PRECEDENTIAL
     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
               _____________

                   No. 16-4282
                  _____________

         UNITED STATES OF AMERICA

                         v.

                ANTHONY MAYO,
                 a/k/a Billy Silks

                  Anthony Mayo,
                                Appellant
                 _______________

   On Appeal from the United States District Court
       for the Middle District of Pennsylvania
          (M.D. Pa. No. 1-00-cr-00336-002)
       District Judge: Hon. Sylvia H. Rambo
                  _______________

                      Argued
                  October 12, 2017

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

              (Filed: August 22, 2018)
                 _______________
James V. Wade
Federal Public Defender Middle District of Pennsylvania
Frederick W. Ulrich [ARGUED]
Office of Federal Public Defender
100 Chestnut Street, Suite 306
Harrisburg, PA 17101
      Counsel for Appellant

Bruce Brandler
United States Attorney
David J. Freed
Carlo D. Marchioli [ARGUED]
Kate L. Mershimer
Office of United States Attorney
228 Walnut Street, Suite 220
P.O. Box 11754
Harrisburg, PA 17108
      Counsel for Appellee
                      _______________

                OPINION OF THE COURT
                    _______________

JORDAN, Circuit Judge.

        This appeal involves one of the many second or
successive motions for post-conviction relief under 28 U.S.C.
§ 2255 that have been filed in the wake of the Supreme
Court’s decision in Johnson v. United States, 

(2015). Johnson invalidated the “residual clause” of the
definition of “violent felony” found in the Armed Career
Criminal Act (the “ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii).
Anthony Mayo is currently serving a twenty-three year term




                             2
of imprisonment for a 2001 conviction, imposed under the
ACCA’s recidivist enhancement provision, 18 U.S.C.
§ 924(e)(1). He was convicted of being a felon in possession
of a firearm, and his sentence was enhanced based on his
having committed three prior offenses that the District Court
treated as violent felonies under the ACCA. Those predicate
offenses, all under Pennsylvania law, are an aggravated
assault, for which he was convicted in 1993, and two
robberies, for which he was convicted in 1993 and 1994.
Mayo argues that, in light of Johnson, his sentence is now
unconstitutional because none of his prior convictions were
for crimes that qualify as a “violent felony” as defined in the
ACCA.

       The District Court rejected Mayo’s Johnson claim,
concluding that each of the convictions in question was
indeed for a violent felony and hence a predicate for
enhancing his sentence. At least as to the aggravated assault
conviction, however, the Court erred. That conviction was
under 18 Pa. Cons. Stat. § 2702(a)(1), which prohibits
“attempt[ing] to cause serious bodily injury to another, or
caus[ing] such injury intentionally, knowingly or recklessly
under circumstances manifesting extreme indifference to the
value of human life[.]”          As Pennsylvania interprets
§ 2702(a)(1), it does not necessarily involve the element of
physical force required by the Supreme Court’s interpretation
of the ACCA. Thus, at least one of the convictions that the
District Court relied on to enhance Mayo’s sentence does not
qualify as a violent felony, and we will vacate and remand for
further proceedings.




                              3
I.     BACKGROUND

       Being a felon in possession, in violation of 18 U.S.C.
§ 922(g)(1), is an offense that typically carries a maximum
penalty of ten years’ imprisonment. 

But the
ACCA ups the ante. It states that “a person who violates
section 922(g) … and has three previous convictions … for a
violent felony … committed on occasions different from one
another, … shall be fined … and imprisoned not less than
fifteen years[.]” 18 U.S.C. § 924(e)(1). The statute defines
“violent felony” as “any crime punishable by imprisonment
for a term exceeding one year … that [A] has as an element
the use, attempted use, or threatened use of physical force
against the person of another; or [B] is burglary, arson, or
extortion, involves use of explosives, or [C] otherwise
involves conduct that presents a serious potential risk of
physical injury to another[.]” 

The three
alternative clauses, labeled here as [A], [B], and [C], are
commonly referred to, respectively, as the force or elements
clause, the enumerated offenses clause, and the residual
clause. As none of Mayo’s predicate offenses is listed in the
enumerated offenses clause, we are concerned here only with
whether his ACCA-enhanced sentence was based on the now-
unconstitutional residual clause or the elements clause.

       1
         Specifically, § 922(g) provides, in pertinent part, that
“[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 … possess
… any firearm[.]” 18 U.S.C. § 922(g)(1). Section 924 then
provides that a person violating § 922(g) “shall be fined as
provided in this title, imprisoned not more than 10 years, or
both.” 

