NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________

No. 21-1659 _______________

UNITED STATES OF AMERICA

v.

JOSEPH OLINSKY, Appellant _______________

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Crim. No. 2:06-cr-00076-001) District Judge: Honorable Donetta W. Ambrose _______________

Submitted Under Third Circuit L.A.R. 34.1(a): September 22, 2022 _______________

Before: CHAGARES, Chief Judge, McKEE and PORTER, Circuit Judges.

(Filed: April 14, 2023)

______________

OPINION ______________

 Judge McKee assumed senior status on October 21, 2022.  This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding precedent. PORTER, Circuit Judge.

Joseph Olinsky appeals the sentence the District Court imposed when it revoked

his supervised release due to a new criminal conviction. He claims that the District Court

failed to identify his new conviction on the record during the revocation hearing, wrongly

applied the Sentencing Guidelines’ “crime of violence” enhancement, and improperly

sentenced him beyond the statutory maximum for one of his offenses. We disagree and

will affirm.

I

Appellant Joseph Olinsky was serving two concurrent terms of supervised release

when he was convicted of aggravated assault in violation of

(a)(1) and other offenses. Committing a new crime is a violation of supervised

release, so United States Probation asked the District Court to revoke Olinsky’s

supervision and return him to federal prison. At the revocation hearing, Olinsky admitted

to multiple new convictions. The District Court revoked Olinsky’s supervised release

based on his admission.

Olinsky faced a maximum term of 24 months’ reimprisonment for each violation.

(e)(3). Probation calculated his advisory Guidelines range at 33–41

months because it determined that his aggravated assault conviction was for a “crime of

violence.” U.S.S.G. §§ 7B1.1, 4B1.2. Olinsky agreed with the range submitted by

Probation, but he argued that he could not be reimprisoned for the felon-in-possession

conviction because he had already served the statutory maximum of 120 months. See 18

(g), 924(a)(2) (2006 ed.).1 He also asked for either a downward departure

or a variance.

The District Court sentenced Olinsky to concurrent terms of 24 and 17 months for

violating the conditions of his supervised release. The terms are consecutive to Olinsky’s

Pennsylvania sentence. The District Court did not grant Olinsky a departure or variance.

He appealed.

II

The District Court had jurisdiction under

and 3583(e). We have

jurisdiction under

. We review the District Court’s Guidelines

calculations and related legal conclusions de novo, its factual findings for clear error, and

its application of the Guidelines to the facts for an abuse of discretion. United States v.

Rodriguez,

, 120 (3d Cir. 2022). Because Olinsky failed to object to the

District Court’s Guidelines range, he must show that any error committed by the Court on

that front was plain and compels correction as an exercise of our discretion. Fed. R. Crim.

P. 52(b). Olinsky presented his constitutional arguments below, so we review them de

novo. United States v. Gordon,

(3d Cir. 2002).

1 When Olinsky was sentenced for violating § 922(g)(1) in 2007, the maximum imprisonment for that offense was 10 years.

(a)(2) (2006 ed.). Congress recently increased the maximum penalty to 15 years. Bipartisan Safer Communities Act,

Div. A, Title II, § 12004(c),

, 1329 (2022), codified at

(a)(8). The revised penalty does not apply to Olinsky because a law “that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed,” violates the ex post facto clause, U.S. Const. art. 1, § 9, cl. 3. Calder v. Bull,

(1798); see U.S.S.G. § 1B1.11(a).

3 III

Olinsky argues that the District Court committed two plain errors. First, he claims

that the Court was required to identify his “crime of violence” during the revocation

hearing but did not do so. Second, he maintains that aggravated assault under

§ 2702(a)(1) is not a “crime of violence” under the Guidelines. We disagree on both

counts.

A

There are three grades of supervised release violations. Grade A is the most

serious and includes felonies that qualify as a “crime of violence,” certain firearm and

drug crimes, and offenses punishable by more than 20 years. U.S.S.G. § 7B1.1(a). Grade

B covers most other felonies. Everything else, including non-criminal violations of

supervised release, falls under Grade C. These are distinctions with a difference: for an

offender with a criminal history category of VI, like Olinsky, Grade A violations have an

advisory range of 33–41 months of imprisonment compared to 21–27 months for Grade

B and 8–14 months for Grade C. Id. § 7B1.4(a).

