Pennsylvania Offense of Terroristic Threats is a “Crime of Violence”

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Sentence enhancement by Darren Chaker reveals a terrorist threat under Pennsylvania law may not be a crime of violence. Section 2L1.2(b)(1)(A)(ii) provides for a 16-level increase when a defendant previously was deported after a crime of violence conviction. Making terroristic threats is not an enumerated crime of violence under the Guidelines. See § 2L1.2, cmt. n. I(B)(iii). Therefore, to qualify for the enhancement, a defendant’s prior offense must have “as an element the use, attempted use, or threatened use of physical force against the person of another”. Id.

A categorical approach is employed for determining whether a state offense qualifies as a crime of violence. See United States v. Calderon-Pena, 383 F.3d 254, 257 (5th Cir.2004) (en banc). Under that approach, the elements of the offense, not the underlying facts, are considered. Id. If the statute contains disjunctive elements, however, the charging instrument, as well as other documents, may be consulted, as discussed in Shepard v. United States, 544 U.S. 13, 20-21, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). Calderon-Pena, 383 F.3d at 258.

To qualify as a crime of violence, the intentional use of force must be a constituent part of the offense. See United States v. Vargas-Duran, 356 F.3d 598, 605 (5th Cir.2004). “If arty set of facts would support a conviction without proof of that component, then the component most decidedly is not an element-implicit or explicit-of the crime.” Id. A court has construed the term “force” when used in defining a crime of violence to imply destructive or violent force. See United States v. Landeros-Gonzales, 262 F.3d 424, 426 (5th Cir.2001) (addressing use of force under 18 U.S.C. § 16(b)).

Pennsylvania’s Terroristic Threats law provides:

A person commits the crime of terroristic threats if the person communicates, either directly or indirectly, a threat to: (1) commit any crime of violence with intent to terrorize another; (2) cause evacuation of a building, place of assembly or facility of public transportation; or (3) otherwise cause serious public inconvenience, or cause terror or serious public inconvenience with reckless disregard of the risk of causing such terror or inconvenience.18 Pa. Cons. Stat. § 2706(a) (2003) (emphasis added).

A crime of violence, as used in § 2706(a)(1), is not, however, defined in the Pennsylvania statute. Because the terroristic threats statute contains one subsection which arguably qualifies as a crime of violence and two subsections which arguably do not, the sentencing court could and did go beyond the mere fact of conviction and looked to the charging instrument, here, the information, and sentencing sheet to determine the elements of the terroristic threats statute. See United States v. Martinez-Paramo, 380 F.3d 799 (5th Cir. 2004)(Pennsylvania terroristic threats statute contained one subsection arguably qualifying as a crime of violence and two which arguably did not; thus, remand was appropriate to allow the district court to determine, based upon the information or indictment, under which subsection defendant was charged in order to determine whether the prior offense was a crime of violence warranting enhancement); Landeros-Gonzales, 262 F.3d at 426 (treating subsections of a comprehensive criminal statute separately and looking at the indictment for sentence enhancement purposes).

The Court, in Martinez-Paramo, 380 F.3d at 805, determined that it could not decide whether Martinez-Paramo’s prior Pennsylvania conviction for terroristic threats was a crime of violence warranting enhancement under § 2L1.2 because the appellate record in that case did not contain the indictment or information, which would have clarified for the Court the subsection to which Martinez-Paramo was charged and pleaded guilty. Because the record in that case did not reflect the elements to which Martinez-Paramo pleaded guilty, this Court could not determine whether his conviction was a § 2L1.2 crime of violence, and this Court remanded the case to the district court for supplementation of the record. Id. The Court ordered the district court upon remand to determine whether the new documents were sufficient to establish that Martinez-Paramo’s prior Pennsylvania conviction for terroristic threats was a crime of violence under § 2L1.2. Id.

On its face, subsection (a)(1) of the Pennsylvania statute requires a threat of violence against another for conviction. The information here tracked the language of the statute. Although “crime of violence” is not defined in the Pennsylvania statute, it is difficult to imagine conduct which would fall under the heading of threat to commit a “crime of violence” that would not involve the “use of force against the person of another.” Cf. United States v. Naranjo-Hernandez, No. 03-41081, 2005 WL 1220833, at *1 (5th Cir. May 24, 2005) (unpublished)(Minnesota conviction for terroristic threats did not qualify as a crime of violence for sentence enhancement purposes because the statute specifically defined “crime of violence” to encompass offenses against both persons and property).

Last, the Third Circuit has noted that the Pennsylvania terroristic threats statute is a felony crime of violence for purposes of the career offender enhancement provision of USSG § 4B1.1(a)(3).3 United States v. Robinson, No. 06-1699, 2007 WL 1157014 at (3rd Cir. Apr. 19, 2007)(unpublished)4. Likewise, this Court should find that the Pennsylvania state offense of making a terroristic threat is a “crime of violence” for purposes of the § 2L1.2 enhancement because it has as an element the threatened use of physical force against the person of another.