                               4
             1.     Mayo’s 2001 Felon-In-Possession
                    Conviction

        In late 2000, a grand jury returned a five-count
indictment against Mayo and a coconspirator, alleging that
the pair had used guns in connection with several drug
trafficking offenses.2 The indictment included the felon-in-
possession charge leading to the sentence presently at issue,
and it also recited Mayo’s 1993 Pennsylvania aggravated
assault conviction and his 1993 and 1994 Pennsylvania
robbery convictions. Pursuant to a written agreement, Mayo
pled guilty to the gun charge and acknowledged that, based
on § 924(e), he faced a mandatory minimum sentence of
fifteen years’ imprisonment, with a maximum of life
imprisonment.      At the plea hearing, the government
represented that Mayo had three prior convictions that
qualified as violent felonies under the ACCA. Prior to
accepting his plea, the District Court confirmed that Mayo
had unlawfully possessed a firearm and that he had been
convicted of the aggravated assault and robbery crimes listed
in the indictment. The Court also reiterated that he faced a
fifteen-year mandatory minimum sentence.

       The Presentence Investigation Report (“PSR”)
discussed the offense of conviction and provided further
details on Mayo’s three earlier convictions.3 Then, applying

      2
        We address solely the claims pertaining to Mayo’s
motion as set forth in the certificate of appealability.
      3
      Although not listed in the PSR, it is undisputed that
Mayo’s predicate convictions were for Pennsylvania




                             5
the 2000 version of the United States Sentencing Guidelines
(the “guidelines”), it set forth Mayo’s offense level as 31 and
his criminal history as category VI, yielding a guidelines
imprisonment range of 188-235 months. Mayo did not file
any objections to the PSR.

       At his 2001 sentencing, Mayo conceded “the specific
factual allegations attributed to [him],” which were “almost
identical” to what he had acknowledged at the plea hearing.
(App. at 72.) He also said that the criminal history was
correct. The District Court ultimately adopted the PSR’s
findings and issued a sentence based on the ACCA
enhancement. The sentence issued without specification of
whether the Court was relying on the elements clause or the
residual clause.4 The Court sentenced Mayo to a twenty-three
year (276-month) term of incarceration, which exceeded the
recommended guidelines range. In the Court’s view, Mayo
demonstrated “a strong likelihood of recidivism,” (App. at
87), and an upward departure was warranted because his
criminal history significantly underrepresented the
seriousness and extent of his past crimes, and his offense
level failed to account for the risk he posed by carrying a
“high capacity semi-automatic firearm,” (App. at 88). Mayo



aggravated assault, in violation of 18 Pa. Cons. Stat.
§ 2702(a)(1), and robbery, in violation of 18 Pa. Cons. Stat.
§ 3701(a)(1)(ii). In a letter to the parties, dated October 26,
2016, the District Court summarized the state court records
identifying those subsections, which neither party contests.
       4
       Again, no one at any stage has contended that the
enumerated offenses clause is in play.




                              6
appealed his sentence, but we affirmed.       United States v.
Mayo, 59 F. App’x 457 (3d Cir. 2003).

              2.     Mayo’s § 2255 Motions

       Mayo later filed a motion under 28 U.S.C. § 2255, to
vacate or correct his sentence. The District Court denied the
motion, and we declined to issue a certificate of appealability.

       A decade later, in 2016, the Supreme Court issued its
decision in Johnson, invalidating the residual clause of the
ACCA as unconstitutionally vague. It subsequently declared
that ruling retroactive in Welch v. United States, 

, 1268 (2016). Based on Johnson, Mayo filed a second
§ 2255 motion seeking resentencing, and, as required by
28 U.S.C. §§ 2244 and 2255, he sought permission from us to
pursue that second effort at post-conviction relief. We
granted his request, stating that Mayo “ha[d] 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 112.)

        In his second § 2255 motion, Mayo argued that his
prior conviction for aggravated assault and his two prior
convictions for robbery no longer qualify as violent felonies
after Johnson invalidated the residual clause, and therefore
that his ACCA-based sentence violates his due process rights.
Specifically, he contended that he had already served the ten-
year statutory maximum sentence that would have applied but




                               7
for the ACCA enhancement.5 The government responded
with a motion to dismiss, saying that the District Court lacked
jurisdiction because Mayo failed to establish that he is
entitled to proceed on a second § 2255 motion, as he had not
established that his sentence was based on the residual clause
such that Johnson even applies. The government also argued,
on the merits, that Mayo’s convictions still qualify as violent
felonies under the ACCA’s elements clause.

