United States v. Mahone, No. 10-2305 (3d Cir. 2011)Annotate this Case
After defendant's plea of guilty to being a felon in possession of a firearm (18 U.S.C. 922(g)(1)), a presentence report indicated that the base offense level under U.S.S.G. 2K2.1(a)(2) was 24 because he had at least two felony convictions of either a crime of violence or a controlled substance offense. Defendant acknowledged the controlled substance conviction, but argued that his base offense level should have been only 20 because his 1994 conviction under Pennsylvania law for making terroristic threats in violation of 18 Pa. Cons. Stat. 2706 did not qualify as a COV. The district court rejected the argument and sentenced him to a within-guidelines sentence of 80 months. The Third Circuit affirmed, applying a modified categorical approach. The charging document and plea colloquy demonstrated that the conviction under 2706 for threatening to commit criminal homicide constituted a COV because it always has as an element threatened use of physical force against the person of another.