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.