        The District Court agreed with that latter argument,
and it denied Mayo’s motion on the merits, without
addressing the jurisdictional challenge. It rejected his
argument that Pennsylvania’s aggravated assault statute, 18
Pa. Cons. Stat. § 2702(a)(1), lacks the requisite element of
force necessary for a conviction under it to categorically
constitute a violent felony. Reviewing the facts as to the
aggravated assault conviction, the Court noted that Mayo had
“hit [the victim] on the head with a brick, punched and kicked
[the victim] while lying on the ground, and hit [the victim]
with a glass bottle[.]” (App. at 8-9.)

        Turning to the robbery convictions, the Court likewise
rejected Mayo’s legal arguments and noted that, in the first
robbery conviction, Mayo “had an unidentifiable object in his
hand and told the victim, I’ll blow your head off, get down,”
and in the second, he had “held a gun to [the victim] and
ordered her to open the safe.” (App. at 10 (citations and
internal quotation marks omitted).) It concluded that those
“facts, which were not objected to by Mayo,” were sufficient

      5
         Mayo represents that he has been in federal custody
since October 4, 2001, and therefore, has already served more
than ten years in prison.




                              8
to meet the ACCA’s elements clause. (App. at 9-10; see also

n.1, 10 n.2 (noting its reliance on uncontroverted facts
in the presentence report as a “Shepard document”).)

        Mayo appealed.       We granted a certificate of
appealability to address “whether [Mayo’s] due process rights
were violated by the use of his Pennsylvania aggravated
assault and robbery convictions to enhance his sentence under
the [ACCA].” (App. at 13-14 (citing 

; 

; Mathis v. United States, 

, 2248 (2016)).)

II.    DISCUSSION6

       Mayo’s primary challenge on appeal is that neither his
aggravated assault conviction nor his robbery convictions
constitute violent felonies under the ACCA’s elements clause,
the only clause left after eliminating the enumerated offenses
clause, which no one says is relevant, and the now-defunct
residual clause. Mayo asserts that none of the supposed
predicate offenses categorically require the “use of physical
force against the person of another.” (Opening Br. 16, 23.)
Accordingly, he argues, the District Court violated his due

       6
          The District Court’s jurisdiction is disputed. Our
jurisdiction is uncontested and is based on 28 U.S.C. §§ 1291
and 2253(a). Whether the District Court properly exercised
jurisdiction over Mayo’s second § 2255 motion and whether
his prior convictions constitute violent felonies under the
ACCA are questions of law, which we review de novo.
United States v. Peppers, --- F.3d ---, 

, at
*5 (3d Cir. Aug. 13, 2018).




                               9
process rights by “sentenc[ing] him beyond the otherwise
applicable [ten]-year statutory maximum,” and he is entitled
to relief under § 2255. (Opening Br. at 12.) The government
disagrees and counters that the District Court should have
dismissed Mayo’s second § 2255 motion for lack of
jurisdiction, because “Mayo did not establish that his
enhanced sentence …was based solely on those convictions
qualifying as violent felonies under the residual clause.”7
(Answering Br. at 14.) We thus begin with the threshold
question of whether the District Court had jurisdiction over
Mayo’s claim, and we conclude that it did.

       A.     Jurisdiction

        Under the Antiterrorism and Effective Death Penalty
Act (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996),
a defendant in federal custody generally may file only one
motion collaterally attacking his sentence on the grounds that
it was imposed in violation of the Constitution or federal law.
28 U.S.C. § 2255(a), (b), (h). A prisoner may not pursue a
second or successive motion unless the Court of Appeals
certifies that the motion relies on either “newly discovered
evidence” showing innocence or, as asserted in this case, that
it relies on “a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court, that was
previously unavailable.” 

To gain that

       7
          The Department of Justice has since stated that it no
longer views the threshold requirements of § 2255 as
jurisdictional. We nevertheless addressed and rejected the
government’s jurisdictional argument and held that those
requirements are indeed jurisdictional. See Peppers, 

at *6 n.3.




                              10
certification, the prisoner has to make at least a prima facie
showing that one of those two gatekeeping requirements has
been met. 

