PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
               _____________

                  No. 16-1810
                 _____________

         UNITED STATES OF AMERICA

                        v.

               SHAUN CHAPMAN,
                           Appellant
                 _____________

                   APPEAL FROM
    THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
   (D.C. Criminal Action No. 4-15-cr-00094-001)
  District Judge: Honorable Christopher C. Conner,
                     Chief Judge
                  ______________

             Argued November 4, 2016
                 ______________

Before: JORDAN, GREENAWAY, JR., and RENDELL,
                 Circuit Judges.

              (Filed: August 4, 2017)
James V. Wade, Esq.
Ronald A. Krauss, Esq. [ARGUED]
Office of the Federal Public Defender
100 Chestnut Street, Suite 306
Harrisburg, PA 17101

      Attorneys for Appellant

David J. Hickton, Esq.
Rebecca Ross Haywood, Esq. [ARGUED]
Office of the United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219

      Attorneys for Appellee
                     ______________

                        OPINION
                     ______________

GREENAWAY, JR., Circuit Judge.

       Shaun Chapman appeals the District Court’s
application of the career offender enhancement to his
sentence calculation under the United States Sentencing
Guidelines (the “Guidelines”). Chapman contends that his
convictions pursuant to 18 U.S.C. § 876(c) do not qualify as
crimes of violence. This appeal requires us to determine
whether     § 876(c)—which      proscribes     mailing     a




                                2
communication containing a threat to injure the person of the
addressee or of another —is a crime of violence, as defined
by the Guidelines. Because we agree with the District Court
that Chapman’s convictions are crimes of violence within the
meaning of the Guidelines, we will affirm.

I.   FACTUAL        BACKGROUND         AND     PROCEDURAL
HISTORY

      A.     Factual Background

        While serving a sentence in state prison in 2006,
Chapman wrote a letter—eventually intercepted by prison
staff—threatening to kill President George W. Bush. Shortly
after, in an interview with Secret Service agents, Chapman
admitted that he wanted to kill the President and went on to
make additional threats. A few months later, a federal grand
jury returned an indictment charging Chapman with
threatening the President, in violation of 18 U.S.C. § 871(a).
Chapman pled guilty and was sentenced to 30 months’
imprisonment.

       In 2007, shortly after his sentencing, Chapman mailed
a letter to a federal district court judge, which contained
threats against the judge and other court staff. This time, a
federal grand jury returned an indictment charging Chapman
with mailing a threatening communication, in violation of 18
U.S.C. § 876(c). Chapman was sentenced to an additional 48
months’ imprisonment.

       Chapman was released from federal custody in April
2014. Soon after, he violated the terms of his supervised
release and received a sentence of 11 months’ imprisonment.
While serving this sentence, Chapman mailed a letter to the




                              3
U.S. Attorney’s Office for the Middle District of
Pennsylvania. The letter contained threats against the federal
prosecutor who handled Chapman’s revocation proceedings,
as well as the probation officer involved with Chapman’s
case. These actions put Chapman in his current predicament.

      B.     Procedural History

       In May 2015, a federal grand jury returned an
indictment on one count of mailing a threatening
communication, in violation of 18 U.S.C. § 876(c). Chapman
pled guilty to the one count, without a plea agreement.

         At the March 2016 sentencing hearing, the District
Court considered Chapman’s presentence investigation report
(“PSR”). Based on the PSR, the government recommended
that Chapman receive the career offender enhancement
because his “instant offense of conviction [was] a felony that
is . . . a crime of violence” and he “ha[d] at least two prior
felony convictions of . . . a crime of violence.”        U.S.
Sentencing Guidelines Manual § 4B1.1(a) (U.S. Sentencing
Comm’n 2017) [hereinafter Guidelines Manual].             The
government also noted that other circuits had adopted the
same position as to § 876(c). Meanwhile, Chapman argued
that § 876(c) is not a crime of violence because it does not
require “violent physical force,” and therefore it does not
“have as an element the use, attempted use, or threaten[ed]
use of force.” App. 49–52.

