United States v. Glass

• Citation: 904 F.3d 319
• Decision Date: 22 August 2018
• Docket Number: No. 16-2906,16-2906
• Parties: UNITED STATES of America v. Malachi M. GLASS, Appellant
• Court: U.S. Court of Appeals — Third Circuit

904 F.3d 319

UNITED STATES of America
v.
Malachi M. GLASS, Appellant

No. 16-2906

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit L.A.R. 34.1a August 17, 2018
Opinion Filed: August 22, 2018

Edward J. Rymsza, III, Miele & Rymsza, 125 East Third Street, Williamsport, PA 17701, Counsel for Appellant

David J. Freed, Daryl F. Bloom, Stephen R. Cerutti, Office of United States Attorney, 228 Walnut Street, P.O. Box 11754, 220 Federal Building and Courthouse, Harrisburg, PA 17108, Counsel for Appellee

Before: VANASKIE, KRAUSE, and RESTREPO, Circuit Judges

OPINION OF THE COURT

VANASKIE, Circuit Judge.

Appellant Malachi Glass appeals his criminal sentence, in particular the District Court’s application of a career-offender enhancement under the United States Sentencing Guidelines ("U.S.S.G.") § 4B1.1. We will affirm.

I.

Glass pleaded guilty to one count of possession with intent to distribute cocaine hydrochloride in violation of 21 U.S.C. § 841(a)(1). At Glass’s sentencing hearing, the District Court applied a career-offender enhancement pursuant to U.S.S.G. § 4B1.1. The enhancement was based on two prior state convictions under 35 Pa. Cons. Stat. § 780-113(a)(30)—one from 2001, CP-22-CR-2630-2001; and one from 2004, CP-31-CR-460-2004. Despite the enhancement, the District Court applied a downward variance. The District Court based the variance primarily on the observation that the pre-sentence investigation report ("PSR") overstated the seriousness of Glass’s criminal past. The District Court also justified varying downward by citing Glass’s significant family responsibilities, his drug addiction, and his relatively young age. The District Court ultimately imposed a prison term of 132 months.

Glass filed a timely notice of appeal, challenging the career-offender enhancement. We appointed appellate counsel. In July 2017, this Court denied appointed counsel's motion to withdraw under

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Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), recognizing that Glass had raised two non-frivolous arguments concerning the use of his state court convictions as predicates for a sentencing enhancement under the Sentencing Guidelines' career criminal provisions.¹ The Court then appointed new appellate counsel and ordered the parties to brief the merits of the appeal. We address the merits of Glass’s appeal below.

II.

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.

The parties dispute which standard of review should govern our analysis. Glass argues he preserved his challenge to the career-offender enhancement, which would trigger de novo review. Alternatively, he claims he did not waive his challenge and, at the very least, plain error review should apply. On the other hand, the government contends that Glass either waived or forfeited his challenge, permitting us to disregard his argument or review it for plain error, respectively.

While it is true that Glass made several arguments regarding his criminal history to the District Court, Glass failed to challenge the inclusion of his convictions as predicate offenses for career-offender purposes prior to appeal. Even Glass’s first appellate counsel acknowledged that trial counsel had conceded the issue and thus, plain error review should apply. In light of Glass’s trial counsel’s repeated concessions that Glass was a career offender, we think it appropriate to review the imposition of the career-offender enhancement for plain error. See United States v. Dahl , 833 F.3d 345, 357 (3d Cir. 2016) (applying plain error review "because Dahl did not object to the application of [a sentencing enhancement] on the grounds he asserts here").

"To demonstrate ‘plain error’ an appellant bears the burden of proving that: (1) the court erred; (2) the error was ‘plain’ at the time of appellate consideration; and (3) the error affected substantial rights, usually meaning that the error ‘must have affected the outcome of the district court proceedings.’ " Gov't of the Virgin Islands v. Rosa , 399 F.3d 283, 293 (3d Cir. 2005) (quoting United States v. Olano , 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) ).

III.

As relevant here, a defendant qualifies for a career-offender enhancement under the Guidelines if he or she "has at least two prior felony convictions of ... a controlled substance offense." U.S.S.G. § 4B1.1(a). A "controlled substance offense" is an offense that (1) is punishable by a term of imprisonment that exceeds one year and (2) "prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense." Id. § 4B1.2(b). A state conviction cannot qualify as a "controlled substance offense" if its elements are broader than those listed in § 4B1.2(b). See Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 2251, 195 L.Ed.2d 604 (2016) (holding, in the Armed Career Criminal Act ("ACCA") context, that "a state crime cannot qualify as ... [a] predicate if its elements are broader

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than those of a listed generic offense"); see also United States v. Hinkle , 832 F.3d 569, 574 (5th Cir. 2016) (applying Mathis to...