       We recently addressed those gatekeeping requirements
in United States v. Peppers, --- F.3d ---, 

,
at *5-*9 (3d Cir. Aug. 13, 2018). We explained that “even
after we authorize a second or successive petition, § 2244 still
requires the district court to ‘dismiss any claim presented in a
second or successive application … unless the applicant
shows that the claim satisfies [those] requirements[.]’” 

(first and third alterations in original) (quoting 28 U.S.C.
§ 2244(b)(4)); see also 

(stating that district courts are
not bound by our “preliminary examination”). District courts
must conduct an independent analysis of whether a § 2255
movant has made that showing, before reaching the merits of
a second or successive motion. 

agree that the District Court here erred by
failing to assess its jurisdiction, the record nevertheless
establishes that Mayo met the “new rule of constitutional
law” gatekeeping requirement and therefore that jurisdiction
was proper. A prisoner satisfies that requirement when he
establishes “that his sentence may be unconstitutional in light
of a new rule of constitutional law made retroactive by the
Supreme Court.” 

we held that the movant
need only “show that it is possible he was sentenced under the
now-unconstitutional residual clause of the ACCA,” 

and that he “may require resentencing,” 

as when a
sentencing court did not specify which ACCA clause it relied
on and the record does not otherwise include evidence
establishing that the residual clause was not implicated, 

                                11
       Mayo has made that showing. As he correctly points
out, the sentencing court did not specify under which clause
his earlier offenses qualified as ACCA violent felonies.
Moreover, the government does not direct us to any evidence
in the record establishing that the residual clause was not
relied on by the District Court. We therefore conclude that
Mayo’s sentence may have been based on the residual clause,
and thus that the District Court had jurisdiction to review the
merits of his second § 2255 motion.

       B.     Mayo’s Aggravated Assault Conviction

       We now turn to the parties’ dispute over whether
Mayo’s aggravated assault conviction under 18 Pa. Cons.
Stat. § 2702(a)(1) is categorically a violent felony under the
ACCA’s elements clause. According to Mayo, the District
Court committed three errors in concluding that it is. First, he
argues that the Court impermissibly relied on the underlying
facts “to establish that his aggravated assault conviction fell
within the [elements] clause.” (Opening Br. 13, 21.) Next,
he argues that aggravated assault as defined in Pennsylvania
law lacks the element of physical force required by the
ACCA. Finally, he argues that the minimum mens rea under
§ 2702(a)(1) is also categorically insufficient under the
ACCA. We agree with his second argument and conclude
that aggravated assault under Pennsylvania’s § 2702(a)(1)
does not categorically require the use of physical force
against another.

              1.     The Categorical Approach




                              12
        When classifying a prior conviction under the ACCA,
we begin with the “categorical approach,” which requires a
comparative analysis based solely on the elements of the
crime of conviction contrasted with the elements of a generic
version of that offense. 

. In this
case, we compare aggravated assault as described in 18 Pa.
Cons. Stat. § 2702 with the definition of “violent felony” set
forth in the elements clause of the ACCA. As recently
reiterated in United States v. Ramos, 

(3d Cir.
2018),8 however, the categorical approach to reviewing a
predicate conviction may be modified under certain
conditions, namely when the statute at issue is divisible and
when the record, based on so-called Shephard documents,
establishes that a particular subsection of the statute is the
basis of conviction.9 

If those two conditions
are met, then the modified categorical approach allows a
court to assess whether a conviction under that particular
statutory subsection would categorically qualify as a predicate
offense under the ACCA. Id.; see also Descamps v. United
States, 

, 258 (2013) (clarifying that “sentencing
courts may not apply the modified categorical approach when
the crime of which the defendant was convicted has a single,
indivisible set of elements”).




      8
       We apply current case law when reviewing the merits
of Mayo’s motion. Peppers, 

. at *11.
      9
        See generally, Shepard v. United States, 

,
16 (2005) (listing examples of documents that courts may
consider when applying the modified categorical approach).




                              13
       As to the first condition, Mayo acknowledges that
Pennsylvania’s aggravated assault statute “appears to be a
divisible statute, setting forth separate elements … for
committing the crime.” (Opening Br. 16.) The second
condition is also satisfied. The parties do not dispute the
District Court’s determination, based on the record, that
Mayo was convicted of violating § 2702(a)(1).