       The District Court rejected Chapman’s argument and
concluded that a conviction under § 876(c) is a crime of
violence. The District Court noted that the “express language
and the semantic structure of [§] 876(c) refute[d]” Chapman’s
argument.    App. 53.        Applying the career offender




                              4
enhancement, the District Court sentenced Chapman to 70
months’ imprisonment, which is at the bottom of the
Guidelines range. This timely appeal followed.

II.    JURISDICTION AND STANDARD OF REVIEW

       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 . . .
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, 

, 188 (3d Cir. 2014) (internal quotation marks omitted).

III.   ANALYSIS

       Chapman argues that his conviction here and a
previous conviction do not qualify as crimes of violence
under the Guidelines. We disagree. 1


       1
          The thrust of Chapman’s argument focuses on
whether 18 U.S.C. § 876(c) is a crime of violence; whether 18
U.S.C. § 871(a)—which punishes mailing “any threat to take
the life of, to kidnap, or to inflict bodily harm upon the
President of the United States”—is a crime of violence is left
to a footnote. Appellant’s Br. at 9 n.5 (abstaining from
discussion of whether § 871(a) is a crime of violence but
noting that the § 876(c) analysis “would seem to apply”); see
also Sentencing Memorandum, United States v. Chapman,
No. 15-cr-094 (M.D. Pa. Feb. 22, 2016), ECF No. 55 at 6 n.3.
We agree that the analysis is the same, and will therefore
affirm the District Court’s holding that a violation of § 871(a)
is a crime of violence. See United States v. Santos, 

      Under the Guidelines, one is designated a career
offender if:

       (1) [he] was at least eighteen years old at the
       time [he] committed the instant offense of
       conviction; (2) the instant offense of conviction
       is a felony that is either a crime of violence or a
       controlled substance offense; and (3) [he] has at
       least two prior felony convictions of either a
       crime of violence or a controlled substance
       offense.

Guidelines Manual § 4B1.1(a). Both the instant conviction
and the previous conviction at issue here were for violating
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.”

       To determine whether Chapman’s convictions under
§ 876(c) could serve as career offender predicate offenses, we
will first examine the definition of “crime of violence,” as
defined by Guidelines § 4B1.2(a)(1). Then, we will compare
this definition to the elements of the statute forming the basis
of Chapman’s convictions.



16, 21 (1st Cir. 1997) (holding that § 871(a) “has as an
element the [] threatened use of physical force against another
person” (internal quotation marks omitted)); United States v.
McCaleb, 

, 178 (7th Cir. 1990) (“No semantical
contrivance can avoid the simple conclusion that the conduct
involved in [§ 871(a)] is . . . the ‘threatened use of physical
force against the person [] of another.’”).




                               6
       A.     Definition of “Crime of Violence,” Pursuant
              to the Career Offender Enhancement

       The 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.” Guidelines
Manual § 4B1.2(a)(1). 2 It bears discussing the meaning of
“use” and “physical force.”

         The word “use” means “the intentional employment of
. . . force, generally to obtain some end.” Tran v. Gonzales,

, 470 (3d Cir. 2005). “[T]he word ‘use’ conveys
the idea that the thing used . . . has been made the user’s
instrument.” United States v. Castleman, 

,
1415 (2014) (some internal quotation marks omitted).

       Turning to “physical force,” the Supreme Court has
defined this phrase to mean “violent force,” in other words,
“force capable of causing physical pain or injury to another
person.” Johnson v. United States, 

, 140
(2010). 3 It is important to note that the use of physical force

       2
        Chapman does not dispute that he was convicted of
offenses that are punishable by imprisonment for a term
exceeding one year.
       3
           Although Johnson involved a sentencing
enhancement under the Armed Career Criminal Act (ACCA),
18 U.S.C. § 924(e), rather than the career offender Guideline,
Johnson still binds our analysis. United States v. Hopkins,

, 511 (3d Cir. 2009) (“[T]he definition of a
violent felony under the ACCA is sufficiently similar to the




                               7
does not require that the person employing force directly
apply harm to—i.e., strike—the victim. We derive this
principle from United States v. Castleman, where the
Supreme Court rejected the contention that knowingly or
intentionally poisoning another person does not constitute a
use of force:

       The “use of force” in [Respondent’s] example is
       not the act of “sprinkl[ing]” the poison; it is the
       act of employing poison knowingly as a device
       to cause physical harm. That the harm occurs
       indirectly, rather than directly (as with a kick or
       punch), does not matter. Under [Respondent’s]
       logic, after all, one could say that pulling the
       trigger on a gun is not a “use of force” because
       it is the bullet, not the trigger, that actually
       strikes the 

.

