United States v. Terell Crump

• Court: Court of Appeals for the Third Circuit
• Decided: January 21, 2026
• Docket: 25-1914
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________

No. 25-1914 ______________

UNITED STATES OF AMERICA

v.

TERELL CRUMP, Appellant

______________

Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2:17-cr-00150-001) District Judge: Honorable Paul S. Diamond ______________

Submitted Under Third Circuit L.A.R. 34.1(a) January 15, 2026 ______________

Before: SHWARTZ, CHUNG, and AMBRO, Circuit Judges.

(Filed: January 21, 2026) ______________

OPINION * ____________

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

Terell Crump appeals his sentence for a firearms conviction. Because his

appellate waiver bars two of his arguments and the sentence imposed was reasonable, we

will affirm.

I

Edward Rivera posted photos and a live-streamed video on social media of himself

and Crump firing guns out of a window of a home in a densely populated Philadelphia

neighborhood during the daytime. Stills of the video also captured Crump handling, and

placing in his waistband, a firearm owned by Rivera, which, according to Rivera, had an

obliterated serial number. Crump engaged in this conduct while on parole for

Pennsylvania robbery and aggravated assault convictions.

Crump was charged with and pleaded guilty to being a felon in possession of a

firearm under 18 U.S.C. § 922(g)(1). His plea agreement included an appellate waiver

subject to five exceptions. 1 At his plea hearing, the District Court reviewed the

1 Crump’s plea agreement provides that he may raise only the following five issues on appeal:

(1) that the defendant’s sentence on any count of conviction exceeds the statutory maximum for that count . . . ; (2) challenging a decision by the sentencing judge to impose an “upward departure” pursuant to the Sentencing Guidelines; (3) challenging a decision by the sentencing judge to impose an “upward variance” above the final Sentencing Guideline range determined by the Court; (4) that an attorney who represented the defendant during the course of this criminal case provided constitutionally ineffective assistance of counsel; (5) that the

2 agreement, including the appellate waiver, and found that Crump entered the agreement

knowingly and voluntarily.

At Crump’s 2022 sentencing hearing, the District Court determined that Crump’s

total offense level and criminal history resulted in a Sentencing Guidelines range of 121

to 151 months’ imprisonment and sentenced him to the statutory maximum sentence of

120 months’ imprisonment. 2 Crump appealed, and we vacated his sentence based on an

error under then-existing law concerning whether his aggravated assault conviction could

be used to enhance his base offense level, and remanded to the District Court for

resentencing. 3 See United States v. Crump, No. 22-3379, 2023 WL 7297334, at *2-3 (3d

Cir. Nov. 6, 2023) (not precedential).

district court decided adversely to the defendant the following issue: whether the defendant’s previous convictions for aggravated assault and robbery qualif[y] as “crimes of violence” pursuant to U.S.S.G. § 4Bl.2(a).

Supp. App. 11-12. 2 In so doing, the District Court held that (1) Crump’s base offense level was 24 because he committed the offense before us after sustaining two felony convictions for crimes of violence: robbery, in violation of 18 Pa. Cons. Stat. § 3701(a)(1)(ii), and aggravated assault, in violation of 18 Pa. Cons. Stat. § 2702(a)(3); (2) a four-level enhancement to Crump’s base offense level for possessing a firearm and ammunition in connection with another felony offense, namely, reckless endangerment of another person, in violation of 18 Pa. Cons. Stat. § 2705, under U.S.S.G. § 2K2.1(b)(6)(B) (2023) (since renumbered § 2K2.1(b)(7)(B)), applied; and (3) a four-level enhancement to Crump’s base offense level for possessing a gun with an obliterated serial number under U.S.S.G. § 2K2.1(b)(4) (2023) (since amended), applied. 3 In vacating the ruling, we cited United States v. Jenkins, 68 F.4th 148 (3d Cir. 2023), which held that “second-degree aggravated assault in violation of 18 Pa. Cons. Stat. § 2702(a)(3) can be committed by a failure to act, so it is not a ‘violent felony.’” Id.