        Thus, we proceed to consider whether an aggravated
assault conviction under § 2702(a)(1) categorically
constitutes a violent felony under the ACCA’s elements
clause. When considering that question, we must “ignore the
actual manner in which the defendant committed the prior
offense” and “presume that the defendant did so by engaging
in no more than ‘the minimum conduct criminalized by the
state statute.’”10 

(quoting Moncrieffe
v. Holder, 

, 191 (2013)). We have said that
“[t]his academic focus on a hypothetical offender’s
hypothetical conduct is not, however, an ‘invitation to apply
legal imagination’ to the statute of conviction.” 

569 U.S. at 191). “Rather, there must be legal
authority establishing that there is a ‘realistic probability, not
a theoretical possibility, that the State would apply its statute
to conduct’” that falls outside of the ACCA’s definition of
violent felony. 

569 U.S. at 191).




       10
          To the extent the District Court may have relied on
the underlying record to do more than pinpoint the specific
statutory subsection under which the prior conviction was
obtained, it strayed from the permissible bounds of the
modified categorical approach.




                               14
              2.     The ACCA’s Element of “Physical
                     Force”

       The parties dispute whether a Pennsylvania aggravated
assault conviction under § 2702(a)(1) categorically requires
“as an element the use, attempted use, or threatened use of
physical force against the person of another,” as is necessary
to constitute a violent felony under the ACCA’s elements
clause. 18 U.S.C. § 924(e)(2)(B)(i). We conclude that it does
not, because the text of the statute and Pennsylvania case law
construing it establish that a conviction under § 2702(a)(1)
does not necessarily require proof that a defendant engaged in
any affirmative use of “physical force” against another
person.

       As used in the ACCA, the words “physical force” have
a particular meaning. In another case called Johnson v.
United States, 

(2010) (“Johnson 2010”), the
Supreme Court stated that the common understanding of the
word “physical” refers to “force exerted by and through
concrete bodies,” which “distinguish[es] physical force from,
for example, intellectual force or emotional force.” 

It stated that the word “force” means “[p]ower,
violence, or pressure directed against a person or thing,” and
“physical force” means “[f]orce consisting in a physical act,”
such as “a violent act directed against a robbery victim.” 

(alterations in original) (quoting Black’s Law
Dictionary 717 (9th ed. 2009)). The Court, mindful that it
was interpreting the term “physical force” in the context of
the ACCA’s “statutory category of ‘violent felon[ies],’” 

(alteration in original) (citation omitted), rejected the
specialized common-law meaning of the word “force,” which
could be satisfied by a mere unwanted touch, 

It




                              15
explained that “the use of physical force against another
person (or the risk of having to use such force in committing
a crime), suggests a category of violent, active crimes[.]” 

(quoting Leocal v. Ashcroft, 

, 11 (2004)).
Thus, it concluded, the ACCA’s “phrase ‘physical force’
means violent force—that is, force capable of causing
physical pain or injury to another person.” 

of “physical force” is controlling and is
what we compare to Pennsylvania’s “determination of the
elements of [the predicate offense].” 

To constitute
a violent felony for purposes of the ACCA, then, a conviction
for aggravated assault under § 2702(a)(1) must require as an
element the use, or threatened use, of violent force capable of
causing physical pain or injury against the person of another.

      At the time of Mayo’s felony conviction under
§ 2702(a)(1), that statutory subsection provided as follows:

       A person is guilty of aggravated assault if he:

       (1) attempts to cause serious bodily injury to
       another, or causes such injury intentionally,
       knowingly or recklessly under circumstances
       manifesting extreme indifference to the value of
       human life[.]

18 Pa. Cons. Stat. § 2702(a)(1) (1993); see also 

(“Aggravated assault under subsection (a)(1) … is a felony of
the first degree.”).11 As Mayo points out, § 2702(a)(1) does

       11
         When applying the modified categorical approach,
as is so with “the categorical approach, we look to the




                              16
elements of the statute as it existed at the time of the prior
conviction,” 

n.35 (quoting United
States v. Dahl, 

, 355 (3d Cir. 2016)). The full
text of § 2702(a) provided as follows:

       (a) Offense defined.—A person is guilty of aggravated
assault if he:

          (1) attempts to cause serious bodily injury to
          another, or causes such injury intentionally,
          knowingly        or     recklessly       under
          circumstances        manifesting      extreme
          indifference to the value of human life;

          (2) attempts to cause or intentionally,
          knowingly or recklessly causes serious
          bodily injury to a police officer, firefighter,
          county adult probation or parole officer,
          county juvenile probation or parole officer
          or an agent of the Pennsylvania Board of
          Probation and Parole in the performance of
          duty or to an employee of an agency,
          company or other entity engaged in public
          transportation, while in the performance of
          duty;

          (3) attempts to cause or intentionally or
          knowingly causes bodily injury to a police
          officer, firefighter or county adult probation
          or parole officer, county juvenile probation
          or parole officer or an agent of the




                              17
not, on its face, include an element of “physical force”; rather,
it focuses on whether a person causes, or attempts to cause
“serious bodily injury.” “Serious bodily injury” is defined as
“[b]odily injury which creates a substantial risk of death or
which causes serious, permanent disfigurement, or protracted
loss or impairment of the function of any bodily member or
organ.” 