        We understand that the Court in Castleman applied the
common-law definition of “force”—which is satisfied by
offensive touching—to the meaning of “physical force,” as
used in “misdemeanor crime of violence,” and the sentencing
enhancement in this case requires us to analyze the meaning
of “physical force,” as used in felony “crime of violence.”
Chapman argues that Castleman lacks persuasive value for
this reason.



definition of a crime of violence under the Sentencing
Guidelines [so] that authority interpreting one is generally
applied to the other . . . .” (footnote omitted)).




                               8
       But Chapman fails to sufficiently explain why
Castleman’s analysis should not apply here. If employing a
device to cause harm indirectly (e.g., pulling the trigger on a
gun) meets the definition of “physical force,” as used in
misdemeanor crime of violence, then it stands to reason that
the same action meets the definition of “physical force,” as
used in felony crime of violence. Otherwise, § 4B1.1(a)(1)
would only apply to offenses that explicitly require a punch,
kick, or some other form of touching that is more than
offensive. We therefore find that 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. 4


       4
         A number of other circuits have similarly extended
Castleman’s analysis to apply to felony “crime of violence,”
as used in the ACCA, Guidelines § 4B1.2, and 18 U.S.C.
§ 924(c)(3). See United States v. Winston, 

, 878
(8th Cir.), cert denied, 

(2017) (holding that a
statute punishing battery—which has as part of an element
“causes physical injury”—is a crime of violence); United
States v. Redrick, 

, 484 (D.C. Cir. 2016), cert.
denied, 

(2017) (holding that robbery with a
deadly weapon—even if the weapon was “poison,” an “open
flame,” or “lethal bacteria”—is a crime of violence); United
States v. Hill, 

, 142–43 (2d Cir. 2016) (holding
that Hobbs Act robbery—which is accomplished by means of
putting the victim in “fear of injury”—is a crime of violence);
United States v. Waters, 

, 1066 (7th Cir.), cert.
denied, 

(2016) (holding that a statute
punishing domestic battery—which has as part of an element




                              9
       B.     The Framework for Comparing Chapman’s
              Convictions to the Definition of “Crime of
              Violence”

       To determine whether a conviction qualifies as a crime
of violence, courts use the categorical approach, which calls
for a comparison of “the elements of the statute forming the
basis of the defendant’s conviction” with the definition of
crime of violence. Descamps v. United States, 

, 2281 (2013). Under this approach, we “‘look only to
the statutory definitions’—i.e., the elements—of a
defendant’s prior offense[], and not ‘to the particular facts
underlying th[e] conviction[].’” 

(emphasis in
original) (quoting Taylor v. United States, 

, 600
(1990)).

       In the context of determining whether a conviction is a
crime of violence, as defined by § 4B1.2(a)(1), we ask
whether “the use or threat of physical force [against the
person of another]” is an element of the offense. 

(alteration in original) (internal quotation marks
omitted). If the statute has this element, or “defines the crime

“causes bodily harm”—is a crime of violence); but see United
States v. McNeal, 

, 156 n.10 (4th Cir.), cert.
denied, 

(2016) (observing that Castleman does
not “abrogate[] the distinction . . . between the use of force
and the causation of injury”); Whyte v. Lynch, 

,
471 (1st Cir. 2015) (holding that a statute punishing assault—
which has as part of an element “causes [physical] injury”—is
not a crime of violence); United States v. Gatson, 

, 411 (6th Cir. 2015) (limiting the holding of Castleman to
the context of “misdemeanor crime of domestic violence”).




