United States v. Brasby, No. 21-1537 (3d Cir. 2023)
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In 2005, Brasby was convicted in state court of aggravated assault, a second-degree felony, for recklessly causing serious bodily injury to another person by shooting the person four times in the back. The New Jersey statute provided: A person is guilty of aggravated assault if he . . . [a]ttempts to cause serious bodily injury to another, or causes such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury.” In 2019, police arrested Brasby after they observed him selling drugs. A search incident to the arrest found suspected controlled substances and a loaded stolen handgun.
Brasby, indicted for illegal possession of a firearm by a felon, 18 U.S.C. 922(g)(1), entered into a plea agreement. The parties did not agree on whether Brasby’s 2005 conviction was for a crime of violence. The Third Circuit had previously held that a conviction for reckless conduct is insufficient to qualify as a crime of violence under the Sentencing Guidelines’ elements clause.
The Third Circuit to affirmed his 57-month sentence based on a 57-71 month Guidelines range. Without the "crime of violence" enhancement, the range would have been 30-37 months. Brasby’s aggravated assault conviction qualified as a felony conviction for a crime of violence under U.S.S.G. 4B1.2(a) because the federal generic definition of aggravated assault—and therefore the Guidelines’ definition—includes the same mens rea of heightened recklessness as the New Jersey statute.
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