United States v. Tucker

• Decision Date: 21 December 2012
• Docket Number: No. 12–1483.,12–1483.
• Citation: 703 F.3d 205
• Parties: UNITED STATES of America v. Dante TUCKER, a/k/a Dant Dontey Tucker, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

703 F.3d 205

UNITED STATES of America

v.Dante TUCKER, a/k/a Dant

Dontey Tucker, Appellant.

No. 12–1483.

United States Court of Appeals,Third Circuit.

Argued: Nov. 1, 2012.

Filed: Dec. 21, 2012.

Richard A. Lloret, Esquire (Argued), Office of United States Attorney, Philadelphia, PA, for Appellee.

Paul M. George, Esquire (Argued), McKinney & George, Philadelphia, PA, for Appellant.

Before: SLOVITER, AMBRO, and BARRY, Circuit Judges.

OPINION

SLOVITER, Circuit Judge.

Dontey Tucker appeals the sentence imposed by the District Court following his conviction for violation of 18 U.S.C. § 922(g)(1) (2006). His appeal presents only one question: Whether Tucker's two prior Pennsylvania drug convictions qualify as “serious drug offenses” for purposes of sentencing enhancement under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (2006) ( “the ACCA”).

I. Background

In 2007, a federal grand jury indicted Tucker and twenty-one others with participating in a large-scale conspiracy to distribute cocaine, along with related drug and firearms offenses. In November of 2011, Tucker pled guilty to one count of possession of a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1). He represented himself at the plea and sentencing hearings, assisted by appointed standby counsel.

Tucker and the government disagreed about Tucker's sentencing exposure. The government asserted that Tucker was subject to sentencing enhancement under the ACCA, which mandates a minimum sentence of fifteen years for persons convicted of § 922(g)(1) who have three prior convictions for “violent felonies” or “serious drug offenses.” See§ 924(e). The government alleged that Tucker had a 1995 Pennsylvania conviction that qualified as a “violent felony” and two prior Pennsylvania convictions for “serious drug offenses:” (1) a 1999 conviction, by bench trial, for possessing a controlled substance with intent to deliver (“PWID”) in violation of 35 Pa. Stat. Ann.. § 780–113(a)(30); and (2) a 2002 conviction, by jury trial, for conspiracy to “sell drugs,” a violation of 18 Pa. Cons.Stat. Ann. § 903. App. at 156–61.

Tucker conceded the “violent felony” but argued that his two state drug convictions did not qualify as “serious drug offenses” under the terms of the federal law. A “serious drug offense” is an offense

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 government asserted that both of Tucker's drug convictions involved cocaine, and, under Pennsylvania law, carried a maximum term of imprisonment of ten years. Tucker argued that neither conviction had required a finding as to the particular drug at issue. Because maximum penalties vary according to the drug charged, he argued, the government could not show that either conviction was for an offense carrying a maximum sentence of ten years or more. Tucker reserved his right to appeal any determination that he qualified for sentencing enhancement under the ACCA. The government, in turn, reserved its right to reinstate the original charges against Tucker if he should prevail on appeal.

At sentencing, the government introduced a series of state court documents as evidence that Tucker's prior convictions were convictions for cocaine: the certified court record for the 1999 PWID conviction and, with respect to the 2002 conspiracy conviction, charging documents, jury instructions, a transcript of the post-trial sentencing hearing, and a transcript of a pre-trial charging conference.¹ Based on its review of these documents and arguments by the parties, the District Court found that both of Tucker's prior convictions were for cocaine, and so qualified as “serious drug offenses” under the ACCA. It sentenced Tucker to fifteen years imprisonment.

Tucker appeals the District Court's determination that his 1999 and 2002 convictions constitute “serious drug offenses.”

II. Jurisdiction and Standard of Review

The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. “The question of what documents a district court may rely on to determine the nature of a prior conviction and the scope of a district court's authority to make factual findings are questions of law, which we review de novo.” United States v. Howard, 599 F.3d 269, 271 (3d Cir.2010) (internal citations omitted).

III. Analysis

I. The Modified Categorical Approach

Tucker agrees that if either his 1999 or 2002 conviction was for cocaine, it would qualify as an ACCA predicate. He argues, however, that neither conviction required a finding that cocaine was the drug at issue. Tucker contends that, therefore, neither can qualify as a “serious drug offense.”

