United States of America v. Shawn Quinnones

Philadelphia, PA - Criminal defense lawyer represented defendant with

two counts of armed bank robbery chargee.

Shawn Shannon Quinnones pleaded guilty to two

counts of armed bank robbery in violation of 18 U.S.C.

§§ 2113(a), (d) and § 2. She also stipulated that her

commission of an armed robbery of a Family Dollar store

should be treated at sentencing as if it were a third count of

conviction. The United States Probation Office prepared a

Presentence Investigation Report ("PSR”) detailing

Quinnones' criminal history and recommending that she be

sentenced as a career offender under U.S.S.G. § 4B1.1 because

her crime of conviction for armed bank robbery and her four

prior convictions for assault by a prisoner in violation of 18 Pa.

Cons. Stat. § 2703 were all "crimes of violence.”

Quinnones objected to the career offender designation,

arguing that three of her § 2703 convictions did not qualify as

crimes of violence.

1 The District Court disagreed, applied the

career offender designation, departed downward from the

Guidelines range of 188-235 months, and sentenced

Quinnones to 132 months' imprisonment, followed by five

years' supervised release, and $8,058 in restitution.

Quinnones appeals.

1

In her sentencing memorandum, Quinnones did not

object to counting as a qualifying offense a 1997 conviction for

violating § 2703.

4

II2

A

Quinnones argues that her convictions under § 2703 are

not "crimes of violence” as defined by U.S.S.G. § 4B1.2, and,

therefore, the District Court erred by sentencing her as a career

offender. To evaluate this contention, we first set forth the

definition of "crime of violence” under the Sentencing

Guidelines. We then identify the elements of the statute of

conviction, here § 2703. Thereafter, we compare those

elements to the definition of "crime of violence” to determine

whether § 2703 fits the definition.

B

A defendant whose crime of conviction is a "crime of

violence” or a "controlled substance offense” and who has at

least two prior convictions for such offenses is subject to

sentencing as a career offender under U.S.S.G. § 4B1.1. As

relevant here, the career offender provision defines a "crime of

violence” as any felony that "has as an element the use,

2 The District Court had jurisdiction under 28 U.S.C.

§ 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18

U.S.C. § 3742(a). We review purely legal questions, such as

whether an offense qualifies as a crime of violence under the

Sentencing Guidelines, de novo. United States v. Henderson,

841 F.3d 623, 626 (3d Cir. 2016).

5

attempted use, or threatened use of physical force.”

3

U.S.S.G.

§ 4B1.2(a)(1).

To further define the phrase "crime of violence,” we

examine the meaning of "use” and "physical force.” The word

"use” means the "intentional employment of . . . force,

generally to obtain some end.” Tran v. Gonzales, 414 F.3d

464, 470 (3d Cir. 2005). "Physical force” in the career offender

provision refers to "force capable of causing physical pain or

injury to another.” United States v. Chapman, 866 F.3d 129,

132 (3d Cir. 2017) (quotation marks omitted) (quoting Johnson

v. United States, 559 U.S. 133, 140 (2010)). Together, the "use

of physical force” in § 4B1.2(a)(1) involves the "intentional

employment of something capable of causing physical pain or

injury to another person, regardless of whether the perpetrator

struck the victim's body.” Id. Under this definition, the

qualifying physical force may be direct or indirect so long as it

is "strong enough to constitute power,” id. at 140, 142

(quotation marks omitted), and more than the "slightest

offensive touching,” id. at 139.

3 The career offender provision also identifies certain

offenses as crimes of violence. U.S.S.G. § 4B1.2(a)(2).

Assault by a prisoner under § 2703's bodily fluid provision is

not one of them. See id. (listing "murder, voluntary

manslaughter, kidnapping, aggravated assault, a forcible sex

offense, robbery, arson, extortion, or the use or unlawful

possession of a firearm described in 26 U.S.C. § 5845(a) or

explosive material as defined in 18 U.S.C. § 841(c)”).

