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Date: 11-12-2021
Case Style:
United States of America v. Shawn Quinnones
Case Number: 20-2709
Judge: Patty Shwartz
Court: UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
On appeal from The United States District Court
for the Eastern District of Pennsylvania
Plaintiff's Attorney: Thomas M. Zaleski
Robert A. Zauzmer [ARGUED]
Office of United States Attorney
Defendant's Attorney:
Description:
Philadelphia, PA - Criminal defense lawyer represented defendant with
two counts of armed bank robbery chargee.
Shawn Shannon Quinnones pleaded guilty to two
counts of armed bank robbery in violation of 18 U.S.C.
§§ 2113(a), (d) and § 2. She also stipulated that her
commission of an armed robbery of a Family Dollar store
should be treated at sentencing as if it were a third count of
conviction. The United States Probation Office prepared a
Presentence Investigation Report (“PSR”) detailing
Quinnones’ criminal history and recommending that she be
sentenced as a career offender under U.S.S.G. § 4B1.1 because
her crime of conviction for armed bank robbery and her four
prior convictions for assault by a prisoner in violation of 18 Pa.
Cons. Stat. § 2703 were all “crimes of violence.”
Quinnones objected to the career offender designation,
arguing that three of her § 2703 convictions did not qualify as
crimes of violence.
1 The District Court disagreed, applied the
career offender designation, departed downward from the
Guidelines range of 188-235 months, and sentenced
Quinnones to 132 months’ imprisonment, followed by five
years’ supervised release, and $8,058 in restitution.
Quinnones appeals.
1
In her sentencing memorandum, Quinnones did not
object to counting as a qualifying offense a 1997 conviction for
violating § 2703.
4
II2
A
Quinnones argues that her convictions under § 2703 are
not “crimes of violence” as defined by U.S.S.G. § 4B1.2, and,
therefore, the District Court erred by sentencing her as a career
offender. To evaluate this contention, we first set forth the
definition of “crime of violence” under the Sentencing
Guidelines. We then identify the elements of the statute of
conviction, here § 2703. Thereafter, we compare those
elements to the definition of “crime of violence” to determine
whether § 2703 fits the definition.
B
A defendant whose crime of conviction is a “crime of
violence” or a “controlled substance offense” and who has at
least two prior convictions for such offenses is subject to
sentencing as a career offender under U.S.S.G. § 4B1.1. As
relevant here, the career offender provision defines a “crime of
violence” as any felony that “has as an element the use,
2 The District Court had jurisdiction under 28 U.S.C.
§ 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a). We review purely legal questions, such as
whether an offense qualifies as a crime of violence under the
Sentencing Guidelines, de novo. United States v. Henderson,
841 F.3d 623, 626 (3d Cir. 2016).
5
attempted use, or threatened use of physical force.”
3
U.S.S.G.
§ 4B1.2(a)(1).
To further define the phrase “crime of violence,” we
examine the meaning of “use” and “physical force.” The word
“use” means the “intentional employment of . . . force,
generally to obtain some end.” Tran v. Gonzales, 414 F.3d
464, 470 (3d Cir. 2005). “Physical force” in the career offender
provision refers to “force capable of causing physical pain or
injury to another.” United States v. Chapman, 866 F.3d 129,
132 (3d Cir. 2017) (quotation marks omitted) (quoting Johnson
v. United States, 559 U.S. 133, 140 (2010)). Together, the “use
of physical force” 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.” Id. Under this definition, the
qualifying physical force may be direct or indirect so long as it
is “strong enough to constitute power,” id. at 140, 142
(quotation marks omitted), and more than the “slightest
offensive touching,” id. at 139.
3 The career offender provision also identifies certain
offenses as crimes of violence. U.S.S.G. § 4B1.2(a)(2).
Assault by a prisoner under § 2703’s bodily fluid provision is
not one of them. See id. (listing “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)”).
