United States v. Daniels

Citation915 F.3d 148
Decision Date07 February 2019
Docket NumberNo. 17-3503,17-3503
Parties UNITED STATES of America v. Kenneth DANIELS, Appellant
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Emily McKillip, William M. McSwain, Timothy M. Stengel, Robert A. Zauzmer, Office of United States Attorney, 615 Chestnut Street, Suite 1250, Philadelphia, PA 19106, Attorneys for Appellee

Karl D. Schwartz, P.O. Box 8846, Elkins Park, PA 19027, Attorney for Appellant

BEFORE: KRAUSE, COWEN, and FUENTES, Circuit Judges

OPINION OF THE COURT

COWEN, Circuit Judge.

Kenneth Daniels appeals from the criminal sentence entered by the United States District Court for the Eastern District of Pennsylvania. He argues that a violation of the Pennsylvania Controlled Substance, Drug, Device and Cosmetic Act, 35 Pa. Stat. Ann. § 780-113(a)(30), does not qualify as a "serious drug offense" under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(2)(A)(ii). We must first decide whether § 924(e)(2)(A)(ii)'s definition of a "serious drug offense" encompasses attempts (as defined under federal law) to manufacture, distribute, or possess with intent to manufacture or distribute a controlled substance. If it does, we must then consider whether the scope of attempt and accomplice liability under Pennsylvania law is coextensive with the meaning of those terms under federal law. Based in large part on our recent rulings in United States v. Glass, 904 F.3d 319 (3d Cir. 2018), petition for cert. filed ––– U.S. ––––, S.Ct. ––––, ––– L.Ed.2d ––––, 2019 WL 113432 (U.S. No. 18-6748) (Nov. 14, 2018), and Martinez v. Attorney General, 906 F.3d 281 (3d Cir. 2018), as well as our older yet still precedential opinion in United States v. Gibbs, 656 F.3d 180 (3d Cir. 2011), we answer both questions in the affirmative. Accordingly, Daniels's sentence will be affirmed.

I.

Pursuant to a plea agreement, Daniels entered a guilty plea to one count of being a convicted felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). He had at least three previous convictions under the Pennsylvania drug statute, 35 Pa. Stat. Ann. § 780-113(a)(30), for possession with intent to deliver cocaine.

Daniels reserved his right to challenge the government's allegation that he was an armed career criminal under 18 U.S.C. § 924(e).1 If applied, § 924(e) triggers a fifteen-year mandatory minimum. According to Daniels, his convictions cannot count as ACCA predicates because the elements of the state drug statute sweep more broadly than the generic definition of a drug distribution crime. He argued that, "[b]y virtue of Pennsylvania's treatment of solicitation and mere offers to sell, it is far from clear that a violation of 35 Pa.C.S. § 780-113(a)(30), is, as a categorical matter, a ‘serious drug offense’ within the meaning of ACCA." (JA25.) At sentencing, Daniels also argued that, without his armed career criminal designation, his Guidelines range would have been 92 to 115 months. However, application of this designation would result in a Guideline range of 180 months (the statutory minimum) to 210 months. The District Court rejected Daniels's challenge and sentenced him to 180 months' imprisonment.

II.

The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. We possess appellate jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.

Because this appeal raises questions of law, we exercise de novo review. See, e.g., Gibbs, 656 F.3d at 184.

III.

Under 18 U.S.C. § 922(g)(1), it is unlawful for a felon to possess a firearm. The ACCA mandates a minimum sentence of fifteen years' imprisonment if the felon in possession of a firearm has three previous convictions for either "a violent felony" or "a serious drug offense" (or both):

(e)(1) In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g).
(2) As used in this subsection—
(A) the term "serious drug offense" means—
(i) an offense under the Controlled Substances Act ( 21 U.S.C. 801 et seq. ), the Controlled Substances Import and Export Act ( 21 U.S.C. 951 et seq. ), or chapter 705 of title 46, for which a maximum term of imprisonment of ten years or more is prescribed by law; or
(ii) 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;
(B) The term "violent felony" means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that—
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another; and
(C) The term "conviction" includes a finding that a person has committed an act of juvenile delinquency involving a violent felony.