6

C

Applying this definition, we next examine whether

§ 2703 is a "crime of violence” under § 4B1.2. To do so, we

are required to use the much-criticized categorical approach,4

which requires that we identify the elements of the statute of

conviction, rather than the facts that led to the conviction, and

compare those elements to the definition of "crime of

violence.” Descamps v. United States, 570 U.S. 254, 260

(2013) (citation omitted); United States v. Ramos, 892 F.3d

599, 606 (3d Cir. 2018). Where the statute of conviction

contains variations with alternate elements, such that "certain

elements of the statute fit within the definition of a crime of

violence, while other alternative elements do not,” we may

look beyond the elements to determine which part of the statute

formed the basis for the conviction.5

United States v. Jones,

740 F.3d 127, 134 (3d Cir. 2014). This so-called "modified

categorical approach” permits courts to consider "the charging

document, the terms of a plea agreement or transcript of

colloquy between judge and defendant in which the factual

4

See, e.g., United States v. Chapman, 866 F.3d 129,

136-39 (3d Cir. 2017) (3d Cir. 2021) (Jordan, J., concurring)

(collecting cases); see also United States v. Scott, ___F.4th ___,

2021 WL 4302516 at *7-10 (3d Cir. Sept. 22, 2021) (collecting

cases).

5

If the variation "sweeps more broadly than the

[Guidelines-defined crime of violence], a conviction under

[that variation] is not a career offender predicate even if the

defendant actually committed the offense in a way that

involved the use (or threatened use) of physical force against

another.” Chapman, 866 F.3d at 134 (alterations in original)

(citation omitted).

7

basis for the plea was confirmed by the defendant, or [] some

comparable judicial record [embodying] this information.”

Shepard v. United States, 544 U.S. 13, 26 (2005).

The version of § 2703 in effect at the time of

Quinnones' convictions provided:

A person who is confined in or committed to any

local or county detention facility, jail or prison or

any State penal or correctional institution or

other State penal or correctional facility located

in this Commonwealth is guilty of a felony of the

second degree if he, while so confined or

committed or while undergoing transportation to

or from such an institution or facility in or to

which he was confined or committed

intentionally or knowingly, commits an assault

upon another with a deadly weapon or

instrument, or by any means or force likely to

produce serious bodily injury. A person is guilty

of this offense if he intentionally or knowingly

causes another to come into contact with blood,

seminal fluid, saliva, urine or feces by throwing,

tossing, spitting or expelling such fluid or

material[6] when, at the time of the offense, the

person knew, had reason to know, should have

known or believed such fluid or material to have

been obtained from an individual, including the

person charged under this section, infected by a

communicable disease, including, but not limited

6 We use the word "fluid” to also capture "material.”

8

to, human immunodeficiency virus (HIV) or

hepatitis B.

18 Pa. Cons. Stat. § 2703 (2019).7

Thus, a defendant could

violate the statute if she: (1) committed an "assault upon

another with a deadly weapon”; (2) committed an assault "by

any means or force likely to produce serious bodily injury”; or

(3) "cause[d] another to come into contact with [a bodily

fluid]” that came from someone infected with a communicable

disease. Id. Regardless of whether the statute is viewed as

indivisible or divisible, the parties do not dispute that

Quinnones was convicted of the portion of § 2703 that made it

a crime for a prisoner to cause another to come into contact

with a bodily fluid that came from someone with a

communicable disease, and that this is the least culpable way

to violate the statute.

Having determined that the statutory variation

concerning use of "bodily fluids” formed the basis for

Quinnones' conviction, we next look at that offense's elements

to "ascertain the least culpable conduct hypothetically

necessary to sustain a conviction.” United States v. Dahl, 833

F.3d 345, 350 (3d Cir. 2016) (quotation marks omitted). To

secure a conviction under the relevant portion of § 2703, the

Commonwealth must prove the defendant: (1) was a prisoner;

(2) caused the victim to come into contact with bodily fluid by

throwing, tossing, spitting, or expelling the fluid; (3) knew, had

reason to know, or should have known or believed the fluid

7 The statute was amended in 2020 to separate the

"deadly weapon”/"force likely to produce bodily injury” and

"bodily fluid” prongs into two different subsections. 2020 Pa.

Legis. Serv. Act 2020-63 (H.B. 256).

9

came from someone who had a communicable disease; and (4)

either (a) her purpose was to have the victim have contact with

the fluid or (b) she was aware she would almost certainly cause

the victim to have contact with the fluid. See Pennsylvania

Suggested Standard Criminal Jury Instructions § 15.2703(A)

(2019). Under these elements, the least culpable conduct for

which a defendant can be convicted under the statute is

(1) spitting or expelling fluid when (2) the person should have

known the fluid was infected.

