NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________

No. 19-2604 _______________

UNITED STATES OF AMERICA

v.

GERMAINE KELLY, Appellant

_______________

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 2-16-cr-00031-001) District Judge: Honorable Cathy Bissoon _______________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) on November 8, 2024

Before: KRAUSE, BIBAS, and SCIRICA, Circuit Judges

(Filed: December 18, 2024)

_______________

OPINION* _______________

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

Appellant Germaine Kelly appeals the District Court’s imposition of a career

offender enhancement pursuant to U.S.S.G. § 4B1.1, after he pleaded guilty to two counts

of bank robbery, in violation of

(a). Discerning no error, we will affirm.

I. DISCUSSION1

Under U.S.S.G. § 4B1.1, a defendant may be sentenced as a career offender when

the instant offense “is a felony that is either a crime of violence or a controlled substance

offense” and the defendant has at least two such prior convictions. U.S.S.G. § 4B1.1(a).

Here, Kelly does not dispute the District Court’s determination that the instant offense

was a crime of violence or that his 2002 narcotics conviction qualifies as a first predicate

offense. Rather, he claims the Court erred in determining that his 2005 robbery

conviction, in violation of

, qualifies as a second. Specifically,

he argues that the record establishes a first-degree felony under § 3701, which is not

necessarily a crime of violence,2 rather than a specific violation of § 3701(a)(1)(ii), which

1 The District Court had jurisdiction under

, and we have jurisdiction under

. 2 The Pennsylvania robbery statute does not “set[] out a single . . . set of elements to define a single crime.” Mathis v. United States,

, 504–05 (2016). Instead, it “list[s] elements in the alternative, and thereby define[s] multiple crimes.”

. Not all the crimes defined under § 3701 are crimes of violence. See United States v. Blair,

(3d Cir. 2013) (internal quotations omitted) (noting that subsection (iii) “criminalizes robbery wherein the perpetrator commits or threatens immediately to commit any” first- or second-degree felony, and some first- and second- degree felonies “involve no violence”).

2 “involves the requisite force and mens rea to qualify.” United States v. Henderson,

(3d Cir. 2023), cert. denied,

(2024).

We review Kelly’s challenge to the application of the career offender

enhancement de novo. United States v. Quinnones,

, 417 n.2 (3d Cir. 2021).3

Our task is to “identify the specific statutory provision” under which Kelly was convicted

by applying the modified categorical approach. United States v. Amos,

(3d Cir. 2023). We may rely on “a limited class of documents” to settle this inquiry,

including “the indictment, jury instructions, or plea agreement and colloquy.” Mathis v.

United States,

, 505–06 (2016). To justify the sentencing enhancement,

these materials must “speak plainly” and show that Kelly was convicted under §

3701(a)(1)(ii). Id. at 519.

To establish the specific statute of conviction, the Government points to the four

criminal informations from Kelly’s Pennsylvania robbery convictions, the plea transcript

of the 2005 conviction,4 and the affidavits of probable cause. The Government has met

its burden to show that Kelly was convicted in 2005 for violating § 3701(a)(1)(ii).

3 The Government argues for plain error review, claiming that Kelly forfeited his argument that the documents related to his Pennsylvania robbery conviction were ambiguous but Kelly’s counsel explicitly argued at sentencing that “[t]he Pennsylvania documents provided by the government . . . do not note a specific subsection of robbery.” App. 130-31. In any event, the District Court did not commit any error, let alone plain error. 4 Though the government did not introduce the plea colloquy in the District Court, Appellant does not dispute the authenticity of the transcript, and we will take judicial notice of it as a document “not subject to reasonable dispute.” Fed. R. Evid. 201(b). 3 We start with the criminal informations, which would suffice, even without the

additional evidence before us, to establish that Kelly was convicted of § 3701(a)(1)(ii)

and is validly subject to the sentencing enhancement. Each information states: “the

above-named defendant did in the course of committing a theft…” and then lists several

alternative actions. App. 169, 180, 207, 234. The second action in this list, corresponding

to “[t]hreaten, or intentionally put [the victim] in fear of immediate serious bodily injury”

is then circled by hand—a categorical match to § 3701(a)(1)(ii). Id. And each of the four

documents was signed by Kelly himself.

The external evidence offered by the Government—the plea transcript and the

probable cause affidavit to which it refers—merely corroborates what the informations

show on their face. As reflected in the transcript of the plea proceeding, the prosecutor

referenced four probable cause affidavits as “the factual basis” for the plea, see Supp.

App. at 8-9, and Kelly’s counsel neither objected to that offer nor contested any specific

facts within them, see Supp. App. at 9.5 The affidavits, in turn, describe conduct that

satisfies § 3701(a)(1)(ii)’s elements of “threaten[]” or “intentionally put[]” his victims “in

fear of immediate serious bodily injury,” namely, that Kelly brandished a handgun and

demanded money. By doing so, he “intentionally put[]” his victims “in fear of immediate

serious bodily injury,” the action prohibited by § 3701(a)(1)(ii).

5 Affidavits of probable cause are not themselves Shepard documents but may be considered in the context of the modified categorical approach when incorporated into a plea transcript. See Parilla v. Gonzales,

(9th Cir. 2005). 4 Kelly argues the handwritten circles on the criminal informations should not be

considered as a due process matter because they are insufficiently reliable. But

“sufficient indicia of reliability” are present here. United States v. Howard,

(3d Cir. 2010). The handwritten circles are consistent across all four informations

and each document was signed by Kelly himself. The meaning of those notations is

corroborated by the plea transcript (the authenticity of which Kelly does not dispute) and

the affidavits to which it refers. See United States v. Beasley,

(6th Cir.

2006) (determining that “CA:M2” notation on state judgment of conviction meant

“criminal attempt, second degree murder” based on “basic common sense” and as

corroborated through non-Shepard evidence). It is not sufficient for the defendant to

“merely hint[] at some lingering metaphysical doubt as to the translation of the [the

notation] . . . without supplying any factual basis for this challenge or suggesting some

other plausible meaning for this notation.”

.

In sum, because Kelly’s 2005 robbery conviction meets the criteria for a “crime of

violence” under U.S.S.G. § 4B1.1, he qualifies as a career offender, and the District

Court properly applied the enhancement.

II. CONCLUSION

For the foregoing reasons, we will affirm the District Court’s judgment.

5