Before the revocation hearing, Probation asserted that Olinsky’s § 2702(a)(1)

conviction was a Grade A violation, which made for a Guidelines range of 33–41 months.

In his sentencing memorandum, Olinsky acknowledged that he had been convicted of

“aggravated assault,” among other crimes, and adopted Probation’s Guidelines range.

App. 21, 29 (discussing “the applicable advisory guideline range of 33–41 months.”). At

the hearing, Olinsky admitted that he had been convicted of assaulting Troy Harris and

identified the Pennsylvania criminal case by its docket number.

4 Despite all this, Olinsky now argues that the District Court failed to “set out [the]

specific crime” that supported a Grade A classification as required by our decision in

United States v. Carter,

, 189–93 (3d Cir. 2013). We disagree.

In Carter, the district court sentenced the releasee for uncharged conduct and

failed to explain the specific Grade A offense that he had committed.

at 192–93. This

was error because it left us unable to confirm that the conduct qualified as a crime of

violence.

Olinsky’s case is different. He admitted to being convicted of “Aggravated

Assault” in his sentencing memorandum and placed the specific crime on the record

during the revocation hearing when he identified the Pennsylvania docket containing that

conviction. App. 21, 46. He also told the District Court that he had been given the

maximum sentence for “aggravated assault.” App. 60. For its part, the government

submitted a criminal complaint specifying the § 2702(a)(1) charge against Olinsky as

well as the state court’s order sentencing him for “aggravated assault.” It also offered to

play a video of the assault during the revocation hearing but did not do so, seemingly in

exchange for Olinsky’s admission. In the end, the District Court granted Probation’s

motion to revoke supervised release “[b]ased on Mr. Olinsky’s admission of the

conviction in the Court of Common Pleas of Washington County.”

.

2 The District Court should have conducted a Guidelines calculation on the record, including an express identification of

(a)(1) as the predicate crime of violence. See United States v. Clark,

(3d Cir. 2013) (requiring a sentencing court to calculate the advisory Guidelines range in the revocation context). But given that § 2702(a)(1) is a crime of violence, see Section III(B) infra, any

5 The concern in Carter was that the court’s omission of the specific offense

required us to speculate about what crime of violence the court thought the defendant had

committed. Here, it was clear to everybody what conviction was being discussed. Indeed,

Olinsky admitted it. So we reject his argument that the Court committed a Carter error.

B

Section 2702(a)(1) provides:

A person is guilty of aggravated assault if he . . . 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.

Olinsky argues that aggravated assault under this statute is not a “crime of violence” for

Guidelines purposes. He is incorrect.

Section § 4B1.2(a) of the Guidelines defines “crime of violence” as any offense

punishable by more than a year in prison that:

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or

(2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in

(a) or explosive material as defined in

(c).

Subsection (1) is often termed the “elements clause” and subsection (2) the “enumerated

offenses clause.”

procedural error by the District Court is not plain. See United States v. Flores-Mejia,

(3d Cir. 2014) (holding that an error is plain when it affects substantial rights, which requires showing that “it affected the outcome of the District Court proceedings.”).

6 Section 2702(a)(1) does not qualify under the elements clause because “the use or

attempted use of physical force is not an element of the crime of aggravated assault under

Section 2702(a)(1).” United States v. Harris,

, 1074 (Pa. 2023).

The enumerated offenses clause lists “aggravated assault” as a crime of violence,

and § 2702(a)(1) is titled “Aggravated assault.” Still, offense labels are not necessarily

determinative: a crime only triggers the enhancement if its “elements are the same as, or

narrower than, those of the generic offense.” United States v. Brown,

(3d Cir. 2014).

We recently considered whether New Jersey’s aggravated assault statute qualifies

as a “crime of violence.” United States v. Brasby,

, 130 (3d Cir. 2023). N.J.

Stat. Ann. § 2C:12-1(b)(1) provides that a person is guilty of aggravated assault if he

“[a]ttempts to cause serious bodily injury to another, or . . . under circumstances

manifesting extreme indifference to human life recklessly causes such injury[.]” See

Brasby, 61 F.4th at 130. So New Jersey’s § 2C:12-1(b)(1) and Pennsylvania’s

§ 2702(a)(1) are identical in their operative terms: they criminalize completed or

attempted aggravated assault resulting in serious bodily injury that is committed with

extreme-indifference recklessness.

