United States v. Brian Robinson ( 2019 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 17-3302
_____________
UNITED STATES OF AMERICA
v.
BRIAN KEITH ROBINSON,
Appellant
________________
On Appeal from the United States District Court for the
Middle District of Pennsylvania
(No. 4-15-cr-00194-001)
District Judge: Hon. Christopher C. Conner
Submitted: January 22, 2019
Before: CHAGARES, BIBAS, Circuit Judges, and SÁNCHEZ, Chief District Judge+.
(Filed February 25, 2019)
____________
OPINION*
____________
+
The Honorable Juan Sánchez, Chief United States District Judge for the Eastern District
of Pennsylvania, sitting by designation.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
CHAGARES, Circuit Judge.
Brian Keith Robinson appeals his criminal sentence, and in particular, the
application of a career-offender enhancement under the United States Sentencing
Guidelines (“U.S.S.G.”) § 4B1.1. Days after Robinson filed his opening brief, we
published United States v. Glass, 904 F.3d 319, 324 (3d Cir. 2018), holding that 35 Pa.
Const. Stat. § 780-113(a)(30) may serve as a predicate offense to a career-offender
enhancement under § 4B1.1. This decision forecloses his argument, and we will affirm.
I.
Robinson pleaded guilty to conspiracy to distribute 100 grams or more of heroin in
violation of 21 U.S.C. § 846. In the plea agreement and at the plea colloquy, Robinson
stipulated that he had at least two prior felony convictions for a controlled substance
offense that rendered him a career offender under § 4B1.1(a).1 The plea agreement
provided that the Guidelines range for imprisonment was 188 to 235 months, and that he
waived his right to appeal unless the court imposed a sentence above 188 months. The
court sentenced him to 216 months of imprisonment. He timely appealed.
II.
1
The Government contends Robinson has waived the argument that he raises here
because he stipulated to being a career offender in his plea agreement. For support, the
Government points to United States v. Cianci, 154 F.3d 106, 110 (3d Cir. 1998), which
did not allow a defendant to “renege on his [plea] agreement” stipulation that he qualified
for a sophisticated means sentencing enhancement. Because we hold that Robinson was
properly categorized as a career offender under the Guidelines, we do not address the
effect of his stipulation.
2
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.
Robinson did not raise his objection to the application of the career-offender
enhancement below, so we review for plain error. See Fed. R. Crim. P. 52(b); United
States v. Lewis, 660 F.3d 189, 192 (3d Cir. 2011). To demonstrate plain error, Robinson
has the burden to prove: “(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 V.I. v. Rosa, 399 F.3d 283, 293 (3d Cir. 2005) (quoting United States v. Olano, 507
U.S. 725, 734 (1993)). If these requirements are met, “the decision to correct the
forfeited error [is] within the discretion of the court of appeals.” Id.
III.
The Sentencing Guidelines provide for an enhancement if the defendant qualifies
as a career offender. The Guidelines define a career offender as someone who (1) is at
least eighteen years old when the instant offense of conviction was committed, (2) is
being sentenced for “a felony that is either a crime of violence or a controlled substance
offense;” and (3) “has at least two prior felony convictions of either a crime of violence
or a controlled substance offense.” U.S.S.G. § 4B1.1(a).
Relevant here is whether Robinson’s prior felony convictions under § 780-
113(a)(30), of which he has at least two, qualify as controlled substance offenses. The
Guidelines define a “controlled substance offense” as an offense “punishable by
imprisonment for a term exceeding one year, that prohibits the manufacture, import,
3
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.” U.S.S.G. § 4B1.2(b). To determine
if a state conviction qualifies as a “controlled substance offense” under the Guidelines,
we ask if the elements of the state crime are broader than the elements listed in §
4B1.2(b). See Mathis v. United States, 136 S. Ct. 2243, 2251 (2016) (“[A] state crime
cannot qualify as an [Armed Career Criminal Act] predicate if its elements are broader
than those of a listed generic offense.”). See also Glass, 905 F.3d at 321 (applying
Mathis to career offender analysis under § 4B1.1).
Robinson argues on appeal that his prior state convictions for drug distribution and
possession under § 780-113(a)(30) are broader than the Guidelines’ definition of
“controlled substance offense.” U.S.S.G. § 4B1.2. Section 780-113(a)(30) criminalizes
“the manufacture, delivery, or possession with intent to manufacture or deliver, a
controlled substance . . . .” Robinson contends § 780-113(a)(30) is broader because it
criminalizes offers to sell, while the Guidelines’ definition does not.
This argument is foreclosed by our decision in Glass. We held in Glass that §
780-113(a)(30) does not criminalize offers to sell controlled substances, that § 780-
113(a)(30) is not broader than the Guidelines’ definition of a controlled substance
offense, and that § 780-113(a)(30) “may serve as a predicate offense to a career-offender
enhancement under § 4B1.1.” Glass, 904 F.3d at 322, 324. Robinson’s attempt to
distinguish Glass –– by arguing § 780-113(a)(30) still “sweeps more broadly” because it
covers solicitation and sharing of drugs –– is unavailing. Reply Br. 1, 7. Robinson
4
points to Commonwealth v. Murphy, 844 A.2d 1228 (Pa. 2004) and Commonwealth v.
Donahue, 630 A.2d 1238 (Pa. Super. Ct. 1993) for the proposition that a person may be
convicted under § 780-113(a)(30) for soliciting another to provide drugs. But these cases
merely hold that the defendants could be convicted as accomplices, not principals. See
Murphy, 844 A.2d at 1234; Donahue, 630 A.2d at 1244.
Our decision in Glass is clear and squarely answers the issue in this case: Ҥ 780-
113(a)(30) is not broader than the Guidelines’ definition of a ‘controlled substance
offense.’” Glass, 904 F.3d at 323. Accordingly, because Robinson has at least two
convictions under § 780-113(a)(30), the District Court properly applied the career
offender sentencing enhancement.
IV.
For the foregoing reasons, we will affirm the District Court’s judgment of
sentence.
5