                              10
more narrowly,” then the conviction can serve as a predicate
offense. See 

. But if the
“statute sweeps more broadly than the [Guidelines-defined
crime of violence], a conviction under [that statute] 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.” 

(internal quotation marks omitted).

        Before we launch into the necessary comparison, there
is an additional step to take because the statute that formed
Chapman’s convictions, 18 U.S.C. § 876(c), is a divisible
statute, meaning it “comprises multiple, alternative versions
of the crime.” 

. 5 Those
versions are: (1) knowingly mailing any communication
containing any threat to kidnap any person; and (2)
knowingly mailing any communication containing any threat
to injure the person of the addressee or of another. To
determine which version was the basis of Chapman’s
convictions, we can consider “the statutory definition,
charging document, written plea agreement, transcript of plea
colloquy, and any explicit factual finding by the trial judge to
which the defendant assented”—this is known as the
modified categorical approach. Shepard v. United States, 

, 16 (2005).

       5
         On the other hand, a statute is indivisible if it sets out
a single set of elements to define a single crime. Mathis v.
United States, 

, 2248–49 (2016). An example
of an indivisible statute: a statute that criminalizes “the entry
of a premises with the intent to steal.” By contrast, that
statute would be divisible if “entry” is swapped with “lawful
entry, or in the alternative, unlawful entry.”




                                11
      Here, the indictment charged Chapman with mailing a
communication containing threats “to injure” two individuals,
so we turn toward the threat to injure version of § 876(c).6
This version has two elements: (1) the defendant knowingly
mailed a threatening communication; and (2) the
communication contained a threat to injure the person of the
addressee or another.

      C.     Comparing the “Threat to Injure” Version
      of     § 876(c) to the Definition of “Crime of
             Violence”

       Next, we examine the element “threat to injure the
person of the addressee or of another.” At the outset, it is
worth mentioning that the plain language of this element
closely tracks Guidelines § 4B1.2(a)(1)’s requirement of
“threatened use of physical force against the person of
another.” Dictionaries support this point. Webster’s Third
New International Dictionary defines “injure” as “to inflict
bodily hurt on.”       Webster’s Third New International
Dictionary 1164 (1993). Black’s Law Dictionary defines
“injure” as “[t]o do harm to, damage, or impair. To hurt or
wound, as the person.” Black’s Law Dictionary 785 (6th ed.
1990). And “person,” when followed by “of the addressee or

      6
         Our application of the modified categorical approach
does not conflict with our holding in United States v. Muniz,
637 F. App’x 65 (3d Cir. 2016) (unpublished opinion).
There, a panel of this Court addressed whether the “threat to
injure” version of § 876(c) was divisible by its mens rea,
concluding that it was not. 

Thus, Muniz did not
address whether § 876(c) is divisible because it provides for
two alternative versions of a crime.




                             12
of another,” should be read to mean “the body of a human
being as distinguished from the mind.” Webster’s Third New
International Dictionary 1686 (1993). For these reasons, we
conclude that knowingly mailing a communication
threatening to injure the person of the addressee or of another
necessarily threatens the use of physical force. Thus,
§ 876(c) qualifies as a crime of violence, as defined by
Guidelines § 4B1.2(a)(1). 7

       Chapman’s counterargument can be summarized as
follows: “The threat of physically injuring [a] [v]ictim, even
[the] threat of serious bodily injury or death, does not
necessarily require a threat to use violent force against the
person of [the] [v]ictim.” Appellant’s Br. at 12 (internal
quotation marks omitted). For support, he points to a body of


       7
         We are not the first court to conclude that § 876(c) is
a felony crime of violence. The Fourth, Fifth, Eighth, and
Ninth Circuits have all reached the same conclusion. United
States v. Guevara, 

, 259–60 (5th Cir. 2005)
(concluding that § 876(c)—violated by defendant mailing a
letter to a federal judge containing a threat and a substance
mimicking anthrax (also known as an “anthrax hoax”)—is a
crime of violence); United States v. De La Fuente, 

, 770–71 (9th Cir. 2003) (same); United States v. Weddle,

, 538 n.1 (4th Cir. 1994) (concluding that § 876(c)
—violated by defendant mailing a threatening letter to a man
having an affair with defendant’s wife—is a crime of
violence); United States v. Left Hand Bull, 

, 649
(8th Cir. 1990) (concluding § 876(c) —violated by defendant
mailing a threatening letter to estranged wife—is a crime of
violence).