D

We will now determine whether spitting or expelling

fluid under § 2703 necessarily involves the use of physical

force contemplated by § 4B1.2. As stated previously, "use of

physical force” under § 4B1.2 involves the "intentional

employment of something capable of causing physical pain or

injury to another person, regardless of whether the perpetrator

struck the victim's body.” Chapman, 866 F.3d at 133. Spitting

or expelling fluid in their least culpable forms do not involve

force for the purpose of § 4B1.2 because such acts are not

capable of causing physical pain or injury.8

Cf. Ramos, 892

F.3d at 612 (holding that a Pennsylvania conviction for

aggravated assault with a deadly weapon under 18 Pa. Cons.

Stat. § 2702(a)(4) is a crime of violence because it is "nearly

8 One can imagine that spitting could cause injury or

pain in some extreme circumstances, but that is not the test

under the categorical approach. To be a crime of violence, the

least extreme case of spitting under the statute must be able to

cause pain or injury. See Singh v. Ashcroft, 386 F.3d 1228,

1234 (9th Cir. 2004) (noting the categorical approach is "not

concerned with the most extreme case”).

10

impossible to conceive of a scenario in which a person could

knowingly or intentionally injure, or attempt to injure, another

person with a deadly weapon without engaging in at least some

affirmative, forceful conduct”). For this reason, many of our

sister circuits have held that where a crime can be committed

by spitting, that crime—like § 2703—does not categorically

involve "physical force” as defined in Chapman and Johnson.

9



9 Relying on Stokeling v. United States, 139 S. Ct. 544

(2019), the Government argues that because spitting could

provoke another to respond with physical force that could

cause injury, it qualifies as the type of force constituting a

crime of violence. Even if spitting may provoke a physical

reaction from another that could cause physical pain or injury,

Stokeling does not convert spitting into a crime of violence. In

Stokeling, the Supreme Court examined whether robbery

constituted a violent felony under the Armed Career Criminal

Act ("ACCA”). 139 S. Ct. at 550. It examined definitions of

robbery and concluded that common law robbery must involve

force that would be expected to overcome the victim's

resistance. Id. at 551-52. Thus, the Court's discussion of

resistance or provocation does not change Johnson's definition

of "crime of violence.” Rather, Stokeling elaborates on what

type of force is sufficient to constitute robbery and holds that

such force exceeds the Johnson minimum. See id. at 552-53

("Our understanding of 'physical force' comports with

Johnson . . . . [T]he force necessary to overcome a victim's

physical resistance is inherently 'violent' in the sense

contemplated by Johnson.”); see also Reliford v. United States,

773 F. App'x 248, 251 (6th Cir. 2019) (not precedential) ("The

Supreme Court [in Stokeling] clarified that the ACCA

encompasses robbery offenses that require the criminal to

11

See, e.g., United States v. Carthorne, 726 F.3d 503, 512 (4th

Cir. 2013) (holding that assault and battery of a police officer

in Virginia is not a crime of violence under the career offender

provision because it can be committed "by spitting in a man's

face”); United States v. Evans, 576 F.3d 766, 768 (7th Cir.

2009) (holding that aggravated battery on a pregnant victim in

Illinois is not a crime of violence under the career offender

provision because it includes "deliberately spit[ting] on a

pregnant woman”).10



overcome the victim's resistance.” (quotation marks

omitted)).

10 See also United States v. Taylor, 848 F.3d 476, 493

(1st Cir. 2017) (holding that simple assault under 18 U.S.C.

§ 111(a) is not a violent felony under the ACCA because it can

be committed "by spitting in a mail carrier's face”); United

States v. Jones, 914 F.3d 893, 903, 905-906 (4th Cir. 2019)

(holding that "spitting at another's face—which can be

accomplished in a rude or angry manner but without violent

physical force—constitutes an assault” but does not

"categorically involve[] the use, attempted use, or threatened

use of violent physical force” under the ACCA); Johnson v.

