USA v. Jonathan Santana

Filing

NOT PRECEDENTIAL OPINION Coram: FISHER, HARDIMAN and GREENAWAY JR., Circuit Judges. Total Pages: 5. Judge: HARDIMAN Authoring.

Case: 16-3067

Document: 003112525766

Page: 1

Date Filed: 01/31/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 16-3067
____________
UNITED STATES OF AMERICA
v.
JONATHAN SANTANA,
Appellant
____________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(M.D. Pa. No. 1-15-cr-00074-001)
District Judge: Honorable Sylvia H. Rambo
____________
Submitted Under Third Circuit L.A.R. 34.1(a)
January 20, 2017
Before: FISHER, HARDIMAN, and GREENAWAY, JR., Circuit Judges.
(Filed: January 31, 2017)
____________
OPINION*
____________
HARDIMAN, Circuit Judge.
Jonathan Santana appeals his judgment of sentence, arguing that the District Court

*

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

Case: 16-3067

Document: 003112525766

Page: 2

Date Filed: 01/31/2017

misclassified him as a career offender under the United States Sentencing Guidelines
(USSG). We will affirm.
I
On January 13, 2016, Santana pleaded guilty to distribution and possession of
heroin with intent to distribute and conspiracy to distribute. The Probation Office
determined in its Presentence Investigation Report (PSR) that Santana qualified as a
career offender under the Guidelines because of three prior state offenses: (1) second
degree attempted robbery; (2) third degree possession of a controlled substance with
intent to sell; and (3) fourth degree attempted sale of a controlled substance. Santana did
not object to the career offender designation.
The District Court accepted the PSR in all respects, except that it granted Santana
a three-level reduction for acceptance of responsibility after he withdrew his objections.
This resulted in a Guidelines range of 188–235 months’ imprisonment. The District Court
sentenced Santana to 168 months, varying “one level” downward in consideration of
Santana’s “lack of youthful guidance and his early upbringing,” and concluding that the
lower sentence was “sufficient to punish and deter future illegal conduct.” App. 49–50.
Santana timely appealed.

2

Case: 16-3067

Document: 003112525766

Page: 3

Date Filed: 01/31/2017

II1
Santana claims for the first time on appeal that he was wrongly classified as a
career offender, arguing that: (1) his robbery conviction was not a crime of violence
under USSG § 4B1.2(a); and (2) his conviction for attempted sale of a controlled
substance was not a controlled substance offense under USSG § 4B1.2(b). Because
Santana did not object in the District Court to his classification as a career offender, he
must show that the error asserted on appeal was plain—that is, “clear” or “obvious”—and
adversely affected his “substantial rights.” United States v. Evans, 155 F.3d 245, 251 (3d
Cir. 2005) (citation omitted). He must also show the error affected the “fairness, integrity,
or public reputation of judicial proceedings.” Id. (citation omitted).
To prevail in this appeal, Santana must show plain error in the classification of
both his robbery and attempted sale convictions, as either one would suffice to render him
a career offender because of his possession offense. USSG § 4B1.2(a). We need not
consider Santana’s robbery conviction because, as we shall explain, the District Court did
not commit plain error when it adopted the PSR’s determination that Santana’s attempted
sale conviction rendered him a career offender.
The Guidelines define a “controlled substance offense,” in relevant part, as an
offense “that prohibits the . . . export, distribution, or dispensing of a controlled substance

1

The District Court had jurisdiction in this matter pursuant to 18 U.S.C. § 3231.
We have jurisdiction to review Santana’s sentence under 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a).
3

Case: 16-3067

Document: 003112525766

Page: 4

Date Filed: 01/31/2017

(or a counterfeit substance) or the possession of a controlled substance (or a counterfeit
substance) with intent to . . . export, distribute, or dispense.” USSG § 4B1.2(b). Santana’s
attempted sale conviction prohibited “knowingly and unlawfully sell[ing]” certain
controlled substances. N.Y. Penal Law § 220.34. Because the New York Penal Law
defines “sell” with regard to controlled substances as “to sell, exchange, give or dispose
of to another, or to offer or agree to do the same,” N.Y. Penal Law § 220.00(1) (emphasis
added), Santana argues his offense of conviction criminalizes unfulfilled offers to sell,
which do not satisfy the Guidelines definition.2 We disagree.
In United States v. Bryant, the Court of Appeals for the First Circuit considered
whether a similar New York statute criminalized only conduct that qualified as a
controlled substance offense under the federal Guidelines where the statutory definition
of “sale” covered offers to sell, whether or not fulfilled. 571 F.3d 147, 157–58 (1st Cir.
2009). The Bryant court stated: “it is well-established under New York law that ‘in order
to support a conviction under an offering for sale theory, there must be evidence of a bona
fide offer to sell—i.e., that defendant had both the intent and ability to proceed with the

2

In a prior case considering a different New York offense governed by this statute,
we determined that the definition of “sell” provided “alternative grounds for establishing
criminal liability,” requiring us to use the modified categorical approach. Thomas v. Att’y
Gen. of U.S., 625 F.3d 134, 143 (3d Cir. 2010) (analyzing whether a conviction qualified
as an aggravated felony). After we decided Thomas, the Supreme Court determined that
when a statute has a single, indivisible set of elements, but “enumerates various factual
means of committing a single element,” courts must apply the categorical approach.
Mathis v. United States, 136 S. Ct. 2243, 2249 (2016).
4

Case: 16-3067

Document: 003112525766

Page: 5

Date Filed: 01/31/2017

sale.’” Id. at 158 (quoting People v. Samuels, 780 N.E.2d 513, 515 (N.Y. 2002)). The
court therefore distinguished cases like that upon which Santana relies, Santana Br. 18–19
(citing United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016)), where a court considered a
statute under which the defendant “could have been convicted for making a fraudulent
offer, a non-predicate offense.” Bryant, 571 F.3d at 158 (citing United States v. Savage,
542 F.3d 959, 965 (2d Cir. 2008)).
The First Circuit’s interpretation of New York law makes sense. An offer to sell a
controlled substance, made with the intent and ability to proceed, may be rationally
considered a crime “related to or connected with . . . distributing” that substance. United
States v. Gibbs, 656 F.3d 180, 186 (3d Cir. 2011). For that reason, we are unconvinced
that the District Court erred. And if it did err, the error was at least “subject to reasonable
dispute.” United States v. Calabretta, 831 F.3d 128, 132 (3d Cir. 2016). Accordingly, we
will affirm the District Court’s judgment of sentence.

5