3 On remand, the District Court again determined that Crump’s base offense level

and criminal history resulted in a range of 121 to 151 months’ imprisonment and

sentenced him to the statutory maximum sentence of 120 months’ imprisonment. In

addition to overruling Crump’s objections to the two four-level enhancements to his base

level offense under U.S.S.G. §§ 2K2.1(b)(4) and (b)(6)(B), the Court held that his

conviction for second degree aggravated assault constituted a crime of violence because

the statutory language showed that the crime could not be committed simply by an

offensive touching without bodily harm.

The District Court further explained that, even if aggravated assault were not a

crime of violence, and Crump’s Guidelines range were lowered to 84-105 months’

imprisonment, it would still vary upward and impose a 120-month sentence. The Court

noted mitigating information that Crump had an extensive history of mental health

problems and substance abuse, and had challenges accessing adequate treatment while

incarcerated, 4 but emphasized that, “since being incarcerated, Crump ha[d] committed

twenty-four infractions for violations that include multiple assaults, refusals to obey

at 155. The Supreme Court thereafter clarified that “[t]he knowing or intentional causation of injury or death, whether by act or omission, necessarily involves the use of physical force against another person.” Delligatti v. United States, 604 U.S. 423, 439 (2025). Due to this intervening decision, the “law of the case” doctrine and our earlier precedent on this subject of omission do not control the outcome here. In re Pharmacy Benefit Managers Antitrust Litig., 582 F.3d 432, 439 (3d Cir. 2009); In re Krebs, 527 F.3d 82, 84 (3d Cir. 2008) (“A panel of this Court may reevaluate the holding of a prior panel which conflicts with intervening Supreme Court precedent.”). 4 The District Court also considered the report submitted by Crump’s mitigation specialist but did not find it convincing. 4 orders, insolence, repeated incidents of indecent exposure, disruptive conduct, destroying

property, drug use, and possession of a hazardous tool,” and concluded that this

“‘horrendous’ record compelled” a 120-month sentence. Supp. App. 67.

Crump appeals.

II 5

A6

We first address whether Crump in his plea agreement waived his objections to the

District Court’s imposition of Guidelines enhancements under U.S.S.G. §§ 2K2.1(b)(4)

and (b)(6)(B). To determine if he waived these objections, we consider whether (1) “the

waiver of the right to appeal [his] sentence was knowing and voluntary;” (2) an exception

in the agreement permits appeal of these issues; and (3) “enforcing the waiver would

work a miscarriage of justice.” United States v. Goodson, 544 F.3d 529, 536 (3d Cir.

2008) (internal quotation marks and citation omitted).

All three considerations support enforcing Crump’s appellate waiver. First,

Crump entered into the plea agreement and appellate waiver knowingly and voluntarily.

Second, the scope of the plea agreement’s waiver bars appellate review of the two

sentencing enhancements to which Crump objects. Crump’s plea agreement has five

5 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. 6 We exercise “plenary review in deciding whether an issue raised by a defendant falls within the scope of an appellate waiver in his plea agreement.” United States v. Goodson, 544 F.3d 529, 537 n.6 (3d Cir. 2008). 5 exceptions to the appellate waiver and challenges to sentencing enhancements under the

Sentencing Guidelines do not fall within any of these exceptions. 7 Third, enforcing the

waiver would not work a miscarriage of justice. Crump argues only that the

enhancements under U.S.S.G §§ 2K2.1(b)(4) and (b)(6)(B) amounted to sentencing

errors, but “a district court’s arguably erroneous calculation of a guidelines range is

precisely the kind of garden variety claim of error contemplated by [an] appellate

waiver[]” and enforcing the waiver in such a circumstance “is not a miscarriage of

7 To avoid this conclusion, Crump insists that application of these enhancements constitutes an upward departure or variance because the enhancements were erroneously applied. He is mistaken because “[a]n ‘enhancement’ is an adjustment to the base offense level as specifically provided by the Guidelines, whereas an ‘upward departure’ is a discretionary adjustment to the Guidelines range once calculated,” United States v. Shedrick, 493 F.3d 292, 298 n.5 (3d Cir. 2007), and a “variance[]” is a “discretionary change[] to a guidelines sentencing range based on a judge’s review of all the § 3553(a) factors,” United States v. Brown, 578 F.3d 221, 226 (3d Cir. 2009). Because a sentencing enhancement is neither a departure nor a variance, Crump’s arguments regarding the enhancements under U.S.S.G §§ 2K2.1(b)(4) and 2K2.1(b)(6)(B) are waived under the plea agreement’s appellate waiver. 6 justice.” United States v. Castro, 704 F.3d 125, 141-42 (3d Cir. 2013) (internal quotation

marks and citations omitted).

