USA v. Malachi Gla

Filing

NOT PRECEDENTIAL OPINION Coram: VANASKIE, KRAUSE and RESTREPO, Circuit Judges. Total Pages: 9. Judge: VANASKIE Authoring.

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-2906
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UNITED STATES OF AMERICA
v.
MALACHI M. GLASS,
Appellant
_____________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Crim. No. 1-13-cr-00231-001)
District Judge: Honorable John E. Jones, III
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Submitted Under Third Circuit L.A.R. 34.1(a)
August 17, 2018
______________
Before: VANASKIE, KRAUSE and RESTREPO, Circuit Judges
(Filed: August 22, 2018)
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OPINION *
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VANASKIE, Circuit Judge.

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.

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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. § 780113(a)(30)—one from 2001, CP-22-CR-2630-2001; and one from 2004, CP-31-CR-4602004. 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. Ronald A. Krauss was appointed as Glass’s appellate counsel. In July
2017, this Court denied Krauss’s motion to withdraw under Anders v. California, 386
U.S. 738 (1967), recognizing that Glass had raised two non-frivolous arguments
concerning the use of his state court convictions as predicates for a sentencing

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enhancement under the Sentencing Guidelines’ career criminal provisions. 1 The Court
then appointed Edward J. Rymsza, III, as 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 Krauss, 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,

1

Under Anders, “if counsel finds his [client’s] case to be wholly frivolous, after a
conscientious examination of it, he should so advise the court and request permission to
withdraw.” 386 U.S. at 744.
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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
(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, 136 S. Ct. 2243, 2251 (2016) (holding, in the Armed Career Criminal Act
(“ACCA”) context, that “a state crime cannot qualify as . . . [a] predicate if its elements

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are broader than those of a listed generic offense”); see also United States v. Hinkle, 832
F.3d 569, 574 (5th Cir. 2016) (applying Mathis to analysis of § 4B1.1). 2
Glass’s career-offender enhancement was based on two convictions under 35 Pa.
Cons. Stat. § 780-113(a)(30). Glass argues that a violation of § 780-113(a)(30) is
broader than the Guidelines’ definition of a “controlled substance offense” to the extent
it criminalizes a mere offer to sell drugs. We have yet to determine whether state
statutes that criminalize offers constitute “controlled substance offenses” under the
Guidelines. Increasingly, however, our sister Circuits have held they do not. See, e.g.,
United States v. Madkins, 866 F.3d 1136, 1147 (10th Cir. 2017) (concluding Kansas law
criminalized offers to sell and thus, swept beyond § 4B1.2(b)); Hinkle, 832 F.3d at 572
(noting government’s concession that if Texas law covered mere offers, it would not
come within the definition of “controlled substance offense” under § 4B1.2); United
States v. Savage, 542 F.3d 959, 965–66 (2d Cir. 2008) (concluding Connecticut statute
that reached fraudulent offers to sell criminalized more conduct than § 4B1.2(b)); see
also United States v. Redden, 875 F.3d 374, 375 (7th Cir. 2017), cert. denied, 138 S. Ct.
1343 (2018) (granting Anders motion where it was clear that Illinois law did not
criminalize offers to sell); United States v. Bryant, 571 F.3d 147, 158 (1st Cir. 2009)
(concluding New York law that criminalized only bona fide offers, i.e., offers that
demonstrated an intent and ability to sell, did not sweep beyond § 4B1.2).

The parties agree that, with some exceptions not relevant here, cases concerning
overbreadth of a state criminal statute in the context of the ACCA also apply to the
career-offender context.
2