18 U.S.C. § 924(e).

It is undisputed that we must apply the "categorical" approach in order to decide whether Daniels had at least three previous convictions for "a serious drug offense." Id."When deciding whether a previous conviction counts as a ‘violent felony or a serious drug offense’ under the ACCA, a sentencing court may look only to the elements of a defendant's prior conviction, not ‘to the particular facts underlying those convictions.’ " United States v. Abbott, 748 F.3d 154, 157 (3d Cir. 2014) (quoting Descamps v. United States, 570 U.S. 254, 260-61, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) ). As the government states in its appellate brief, "the issue is whether the elements of the prior crime encompass and are no broader than the elements described in the federal definition." (Appellee's Brief at 14 (citing Abbott, 748 F.3d at 157 ) ). If the elements of the prior conviction are identical to (or narrower than) the elements of the generic ACCA crime, the prior conviction can serve as an ACCA predicate. See, e.g., Descamps, 570 U.S. at 261, 133 S.Ct. 2276. "But if the statute sweeps more broadly than the generic crime, a conviction under that law cannot count as an ACCA predicate, even if the defendant actually committed the offense in its generic form." Id. The categorical approach "requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime." Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007). A defendant may establish such a probability by showing that the state statute was so applied in his or her own case or by pointing to other cases in which the state courts applied the statute in a non-generic fashion. See, e.g., id. Furthermore, a "modified" categorical approach may apply to divisible statutes, i.e., a statute of conviction that lists alternative elements (as opposed to alternative means for committing the same offense). See, e.g., Mathis v. United States, ––– U.S. ––––, 136 S.Ct. 2243, 2248-50, 195 L.Ed.2d 604 (2016). Documents like the indictment, jury instructions, a plea agreement, or a colloquy may then be employed to determine the specific crime of conviction. See, e.g., id. at 2249. "The court can then compare that crime, as the categorical approach commands, with the relevant generic offense." Id.

Section 780-113(a)(30) prohibits (except as authorized by the Pennsylvania drug statute) "the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, or knowingly creating, delivering or possessing with intent to deliver, a counterfeit controlled substance." As we recognized in Glass, "Pennsylvania law goes on to define ‘deliver’ as ‘the actual, constructive, or attempted transfer from one person to another of a controlled substance.’ " Glass, 904 F.3d at 322 (quoting 35 Pa. Stat. Ann. § 780-102(b) ). "[T]he federal counterpart to this statute, the Controlled Substances Act (CSA), also defines the ‘delivery’ of a controlled substance to mean ‘the actual, constructive, or attempted transfer of a controlled substance,’ 21 U.S.C. § 802(8)."2 Glass, 904 F.3d at 322. In turn, 21 U.S.C. § 802(11) states that "[t]he term ‘distribute’ means to deliver (other than by administering or dispensing) a controlled substance or a listed chemical." Pennsylvania's drug law also defines "distribute" to mean "to deliver other than by administering or dispensing a controlled substance, other drug, device or cosmetic." § 780-102(b). Both federal and Pennsylvania law include statutory provisions addressing attempt and accomplice liability. See 18 U.S.C. § 2 ("Principals"); 21 U.S.C. § 846 ("Attempt and conspiracy"); 18 Pa. Cons. Stat. Ann. §§ 306 ("Liability for conduct of another; complicity"), 901 ("Criminal attempt").

According to Daniels, Section 780-113(a)(30) sweeps more broadly than the generic federal definition of "a serious drug crime." Daniels vigorously argues that, unlike the Pennsylvania drug statute, a "serious drug crime" under the ACCA does not include attempts. He further argues...

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