6
C
Applying this definition, we next examine whether
§ 2703 is a “crime of violence” under § 4B1.2. To do so, we
are required to use the much-criticized categorical approach,4
which requires that we identify the elements of the statute of
conviction, rather than the facts that led to the conviction, and
compare those elements to the definition of “crime of
violence.” Descamps v. United States, 570 U.S. 254, 260
(2013) (citation omitted); United States v. Ramos, 892 F.3d
599, 606 (3d Cir. 2018). Where the statute of conviction
contains variations with alternate elements, such that “certain
elements of the statute fit within the definition of a crime of
violence, while other alternative elements do not,” we may
look beyond the elements to determine which part of the statute
formed the basis for the conviction.5
United States v. Jones,
740 F.3d 127, 134 (3d Cir. 2014). This so-called “modified
categorical approach” permits courts to consider “the charging
document, the terms of a plea agreement or transcript of
colloquy between judge and defendant in which the factual
4
See, e.g., United States v. Chapman, 866 F.3d 129,
136-39 (3d Cir. 2017) (3d Cir. 2021) (Jordan, J., concurring)
(collecting cases); see also United States v. Scott, ___F.4th ___,
2021 WL 4302516 at *7-10 (3d Cir. Sept. 22, 2021) (collecting
cases).
5
If the variation “sweeps more broadly than the
[Guidelines-defined crime of violence], a conviction under
[that variation] is not a career offender predicate even if the
defendant actually committed the offense in a way that
involved the use (or threatened use) of physical force against
another.” Chapman, 866 F.3d at 134 (alterations in original)
(citation omitted).
7
basis for the plea was confirmed by the defendant, or [] some
comparable judicial record [embodying] this information.”
Shepard v. United States, 544 U.S. 13, 26 (2005).
The version of § 2703 in effect at the time of
Quinnones’ convictions provided:
A person who is confined in or committed to any
local or county detention facility, jail or prison or
any State penal or correctional institution or
other State penal or correctional facility located
in this Commonwealth is guilty of a felony of the
second degree if he, while so confined or
committed or while undergoing transportation to
or from such an institution or facility in or to
which he was confined or committed
intentionally or knowingly, commits an assault
upon another with a deadly weapon or
instrument, or by any means or force likely to
produce serious bodily injury. A person is guilty
of this offense if he intentionally or knowingly
causes another to come into contact with blood,
seminal fluid, saliva, urine or feces by throwing,
tossing, spitting or expelling such fluid or
material[6] when, at the time of the offense, the
person knew, had reason to know, should have
known or believed such fluid or material to have
been obtained from an individual, including the
person charged under this section, infected by a
communicable disease, including, but not limited
6 We use the word “fluid” to also capture “material.”
8
to, human immunodeficiency virus (HIV) or
hepatitis B.
18 Pa. Cons. Stat. § 2703 (2019).7
Thus, a defendant could
violate the statute if she: (1) committed an “assault upon
another with a deadly weapon”; (2) committed an assault “by
any means or force likely to produce serious bodily injury”; or
(3) “cause[d] another to come into contact with [a bodily
fluid]” that came from someone infected with a communicable
disease. Id. Regardless of whether the statute is viewed as
indivisible or divisible, the parties do not dispute that
Quinnones was convicted of the portion of § 2703 that made it
a crime for a prisoner to cause another to come into contact
with a bodily fluid that came from someone with a
communicable disease, and that this is the least culpable way
to violate the statute.
Having determined that the statutory variation
concerning use of “bodily fluids” formed the basis for
Quinnones’ conviction, we next look at that offense’s elements
to “ascertain the least culpable conduct hypothetically
necessary to sustain a conviction.” United States v. Dahl, 833
F.3d 345, 350 (3d Cir. 2016) (quotation marks omitted). To
secure a conviction under the relevant portion of § 2703, the
Commonwealth must prove the defendant: (1) was a prisoner;
(2) caused the victim to come into contact with bodily fluid by
throwing, tossing, spitting, or expelling the fluid; (3) knew, had
reason to know, or should have known or believed the fluid
7 The statute was amended in 2020 to separate the
“deadly weapon”/“force likely to produce bodily injury” and
“bodily fluid” prongs into two different subsections. 2020 Pa.
Legis. Serv. Act 2020-63 (H.B. 256).
9
came from someone who had a communicable disease; and (4)
either (a) her purpose was to have the victim have contact with
the fluid or (b) she was aware she would almost certainly cause
the victim to have contact with the fluid. See Pennsylvania
Suggested Standard Criminal Jury Instructions § 15.2703(A)
(2019). Under these elements, the least culpable conduct for
which a defendant can be convicted under the statute is
(1) spitting or expelling fluid when (2) the person should have
known the fluid was infected.