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Assuming a state statute that criminalizes a mere offer to sell sweeps beyond
U.S.S.G. § 4B1.2, we are not convinced the statute at issue here—§ 780-113(a)(30)—
crosses that line. Section 780-113(a)(30) prohibits “the manufacture, delivery, or
possession with intent to manufacture or deliver, a controlled substance . . . or
knowingly creating, delivering or possessing with intent to deliver, a counterfeit
controlled substance.” It does not mention offers to sell drugs. Pennsylvania law goes
on to define “deliver” as “the actual, constructive, or attempted transfer from one person
to another of a controlled substance . . . .” 35 Pa. Cons. Stat. § 780-102(b).
Glass argues, however, that an offer to sell drugs is impliedly included in § 780113(a)(30) because Pennsylvania’s definition of the word “delivery” includes “attempted
transfers.” We disagree. An “attempted transfer” cannot be equivalent to an offer to
sell. The Guidelines’ application note states that the term “controlled substance offense”
applies not only to a statute that bars distribution of controlled substances, but also to
“the offenses of aiding and abetting, conspiring, and attempting to commit such
offenses.” U.S.S.G. § 4B1.2 cmt. n.1 (emphasis added). As Glass does not dispute that
“attempt” under Pennsylvania law has the same meaning as “attempt” in the Guidelines,
his argument, if accepted, would prove self-defeating, for if “attempt[]” in § 780-102(b)
included offers, then by his logic, so would “attempt” under U.S.S.G. § 4B1.2, making
§ 780-113(a)(30) and U.S.S.G. § 4B1.2 equally broad.
Second, we note that at least one other provision contained in § 780-113
expressly prohibits offers. See 35 Pa. Cons. Stat. § 780-113(a)(1) (“The manufacture,
sale or delivery, holding, offering for sale, or possession of any controlled
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substance . . . .” (emphasis added)). This language—i.e., “offering for sale”—is
conspicuously absent from § 780-113(a)(30). Arguably, the Pennsylvania legislature
knew how to criminalize offers; it simply chose not to in § 780-113(a)(30).
Third, the parties have failed to uncover any authority, such as state judicial
decisions or pattern jury instructions, suggesting Pennsylvania would prosecute a mere
offer to sell under § 780-113(a)(30). See Gonzales v. Duenas-Alvarez, 549 U.S. 183,
193 (2007) (“[T]o find that a state statute creates a crime outside the generic
definition . . . 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.”).
And fourth, contrary to Glass’s argument, we are not convinced Pennsylvania’s
definition of “deliver” is sufficiently similar to the Texas definition at issue in Hinkle
and Conley such that a similar outcome is warranted. Under the Texas Health and
Safety Code, “deliver” means: “to transfer, actually or constructively, to another a
controlled substance, counterfeit substance, or drug paraphernalia, regardless of whether
there is an agency relationship. The term includes offering to sell a controlled
substance, counterfeit substance, or drug paraphernalia.” Tex. Health & Safety Code
Ann. § 481.002(8) (emphasis added). The Texas Code expressly reaches offers, whereas
Pennsylvania’s definition fails to include similar language. If anything, the
Pennsylvania definition of “deliver” is more similar to the definition of “deliver” under
Illinois law, which the Seventh Circuit concluded did not encompass offers to sell. See
Redden, 875 F.3d at 375 (“The definition . . . tells us that ‘deliver’ and ‘delivery’ mean
an ‘actual, constructive or attempted transfer’ . . . . Any conduct meeting the state’s
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definition of ‘delivery’ comes within § 4B1.2(b) because ‘transfer’ is just another word
for distribute or dispense.”). Accordingly, we are confident concluding that § 780113(a)(30) is not broader than the Guidelines’ definition of a “controlled substance
offense.”
We note that this conclusion is consistent with our prior holdings regarding
§ 730-113(a)(30), outside the U.S.S.G. § 4B1.1 context. We have already held that
§ 780-113(a)(30) is not overbroad in the context of the ACCA’s nearly-identical
definition of “serious drug offense.” See United States v. Abbott, 748 F.3d 154, 160 (3d
Cir. 2014). Additionally, we have held § 780-113(a)(30) is “analogous to the federal
felony of possession with intent to distribute . . . prohibited by [21 U.S.C.] § 841(a)(1) of
the Controlled Substances Act,” and is therefore an “aggravated felony” under the
Immigration and Nationality Act. Avila v. Attorney General, 826 F.3d 662, 668 (3d Cir.
2016).
In sum, because § 780-113(a)(30) does not sweep more broadly than § 4B1.2, it is
a “controlled substance offense” and may serve as a predicate offense to a careeroffender enhancement under § 4B1.1. Because the record shows that Glass possessed
two such predicate offenses—(1) a 2001 conviction, CP-22-CR-2630-2001, for
manufacturing, delivering, or possessing marijuana in Dauphin County; and (2) a 2004
conviction, CP-31-CR-461-2004, for manufacturing, delivering, or possessing cocaine in

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Huntingdon County—we find no error in the District Court’s decision to apply the
enhancement. 2
IV.
For the foregoing reasons, we will affirm the District Court’s judgment entered
on June 13, 2016.

2

We recognize that the District Court based the enhancement on convictions CP22-CR-2630-2001 and CP-31-CR-460-2004. Glass also argues that the latter conviction
is not a “controlled substance offense” because it was for simple possession. We need
not consider this argument because the record shows Glass possessed a third § 780113(a)(30) conviction, CP-31-CR-461-2004, which qualifies as a predicate offense
under today’s decision. See United States v. Blair, 734 F.3d 218, 222 (3d Cir. 2013)
(citing United States v. Berrios, 676 F.3d 118, 129 (3d Cir. 2012)).
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