          Pennsylvania Board of Probation and Parole
          in the performance of duty;

          (4) attempts to cause or intentionally or
          knowingly causes bodily injury to another
          with a deadly weapon; or

          (5) attempts to cause or intentionally or
          knowingly causes bodily injury to a teaching
          staff member, school board member, other
          employee or student of any elementary or
          secondary publicly-funded educational
          institution, any elementary or secondary
          private school licensed by the Department of
          Education or any elementary or secondary
          parochial school while acting in the scope of
          his or her employment or because of his or
          her employment relationship to the school.
18 Pa. Cons. Stat. § 2702 (1993). We note, however, the text
of § 2702(a)(1) is the same today as it was in 1993, when
Mayo was convicted under that subsection. Compare 18 Pa.
Cons. Stat. § 2702(a)(1) (2018), with 18 Pa. Cons. Stat.
§ 2702(a)(1) (1993).




                               18
        Mayo argues, and we must agree, that “[p]hysical
force and bodily injury are not the same thing,” (Opening Br.
16), at least not as interpreted by Pennsylvania courts. The
case of Commonwealth v. Thomas, 

(Pa. Super.
Ct. 2005), is instructive. In Thomas, the defendant was
convicted of first-degree aggravated assault under
§ 2702(a)(1) after she starved her four-year-old son to death.

On appeal, she argued that “the evidence was not
sufficient to sustain her conviction because the
Commonwealth failed to demonstrate either the use of force
or the threat of force.” 

Superior Court
rejected that argument, saying that “evidence of the use of
force or the threat of force is not an element of the crime of
aggravated assault.” Id.; see also 

the
defendant cited no case law “demonstrate[ing] that
Pennsylvania Courts have ever required proof of the use of
force or the threat of force to sustain a conviction for
aggravated assault”). Instead, the court concluded that the
evidence presented was sufficient to establish that the
defendant “did cause[] serious bodily injury to [her son],
resulting in his death by starvation.” 

       Far from being a flight of imagination into extreme
hypotheticals, our effort to understand how Pennsylvania
actually applies its aggravated assault statute shows that
convictions under § 2702(a)(1) have been upheld not because
a defendant used physical force against the victim, but
because serious bodily injury occurred, as with the deliberate
failure to provide food or medical care. 

see also
Commonwealth v. Taylor, No. CP-63-CR-0000827-2012,

, at *1, *6 (Pa. Super. Ct. Feb. 9, 2015)
(affirming conviction under § 2702(a)(1) for defendant’s
“criminal neglect” of her twin six-year-old children, which




                             19
included failing to feed and clothe them). Those cases
support Mayo’s argument that, under § 2702(a)(1),12
aggravated assault in Pennsylvania depends upon “the
causation or attempted causation of … serious bodily injury,”
(Opening Br. 16), regardless of whether that injury was
caused by the defendant’s use or attempted use of physical
force against the victim.

       The government nevertheless contends that causing or
attempting to cause serious bodily injury necessarily involves
the use of physical force. Like the District Court, it relies on
United States v. Castleman, 

(2014), and in
particular, the Supreme Court’s statement that “‘bodily
injury’ must result from ‘physical force.’” (Answering Br. 25
(quoting 

).)             See also

(concluding that a conviction
under a Tennessee statute prohibiting “the knowing or
intentional causation of bodily injury necessarily involves the
use of physical force”). The government’s argument fails
because Castleman avowedly did not contemplate the
question before us.

     In Castleman, the Court was addressing whether the
“knowing or intentional causation of bodily injury” satisfies

       12
          Mayo pushes his argument too far, however, when
he claims that none of the subsections of § 2702(a) requires
the requisite element of physical force. That broad assertion
is foreclosed by Ramos, in which we held that a conviction
under subsection (a)(4), aggravated assault with a deadly
weapon, “is categorically a crime of violence under the
elements clause of the 

; see
also 18 Pa. Cons. Stat. § 2702(a)(4).