D
We will now determine whether spitting or expelling
fluid under § 2703 necessarily involves the use of physical
force contemplated by § 4B1.2. As stated previously, “use of
physical force” under § 4B1.2 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.” Chapman, 866 F.3d at 133. Spitting
or expelling fluid in their least culpable forms do not involve
force for the purpose of § 4B1.2 because such acts are not
capable of causing physical pain or injury.8
Cf. Ramos, 892
F.3d at 612 (holding that a Pennsylvania conviction for
aggravated assault with a deadly weapon under 18 Pa. Cons.
Stat. § 2702(a)(4) is a crime of violence because it is “nearly
8 One can imagine that spitting could cause injury or
pain in some extreme circumstances, but that is not the test
under the categorical approach. To be a crime of violence, the
least extreme case of spitting under the statute must be able to
cause pain or injury. See Singh v. Ashcroft, 386 F.3d 1228,
1234 (9th Cir. 2004) (noting the categorical approach is “not
concerned with the most extreme case”).
10
impossible to conceive of a scenario in which a person could
knowingly or intentionally injure, or attempt to injure, another
person with a deadly weapon without engaging in at least some
affirmative, forceful conduct”). For this reason, many of our
sister circuits have held that where a crime can be committed
by spitting, that crime—like § 2703—does not categorically
involve “physical force” as defined in Chapman and Johnson.
9
9 Relying on Stokeling v. United States, 139 S. Ct. 544
(2019), the Government argues that because spitting could
provoke another to respond with physical force that could
cause injury, it qualifies as the type of force constituting a
crime of violence. Even if spitting may provoke a physical
reaction from another that could cause physical pain or injury,
Stokeling does not convert spitting into a crime of violence. In
Stokeling, the Supreme Court examined whether robbery
constituted a violent felony under the Armed Career Criminal
Act (“ACCA”). 139 S. Ct. at 550. It examined definitions of
robbery and concluded that common law robbery must involve
force that would be expected to overcome the victim’s
resistance. Id. at 551-52. Thus, the Court’s discussion of
resistance or provocation does not change Johnson’s definition
of “crime of violence.” Rather, Stokeling elaborates on what
type of force is sufficient to constitute robbery and holds that
such force exceeds the Johnson minimum. See id. at 552-53
(“Our understanding of ‘physical force’ comports with
Johnson . . . . [T]he force necessary to overcome a victim’s
physical resistance is inherently ‘violent’ in the sense
contemplated by Johnson.”); see also Reliford v. United States,
773 F. App’x 248, 251 (6th Cir. 2019) (not precedential) (“The
Supreme Court [in Stokeling] clarified that the ACCA
encompasses robbery offenses that require the criminal to
11
See, e.g., United States v. Carthorne, 726 F.3d 503, 512 (4th
Cir. 2013) (holding that assault and battery of a police officer
in Virginia is not a crime of violence under the career offender
provision because it can be committed “by spitting in a man’s
face”); United States v. Evans, 576 F.3d 766, 768 (7th Cir.
2009) (holding that aggravated battery on a pregnant victim in
Illinois is not a crime of violence under the career offender
provision because it includes “deliberately spit[ting] on a
pregnant woman”).10
overcome the victim’s resistance.” (quotation marks
omitted)).
10 See also United States v. Taylor, 848 F.3d 476, 493
(1st Cir. 2017) (holding that simple assault under 18 U.S.C.
§ 111(a) is not a violent felony under the ACCA because it can
be committed “by spitting in a mail carrier’s face”); United
States v. Jones, 914 F.3d 893, 903, 905-906 (4th Cir. 2019)
(holding that “spitting at another’s face—which can be
accomplished in a rude or angry manner but without violent
physical force—constitutes an assault” but does not
“categorically involve[] the use, attempted use, or threatened
use of violent physical force” under the ACCA); Johnson v.
United States, 784 F. App’x 373, 377-78 (6th Cir. 2019) (not
precedential) (holding that spitting while infected with
communicable disease, even with the intent to transmit a cold,
“does not involve the use of furious, severe, or vehement force”
under the ACCA) (citing Johnson, 559 U.S. at 140); Reliford,
773 F. App’x at 252 (holding that battery in Michigan is not a
violent felony under the ACCA because it can be committed
by spitting); United States v. Ama, 684 F. App’x 736, 741
(10th Cir. 2017) (not precedential) (holding that simple assault
under 18 U.S.C. § 111(a) is not a violent felony under the
12
Because the least culpable conduct under § 2703’s
bodily fluids provision does not include “physical force” as
defined in Chapman, it is not a “crime of violence” under
§ 4B1.2.