                              13
law from other circuits addressing criminal threat statutes 8
and presents four imaginative hypotheticals. In essence,
Chapman argues that the threatened use of physical force
requires striking a person; thus, indirect applications of harm

       8
          Appellant’s Br. at 12–13 (citing United States v.
Torres-Miguel, 

, 168 (4th Cir. 2012); United
States v. Cruz-Rodriguez, 

, 276 (5th Cir. 2010);
United States v. Perez-Vargas, 

, 1287 (10th
Cir. 2005)).

       We are mindful that courts tasked with determining
whether violations of state criminal threat statutes constitute
crimes of violence have distinguished between crimes that
require the “use of force” and those that merely require a
“result of injury.” See, e.g., 

,
169 (holding that an offense accomplished by “willfully
threaten[ing] to commit a crime which will result in death or
great bodily injury” did not “contain an element requiring the
use or threatened use of physical force” (first quote from Cal.
Penal Code § 422(a))); 

–87
(holding that an offense accomplished by “knowingly or
recklessly caus[ing] bodily injury to another person or with
criminal negligence . . . caus[ing] bodily injury to another
person by means of a deadly weapon” does not “necessarily
include the use or threatened use of ‘physical force’” (first
quote from Colo Rev. Stat. Ann. § 18-3-204)).              This
distinction is inapposite to our analysis because of the
principle we derive from Castleman.

       Additionally, Chapman’s comparison fails to the
extent he compares 18 U.S.C. § 876(c) to a statute with a
mens rea that is less than “knowingly.”




                              14
fall outside of the Guidelines’ ambit. 9 We disagree for two
reasons.

       First, the Supreme Court rejected a similar argument in
Castleman. 

. And taken to its logical
conclusion, Chapman’s argument 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. This would substantially
undermine Congress’s goal of imposing “substantial prison
terms” on “repeat violent offenders.” Guidelines Manual
§ 4B1.1 cmt. background.

        Second, Chapman mistakenly assumes that there is a
minimum quantum of force necessary to satisfy Johnson’s
definition of “physical force.” The Supreme Court in
Johnson held that the “slightest offensive touching” does not
qualify as “physical force”—that is it. 

;
United States v. Hill, 

, 142 (2d Cir. 2016)
(determining that the Court in Johnson did not construe the
ACCA “to require that a particular quantum of force be
employed or threatened to satisfy its physical force
requirement”). We can be sure that a threat to harm or to

      9
         At oral argument, Chapman’s counsel argued for the
first time that reputational harm could satisfy the “threat to
injure the person” of the victim element of § 876(c). This
was another attempt to demonstrate that this element sweeps
broader than the Guidelines definition of “crime of violence.”
However, we consider this argument waived and abandoned
because Chapman did “not pursue[] [it] in the argument
section of [his] brief.” Nagle v. Alspach, 

, 143 (3d
Cir. 1993).




                             15
wound the body of another is not akin to a threat to touch
offensively.

        Accordingly, 18 U.S.C. § 876(c), which requires
knowingly mailing a communication containing a threat to
injure the person of the addressee or of another, falls squarely
within the career offender enhancement’s definition of “crime
of violence.” We therefore conclude that the District Court
correctly applied the career offender enhancement to
Chapman’s Guidelines range.

IV.    CONCLUSION

      For the foregoing reasons, we will affirm the judgment
of conviction of the District Court.