Because Crump waived appellate review of the District Court’s application of

these Guideline enhancements in his plea agreement, we do not review those claims.

B8

Crump also argues that the District Court wrongly held that his conviction for

second-degree aggravated assault is a “crime of violence,” and thus applied the incorrect

base offense level. We need not address this argument because the District Court

explained that, even if second-degree aggravated assault were not a crime of violence, it

would still vary upwards to impose a 120-month, above-Guidelines sentence. United

States v. Carter, 730 F.3d 187, 193 (3d Cir. 2013) (explaining that any error in sentence

due to finding that defendant previously committed a “crime of violence” would be

harmless “because the District Court explained that it would have ordered the same

sentence even without finding a ‘crime of violence’”). Therefore, we will examine

whether that variance, and thus the ultimate sentence, would have been reasonable.

8 In reviewing a sentence for substantive reasonableness, we consider the totality of the circumstances. United States v. Douglas, 885 F.3d 145, 150 (3d Cir. 2018). “Absent significant procedural error, ‘we will affirm [the sentence as substantively reasonable] unless no reasonable sentencing court would have imposed the same sentence on th[e] particular defendant for the reasons the district court provided.’” Id. (alterations in original) (quoting United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc)); see also Tomko, 562 F.3d at 567 (explaining that the substantive reasonableness of a sentence is reviewed for abuse of discretion). 7 “Where . . . a district court decides to vary from the Guidelines’ recommendations,

we ‘must give due deference to the district court’s decision that the § 3553(a) factors, on

a whole, justify the extent of the variance.’” United States v. Tomko, 562 F.3d 558, 561

(3d Cir. 2009) (en banc) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). Crump

argues that the sentence was substantively unreasonable because the District Court, in

imposing the statutory maximum sentence, failed to adequately (1) consider Crump’s

extensive history of mental health problems and substance abuse, and (2) address the

adequacy of the treatment he received while incarcerated. This argument is unavailing.

First, a claim that a court did not adequately consider an argument is a procedural

reasonableness challenge, which Crump does not make. Even if he did, the District Court

considered both of those mitigating factors at Crump’s resentencing. Second, “a district

court’s failure to give mitigating factors the weight a defendant contends they deserve

does not make a sentence substantively unreasonable.” United States v. Seibert, 971 F.3d

396, 402 (3d Cir. 2020) (internal quotation marks and citations omitted), opinion

clarified, 991 F.3d 1313 (3d Cir. 2021). Instead, we “defer to the District Court’s

application of the § 3553 factors” and the weight given to them because “[i]t is the trial

court that ‘sees and hears the evidence, makes credibility determinations, [and] has full

8 knowledge of the facts and gains insights not conveyed by the record.’” Id. (second

alteration in original) (quoting Tomko, 562 F.3d at 561). 9

Considering the totality of the circumstances, including Crump’s prior

convictions, the risk of harm the conduct underlying the instant conviction presented, his

lengthy record of misconduct while incarcerated, his history of mental health problems

and substance abuse, and the purported inadequacy of the treatment for these issues, the

District Court would have acted within its discretion to impose an upward variance, and

we cannot say that no reasonable sentencing court would have imposed the same

sentence. Therefore, even if the District Court had erred in finding that Crump was

previously convicted of a crime of violence, his 120-month sentence is substantively

reasonable.

III

For the foregoing reasons, we will affirm.

9 See also United States v. Johnson, 803 F.3d 610, 620 (11th Cir. 2015) (deferring to “weight . . . given to each of [the § 3553] factors” by the district court and affirming imposition of an upward variance as substantively reasonable); United States v. Nelson, 793 F.3d 202, 207 (1st Cir. 2015) (affirming upward variance that “reflect[ed] the sentencing judge’s concerted deliberation”). 9