United States v. Henderson

• Decision Date: 08 November 2016
• Docket Number: No. 15-1562,15-1562
• Citation: 841 F.3d 623
• Parties: United States of America v. Roger Henderson, Appellant
• Court: U.S. Court of Appeals — Third Circuit

841 F.3d 623

United States of America

v.Roger Henderson, Appellant

No. 15-1562

United States Court of Appeals, Third Circuit.

Argued November 6, 2015

Opinion Filed: November 8, 2016

Rebecca R. Haywood, Esq., Laura S. Irwin, Esq. (argued), Office of United States Attorney, 700 Grant Street, Suite 4000, Pittsburgh, PA 15219, Counsel for Appellee, United States of America

Linda E. J. Cohn, Esq., Renee Pietropaolo, Esq., (argued), Office of Federal Public Defender, 1001 Liberty Avenue, 1500 Liberty Center, Pittsburgh, PA 15222, Counsel for Appellant, Roger Henderson

Before: FUENTES, JORDAN, and VANASKIE, Circuit Judges.

OPINION

VANASKIE

, Circuit Judge.

Roger Henderson appeals the District Court's determination that he was an Armed Career Criminal pursuant to the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)

. To resolve this case, we must determine whether 35 Pa. Stat. Ann. § 780–113(f)(1) of Pennsylvania's Controlled Substance, Drug, Device and Cosmetic Act is “divisible” and subject to the modified categorical approach in light of the Supreme Court's decision in Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). We find that it is, and that the District Court properly used the modified categorical approach to determine that Henderson had three qualifying predicate offenses under ACCA. We will affirm.

I.

The underlying facts are not in dispute. On October 6, 2012, detectives who were conducting surveillance on a middle school in Pittsburgh, Pennsylvania observed Henderson in the bleachers with a firearm and called uniformed police officers to the scene. When the uniformed officers arrived, Henderson slid the firearm from his waistband, placed it behind a seat, and walked away. The uniformed officers recovered the weapon and placed Henderson under arrest after recognizing him as a known felon.

A grand jury returned an indictment charging Henderson with unlawful possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1)

and 924(e)(1). Henderson entered a guilty plea on March 6, 2014. Henderson's Presentence Investigation Report revealed that Henderson had at least three qualifying convictions for serious drug offenses within the meaning of ACCA.¹ Henderson objected to the classification of two of his prior convictions as serious drug offenses. The District Court disagreed, finding that three of Henderson's prior convictions were ACCA serious drug offenses within the meaning of ACCA.

Specifically, the District Court, referencing various charging instruments and other pertinent documents, found that Henderson had separate convictions for possession with intent to deliver cocaine on June 25, 2002; possession with intent to deliver cocaine on January 25, 2004;² and possession with intent to deliver heroin on March 13, 2009. Each conviction was for a violation of 35 Pa. Stat. Ann. § 780–113(a)(30)

, and the District Court concluded that each conviction constituted “a serious drug offense within the meaning of the ACCA.” (App. 11.) Henderson was sentenced to the mandatory minimum prison term of fifteen years. This appeal followed.

II.

The District Court had jurisdiction under 18 U.S.C. § 3231

. We have jurisdiction over this appeal under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We exercise plenary review over purely legal questions, such as Henderson's legal challenge to the District Court's application of ACCA. See

United States v. Jones , 332 F.3d 688, 690 (3d. Cir. 2003). We review Henderson's challenge to the constitutionality of ACCA de novo . See

United States v. Fontaine , 697 F.3d 221, 225 n.7 (3d Cir. 2012).

III.

Henderson argues that two of his previous convictions do not qualify as serious drug offenses under ACCA. We disagree.³

Under ACCA, a “serious drug offense” includes “an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802

)), for which a maximum term of imprisonment of ten years or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii). The State law at issue here is Pennsylvania's Controlled Substance Act, which prohibits “the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act, ... or knowingly creating, delivering or possessing with intent to deliver, a counterfeit controlled substance.” 35 Pa. Stat. Ann. § 780–113(a)(30). Section 780–113(f)(1) of Pennsylvania's Controlled Substance Act sets forth the following penalty for violating Section 780–113(a)(30) of the statute:

(f) Any person who violates clause ... (30) of subsection (a) with respect to:

(1) A controlled substance or counterfeit substance classified in Schedule I or II which is a narcotic drug, is guilty of a felony and upon conviction thereof shall be sentenced to imprisonment not exceeding fifteen years....