                              16
United States v. Shaun Chapman, No. 16-1810
JORDAN, Circuit Judge, concurring.

        I agree with the well-reasoned opinion of my
colleagues in this case but write separately to express dismay
at the ever-expanding application of the categorical approach.
Recently, our Court was asked to apply the categorical
approach to contemporaneous convictions obtained in a jury
trial over which the sentencing judge himself had presided.
United States v. Robinson, 

, 141 (3d Cir. 2016).
Although we declined, 

indicates the kudzu
quality of the categorical approach, which seems to be always
enlarging its territory. This case does not present a novel
expansion of the doctrine, but it does highlight a consistently
troubling feature: its requirement that judges ignore the real
world. To appreciate that problem, one need only read the
excellent concurring opinions of Judge J. Harvie Wilkinson
III in United States v. Doctor, 

, 312-19 (4th Cir.
2016), and Judge Sandra L. Lynch in United States v. Faust,

, 60-61 (1st Cir. 2017). My concurrence in this
case is just a “me too” statement of concern.

       The categorical approach to assessing the character of
previous criminal convictions began with the Supreme
Court’s effort to apply the sentencing enhancement called for
by the Armed Career Criminal Act (“ACCA” or “the Act”).
Under the Act, criminal defendants are subject to greater
penalties based on their previous criminal convictions for
violent felonies or serious drug offenses, regardless of
whether those predicate offenses were in violation of state or
federal law. But, as the Supreme Court observed in Taylor v.
United States, “the criminal codes of the States define
[crimes] in many different ways.” 

, 580 (1990).




                              1
To avoid inconsistent application of the ACCA based on
those variances, the Court read into the Act a “categorical
approach” to the designation of predicate offenses, whereby
the elements of a relevant state statute are compared to the
elements of a generic version of the crime as it stood under
common law. 

The Taylor Court explicitly
directed that its approach left no room for courts to look “to
the particular facts underlying [the] convictions.” 

       In the context of a federal court examining state court
convictions, that approach has intuitive appeal, particularly
when a state conviction is old and lacks back-up records to
provide historical detail. But, in practice, the approach has
often made the job of district courts more difficult. See, e.g.,
United States v. Perez-Silvan, __F.3d__, No. 16-10177, 

, at *7 (9th Cir. June 28, 2017) (Owens, J.,
concurring) (referring to “sentencing adventures more
complicated than reconstructing the Staff of Ra in the Map
Room to locate the Well of the Souls”); United States v.
Mayer, 

, 1095 (D. Or. 2016) (labeling
the approach “a Byzantine analytical framework”); Murray v.
United States, No. 15-cv-5720 (RJB), 

, at
*5 (W.D. Wash. Nov. 19, 2015) (describing the approach as
“a hopeless tangle”). Rather than making things more
straightforward, the categorical approach has caused
sentencing judges to “simply swap[] factual inquiries for an
endless gauntlet of abstract legal questions.” 

(Wilkinson, J., concurring). And operating at that
level of abstraction “can lead courts to reach counterintuitive”
and arbitrary results. 

(Lynch, J.,
concurring).




                               2
       Some work is needed to bring the categorical approach
back in line with its original goal – applying sentencing
enhancements in a sensible and administratively feasible
fashion. I believe that the first step to achieving that goal is
to permit judges, in their discretion, to rely on the facts
underlying past convictions when those facts are readily
ascertainable from reliable government records. See 

(Wilkinson, J., concurring) (“District Courts
should be free to apply [the categorical approach] as the
default inquiry, but should retain the discretion to consider
the defendant’s actual conduct when it can be clearly derived
from the record.”). In the absence of some reform, several
problems will persist.

        First, the categorical approach is often an impediment
to uniformity. See Mathis v. United States, 

,
2267-88 (2016) (Alito, J., dissenting) (recognizing that the
Majority decision disqualifies burglary convictions in many
states from counting as predicate offenses even though
“Congress indisputably wanted burglary to count” for all
states).    The Supreme Court identified the categorical
approach as an answer to the problem of inconsistent
sentences, but it can lead to the opposite outcome. For
example, two defendants who, in their past, independently
committed identical criminal acts in two different states and
have essentially the same criminal history will find that the
applicability of the ACCA to their current cases depends not
on their past criminal conduct but on the phrasing of the
different state criminal statutes.        This “arbitrary and
inequitable result[] … could not have been Congress’
intent[.]”     

