United States v. Shalef Bell ( 2018 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 17-2080
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UNITED STATES OF AMERICA
v.
SHALEF BELL,
Appellant
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Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. Action No. 2-16-cr-00063-001)
District Judge: Honorable Mitchell S. Goldberg
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Submitted Under Third Circuit L.A.R. 34.1(a)
March 13, 2018
Before: JORDAN, KRAUSE, and GREENBERG, Circuit Judges
(Opinion filed: March 22, 2018)
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OPINION*
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
KRAUSE, Circuit Judge
Appellant Shalef Bell appeals the imposition of a sentencing enhancement
pursuant to the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”), after he
pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1). We will affirm the District Court’s application of the ACCA sentencing
enhancement, but we will vacate and remand for resentencing because the District Court
relied upon a Presentence Investigation Report (“PSR”) that erroneously calculated Bell’s
offense level.
I. Discussion1
Bell raises two arguments on appeal.
First, Bell contends that two of his four prior convictions for violations of the
Pennsylvania Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-
113(a)(30) (the “Act”) do not qualify as “serious drug offenses” because the record is
inconclusive as to whether the substance underlying those convictions was cocaine. If it
was, Bell concedes, the convictions would carry a maximum prison term of “ten years or
more,” pursuant to §780-113(f)(1.1), and therefore would count towards the three
predicate convictions required to trigger the ACCA enhancement. 18 U.S.C. §
924(e)(2)(A)(ii).
1
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
2
2
We review Bell’s legal challenge to the application of the ACCA enhancement de
novo. United States v. Gibbs, 656 F.3d 180, 184 (3d Cir. 2011).
Because we apply the “modified categorical approach” when determining whether
a conviction under the Act is a “serious drug offense” that counts as a predicate
conviction under the ACCA, see United States v. Abbot, 748 F.3d 154, 156 (3d Cir.
2014), we may look to “the terms of a plea agreement or transcript of colloquy between
judge and defendant in which the factual basis for the plea was confirmed by the
defendant, or to some comparable judicial record of this information.” Shepard v. United
States, 544 U.S. 13, 26 (2005); see also United States v. Tucker, 703 F.3d 205, 210 (3d
Cir. 2012). In the context of a guilty plea under 35 P.S. § 780-113(a)(30), we may also
consider whether the Bill of Information itself identified the relevant substance as cocaine
because, as we have previously observed, under Pennsylvania law, a judge is “‘actually
required’ to find that [the defendant] possessed cocaine in order to convict.” Tucker, 703
F.3d at 215.3 Here, the Bills of Information clearly state “cocaine” next to the term
“Drug Description” or “Drug Type,” and the District Court was therefore entitled to rely
2
Bell does not dispute that he has two other predicate drug convictions under the
ACCA.
3
It is not material that in Tucker, the defendant was convicted after a bench trial,
whereas here, Bell was convicted pursuant to a guilty plea, “for the ACCA nowhere
provides that convictions in tried and pleaded cases are to be regarded differently.”
Shepard, 544 U.S. at 19.
3
on those records in concluding that the convictions involved cocaine and thus qualify as
“serious drug offenses.” 4
Bell also argues that because the Act by its terms reaches the “delivery” of a
controlled substance, it “sweeps more broadly” than the definition of a “serious drug
offense” and could include conduct such as “soliciting another to provide drugs” and
“mere offers to sell drugs.” Appellant’s Br. 36-38. But this argument is foreclosed by our
case law, which squarely holds that a previous conviction under the Act for cocaine “is a
‘serious drug offense’ and properly serve[s] as a predicate offense for the imposition of
the fifteen-year minimum sentence under the ACCA.” Abbot, 748 F.3d at 159-60.
Moreover, application of the modified categorical approach “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,” Gonzalez v. Duenas-Alvarez, 549
U.S. 183, 193 (2007), yet Bell points to no case where Pennsylvania has prosecuted
solely on the basis of either solicitation or mere offers to sell drugs under the Act. Thus,
this argument also fails, and we will affirm the District Court’s applications of the ACCA
enhancement.
4
Bell’s related argument that application of the ACCA enhancement was
improper because the Bills of Information charge both “the trafficking of counterfeit
controlled substance as well as the trafficking of a controlled substance” is both waived
and meritless. Appellant’s Br. 23-26. Bell’s counsel expressly disclaimed any
contention that the Bills of Information charged a counterfeit controlled substance, see
United States v. Joseph, 730 F.3d 336, 341 (3d Cir. 2013), and those documents identify
the “Drug Description” as “cocaine.”
4
Second, Bell points out that in applying U.S.S.G. § 4B1.4(b)(3)(A), the PSR
erroneously calculated his offense level as 37 (rather than 34), which, when combined
with his Criminal History Category of VI and a 3-level reduction for acceptance of
responsibility, produced an offense level of 34 and a Guidelines range of 262 to 327
months’ imprisonment. The District Court adopted the PSR without modification but
granted a substantial variance and imposed a 202-month sentence. Even though we
review Bell’s unpreserved objections for plain error, see United States v. Dahl, 833 F.3d
345, 349 (3d Cir. 2016), the District Court’s adoption of the PSR’s erroneous calculation
amounts to plain error that requires a remand for resentencing, see Molina-Martinez v.
United States, 136 S. Ct. 1338, 1345 (2016), as the government concedes.5 We will
vacate the sentence on that basis.
II. Conclusion
For the foregoing reasons, we will affirm Bell’s sentencing enhancement under the
ACCA but will vacate the judgment of sentence and remand for resentencing.
5
Bell makes the additional argument that the PSR was also erroneously calculated
because he received unwarranted enhancements under U.S.S.G. §§ 4B1.4(b)(3)(A) and
4B1.4(c)(2) for “us[ing] or possess[ing] the firearm . . . in connection with . . . a
controlled substance offense.” As the government admits, because a “controlled
substance offense” requires possession “with intent to manufacture, import, export,
distribute or dispense,” id. § 4B1.2(b), if the drugs found on Bell’s person at the time of
his arrest were only for personal use, then application of those enhancements was
erroneous. See Salinas v. United States, 547 U.S. 188, 188 (2006) (per curiam) (holding
that simple possession is not a “controlled substance offense” under § 4B1.2). Because
the District Court did not make an express finding as to whether Bell possessed the
firearm in connection with a “controlled substance offense,” we leave it to the District
Court in resentencing to consider that issue in the first instance.
5