NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 19-1285 _____________

UNITED STATES OF AMERICA

v.

ANTONIO SHAW, Appellant

______________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (Crim. No. 2-18-cr-00147-001) District Judge: Hon. Harvey Bartle, III _____________

Submitted Under Third Circuit L.A.R. 34.1(a) on July 9, 2020

Before: McKEE, BIBAS, and FUENTES, Circuit Judges.

(Opinion Filed: September 15, 2021)

______________

OPINION* ______________

__________________

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

Antonio Shaw appeals his conviction and sentence for assault with a dangerous

weapon under

(a)(3).1 We conclude that the jury’s verdict below is

supported by sufficient evidence, but that his sentence must be vacated in light of the

Supreme Court’s decision in Borden v. United States.2

I.

While being held at a detention center, Shaw was attacked by a group of other

inmates, including Adiezel Perez-Rosario. The group tried to pull Shaw into a cell, and

Shaw claims that one of the inmates threatened to kill him. Shaw broke free and ran back

to his cell, which was on a different floor from the one where his attackers were located.

Shaw then decided that he would be safer in the prison’s common area, so he left his cell.

At the time, Shaw had a pencil with him, apparently so that he could take notes during a

phone call. While in the common area, Shaw saw Perez-Rosario and the other inmates

moving toward him. One of those inmates had a “prison weapon” in the form of a “lock

1 The District Court had jurisdiction under

. We have jurisdiction under

and

(a). The parties dispute whether we review Shaw’s conviction challenge de novo or for plain error. Shaw’s claim fails under either standard. See Jackson v. Virginia,

(1979) (explaining that a verdict must be sustained if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”). 2

(2021). 2 in a sock.”3 As the inmates moved near Shaw in the common area, he attacked Perez-

Rosario with the pencil, stabbing him 11 times.

Shaw was charged with assault with a dangerous weapon for the stabbing.4 The

jury found him guilty at trial, rejecting his claim of self-defense. Because Shaw had

previously been convicted of assault with a dangerous weapon in the District of Columbia,5

he was sentenced as a “career offender” under § 4B1.2 of the U.S. Sentencing Guidelines.

On the basis of that enhancement and other factors, the Guidelines recommended a

sentence of 100 to 120 months in prison.

The District Court sentenced Shaw to 108 months followed by three years of

supervised release. Shaw appealed his conviction and sentence, and we held the case curia

advisari vult pending the Supreme Court’s decision in Borden. In Borden, the Court

concluded that crimes with a mens rea of “recklessness”—like Shaw’s prior assault

conviction in D.C.—are not “violent” felonies;6 therefore, such crimes cannot qualify a

defendant for career-offender status. The Government concedes that Shaw’s sentence must

3 Appellant’s Br. at 5 (citing App. 58, 68, 169). 4 See

(a)(3). 5 See

. 6 Borden,

. 3 be vacated.7 We will vacate his sentence and remand, but otherwise affirm Shaw’s

conviction.

II.

Shaw first challenges his conviction, arguing that the jury improperly rejected his

claim of self-defense.8 To prove self-defense, Shaw must show that (1) he was under

immediate and unlawful threat of death or serious injury; (2) he did not recklessly place

himself in a situation where he would be forced to engage in criminal conduct; (3) he had

no reasonable legal alternative to the criminal act; and (4) there was a direct relationship

between the criminal act and the avoidance of the threatened harm.9

Even assuming that Shaw was under threat of serious injury, the jury’s verdict is

supported by the evidence. After he broke free, Shaw voluntarily left his cell (which was

located on a different floor from the one his attackers were on at the time), armed himself

with an improvised weapon, and went to the common area. From the common area, Shaw

7 We express no opinion on the other points raised in the Government’s response to Shaw’s letter filed under Federal Rule of Appellate Procedure 28(j). 8 Shaw focuses on the jury’s rejection of his self-defense claim, but this is really a sufficiency-of-the-evidence challenge. In other words, Shaw argues that the jury’s verdict is not supported by the record because he proved by a preponderance that he only attacked Perez-Rosario to protect himself. Regardless of how the argument is framed, the jury did not err in rejecting the self-defense claim, and its verdict is supported by the record for the reasons explained herein. 9 Gov’t of Virgin Islands v. Lewis,

(3d Cir. 2010) (citing United States v. Paolello,

(3d Cir. 1991)). 4 could see the cell his attackers were located in, and he paced back and forth while staring

at it. The jury did not err in concluding that Shaw recklessly placed himself in harm’s way.

Shaw’s claim that he had no reasonable alternative to attacking Perez-Rosario is also

contradicted by the record. A group of corrections’ officers was located just 30 feet away

from where Shaw was first attacked. On this record, a rational jury could conclude that

Shaw had an opportunity to alert the officers or call for help without initiating violence.

For these reasons, we will affirm Shaw’s conviction. But because Shaw no longer

qualifies as a “career offender” as his predicate crime involved a mens rea of

“recklessness,” we will vacate his sentence and remand to the District Court.

5