NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________ No. 22-3379 ____________ UNITED STATES OF AMERICA

v.

TERELL CRUMP, Appellant ____________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-17-cr-00150-001) District Judge: Honorable Paul S. Diamond ____________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) October 17, 2023 ____________

Before: CHAGARES, Chief Judge, PHIPPS, and CHUNG, Circuit Judges.

(Filed: November 6, 2023) ___________

OPINION* ___________

PHIPPS, Circuit Judge.

While on parole for convictions under Pennsylvania law for robbery and

aggravated assault, Terell Crump – during a Facebook livestream on October 27, 2016 –

fired a gun out the window of a rowhome in a densely populated Philadelphia

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. neighborhood. The video feed also captured Crump handing a second firearm to the gun’s owner, who later told an ATF agent that it had an obliterated serial number.

On those facts, Crump pleaded guilty to being a felon in possession of a firearm

under

(g)(1) and 924(a)(2). Crump’s plea agreement, which the District Court accepted, had an appellate waiver subject to specific exceptions. One of those

allowed him to appeal the District Court’s rulings that robbery and aggravated assault

each qualified as a “crime of violence” under the United States Sentencing Guidelines.

U.S.S.G. § 4B1.2(a).

In calculating Crump’s sentence, the District Court concluded that both offenses

constituted crimes of violence. That led to a twelve-point increase in Crump’s base offense level – eight points for the first crime of violence and four additional points for

the second. See id. § 2K2.1(a) (setting the base offense level for classes of firearms

convictions, including those under

(g), at 24 if the defendant had

previously been convicted of two or more crimes of violence, at 20 if the defendant had

been convicted of one prior crime of violence, and at 12 if the defendant had no prior

convictions for crimes of violence). The District Court also increased Crump’s offense

level by another eight points for two specific offense enhancements – four for possession

of a firearm with an obliterated serial number, see

§ 2K2.1(b)(4)(B), and four for

using a firearm in connection with felony reckless endangerment of another person, see id. § 2K2.1(b)(6)(B). In aggregate, those values, after a three-point deduction for

Crump’s acceptance of responsibility, yielded a total offense level of 29. That score,

when combined with his Category IV criminal history, resulted in a sentencing range of 121 to 151 months in prison for Crump. See U.S.S.G. ch. 5, pt. A. But at the time of his

offense, the statutory maximum sentence for a felon-in-possession conviction was 120

2 months. See

(a)(2) (2012) (amended by the Bipartisan Safer Communities Act,

Stat. 1313, 1329 (2022), which removed the

ten-year statutory maximum for

(g)). In sentencing Crump on

September 20, 2022, the District Court did not vary the sentence downward from the Guidelines range but imposed that statutory maximum sentence.

Crump appealed his sentence and invoked this Court’s appellate jurisdiction. See

; see also

. He now disputes all of the determinations

that increased his total offense level, each of which had a significant consequence on his

Guidelines range. If Crump is correct as to one of his challenges, then his total offense

level would have been four points lower, at 25. And with a Category IV criminal history, the Guidelines range would have been 84 to 105 months – below the statutory maximum

of 120 months. See U.S.S.G. ch. 5, pt. A. If he prevails on one of his crime-of-violence

challenges and one of his other attacks, then his total offense level would drop by eight

points, to 21, which would result in a Guidelines range of 57 to 71 months. See

If he

succeeds on both of his crime-of-violence challenges or one crime-of-violence challenge

and both of his other challenges, then Crump’s total offense level would decrease by 12

points to 17, generating a Guidelines range of 37 to 46 months. See

If he is correct

about both of his crime-of-violence challenges and one of his other contentions, then his

total offense level would be 13, with an accompanying Guidelines range of 24 to 30 months. See

And if Crump wins on all four of his challenges, then his total offense

level would be 9, which would result in a Guidelines range of 12 to 18 months. See

By rule, to raise these challenges, Crump had fourteen days to file a notice of appeal, see Fed. R. App. P. 4(b)(1)(A), but he did not do so until 83 days after the

judgment was entered. Because that deadline is not jurisdictional for criminal cases, it