(Kennedy, J.,
concurring).




                               3
        Second, the categorical approach has interfered with
the ability of courts to ensure that repeat, violent offenders
receive the most severe sentences. Judge Wilkinson has
described how, purely as a function of the categorical
approach, repeat offenders often avoid sentencing
enhancements for their violent crimes. See 

(Wilkinson, J. concurring) (listing ten cases in which
violent acts did not categorically qualify as violent felonies).
Judge Lynch focused on a telling example of how the
categorical approach forces judges into an alternative reality,
dictating that assault and battery on a police officer, despite
common sense and what “[t]he average person on the street
would ordinarily think[,]” is not categorized as a crime of
violence. 

(Lynch, J., concurring).
Again, “[i]t could not have been Congress’ intent for a career
offender to escape his statutorily mandated punishment when
the record makes it clear beyond any possible doubt that he
committed [an enumerated felony].” 

(Kennedy, J., concurring) (internal quotation marks and
alteration omitted).

       Third, the categorical approach often asks judges to
feign amnesia. It requires them to “peek” at portions of the
factual record to determine under which division of a statute
an offender’s past conviction falls. 

(majority
opinion) (internal quotation marks omitted). When that is
done, a different label – the “modified categorical approach”
– gets hung on the process, and things are better for that brief
exposure to reality. But, after seeing that information, a judge
is then asked to erase those facts from his or her mind in
deciding whether the conviction is a violent felony or serious
drug offense. 

-57. The judge must ignore facts
already known and instead proceed with eyes shut.




                               4
       Finally, the categorical approach has led to unusual
questions of statutory interpretation which have in turn led to
even more unusual results. The most troubling example is the
Supreme Court’s declaration that the “residual clause” of the
ACCA is unconstitutional. That clause was a catch-all which
provided that “any crime punishable by imprisonment for a
term exceeding one year” that “otherwise involves conduct
that presents a serious potential risk of physical injury to
another” should be counted as a violent felony. 18 U.S.C.
§ 924(e)(2)(B)(ii). In Johnson v. United States, the Court
held that the clause was unconstitutionally vague because of
the near impossibility of rationally and consistently applying
it under the categorical approach. 

, 2559-60
(2015). Over a forceful dissent, the Majority maintained that
application of the categorical approach was in line with
Congressional intent. 

So the Court struck
down the clause as unconstitutional, rather than reconsidering
its own analytical construct, the categorical approach. It is
not immediately obvious why the judiciary’s difficulty in
making the categorical approach work should lead to the
conclusion that Congress and the President strayed from the
Constitution in enacting the ACCA.

       Because the categorical approach often fails to achieve
the goal it was designed for, and because it is a purely judge-
made doctrine, I join those who have urged that it be given
reconsideration. See 

(Lynch, J.,
concurring); 

(Wilkinson, J.,
concurring). Even a modest fix could remedy the most
troubling results: where the facts concerning a previous
conviction are beyond fair dispute, a judge should be
permitted to consider those facts in applying sentencing




                              5
enhancements. 1 In this case, for instance, the analysis should
have been no more complicated than this: First, the
sentencing enhancement provision defines a “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[,]”
U.S.S.G. § 4B1.2(a)(1); second, Chapman was convicted of a
crime requiring a “threat to injure [a] person[,]” 18 U.S.C.
§ 876(c); and third, the record shows unequivocally that he
did threaten to injure a person.

       Forcing judges to close their eyes to what is obvious
promotes inefficiency and guarantees difficult-to-explain
sentences. In the easy cases, we should let our sentencing
judges work with their eyes open.




       1
         If the facts are not clear, thereby creating a legitimate
Sixth Amendment argument, see Shepard v. United States,

, 24-25 (2005), there is a logical basis for insisting
on the categorical approach. See United States v. Robinson,

, 142 (3d Cir. 2016) (recognizing that
developments in Sixth Amendment jurisprudence “provide[]
an additional reason for avoiding factual inquiries”).




                                6