 203. Similarly, a serious risk of potential physical injury is created during a

robbery by force however slight not only in the completion of the crime itself, but also in

the possible responses to it – a victim may realize what is occurring and resist; a third

party may witness the crime and attempt to intervene. It is immaterial to this risk

analysis whether the property taken is actually in the victim‘s physical possession, or

simply under the victim‘s control. Accordingly, we hold that robbery by force however

slight qualifies as a crime of violence under the residual clause of U.S.S.G. § 4B1.2(a).

                                             III.

       For the foregoing reasons, we will affirm the District Court‘s judgment.




                                             10
