A man with a criminal history involving aggravated assault and drug dealing should have been considered a violent “career offender” under federal sentencing guidelines, a federal appeals court has ruled.

The U.S. Court of Appeals for the Third Circuit vacated a district judge’s sentence of nearly nine months in prison for the three-time convict Juan Ramos and remanded for re-sentencing.

In 2008, Ramos was arrested on charges related to selling crack out of his truck in Philadelphia. A year later, he pleaded guilty and was sentenced to 180 months in prison. On a post-conviction appeal, the judge downgraded his sentence to 105 months.

The district judge held that Ramos’ prior assault, drug and burglary convictions were not enough to make him as a career criminal under the Armed Career Criminal Act, which requires three convictions to earn such a classification. The judge adopted Ramos’ argument that the burglary conviction was no longer a predicate to the ACCA. The judge also took into account Ramos’ acceptance of responsibility.

Prosecutors argued Ramos’ punishment should have been measured under the federal sentencing guidelines, which require only two convictions to be considered a career criminal.

Ramos countered that under the guidelines, his aggravated assault conviction was not a predicate violent crime.

The Third Circuit disagreed.

“Ramos’s status as a career offender is dictated by his criminal record, which includes several prior felony convictions. First, in July 1998, Ramos ‘threw a brick at the nose of a 10-year-old child,’ who then required medical treatment at a local hospital. As a result, Ramos pled guilty to aggravated assault,” Third Circuit Judge Jane Richards Roth wrote in the court’s opinion.

“Second, in October 1999, Ramos was apprehended with 2.76 grams of heroin and subsequently convicted in state court for manufacturing, delivering, or possessing with intent to manufacture or deliver a controlled substance, and knowingly possessing a controlled substance,” she continued, “And third, in August 2001, Ramos broke into a furniture store and stole ‘several futons’; he later pled guilty to burglary in state court.”

Roth said that aggravated assault is categorically a violent crime, as it involves the use of bodily force against another person, in this case with a deadly weapon.

“Ramos argues that his conviction is not a crime of violence because the aggravated assault statute allows for conviction based merely on inaction (e.g., child neglect), and thus does not require any affirmative act of physical force,” Roth said. She added, however, “it is nearly 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.”

William McSwain, U.S. attorney for the Eastern District of Pennsylvania, said of the ruling: “We are very pleased with today’s decision, which permits appropriate sentencing of a violent, repeat offender. Prosecuting violent crime is a priority for the Department of Justice and for our office. Significant prison sentences for such offenders ultimately make our communities safer.”

Ramos is represented by Arianna J. Freeman of the Federal Community Defender Office.

Freeman said the decision was disappointing but remained optimistic.

“This is a quickly developing area of the law and we are analyzing the opinion to determine whether there is a basis for further review,” Freeman said.