                              20
“the common-law concept of ‘force.’” 

It
expressly reserved the question of whether causing “bodily
injury” necessarily involves the use of “violent force” under
the ACCA. 

was specifically considering
examples of causing bodily injury through “the knowing or
intentional application of force,” which it went on to say
could be applied directly, “as with a kick or punch,” or
indirectly, as in “the act of employing poison knowingly as a
device to cause physical harm.” 

It was in that
context that the Court concluded, “[i]t is impossible to cause
bodily injury without applying force in the common-law
sense.” 

see also 

(noting that
the element of “force” in common-law battery “need not be
applied directly to the body of the victim” (citation
omitted)).13 The Court having reserved the question, it is
clear that Castleman did not answer whether causing serious
bodily injury without any affirmative use of force would
satisfy the violent physical force requirement of the ACCA.
See United States v. Middleton, 

, 491 (4th Cir.
2018) (stating that “Castleman does not support the


       13
          In Castleman, the Court also concluded that “the
knowing or intentional application of force is a ‘use’ of force”
under Leocal, acknowledging that “the word ‘use’ conveys
the idea that the thing used … has been made the user’s

(citation omitted). For that
additional reason, it rejected the defendant’s argument that
“sprinkl[ing] poison in a victim’s drink” does not involve the
use of force. 

Court explained, regardless of
whether the harm occurred indirectly, the “use of force” is
“the act of employing poison knowingly as a device to cause
physical harm.” 

argument that any form of bodily injury
requires violent force”).

        Nor is our case law relying on Castleman dispositive
of the issue before us. In United States v. Chapman, 

(3d Cir. 2017), cert. denied, 

(2018), we
considered whether a conviction under the federal criminal
threat statute, 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,” constitutes a crime of
violence under the guidelines. 

Relying on
Castleman, we rejected the defendant’s argument that
“indirect applications of harm fall outside of the [g]uidelines’
ambit.” 

Instead, we concluded that “‘use’ of
physical force, as used in § 4B1.2(a)(1) [of the guidelines],
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.” 

       More recently, in Ramos, we relied on Castleman
when concluding that a Pennsylvania conviction for
aggravated assault with a deadly weapon under § 2702(a)(4),
“necessarily involves the use of physical force” because it
“similarly requires proving the attempted, knowing, or
intentional causation of bodily 

       14
           The Second Circuit recently reached a similar
conclusion in Villanueva v. United States, 

, 129
(2d Cir. 2018) (relying on Castleman to conclude that first-
degree assault with a deadly weapon or dangerous instrument
under Connecticut law, Conn. Gen. Stat. § 53a-59(a)(1),
constitutes a violent felony under the ACCA, explaining that




                              22
(citation omitted). We reasoned that “it is nearly 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.” 

highlighted
that “[the defendant] cite[d] no authorities establishing that an
offender’s inaction alone would be sufficient to sustain a
§ 2702(a)(4) conviction,” and we expressly acknowledged but
distinguished Thomas because it involved “only a conviction
for first-degree aggravated assault under § 2702(a)(1)—a
wholly separate criminal offense containing materially
different elements than the offense at issue.” 

we have concluded that there are some
statutorily-defined offenses in Pennsylvania that forbid
causing or threatening to cause “bodily injury” and that
inherently involve the use or attempted use of “physical
force,” we have not said that bodily injury is always and only
the result of physical force. Cf. 

(reasoning that the government “erroneously conflates the use
of violent force with the causation of injury”). To the
contrary, and unlike the facts presented in Castleman,
Chapman, or Ramos, Pennsylvania case law establishes that a
person violates § 2702(a)(1) by causing “serious bodily
injury,” regardless of whether that injury results from any
physical force, let alone the type of violent force
contemplated by the ACCA. See 

.
Thus, we reject the government’s argument that a conviction


“the use of a ‘substance’ … constitutes use of physical force,
for federal law purposes, because the relevant force is the
impact of the substance on the victim, not the impact of the
user on the substance”).




                               23
under § 2701(a)(1) of Pennsylvania’s aggravated assault
statute necessarily involves the use of physical force. We
conclude instead that § 2702(a)(1) lacks the element of
violent physical force required by Johnson 2010.

