NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 19-2591 _____________

UNITED STATES OF AMERICA

v.

MARTIN RACIOPPI, Appellant ____________

On Appeal from the United States District Court for the District of New Jersey (D.C. No. 3-18-cr-00131-001) District Judge: Honorable Michael A. Shipp _____________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) January 28, 2020 _____________

Before: CHAGARES, RESTREPO, and BIBAS, Circuit Judges

(Filed: April 1, 2020) _____________

OPINION* _____________

* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. CHAGARES, Circuit Judge.

In 2019, Martin Racioppi pleaded guilty to bank robbery. The District Court

concluded that his prior convictions for robbery constituted crimes of violence under the

United States Sentencing Guidelines (the “Guidelines” or “U.S.S.G.”) and sentenced

Racioppi as a career offender. Racioppi appeals his sentence, claiming that he was

wrongly classified as a career offender under the Guidelines because the New Jersey

robbery statute, N.J. Stat. Ann. § 2C:15-1, is not divisible and, therefore, cannot support

application of the career offender enhancement. For the following reasons, we will

affirm.

I.

We write for the parties and so recite only the facts necessary to our disposition.

On July 20, 2017, Racioppi entered Investors Bank in Navesink, New Jersey, approached

a bank teller, and demanded all the money in the bank teller’s drawer. The bank teller

handed Racioppi approximately $1,600, and Racioppi left with the money. Racioppi was

arrested the next day for this crime, and he later pleaded guilty to one count of bank

robbery, in violation of

(a).

On May 31, 2018, the U.S. Probation Office prepared a draft Presentence

Investigation Report that calculated Racioppi’s adjusted offense level as 22 and found his

criminal history category to be III. However, because Racioppi had one prior conviction

for bank robbery under

(a) and one prior conviction for second-degree

robbery in violation of N.J. Stat. Ann. § 2C:15-1(a)(2), the Probation Office determined

that Racioppi was a career offender pursuant to U.S.S.G. § 4B1.1, the career offender

2 Guideline. This raised his base offense level to 32 and placed him in criminal history

category VI.

Racioppi objected to the career offender determination, arguing that his conviction

for second-degree robbery under New Jersey law is not a crime of violence under the

Guidelines. Racioppi contended that under the categorical approach, second-degree

robbery is broader than “generic” robbery and does not require the use of physical force.

The District Court stayed Racioppi’s sentencing pending this Court’s decision in

United States v. McCants, in which the Court was considering whether a conviction

under § 2C:15-1 is a crime of violence as defined by the career offender Guideline.

(3d Cir. 2018), superseded on reh’g,

(3d Cir. 2019), vacated,

(Mem.) (2019). On April 5, 2019, the Court resolved McCants, holding, as

relevant here, that (1) § 2C:15-1 is divisible according to its three subsections; and

(2) robbery in violation of § 2C:15-1(a)(2) categorically qualifies as a crime of violence

under the Guidelines. See 920 F.3d at 177–81.

On June 25, 2019, Racioppi appeared before the District Court for sentencing. He

again objected to the Probation Office’s Guidelines calculation, arguing that he is not a

career offender. Racioppi claimed that McCants was wrongly decided because § 2C:15-1

is not divisible and second-degree robbery under the statute is broader than generic

robbery because it can be committed without force or violence. The District Court

explained that it was bound to follow this Court’s precedent in McCants, which held that

a violation of § 2C:15-1(a)(2) is considered a crime of violence under the Guidelines.

3 Applying McCants, the District Court determined that Racioppi was a career

offender. The District Court found Racioppi’s resulting Guidelines range to be 151 to

188 months of imprisonment. The District Court varied downward, however, citing

Racioppi’s significant mental health issues and long history of substance abuse, and

sentenced Racioppi to 120 months of imprisonment and three years of supervised release.

Racioppi timely appealed.

II.

The District Court had jurisdiction under

, and we have

jurisdiction under

and

(a). “Whether a prior

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,

(3d Cir. 2014) (quotation marks omitted).

III.

Racioppi’s sole argument on appeal is that he was wrongly classified as a career

offender under the Guidelines because N.J. Stat. Ann. § 2C:15-1 is not divisible and,

therefore, is broader than generic robbery under the categorical approach.1 As a result,

Racioppi claims, his prior New Jersey robbery conviction cannot qualify as a crime of

violence under the Guidelines and he is not subject to the career offender enhancement.