35 Pa. Stat. Ann. § 780–113(f)(1)

(internal footnote omitted). Notably, this section disjunctively incorporates all of the “controlled substances classified in Schedule I or II” as the substances for which a defendant may receive a maximum sentence of fifteen years for possession with intent to deliver. See id . (footnote omitted). In order to identify the “substances classified in Schedule I or II,” Section 780–113(f)(1)

cross-references Section 780–104 of Pennsylvania's Controlled Substance Act, which provides an exhaustive list of controlled substances that fall within each schedule of prohibited drugs. See 35 Pa. Stat. Ann. §§ 780–104(1), (2).

To determine whether Henderson's convictions under Pennsylvania's Controlled Substance Act are ACCA predicate offenses, we employ a “categorical approach” that involves comparing “the elements of the statute forming the basis of the defendant's conviction with the elements of the ‘generic’ crime—i.e. , the offense as commonly understood.” Descamps v. United States , ––– U.S. ––––, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013)

. When applying the categorical approach, we “ ‘look only to the statutory definitions'—i.e. , the elements—of a defendant's prior offenses, and not ‘to the particular facts underlying those convictions.’ ” Id. at 2283 (quoting Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) ). The Supreme Court has explained that “[t]he prior conviction qualifies as an ACCA predicate only if the statute's elements are the same as, or narrower than, those of the generic offense.” Id. at 2281 (emphasis added). In other words, “when a statute sets out a single (or ‘indivisible’) set of elements to define a single crime,” this Court's analysis is “straightforward” because we need only “line[ ] up that crime's elements alongside those of the generic offense and see[ ] if they match.” Mathis v. United States , –––U.S. ––––, 136 S.Ct. 2243, 2248, 195 L.Ed.2d 604 (2016).

Our analysis, however, is not as straightforward when faced with statutes that “list[ ] multiple, alternative elements” that must be proven to secure a conviction for violating the statute. See Descamps , 133 S.Ct. at 2285

. These statutes are known as “divisible statutes,” id. at 2284, because they “list elements in the alternative, and thereby define multiple crimes.” Mathis , 136 S.Ct. at 2249. When faced with divisible statutes, we apply a “modified categorical approach” that allows us “to consult a limited class of documents ... to determine which alternative formed the basis of the defendant's prior conviction.” Descamps, 133 S.Ct. at 2281. The modified categorical approach permits us to “do what the categorical approach demands: compare the elements of the crime of conviction (including the alternative element used in the case) with the elements of the generic crime.” Id. ; see also

id. at 2285 (noting that “the modified approach merely helps implement the categorical approach when a defendant was convicted of violating a divisible statute” because it “retains the categorical approach's central feature: a focus on the elements, rather than the facts, of a crime”).

In United States v. Abbott

, we determined that Section 780–113(a)(30) of Pennsylvania's Controlled Substance Act—the section that underlies Henderson's previous convictions—is “divisible” and subject to the modified categorical approach. 748 F.3d 154, 156 (3d Cir. 2014). Henderson argues that Abbott is distinguishable because the prior conviction at issue in Abbott involved cocaine, for which defendants are sentenced under Section 780–113(f)(1.1) of Pennsylvania's Controlled Substance Act. 35 Pa. Stat. Ann. § 780–113(f)(1.1). Here, on the other hand, Henderson stresses that his convictions were under Section 780–113(f)(1), therefore requiring a different analysis because the Schedules in Section 780–113(f)(1)

contain more substances than the federal schedules.⁴ Because Section 780–113(f)(1) lists more substances, Henderson contends Section 780–113(f)(1)'s listing of controlled substances under “Schedule I or II” makes Section 780–113(f)(1) indivisible, such that the modified categorical approach does not have a role to play. Specifically, he maintains that Section 780–113(f)(1) is indivisible because he contends it addresses different means of committing the offense, rather than different elements . We disagree. In light of the Supreme Court's recent decision in Mathis , 136 S.Ct. 2243, we find Section 780–113(f)(1) is divisible because it addresses different elements of the offense; not the different means of committing the offense.

In Mathis

, the Supreme Court reiterated that we may use the categorical approach to analyze a statute if it “lists multiple elements disjunctively,” but may not do so if a statute “enumerates various factual means of committing a single element.” 136 S.Ct. at 2249. Accordingly, the Court explained that “[t]he first task for a sentencing court faced with an alternatively phrased statute is...