To decide whether Tucker's prior convictions qualify as “serious drug offenses” under the ACCA's enhancement provision, 18 U.S.C. § 924(e), we begin with the “categorical approach” announced in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). In Taylor, the Supreme Court prohibited federal sentencing courts from inquiring into the facts underlying prior convictions, fearing that this would unleash endless re-litigation of old charges and raise Sixth Amendment concerns. See id. at 601–02, 110 S.Ct. 2143. Instead, the categorical approach requires us “to look only to the fact of conviction and the statutory definition of the prior offense.” Id. at 602, 110 S.Ct. 2143. We “may not consider other evidence concerning the defendant's prior crimes.” United States v. Gibbs, 656 F.3d 180, 186 (3d Cir.2011) (internal quotation and citation omitted). Only if the statutory definition of a prior offense meets all the elements of the “generic” federal predicate category does the conviction constitute a predicate offense. See Taylor, 495 U.S. at 598–99, 110 S.Ct. 2143.

Under the categorical approach, neither of Tucker's prior convictions qualifies as a “serious drug offense,” because in neither case does the statutory offense definition impose a maximum sentence of ten years or more. Rather, maximum penalties for both 35 Pa. Stat. Ann.. § 780–113(a)(30) (PWID) and conspiracy to “sell drugs” (conspiracy to violate § 780–113(a)(30)) depend on the controlled substance at issue. See§ 780–113(f); 18 Pa. Cons.Stat. Ann. § 905. The statutory maximum for PWID cocaine or conspiracy to sell cocaine is ten years imprisonment, but the statutory maximum for PWID marijuana (or conspiracy to sell marijuana) is only five. 35 Pa. Stat. Ann.. §§ 780–113(f), 780–104.²

When statutory offense definitions are inconclusive, however, Taylor authorizes later sentencing courts to look beyond the statutory language “in a narrow range of cases where a jury was actually required to find all the elements” of the federal predicate. 495 U.S. at 602, 110 S.Ct. 2143. Such a conviction qualifies as an ACCA predicate only if “the charging paper and jury instructions actually required the jury to find all the elements of [the generic predicate offense] in order to convict the defendant.” Id. (emphasis added).³ When the prior conviction resulted from a plea, the sentencing court may look to the charging document and—in lieu of jury instructions—the plea agreement and plea colloquy, “or to some comparable judicial record,” to determine if the defendant “necessarily admitted” all the elements of the ACCA offense. Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). This limited inquiry into the necessary elements of a prior conviction has come to be known as the “modified categorical approach.” See, e.g., Nijhawan v. Holder, 557 U.S. 29, 41, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009).

Taylor and Shepard designed the categorical / modified categorical approach in order to steer clear of Sixth Amendment concerns. See Shepard, 544 U.S. at 25–26, 125 S.Ct. 1254 (plurality opinion) (“The rule of reading statutes to avoid serious risks of unconstitutionality therefore counsels us to limit the scope of judicial factfinding on the disputed generic character of a prior plea, just as Taylor constrained judicial findings about the generic implication of a jury's verdict.”) (internal citation omitted). So long as courts comply with the strict legal inquiry that Taylor and Shepard command, the Sixth Amendment is satisfied. See James v. United States, 550 U.S. 192, 214, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) (explaining that categorical approach entails statutory interpretation, not fact-finding, and thus “raises no Sixth Amendment issue”).

Both parties agree that the modified categorical approach applies in this case.

II. The 2002 Conspiracy Conviction

Tucker's 2002 conviction arose from a trial by jury in Pennsylvania state court on three charges: (1) possession of a controlled dangerous substance (“crack cocaine, marijuana”), a violation of 35 Pa. Stat. Ann.. § 780–113(a)(16); (2) possession of a controlled dangerous substance with intent to deliver (“PWID”) (“crack cocaine, marijuana”), a violation of 35 Pa. Stat. Ann.. § 780–113(a)(30); and (3) conspiracy to “sell drugs”, a violation of 18 Pa. Cons.Stat. Ann. § 903. App. at 156–61. The jury convicted Tucker of simple possession and conspiracy, but acquitted him on the PWID charge. Because simple possession is not an ACCA predicate, only the conspiracy conviction is at issue here.

The question before us is whether we can, within the limits of the modified categorical approach, conclude that Tucker was convicted of conspiracy to sell cocaine rather than marijuana. Because the conspiracy conviction resulted from a jury trial, Taylor controls. We must therefore determine whether “the charging paper and jury instructions actually required the jury to find” a conspiracy to sell cocaine in order to convict. 495 U.S. at...