       At least two of our sister circuits have reached a
similar conclusion.      See 

(concluding that South Carolina’s involuntary manslaughter
offense is not an ACCA predicate under the elements clause
“because it can be committed through a non-violent sale” of
alcohol to a minor); United States v. Resendiz-Moreno, 

, 205 (5th Cir. 2013) (concluding that the first-degree
cruelty to children under Georgia law is not a crime of
violence under the guidelines because it can be committed
“by depriving the child of medicine or by some other act of
omission that does not involve the use of physical force”).
The government’s position, however, is not without support.15

       15
           Indeed, courts have divided on how far to extend
Castleman. See 

(reading
Castleman’s discussion of “force” as “focus[ing] on the
causation of a consequence, rather than the physical act of
initiating an action that leads to a consequence”); but see 

136 (Pooler, J., dissenting) (stating that the majority
“improperly extends [Castleman] to the very statutory
context” that the Supreme Court has “specifically and
repeatedly differentiated” and misreads it as shifting the focus
from “force” to the “causation of a consequence”); see also
United States v. Rice, 

, 706 (8th Cir. 2016)
(relying on Castleman and concluding that “intentionally or
knowingly … caus[ing] physical injury” includes the requisite
use of force under the guidelines (alteration in original)
(citation omitted)); but see 

(Kelly, J., dissenting)




                              24
See United States v. Peeples, 

, 287 (8th Cir.
2018) (concluding that attempted murder under Iowa Code
§ 707.11 is a crime of violence under the guidelines, and
stating that omissions, such as a caregiver withholding food,
can constitute the use of force under Castleman); United
States v. Waters, 

, 1066 (7th Cir. 2016)
(concluding that, under the guidelines, an omission such as
“withholding medicine causes physical harm, albeit
indirectly, and thus qualifies as the use of force under
Castleman”). But we do not consider the reasoning in those
cases to be persuasive, because they conflate an act of
omission with the use of force, something that Castleman,
even if it were pertinent, does not support. Cf. 

-15 (likening “the act of employing poison
knowingly as a device to cause physical harm” or firing a
bullet at a victim, to “a kick or punch,” as each act involves
the “application” or “use of force,” even though the resulting
harm might occur indirectly).

        We recognize that the result we reach here is wholly
unsatisfying and counterintuitive. Cf. 

(stating, “[i]t may appear counterintuitive that a defendant
who actually uses physical force against another person when
committing a felony does not, by definition, commit a violent
crime under the elements clause,” but explaining that “the
categorical approach, … is concerned only with the elements
of the statute of conviction, not the specific offense conduct
of an offender”). It is hard to imagine that Congress meant


(suggesting that in prior cases, “[a] number of courts and
judges, including a clear plurality of the courts of appeals,
ha[d] concluded that a person may cause physical or bodily
injury without using violent force,” and listing cases).




                             25
for the kinds of crimes typically prosecuted as aggravated
assault under state law to fall outside of the definition of
“violent felony” in the ACCA. But that’s the categorical
approach for you. See 

(acknowledging that
“faithful application of the categorical approach at times
results in outcomes that frustrate [the] policy objective”
underlying a recidivist enhancement provision). The element
of serious bodily injury in § 2702(a)(1) will most likely be the
result of a defendant’s use of violent physical force, as was
undisputedly the case here. But “most likely” does not satisfy
the categorical approach, and logic dictates that the use of
physical force required by the ACCA cannot be satisfied by a
failure to act, which can be prosecuted under § 2702(a)(1).
See 

.

       In sum, because Pennsylvania aggravated assault under
§ 2702(a)(1) criminalizes certain acts of omission, it sweeps
more broadly than the ACCA’s definition of “physical force.”
We are thus compelled to hold that Mayo’s conviction under
18 Pa. Cons. Stat. § 2702(a)(1) does not qualify as a predicate
offense under the elements clause of the ACCA.

III.   CONCLUSION

      For the reasons stated, we will vacate the order
denying Mayo’s motion to correct his sentence and remand
the case for resentencing. On remand, the District Court
should address whether Mayo has any other ACCA predicate
convictions.16 If not, and if, as Mayo represents, he has


       16
          Without his aggravated assault conviction, Mayo
appears to lack three qualifying convictions under the ACCA.




                              26
already served the ten-year statutory maximum sentence, he
should be released, in accordance with the terms of
supervision set forth in his judgment of conviction.




Thus, we do not address at this time whether Mayo’s robbery
convictions qualify under the ACCA’s elements clause.




                            27