3 does not automatically bar Crump’s appeal. See Gov’t of V.I. v. Martinez,

(3d Cir. 2010). But upon a party’s objection, a court “must dismiss the appeal,”

. And here, the Government objects – but only partially. Following the same

dividing line as the appellate waiver in the plea agreement, the Government objects to Crump’s challenges to the four-point enhancements under § 2K2.1(b)(4)(B) for the

obliteration of a serial number and § 2K2.1(b)(6)(B) for felony reckless endangerment of

another person. But the Government does not object to the timeliness of Crump’s appeal

of his two crime-of-violence challenges. Accordingly, Crump’s challenges to the four-

point enhancements imposed under § 2K2.1(b)(4)(B) and § 2K2.1(b)(6)(B) will be

dismissed, but his two crime-of-violence arguments, which, if both successful, would yield a Guidelines range of 37 to 46 months, remain for consideration on appeal.

In those two challenges, Crump disputes that the Pennsylvania offenses of robbery

and aggravated assault qualify as crimes of violence under the elements clause or the

enumerated-offense clause of Guideline § 4B1.2(a). As an initial matter, Crump’s

arguments require an assessment of whether the state-law offenses are indivisible or

divisible. See Descamps v. United States,

(2013) (explaining that

unlike an indivisible statute, a divisible statute “sets out one or more elements of the

offense in the alternative”). From there, the application of the elemental matching

process under either the categorical approach (for indivisible offenses) or the modified categorical approach (for divisible offenses), determines whether Crump’s predicate

state-law offenses qualify as crimes of violence. See Mathis v. United States,

, 504–05 (2016). In this case, that analytical process is aided by Circuit precedent. This Court has

determined that both disputed Pennsylvania predicate offenses – robbery and aggravated

4 assault – are divisible. See United States v. Peppers,

(3d Cir. 2018) (holding that Pennsylvania’s robbery statute,

(a), is divisible);

United States v. Ramos,

(3d Cir. 2018) (holding that Pennsylvania’s

aggravated assault statute,

, is divisible). As divisible offenses, a court can consider types of external documents to discern which section or subsection

of the statute served as the basis for the conviction. See Mathis, 579 U.S. at 505–06;

Shepard v. United States,

(2005). And here, the guilty plea for Crump’s

prior robbery offenses reveals that he was convicted under § 3701(a)(1)(ii). Similarly,

the charging document coupled with statutory text reveals that Crump was convicted of

second-degree aggravated assault under § 2702(a)(3).1 Circuit precedent – decided after the District Court sentenced Crump – also

answers whether those two offenses constitute crimes of violence under the Guidelines.

In United States v. Henderson,

(3d Cir. 2023), this Court held that a robbery

conviction under § 3701(a)(1)(ii) is a categorical match with the elements clause of

Guideline § 4B1.2 and is thus a crime of violence. Id. at 211–15. Consequently, the

District Court did not err in using that prior offense to determine Crump’s base offense

level. But in United States v. Jenkins,

(3d Cir. 2023), this Court held that

second-degree aggravated assault under § 2702(a)(3) is not a violent felony under the

Armed Career Criminal Act. Id. at 155. Because the term ‘violent felony’ in the ACCA receives the same meaning as the term ‘crime of violence’ in Guideline § 4B1.2, see

Jenkins, 68 F.4th at 151 n.3, Crump’s conviction for second-degree aggravated assault –

1 The parties dispute which subsection served as the basis for Crump’s aggravated assault conviction. The Government argues that it was under (a)(3), while Crump argues that it was (a)(2). But Crump could not have been convicted under subsection (a)(2), which is a first-degree felony, see

(b) (grading crimes), because the charging document reveals that Crump was charged, and later convicted, of a second- degree felony aggravated assault.

5 which is not a violent felony under the ACCA, see

at 155 – should not have been used to determine Crump’s base offense level.

For that reason, on this de novo review of the legal issues challenged on appeal,

we will vacate Crump’s sentence and remand to the District Court for resentencing.

6