United States v. Lee Sokalsky

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 25-1196 _____________

UNITED STATES OF AMERICA

v.

LEE SOKALSKY, Appellant ____________________________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 3:15-cr-00040-001) District Judge: Honorable Robert D. Mariani

___________________________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) on September 15, 2025

Before: RESTREPO, McKEE, and RENDELL, Circuit Judges

(Opinion filed: November 10, 2025)

_____________________

OPINION ______________________

 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. McKEE, Circuit Judge.

Lee Sokalsky challenges the District Court’s denial of his motion to modify or

vacate his sentence pursuant to 28 U.S.C. § 2255.1 We granted a certificate of

appealability on the question of whether trial counsel rendered ineffective assistance by

failing to object to Sokalsky’s 2001 aggravated assault convictions as career-offender

predicates under the U.S. Sentencing Guidelines. For the reasons that follow, we will

affirm the District Court.

I.

To claim ineffective assistance of counsel, Sokalsky must satisfy the two-prong

test set forth by the Supreme Court in Strickland v. Washington.2 First, Sokalsky must

“show that [the] counsel’s performance was deficient[,]” and second, “that the deficient

performance prejudiced the defen[dant].”3 “To meet the first prong, counsel’s

performance must fall ‘below an objective standard of reasonableness considering all the

circumstances.’”4 To establish prejudice under the second prong, a defendant is required

to demonstrate “that the decision reached would reasonably likely have been different

absent the errors.”5

1 The facts of this case are known to the parties and are recounted only to the extent necessary to explain the disposition of this case. 2 Strickland v. Washington, 466 U.S. 668, 687 (1984). 3 McKernan v. Superintendent Smithfield SCI, 849 F.3d 557, 564 (3d Cir. 2017) (citing Strickland, 466 U.S. at 687). 4 Id. (quoting Jacobs v. Horn, 395 F.3d 92, 102 (3d Cir. 2005)). 5 Strickland, 466 U.S. at 696.

2 II.

Central to Sokalsky’s ineffective counsel challenge is whether Sokalsky has “two

prior felony convictions of either a crime of violence or a controlled substance offense”

as required to be deemed a career offender under the Sentencing Guidelines.6 Sokalsky

alleges that his second degree aggravated assault conviction under 18 Pa.C.S.A. §

2702(a)(4) does not qualify as a valid career offender predicate where it “merged” for

sentencing purposes with his higher-graded § 2702(a)(1) conviction.7 Sokalsky argues

that, as a result of the merger, he received a “no penalty sentence” on the § 2702(a)(4)

conviction, and thus the conviction may not serve as one of the two predicates required

for career offender status under U.S.S.G. § 4B1.1(a).

However, we need not reach the question of whether Sokalsky’s § 2702(a)(4)

conviction is a valid predicate, because it is clear under this Court’s precedent in United

States v. Brasby that Sokalsky’s § 2702(a)(1) conviction is a valid predicate under the

enumerated offenses clause of U.S.S.G. § 4B1.2(a).8 In Brasby, this Court applied the

categorical approach to conclude that New Jersey’s aggravated assault statute qualifies as

a “crime of violence” under the enumerated offenses clause.9 The analysis in Brasby

6 U.S.S.G. § 4B1.1(a). It is undisputed that Sokalsky’s 2009 conviction in Pennsylvania state court for manufacturing, delivering, or possessing with intent to manufacture or deliver a controlled substance, see 35 Pa. Cons. Stat. § 780-113(a)(30), qualifies as a “controlled substance offense” for career-offender purposes. See United States v. Glass, 904 F.3d 319, 324 (3d Cir. 2018). 7 See 42 Pa. C. S. § 9765. 8 See 61 F.4th 127, 142–43 (3d Cir. 2023). 9 Id.

3 applies with equal force to Sokalsky’s § 2702(a)(1) offense, which is identical in its

operative terms to New Jersey’s aggravated assault statute: they both criminalize

completed or attempted aggravated assault resulting in serious bodily injury that is

committed with extreme-indifference recklessness.10 These elements match the generic

federal offense, and thus § 2702(a)(1) constitutes a “crime of violence” under the

Guidelines.

Because Brasby establishes that Sokalsky’s § 2702(a)(1) offense is a crime of

violence, Sokalsky had two prior felony convictions of a crime of violence or a controlled

substance offense as required to be classified a career offender.11 Thus, Sokalsky’s

collateral challenge fails under Strickland, as Sokalsky was not prejudiced by counsel’s

failure to object to the use of Sokalsky’s § 2702(a)(1) conviction as a career offender

predicate.12

III.

For the foregoing reasons, we will affirm the District Court.

10 See United States v. Olinsky, 2023 WL 2945899, at *3 (3d Cir. Apr. 14, 2023) (citing Brasby and concluding that § 2702(a)(1) is a career offender predicate offense). 11 See U.S.S.G. § 4B1.1(a). 12 See United States v. Vines, 134 F.4th 730, 740 (3d Cir. 2025) (“We will not treat counsel’s failure to raise a meritless argument as prejudicial.”).