Like the defendant in Brasby, Olinsky was plainly convicted of actual aggravated

assault, not the attempt offense. See App. 67, 71, 84; Brasby, 61 F.4th at 135. And in

Brasby, we held that New Jersey’s aggravated assault offense “matches the generic

federal offense” and is therefore a “crime of violence” under the Guidelines. Brasby, 61

F.4th at 130, 142–43. Brasby and its thorough application of the categorical approach

7 bind us here. Aggravated assault under § 2702(a)(1) is a “crime of violence,” so we reject

Olinsky’s argument that the District Court miscalculated his Guidelines range.

C

Next, Olinsky claims that the District Court failed to adequately consider his

requests for a downward variance or departure. Here again, Olinsky acknowledges that

our review is for plain error because he did not object below. The District Court

adequately addressed Olinsky’s arguments.

“A traditional sentencing ‘departure’ diverges at step 2 from the originally

calculated range for reasons contemplated by the Guidelines themselves.” United States

v. Floyd,

(3d Cir. 2007) (quoting United States v. Jackson,

, 837 n. 2 (3d Cir. 2006)). “In contrast, a ‘variance’ diverges at step 3 from the

Guidelines, including any departures, based on an exercise of the court’s discretion under

§ 3553(a).” Id. (quoting United States v. Gunter,

, 247 n. 10 (3d Cir. 2006)).

When imposing a sentence, district courts must (1) calculate the defendant’s Guidelines

range, (2) rule on any motions for departure and, if applicable, explain how the departure

affects the advisory range, and (3) consider the relevant factors set out in

(a) to determine whether a variance is appropriate. Gunter,

.

We have already rejected Olinsky’s Guidelines argument. His claim that “[t]he district

court did not acknowledge [his] non-frivolous arguments for a variance or downward

departure” also fails. Appellant Br. 48.

8 In his sentencing memorandum and at the revocation hearing, Olinsky asked for a

downward departure due to his “age and mental health condition.” App. 33, 52. The

Court responded directly:

I am looking at your mental health history. I am glad that you are on medication for your bipolar, for your depression, for your PTSD. That is good. I cannot ignore the past criminal conduct from which I earlier saw you. I have to today impose a sentence, however, that will make you think twice of engaging in any kind of conduct again that might bring you back here.

Now, I understand what [defense counsel] says when he says how long you might be in jail. I know it might be a long time.

App. 62–63.

Olinsky’s requests for a variance under the § 3553(a) factors were similar. He

noted that he would “be a very old man when he is released from [the Pennsylvania]

sentence,” and that he “bears the physical and mental scars” from his previous prison

stay. App. 27–28. He also stressed that he was originally sentenced as a career offender

because of a simple assault conviction that no longer qualifies as a career-offender

predicate. He acknowledged, though, that the intervening change in the law did not

impact his Guidelines range.

The District Court adequately addressed Olinsky’s variance requests, which had

significant overlap with his departure arguments. The Court stressed that it was

considering “the history and characteristics of the person I’m sentencing.” App. 62. And

although it observed that Olinsky had been convicted for “very violent” conduct, it did

not dwell on the punitive functions of sentencing, which

(e) does not

require courts to consider in the revocation context. App. 62. Instead, it highlighted “the

9 nature and circumstances of the offense,” considerations of deterrence and protection of

the public, and available treatment programs. App. 62–65;

(a)(1),

(2)(B)–(D).

We reject Olinsky’s arguments that the District Court committed error in

considering his arguments for a departure or variance.

IV

(e) authorized the District Court to sentence Olinsky to up to two

years’ imprisonment for violating the supervised release attached to his conviction for

possessing a firearm as a prohibited person under

(g)(1). Applying

§ 3583(e), the District Court found Olinsky in violation by the preponderance of the

evidence and imposed a sentence of two years. Olinsky argues that, because he had

already served the ten-year maximum then applicable to § 922(g)(1) convictions when he

violated his release, the District Court violated his Fifth and Sixth Amendment rights by

returning him to prison under § 3583(e) based on facts that were not found by a jury.

It is clear that § 3583(e) authorized the District Court to sentence Olinsky as it did.

The more difficult question is whether the constitution permits judges to find facts that

elevate a convicted person’s total sentence—original incarceration plus reimprisonment

for violating supervised release—above the statutory maximum for the underlying

offense. Under Apprendi v. New Jersey, judges generally cannot make factual findings

that increase a defendant’s maximum prison term.