As Racioppi concedes, however, our precedential opinion in McCants squarely

forecloses this argument. See United States v. Ausburn,

, 315 n.1 (3d Cir.

1 Racioppi does not dispute that his prior conviction for federal robbery under

(a) qualified as a crime of violence under the Guidelines.

4 2007); 3d Cir. I.O.P. 9.1 (2018). Under this Court’s precedential decision in McCants,

N.J. Stat. Ann. § 2C:15-1 is divisible, and a conviction under § 2C:15-1(a)(2) qualifies as

a crime of violence under the Guidelines. See United States v. McCants, -- F.3d --, No.

17-3103,

, at *6–7 (3d Cir. Mar. 12, 2020).2

Still, Racioppi argues that the New Jersey robbery statute is not divisible because

the subsections in § 2C:15-1 “do not require juror unanimity and thus are means, not

elements.” Racioppi Br. 12. We previously rejected this argument in McCants, holding

that § 2C:15-1 is divisible because in its subsections (a)(1)–(3), the statute “sets out

alternative elements for sustaining a conviction rather than the means of committing the

offense.”

, at *6. As we explained, the statute “lists in the disjunctive

three separately enumerated, alternative elements of robbery” and “does not identify an

individual element of which subsections (a)(1)–(3) are mere examples.”

Racioppi also takes issue with our reasoning in McCants that “[s]ubsections

(a)(1)–(3) are elements because each requires different proof beyond a reasonable doubt

to sustain a second-degree robbery conviction.”

Racioppi contends that this

“different proof” requirement flows from the double jeopardy test announced in

Blockburger v. United States,

(1932), and thus “has no bearing on the

divisibility analysis set out” in the Supreme Court’s decision in Mathis v. United States,

(2016). Racioppi Br. 11. Not so.

2 The Supreme Court vacated the McCants decision in a memorandum opinion in light of its holding in Rehaif v. United States,

(2019). See McCants v. United States,

(Mem.) (2019). However, on March 12, 2020, the Court reissued the McCants decision after the defendant in that case waived his Rehaif claim.

5 In Mathis, the Supreme Court explained that “[a]t a trial,” elements “are what the

jury must find beyond a reasonable doubt to convict the defendant, and at a plea hearing,

they are what the defendant necessarily admits when he pleads guilty.”

(citation omitted). We applied this reasoning in McCants, concluding that

subsections (a)(1)–(3) are elements because “each requires different proof beyond a

reasonable doubt” of a fact essential to the offense — that is, an element.

, at *6. Under (a)(1), “the prosecutor must prove that the defendant inflicts

injury or uses force upon another person”; under (a)(2), “the defendant need only threaten

or place another person in fear of immediate bodily injury”; and under (a)(3), the

defendant need only “threaten to commit another first- or second-degree crime.”

Applying Mathis, therefore, § 2C:15-1 “list[s] elements in the alternative, and thereby

define[s] multiple crimes.”

(emphasis added).3

Accordingly, as we held in McCants, § 2C:15-1 is divisible because it lays out

alternative elements upon which prosecutors can sustain a second-degree robbery

conviction. And “a panel of this Court cannot overrule an earlier binding panel decision;

only the entire court sitting en banc can do so.” Chester ex rel. NLRB v. Grane

Healthcare Co.,

(3d Cir. 2011).

3 The Blockburger test similarly turns entirely on elements, not means, as it “inquires whether each offense contains an element not contained in the other.” United States v. Dixon,

(1993). It thus asks the same question that we are faced with here: “whether each [statutory] provision requires proof of a fact which the other does not.” Blockburger,

.

6 Racioppi does not dispute that if § 2C:15-1(a) is divisible, his prior conviction

falls properly under § 2C:15-1(a)(2) and a conviction under this subsection categorically

qualifies as a crime of violence. The District Court, therefore, did not err in designating

Racioppi as a career offender based on its determination that his prior conviction for

second-degree robbery in New Jersey qualified as a crime of violence under the

Guidelines.

IV.

For these reasons, we will affirm the District Court’s judgment of sentence.

7