United States, 784 F. App'x 373, 377-78 (6th Cir. 2019) (not

precedential) (holding that spitting while infected with

communicable disease, even with the intent to transmit a cold,

"does not involve the use of furious, severe, or vehement force”

under the ACCA) (citing Johnson, 559 U.S. at 140); Reliford,

773 F. App'x at 252 (holding that battery in Michigan is not a

violent felony under the ACCA because it can be committed

by spitting); United States v. Ama, 684 F. App'x 736, 741

(10th Cir. 2017) (not precedential) (holding that simple assault

under 18 U.S.C. § 111(a) is not a violent felony under the

12

Because the least culpable conduct under § 2703's

bodily fluids provision does not include "physical force” as

defined in Chapman, it is not a "crime of violence” under

§ 4B1.2.

E

Moreover, even if spitting or expelling a fluid involved

physical force, the state of mind required to complete the

offense under § 2703 reveals that it is not a crime of violence.

The Supreme Court has held that if an offense can be

committed with recklessness or negligence, it is not a crime of

violence. Borden v. United States, 141 S. Ct. 1817, 1825

(2021) (recklessness); Leocal v. Ashcroft, 543 U.S. 1, 9, 13

ACCA because it can be committed by "spitting and throwing

liquid substances on a federal employee”); United States v.

Mason, 709 F. App'x 898, 904 (10th Cir. 2017) (not

precedential) (holding that assault and battery of a police

officer is not a violent felony under the ACCA because it can

be committed by spitting in the face); United States v.

Dominguez-Mayoroqui, 748 F.3d 918, 921 (9th Cir. 2014)

(holding that simple assault under 18 U.S.C. § 111(a) is not a

crime of violence under the Sentencing Guidelines'

enhancement for unlawful entry because it can be committed

by "spitting in [a] mail carrier's face”); United States v.

Maldonado-Lopez, 517 F.3d 1207, 1209 (10th Cir. 2008)

(holding that a Colorado harassment law was not a crime of

violence under the Sentencing Guidelines' enhancement for

unlawful entry because it included "both violent and

nonviolent crimes . . . because it could include violent physical

contact, such as striking a victim, or physical contact not

involving force, such as spitting on a victim”).

13

(2004) (negligence).11

As a result, we must consider the state

of mind with which the offense can be committed. Section

2703 has two state of mind components. To violate § 2703, a

defendant must knowingly or intentionally cause another to

come into contact with a fluid by engaging in certain specified

acts, such as spitting (the "spitting element”). Thus, the actus

reus must be performed knowingly or intentionally and not

recklessly or negligently. A different mens rea applies to what

the defendant knew about the fluid (the "fluid element”).

Under the statute, the defendant needs to have known or should

have known that the bodily fluid came from someone with a

communicable disease.

Section 4B1.2 provides that a crime of violence must

have "an” element that involves the use, attempted use, or

threatened use of force. U.S.S.G. § 4B1.2. One sister circuit

has read this language to mean that so long as one of the

elements of the offense is satisfied by knowing or intentional

conduct, the fact that other elements can be satisfied by a lower

mens rea is of no consequence. United States v. Werle, 877

F.3d 879, 883 (9th Cir. 2017) (negligence as to element of

putting victim in "reasonable fear that the threat to kill would

be carried out” for harassment); United States v. Lawrence,

627 F.3d 1281, 1288 (9th Cir. 2010) (recklessness as to

11 Borden and Leocal bind our analysis because the

statutes considered there—ACCA and 18 U.S.C. § 16(a)

respectively—are sufficiently similar to the career offender

provision. See, e.g., United States v. Brown, 765 F.3d 185,

189 n.2 (3d Cir. 2014) (ACCA cases binding on career

offender cases); Henry v. Bureau of Immigration and Customs

Enforcement, 493 F.3d 303, 308 (3d Cir. 2007) (Section 16(a)

cases binding on career offender cases).

14

element of substantial bodily harm for assault), overruled on

other grounds by Descamps v. United States, 570 U.S. 254

(2013). While that may be true for the statutes under

consideration in those cases, the same does not apply here.

The lower mens rea in Lawrence and Werle applied to

the results of the actus reus rather than to attendant

circumstances that make the actus reus dangerous. For

instance, the threat statute at issue in Werle required proof that

the defendant "subjectively know” that he was communicating

a threat to use physical force and that the threat placed the

victim "in reasonable fear that the threat would be carried out.”

877 F.3d at 883 (quoting Wash. Rev. Code 9A.46.020). The

lower mens rea component of the statute focused on the impact

on the victim's state of mind. The Lawrence court examined a

statute that criminalized an intentional assault that recklessly

inflicted substantial bodily harm, so the court was evaluating a

statute that had as an element the results of the intentional act.