E
Moreover, even if spitting or expelling a fluid involved
physical force, the state of mind required to complete the
offense under § 2703 reveals that it is not a crime of violence.
The Supreme Court has held that if an offense can be
committed with recklessness or negligence, it is not a crime of
violence. Borden v. United States, 141 S. Ct. 1817, 1825
(2021) (recklessness); Leocal v. Ashcroft, 543 U.S. 1, 9, 13
ACCA because it can be committed by “spitting and throwing
liquid substances on a federal employee”); United States v.
Mason, 709 F. App’x 898, 904 (10th Cir. 2017) (not
precedential) (holding that assault and battery of a police
officer is not a violent felony under the ACCA because it can
be committed by spitting in the face); United States v.
Dominguez-Mayoroqui, 748 F.3d 918, 921 (9th Cir. 2014)
(holding that simple assault under 18 U.S.C. § 111(a) is not a
crime of violence under the Sentencing Guidelines’
enhancement for unlawful entry because it can be committed
by “spitting in [a] mail carrier’s face”); United States v.
Maldonado-Lopez, 517 F.3d 1207, 1209 (10th Cir. 2008)
(holding that a Colorado harassment law was not a crime of
violence under the Sentencing Guidelines’ enhancement for
unlawful entry because it included “both violent and
nonviolent crimes . . . because it could include violent physical
contact, such as striking a victim, or physical contact not
involving force, such as spitting on a victim”).
13
(2004) (negligence).11
As a result, we must consider the state
of mind with which the offense can be committed. Section
2703 has two state of mind components. To violate § 2703, a
defendant must knowingly or intentionally cause another to
come into contact with a fluid by engaging in certain specified
acts, such as spitting (the “spitting element”). Thus, the actus
reus must be performed knowingly or intentionally and not
recklessly or negligently. A different mens rea applies to what
the defendant knew about the fluid (the “fluid element”).
Under the statute, the defendant needs to have known or should
have known that the bodily fluid came from someone with a
communicable disease.
Section 4B1.2 provides that a crime of violence must
have “an” element that involves the use, attempted use, or
threatened use of force. U.S.S.G. § 4B1.2. One sister circuit
has read this language to mean that so long as one of the
elements of the offense is satisfied by knowing or intentional
conduct, the fact that other elements can be satisfied by a lower
mens rea is of no consequence. United States v. Werle, 877
F.3d 879, 883 (9th Cir. 2017) (negligence as to element of
putting victim in “reasonable fear that the threat to kill would
be carried out” for harassment); United States v. Lawrence,
627 F.3d 1281, 1288 (9th Cir. 2010) (recklessness as to
11 Borden and Leocal bind our analysis because the
statutes considered there—ACCA and 18 U.S.C. § 16(a)
respectively—are sufficiently similar to the career offender
provision. See, e.g., United States v. Brown, 765 F.3d 185,
189 n.2 (3d Cir. 2014) (ACCA cases binding on career
offender cases); Henry v. Bureau of Immigration and Customs
Enforcement, 493 F.3d 303, 308 (3d Cir. 2007) (Section 16(a)
cases binding on career offender cases).
14
element of substantial bodily harm for assault), overruled on
other grounds by Descamps v. United States, 570 U.S. 254
(2013). While that may be true for the statutes under
consideration in those cases, the same does not apply here.
The lower mens rea in Lawrence and Werle applied to
the results of the actus reus rather than to attendant
circumstances that make the actus reus dangerous. For
instance, the threat statute at issue in Werle required proof that
the defendant “subjectively know” that he was communicating
a threat to use physical force and that the threat placed the
victim “in reasonable fear that the threat would be carried out.”
877 F.3d at 883 (quoting Wash. Rev. Code 9A.46.020). The
lower mens rea component of the statute focused on the impact
on the victim’s state of mind. The Lawrence court examined a
statute that criminalized an intentional assault that recklessly
inflicted substantial bodily harm, so the court was evaluating a
statute that had as an element the results of the intentional act.