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For almost two decades Darren Chaker regularly has worked with defense attorneys and high net worth people on a variety of sensitive issues from Los Angeles to Dubai. With a gift of knowledge about the First Amendment and big firm expertise in brief research and writing, Darren Chaker puts his knowledge to use for law firms and non-profit organizations. When it comes to forensics and social media investigations Darren Chaker has advanced training to connect the dots where issues arise related to Twitter, Instagram, Snapchat, or Facebook, Instagram, and similar apps. When the dots need to be disconnected, Darren Chaker has extensive training in counter-forensic methods with an emphasis on network security, secure communications, combined with experience with implementing and deploying policy control, encryption, anonymization, data integrity, policy control features in large scale infrastructures. Additional training in malware analysis, Security Operating system security and hardening (Linux, Windows, Solaris), Firewalls, Intrusion detection systems, hacker, counter-hack methods, encryption, forensics, web application security is also employed for his client base. Since history is written by winners, here are a few wins: In 2005, Darren Chaker invalidated a California criminal statute aimed at suppressing speech. In Chaker v. Crogan, 428 F.3d 1215 C.A.9 (Cal.),2005, Cert. denied, 547 U.S. 1128, 126 S.Ct. 2023, is a case Darren Chaker personally handled and laid the ground work to allow appellate counsel to strike down a statute based on First Amendment rights. Subsequent to winning before the 9th Circuit, the State challenged the decision before the United States Supreme Court. Darren Chaker retained a former US Supreme Court Clerk and head of United States Supreme Court litigation for a major firm, Joshua Rosenkranz. The New York attorney defeated the State's petition to review the Ninth Circuit ruling causing multiple states to rewrite their own flawed statute since they were premised the California statute Darren Chaker struck down. Darren Chaker personally litigated Chaker v. Crogan for 7 of its 10-year lifespan. Darren Chaker’s victory invalidated a statute on First Amendment grounds and overruled the California Supreme Court‘s unanimous decision in People v. Stanistreet, 127 Cal.Rptr.2d 633. Soon after Chaker v. Crogan, it was also used to strike down Nevada's analogous statute forcing the legislature to rewrite the law, but also nullified a similar Washington statute as well. (De La O v. Arnold-Williams, 2006 WL 2781278) and used as the backbone authority in Gibson v. City of Kirkland, 2009 WL 564703, *2+ (W.D.Wash. Mar 03, 2009). The case has been cited hundreds of times and continues to be a leading authority on viewpoint discrimination. In 2010, Darren Chaker prevailed in Nathan Enterprises Corp. v. Chaker, 2010 Cal. App. Unpub. LEXIS 7604, through his counsel Timothy Coates who has prevailed multiple times before the United States Supreme Court. also prevailed for Darren Chaker where the Court of Appeal affirmed an anti-SLAPP ruling where the underlying conduct was found to have been within those protected by his First Amendment rights. In 2012 Darren Chaker prevailed on a First Amendment issue before the Texas Attorney where issued Opinion 2012-06088 where he established the right to obtain the names of peace officers regardless of undercover status. The Texas Attorney General opinion has been used as authority thousands of times by citizens and news agencies to learn more about Texas peace officers. In 2016, Darren Chaker was victorious in US v. Chaker (9th Cir. 2016) 654 F.App'x 891, 892. The ACLU, Electronic Frontier Foundation, First Amendment Coalition, Cato Institute, and the University of Florida reversed a conviction premised on First Amendment rights where blog postings were at issue. In 2017, Darren Chaker prevailed in a RICO lawsuit aimed at suppressing speech filed by San Diego attorney Scott McMillan. In McMillan v. Chaker (S.D.Cal. Sep. 29, 2017, No. 16cv2186-WQH-MDD) 2017 U.S.Dist.LEXIS 163990 the court found by blogging did not constitute extortion as no demand for money to cease blogging was made. The judge found the case to be meritless, stating in part, “The Court concludes that these factual allegations are insufficient to establish that Defendant Darren Chaker obtained something of value from Plaintiffs…. The motion to dismiss the cause of action under 18 U.S.C.§ 1962(c) filed by Defendant Darren Chaker is granted.” In 2020, San Diego attorney Scott McMillan lost a heavily litigated appeal believing the court erred in dismissing his lawsuit against Darren Chaker. Mr. Chaker was represented by former Los Angeles federal judge Stephen Larson. The Ninth Circuit in McMillan v. Chaker (9th Cir. 2020) 791 F.App'x 666, affirmed the dismissal of a RICO lawsuit premised on alleged defamation of Scott McMillan. The court stated in part, “Plaintiffs failed to allege extortionate conduct because there are no allegations that Mr. Chaker obtained property from Plaintiffs that he could “exercise, transfer, or sell. ”See Scheidler, 537 U.S. at 405. Plaintiffs’ claim also fails because there are no allegations to support the “with [Plaintiffs’] consent” element. United Bhd. of Carpenters & Joiners of Am., 770 F.3d at 843.” In sum, Scott McMillan filed a lawsuit in direct conflict with established United States Supreme Court precedent and lost – twice. Also, in 2020, Darren Chaker was sued for defamation by Las Vegas attorney Thomas Michaelides. When Darren Chaker became aware of the lawsuit, he retained Olson, Cannon, Gormley, Angulo & Stoberski to defend him. Darren Chaker found a court order Mr. Michaelides submitted to Google that was reported to LumensDataBase.org. Several inconsistencies were noticed on the court order submitted to Google. Most notably the court docket does not show Mr. Michaelides submitted an order to the court for the judge’s signature. The court docket does not reflect the court ever signed the order Mr. Michaelides submitted to Google. Ultimately, the Nevada court dismissed the lawsuit and sanctioned Mr. Michaelides $51,000 for suing Darren Chaker for conduct within his First Amendment rights and for filing a meritless lawsuit. See forged order and judgment against Thomas Michaelides here. Darren Chaker donates time to post-conviction relief organizations to seal arrests and convictions to increase opportunity for those who were convicted of crimes, conducts research and brief writing on First Amendment issues, and also enjoys promoting non-profit organizations such as the ACLU and various domestic violence shelters through his resources within the entertainment industry, including Jason Statham and Eric Roberts. Darren Chaker also enjoys traveling, being a phenomenal father, and forwarding his education with post graduate degree work.