627 F.3d at 1285 (discussing Wash. Rev. Code

9A.36021(1)(a)).

Section 2703, in contrast, requires proof that the

defendant knew why the instrument of the crime, such as

spitting saliva, was dangerous. The Commonwealth must

prove what the defendant knew or should have known about

the source or content of the fluid. Notably, § 2703 was enacted

as part of a larger movement among state legislatures in the

1990s to respond to the AIDS crisis and the then-perceived

effect of inmates and others using bodily fluids to cause harm.

See generally Developments in the Law—Animus and Sexual

Regulation, 127 Harv. L. Rev. 1767, 1777 (2014) (describing

criminalization of HIV and how media reports "ignited

hysteria and rage” regarding the disease without regard to

15

actual transmission risks). To that end, the statute specifically

concerns not just bodily fluids but infected fluids. Thus, the

state of mind requirement for the fluid element is as important

as the state of mind applicable to the spitting element for

determining whether the predicate offense here is a qualifying

crime of violence.

The fluid element includes the state of mind of "should

have known,” and thus embodies the standard for negligence.

See Model Penal Code § 2.02(2)(d) (providing that a person

acts negligently if he is not but "should be aware” of such a

"substantial and unjustifiable risk,” in "gross deviation” from

the norm). An offense that can be committed negligently is not

a crime of violence. See Leocal, 543 U.S. at 9, 13 (evaluating

Florida's DUI statute, which does not specify a mental state for

operating a vehicle, and holding that because that statute could

reach "individuals who were negligent or less,” it was not a

crime of violence and explaining that "use . . . of physical force

. . . most naturally suggests a higher degree of intent than

negligent or merely accidental conduct”); see also United

States v. Castleman, 572 U.S. 157, 171 (2014) (noting that use

of force is "the act of employing [the tool] knowingly as a

device to cause physical harm”); Chapman, 866 F.3d at 133

(requiring the "intentional employment of something capable

of causing physical pain or injury”).12

A defendant can be

12 See also United States v. Simmons, 917 F.3d 312,

320-21 (4th Cir. 2019), as amended (Mar. 6, 2019) (holding

that because assault in North Carolina can be satisfied with

"culpable negligence,” it cannot constitute a crime of violence

under the Guidelines); Ramirez v. Lynch, 810 F.3d 1127, 1133

(9th Cir. 2016) (stating that "to qualify as a crime of violence

16

convicted of § 2703's bodily fluids felony with only a

negligent state of mind as to whether the fluid originated from

an infected person. For this additional reason, it is not a

qualifying "crime of violence” under § 4B1.2.13

[under 18 U.S.C. § 16(a), the defendant] must have 'use[d]

force' with a mens rea that incorporates a degree of intent

greater than does negligence or recklessness” (alteration in

original)).

13 In support of its argument that it is of no consequence

that certain elements of § 2703 have a lower mens rea, the

Government identifies crimes of violence, such as bank

robbery, that include elements for which there is no mental

state, and thus could be viewed as criminalizing negligence.

See Appellee's Br. at 18 ("Many violent crimes include

additional, nonviolent elements; for instance, the bank robbery

convictions in this case involve not only the use of force, but

also . . . the existence of federal insurance[, which specifies no

mens rea.]”); see also 18 U.S.C. § 2113(f) ("'[B]ank' means

any member bank of the Federal Reserve System . . . and any

institution the deposits of which are insured by the Federal

Deposit Insurance Corporation.”). The insurance requirement

for bank robbery, however, is a jurisdictional hook about which

a defendant need not have knowledge, see 3d Cir. Model

Criminal Jury Instructions 6.18.2113A, while the infection

requirement here requires knowledge or reason to have had

knowledge. Moreover, Leocal itself involved a DUI statute

that did not "require any mental state with respect to the use of

force against another person,” yet "operat[ing] a vehicle” is

impossible without intent. Leocal, 543 U.S. at 13 (quoting Fla.

Stat. § 316.193(3)(c)(2)). The Supreme Court still held it was

not a crime of violence because at least some elements were

satisfied by negligence or less. See id. at 9.

For the foregoing reasons, we will vacate Quinnones’

sentence and remand for resentencing