627 F.3d at 1285 (discussing Wash. Rev. Code
9A.36021(1)(a)).
Section 2703, in contrast, requires proof that the
defendant knew why the instrument of the crime, such as
spitting saliva, was dangerous. The Commonwealth must
prove what the defendant knew or should have known about
the source or content of the fluid. Notably, § 2703 was enacted
as part of a larger movement among state legislatures in the
1990s to respond to the AIDS crisis and the then-perceived
effect of inmates and others using bodily fluids to cause harm.
See generally Developments in the Law—Animus and Sexual
Regulation, 127 Harv. L. Rev. 1767, 1777 (2014) (describing
criminalization of HIV and how media reports “ignited
hysteria and rage” regarding the disease without regard to
15
actual transmission risks). To that end, the statute specifically
concerns not just bodily fluids but infected fluids. Thus, the
state of mind requirement for the fluid element is as important
as the state of mind applicable to the spitting element for
determining whether the predicate offense here is a qualifying
crime of violence.
The fluid element includes the state of mind of “should
have known,” and thus embodies the standard for negligence.
See Model Penal Code § 2.02(2)(d) (providing that a person
acts negligently if he is not but “should be aware” of such a
“substantial and unjustifiable risk,” in “gross deviation” from
the norm). An offense that can be committed negligently is not
a crime of violence. See Leocal, 543 U.S. at 9, 13 (evaluating
Florida’s DUI statute, which does not specify a mental state for
operating a vehicle, and holding that because that statute could
reach “individuals who were negligent or less,” it was not a
crime of violence and explaining that “use . . . of physical force
. . . most naturally suggests a higher degree of intent than
negligent or merely accidental conduct”); see also United
States v. Castleman, 572 U.S. 157, 171 (2014) (noting that use
of force is “the act of employing [the tool] knowingly as a
device to cause physical harm”); Chapman, 866 F.3d at 133
(requiring the “intentional employment of something capable
of causing physical pain or injury”).12
A defendant can be
12 See also United States v. Simmons, 917 F.3d 312,
320-21 (4th Cir. 2019), as amended (Mar. 6, 2019) (holding
that because assault in North Carolina can be satisfied with
“culpable negligence,” it cannot constitute a crime of violence
under the Guidelines); Ramirez v. Lynch, 810 F.3d 1127, 1133
(9th Cir. 2016) (stating that “to qualify as a crime of violence
16
convicted of § 2703’s bodily fluids felony with only a
negligent state of mind as to whether the fluid originated from
an infected person. For this additional reason, it is not a
qualifying “crime of violence” under § 4B1.2.13
[under 18 U.S.C. § 16(a), the defendant] must have ‘use[d]
force’ with a mens rea that incorporates a degree of intent
greater than does negligence or recklessness” (alteration in
original)).
13 In support of its argument that it is of no consequence
that certain elements of § 2703 have a lower mens rea, the
Government identifies crimes of violence, such as bank
robbery, that include elements for which there is no mental
state, and thus could be viewed as criminalizing negligence.
See Appellee’s Br. at 18 (“Many violent crimes include
additional, nonviolent elements; for instance, the bank robbery
convictions in this case involve not only the use of force, but
also . . . the existence of federal insurance[, which specifies no
mens rea.]”); see also 18 U.S.C. § 2113(f) (“‘[B]ank’ means
any member bank of the Federal Reserve System . . . and any
institution the deposits of which are insured by the Federal
Deposit Insurance Corporation.”). The insurance requirement
for bank robbery, however, is a jurisdictional hook about which
a defendant need not have knowledge, see 3d Cir. Model
Criminal Jury Instructions 6.18.2113A, while the infection
requirement here requires knowledge or reason to have had
knowledge. Moreover, Leocal itself involved a DUI statute
that did not “require any mental state with respect to the use of
force against another person,” yet “operat[ing] a vehicle” is
impossible without intent. Leocal, 543 U.S. at 13 (quoting Fla.
Stat. § 316.193(3)(c)(2)). The Supreme Court still held it was
not a crime of violence because at least some elements were
satisfied by negligence or less. See id. at 9.
Outcome: For the foregoing reasons, we will vacate Quinnones’
sentence and remand for resentencing
Plaintiff's Experts:
Defendant's Experts:
Comments: