United States v. Dawson

• Decision Date: 28 April 2022
• Docket Number: 20-3338
• Citation: 32 F.4th 254
• Parties: UNITED STATES of America v. Dorian DAWSON, Appellant
• Court: U.S. Court of Appeals — Third Circuit

32 F.4th 254

UNITED STATES of America

v.Dorian DAWSON, Appellant

No. 20-3338

United States Court of Appeals, Third Circuit.

Argued February 10, 2022

Filed: April 28, 2022

Lisa B. Freeland, Renee Pietropaolo (argued), Office of Federal Public Defender, 1001 Liberty Avenue, Suite 1500, Pittsburgh, PA 15222, Counsel for Appellant

Stephen R. Kaufman, Adam N. Hallowell (argued), Laura S. Irwin, Office of the United States Attorney, 700 Grant Street, Suite 4000, Pittsburgh, PA 15219, Counsel for Appellee

Before: GREENAWAY, JR., SCIRICA, and RENDELL, Circuit Judges.

OPINION OF THE COURT

RENDELL, Circuit Judge.

Dorian Dawson appeals his sentence for possession of fentanyl with intent to distribute. He raises two claims of error. First, Dawson argues that he should not have been subject to a career offender enhancement because his state drug trafficking convictions are not "controlled substance offenses" under the Sentencing Guidelines. We hold that those convictions are career offender predicates, as the state offense, 35 Pa. Cons. Stat. § 780-113(a)(30), does not criminalize a broader range of conduct than the Guidelines. Second, Dawson contends that his sentence cannot stand because the District Court erred in failing to rule on a controverted issue of fact at sentencing—to wit, whether Dawson caused one of his fentanyl ‘clients’ to die from a drug overdose. See Fed. R. Crim. P. 32(i)(3)(B). However, Dawson failed to preserve this argument for plenary review, as he did not object when the putative error became evident. Reviewing for plain error then, we find that Dawson has not shown his substantial rights were affected.

Accordingly, we will affirm.

I.

On October 17, 2016, Dawson was arrested in Brentwood, Pennsylvania. He was caught driving a car containing bags of fentanyl, stamped with the label "Peace of Mind". Earlier that day, Police had responded to the overdose death of one "L.B.", who was found with empty and full bags of fentanyl bearing the same "Peace of Mind" label. Investigation of L.B.'s cell phone revealed that Dawson had been supplying L.B. with fentanyl; Police then used the deceased's phone to set up a drug deal with Dawson, apprehending him upon his arrival.

Dawson was initially charged in state court with various drug trafficking offenses, including drug delivery resulting in death, 18 Pa. Cons. Stat. § 2506, for his alleged role as the supplier of L.B.'s fatal dose. However, the case was ultimately adopted by federal authorities in the Western District of Pennsylvania, who indicted Dawson on one count of possessing fentanyl with intent to distribute, 21 U.S.C. §§ 841(a)(1), (b)(1)(C). Dawson entered an open guilty plea to this sole count.

Dawson was caught with only four grams of fentanyl, but a lengthy history of drug dealing—he had been convicted four times of heroin trafficking under 35 Pa. Cons. Stat. § 780-113(a)(30)—led Probation to classify him as a career offender and calculate a substantial guidelines range of 188 to 235 months' imprisonment. Dawson objected to this career offender designation, yet he conceded that then-controlling precedent, United States v. Hightower , 25 F.3d 182 (3d Cir. 1994), foreclosed his argument that § 780-113(a)(30) is not categorically a "controlled substance offense" under the applicable Guideline, U.S.S.G. § 4B1.2(b) ("The term ‘controlled substance offense’ means an offense under federal or state law ... that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance ...."). As we discuss at length below, the new life given to this contention by our overruling of Hightower in United States v. Nasir , 17 F.4th 459 (3d Cir. 2021), grounds the primary issue in this appeal.

Dawson also objected to the Pre-Sentence Report's ("PSR") mention of L.B.'s death from drug overdose and, in their pre-sentencing submissions, Dawson and the Government sparred over whether the death should be attributed to Dawson at sentencing under 18 U.S.C. § 3553(a). Prior to sentencing, the District Court tentatively overruled Dawson's objection to those portions of the PSR dealing with the overdose and invited him to make further submissions on the matter at the upcoming hearing.

On November 5, 2020, the District Court sentenced Dawson to 142 months' imprisonment, reflecting a 46-month downward variance from the bottom end of his Guidelines range. Although the District Court conclusively overruled his objection to the PSR's inclusion of L.B.'s overdose, the Court neither held that Dawson caused the death nor deemed the issue irrelevant to crafting a sentence under the § 3553(a) factors. See Fed. R. Crim. P. 32(i)(3)(B). However, as we explain in detail below, Dawson did not preserve any claim of error stemming from this purported omission.

Dawson timely appealed.

II.

The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). The interpretation of the Guidelines is a legal question, so we exercise plenary review. United States v. Wilson , 880 F.3d 80, 83 (3d Cir. 2018). We review unpreserved objections for plain error. United States v. Dahl , 833 F.3d 345, 349 (3d Cir. 2016).

III.

A.

We begin by addressing the career offender enhancement. The District Court agreed with Probation that Dawson had at least two qualifying predicate convictions—his repeated violations of 35 Pa. Cons. Stat. § 780-113(a)(30)—for "controlled substance offense[s]" under the Guidelines, making him a career offender. See U.S.S.G. § 4B1.1(a) ("A defendant is a career offender if ... [he] has at least two prior felony convictions of ... a controlled substance offense.").¹ Before us, Dawson disputes this finding, arguing that § 780-113(a)(30) is not a controlled substance offense.² His argument relies on the fact that one element of § 780-113(a)(30), the "delivery ... [of] a controlled substance," can be satisfied by the "attempted transfer ... of a controlled substance." 35 Pa. Cons. Stat. § 780-102. Dawson insists this means that Pennsylvania drug "delivery" cannot be a drug "distribution" offense under U.S.S.G. § 4B1.2(b).

The District Court examined this issue through the lens of then-applicable precedent, United States v. Hightower , 25 F.3d 182 (3d Cir. 1994), in which we relied on the Sentencing Commission's Commentary to hold that § 4B1.2(b) includes inchoate drug offenses. Under this rule, Dawson's point went nowhere: even if § 780-113(a)(30) somehow codifies an inchoate crime within an otherwise substantive provision, it would nonetheless be included in the Guideline via the Commentary. After Dawson had been sentenced, however, we reversed course in United States v. Nasir , 17 F.4th 459 (3d Cir. 2021), overruling Hightower and holding that "inchoate crimes are not included in" § 4B1.2(b)'s "controlled substance offense" definition, id. at 472. Our about-face would revive Dawson's argument but for one fact: § 780-113(a)(30) is not an inchoate drug crime.

Nasir is distinguishable because § 780-113(a)(30) is a completed offense which, in one definition, uses the word "attempted" in its ordinary sense.^{3 4} This subtle distinction was first discerned by Chief Judge Sutton, writing in a Sixth Circuit case comparable to Nasir . See United States v. Havis , 929 F.3d 317, 319 (6th Cir. 2019) (Sutton, J., concurring in the denial of en banc reconsideration) (noting that the term "attempted transfer," as used to define "delivery" in a drug trafficking statute, takes its "ordinary," rather than "legal term-of-art," meaning). The Sixth Circuit went on to adopt and apply this distinction in a case materially identical to Dawson's. See United States v. Thomas , 969 F.3d 583, 584-85 (6th Cir. 2020) (per curiam); see also United States v. Garth , 965 F.3d 493, 497 (6th Cir. 2020).⁵

The Sixth Circuit's analysis provides a useful paradigm for our consideration of Pennsylvania's drug trafficking statute. Although the Commonwealth's courts have provided little guidance on the meaning of "attempted transfer," careful analysis of statutory structure and prosecutorial practice reveal that § 780-113(a)(30) is not an inchoate crime. Instead, drug "delivery" is a complete offense, whether it is committed via actual or attempted transfer of drugs.

To start with, Pennsylvania prosecutes legal attempts to deliver drugs under the Code's general attempt provision, 18 Pa. Cons. Stat. § 901, rather than by charging a violation of § 780-113(a)(30) and then invoking § 780-102(b)'s "attempted transfer" definition.⁶ To interpret "attempted transfer" as an embedded inchoate offense would mean holding that Pennsylvania has codified a redundant, vestigial crime—violating the canon against surplusage. See Marx v. Gen. Revenue Corp. , 568 U.S. 371, 386, 133 S.Ct. 1166, 185 L.Ed.2d 242 (2013) (canon against surplusage "is strongest when an interpretation would render superfluous another part of the same statutory scheme") (internal citations omitted).

Further, the "attempted transfer" of drugs cannot be an inchoate offense because drug "transfer" is not a codified crime. The Commonwealth defines "criminal attempt" as follows: "A person commits an attempt when, with intent to commit a specific crime , he does any act which constitutes a substantial step toward the commission of that crime." 18 Pa. Cons. Stat. § 901(a) (emphasis added). To be guilty of a legal attempt then, one must have the intent to commit some distinct, "specific crime." So, one cannot attempt "transfer" in the technical sense because the Commonwealth criminalizes only actual transfer, constructive transfer, and attempted transfer—not mere "transfer." 35 Pa. Cons. Stat. § 780-102(b); Garth , 965 F.3d at 497 ("Delivery means attempted transfer , not attempted delivery .").

Finally, Dawson's hypothesized inchoate offense would be inconsistent with Pennsylvania mens rea caselaw. If "attempted transfer" is an inchoate crime like any other, then ‘intent’ must be the applicable mens rea,...