(2000). The United

States Supreme Court has recently debated, and left unresolved, the question whether

Apprendi applies to supervised release proceedings. United States v. Haymond,

(2019). 3 But we have held that it does not. United States v. Dees,

(3d Cir. 2006). In any event, Olinsky falls within an exception identified in Apprendi

itself because his sentence was based on the “fact of a prior conviction,” a conviction that

was returned by a Pennsylvania jury under the reasonable doubt standard.

.

A

In Dees, a supervised releasee claimed that his revocation sentence was

unconstitutional because it was based on facts found by a judge. 467 F.3d at 854–55.

Apprendi forbids that, but it was a case about a criminal sentencing proceeding, not a

revocation of probation, parole, or supervised release. 530 U.S. at 468–69. We declined

to extend Apprendi beyond its facts:

Apprendi and [United States v. Booker,

(2005),] do not invalidate the preponderance of the evidence standard. See, e.g., [United States v. Huerta–Pimental,

(9th Cir. 2006)] (“There is no right to a jury trial for such post-conviction determinations.”); United States v. Carlton,

, 807–10 (2d Cir. 2006); United States v.

3 In Haymond, the Supreme Court invalidated

(k), which imposed a five-year mandatory minimum on releasees originally convicted of certain sex offenses who violated their supervision by committing another sex offense.

. But the Justices split on rationale: four thought that Apprendi applies to supervised release and prohibits “judicial factfinding” that “increase[s] the legally prescribed range of allowable sentences.” Id. at 2378 (quotation omitted) (plurality op. of Gorsuch, J.). Four dissenters rejected the application of Apprendi to supervised release. Id. at 2387 (Alito, J., dissenting). So did Justice Breyer, but because he concurred in the judgment invalidating the provision at issue, there was no holding on the question of Apprendi. Marks v. United States,

, 193–94 (1977) (“When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds. . . .’ ” (quoting Gregg v. Georgia,

, 169 n.15 (1976)).

11 Cordova,

(10th Cir. 2006); United States v. Hinson,

(5th Cir. 2005).

Dees, 467 F.3d at 855. The releasee also claimed that his sentence was impermissible

because the court imposed three consecutive terms of reimprisonment totaling 72 months.

Id. at 854. This exceeded Dees’s advisory range under the Guidelines, which were

binding when he was originally sentenced. Id. We held that he could not aggregate his

revocation sentences to establish an Apprendi error. Id.

Although its reasoning was brief, Dees remains good law in our Circuit. See

United States v. Seighman,

, 244–45 (3d Cir. 2020) (“[W]e have rejected the

argument that a defendant can establish an Apprendi violation by

‘aggregat[ing] . . . revocation sentences.’ ”) (quoting Dees, 467 U.S. at 854)). So

Olinsky’s claim that Apprendi prevented the District Court from finding him in violation

by a preponderance of the evidence and returning him to prison—in effect, increasing the

maximum sentence for his § 922(g)(1) conviction—fails under our precedent.

B

Olinsky’s argument also fails under Apprendi itself. The defendant in that case

challenged a state hate crime law that doubled the sentencing range for certain offenses if

the judge determined that racial bias was present.

. The Supreme Court

invalidated the statute. Quoting Jones v. United States,

, 243 n.6 (1999),

Apprendi held:

under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be

12 charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.

. Olinsky’s case lives in the parenthetical. As the Court reiterated later in

its decision, “[o]ther than the fact of a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory maximum must be submitted to a

jury, and proved beyond a reasonable doubt.”

(emphasis added).

At the revocation hearing, Olinsky admitted that he had been convicted for

assaulting Troy Harris and identified the Pennsylvania docket containing “that

conviction.” App. 46. “Based on Mr. Olinsky’s admission,” the District Court revoked

his release and sentenced him. App. 49, 63. So Olinsky’s sentence was based on “the fact

of a prior conviction.” Apprendi,

. Even if Apprendi applied, we would

reject Olinsky’s claim.

V

The District Court did not plainly err in failing to identify Olinsky’s aggravated

assault conviction on the record or in applying the Guidelines’ “crime of violence”

enhancement, nor did it fail to address his arguments for a departure or variance. And the

Court’s revocation sentences are permitted under both Dees and Apprendi. So we will

affirm.

13