United States v. Kevin Abbott

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 13-2216
___________
UNITED STATES OF AMERICA
v.
KEVIN ABBOTT,
Appellant
_______________________
On Appeal from the District Court
for the Eastern District of Pennsylvania
D.C. Criminal No. 2-05-cr-00333-001
(Honorable Cynthia M. Rufe)
______________
ARGUED: January 8, 2014
Before: SMITH, SHWARTZ, and SCIRICA, Circuit Judges
(Filed: April 4, 2014)
Stuart M. Wilder, Esq. [ARGUED]
Pratt, Bret & Luce
68 East Court Street
P.O. Box 659
1
Doylestown, PA 18901
Counsel for Appellant
Elizabeth F. Abrams, Esq.
Robert A. Zauzmer, Esq. [ARGUED]
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
_________________
OPINION OF THE COURT
_________________
SCIRICA, Circuit Judge.
We are asked to determine whether Pennsylvania’s
criminal statute proscribing possession with intent to
distribute a controlled substance, 35 PA. STAT. ANN. § 780-
113(a)(30), is a “divisible” statute under Descamps v. United
States, 133 S. Ct. 2276 (2013). If it is divisible, then
convictions under that statute are subject to the modified
categorical approach when determining if they are predicate
offenses under the Armed Career Criminal Act, 18 U.S.C. §
924(e) (“the ACCA”). We hold that 35 PA. STAT. ANN. §
780-113(a)(30) is divisible and, accordingly, the trial court’s
use of the modified categorical approach was proper.1 We
will affirm.
1
We previously concluded the modified categorical
approach was proper when assessing whether a conviction
2
I.
The underlying facts are not in dispute. After a jury
trial, Kevin Abbott was convicted of possession of a firearm
by a convicted felon in violation of 18 U.S.C. § 922(g),
among other charges. His sentence included a fifteen-year
mandatory minimum for violating the ACCA. That act states:
In the case of a person who
violates section 922(g) of this title
and has three previous convictions
by any court referred to in section
922(g)(1) of this title for a violent
felony or a serious drug offense,
or both, committed on occasions
different from one another, such
person shall be fined under this
title and imprisoned not less than
fifteen years[.]
18 U.S.C. § 924(e)(1). The sentencing court found that three
of Abbott’s previous convictions were “serious drug
offenses” under the ACCA and invoked the fifteen-year
minimum. Abbott’s attorney did not object to the use of these
prior convictions as ACCA predicates.
under 35 PA. STAT. ANN. § 780-113(a)(30) is a predicate
offense under the ACCA. United States v. Tucker, 703 F.3d
205 (3d Cir. 2012). We revisit the issue solely because Tucker
was decided before Descamps and did not address whether 35
PA. STAT. ANN. § 780-113(a)(30) is divisible.
3
Abbott challenged an unrelated portion of his sentence
on direct appeal. We affirmed. United States v. Abbott, 574
F.3d 203 (3d Cir. 2009). Abbott then petitioned the United
States Supreme Court for a writ of certiorari regarding that
issue. The Supreme Court granted the petition and affirmed
the sentence. Abbott v. United States, 131 S. Ct. 18 (2010).
Abbott filed a pro se petition under 28 U.S.C. § 2255,
and we appointed counsel. The lone issue presented in his
counseled § 2255 petition is whether Abbott’s attorney at
sentencing was ineffective for failing to contest the use of his
prior conviction for possession with the intent to distribute,
under 35 PA. STAT. ANN. § 780-113(a)(30), as an ACCA
predicate offense. The District Court denied the petition
without a hearing, noting that the sentencing court properly
employed the modified categorical approach. It concluded
Abbott suffered no prejudice from his attorney’s alleged
shortcomings. Noting the then-pending Descamps v. United
States, 133 S. Ct. 2276 (2013), the District Court issued a
certificate of appealability under 28 U.S.C. § 2253 on the sole
of issue of whether Descamps altered the ACCA analysis.
That issue is now before us.2
II.
Under 18 U.S.C. § 922(g), it is unlawful for a person
who has been previously convicted of a felony to possess a
firearm. A defendant convicted under that section is subject to
a fifteen-year minimum sentence under the ACCA if he “has
2
The District Court had jurisdiction under 28 U.S.C.
§§ 1331 and 2255. We have jurisdiction under 28 U.S.C. §§
1291 and 2253.
4
three previous convictions . . . for a violent felony or a serious
drug offense, or both[.]” 18 U.S.C. § 924(e).
Accordingly, in a case in which the defendant has been
convicted of § 922(g) and the prosecution seeks the § 924(e)
enhancement, a sentencing court must decide whether that
defendant has three previous convictions for a “violent felony
or a serious drug offense.” When deciding whether a previous
conviction counts as a “violent felony or a serious drug
offense” under the ACCA, a sentencing court may look only
to the elements of a defendant’s prior conviction, not “to the
particular facts underlying those convictions.” Descamps, 133
S. Ct. at 2283 (quoting Taylor v. United States, 495 U.S. 575,
600 (1990)). This elements-based inquiry has come to be
called the “categorical approach.” See Descamps, 133 S. Ct.
at 2281.
For example, in Taylor, the Supreme Court confronted
a case in which the defendant had been convicted of a §
922(g) violation and the sentencing court was asked to invoke
the fifteen-year minimum under the ACCA. 495 U.S. at 579.
The sentencing court had to decide whether the defendant’s
previous burglary conviction counted as a “violent felony.”
Id. at 578. The Supreme Court declared the proper inquiry for
a sentencing court is not whether the defendant’s actual
conduct constituted a crime of violence (e.g., whether he, in
fact, brought a gun, confronted any individuals inside the
house, or conducted his crime in any particularly “violent”
way) but whether the elements of the crime of conviction
necessarily matched the elements of a “violent felony.” It
concluded the ACCA “generally requires the trial court to
look only to the fact of conviction and the statutory definition
5
of the prior offense.” Id. at 602. A court should “not [look] to
the particular facts underlying those convictions.” Id. at 600.
The Taylor decision did, however, admit of a “narrow
range of cases” when a sentencing court may look beyond the
elements of a prior conviction to decide if it can serve as an
ACCA predicate offense. Id. at 602. This alternative method
has become known as the “modified categorical approach.”
Under Descamps, the modified categorical approach may be
used when a statute underlying a prior conviction “lists
multiple, alternative elements,” 133 S. Ct. at 2285, rather than
a “single, indivisible set of elements,” id. at 2282. The
Supreme Court referred to such statutes as “divisible
statutes.” Id. at 2281. The purpose of the modified categorical
approach is to “help effectuate the categorical analysis when a
divisible statute . . . renders opaque which element played a
part in the defendant’s conviction.” Id. at 2283. Once a
sentencing court determines the modified categorical
approach applies, the court may look beyond the face of the
statute to the “charging document, written plea agreement,
transcript of plea colloquy, and any explicit factual finding by
the trial judge to which the defendant assented” to determine
which of the alternative elements was involved in the
defendant’s conviction. Shepard v. United States, 544 U.S.
13, 16 (2005).
For example, the Court in Taylor considered,
hypothetically, whether a defendant’s prior conviction under
a state burglary statute that outlawed entry into both a
building and an automobile constituted a “crime of violence”
under § 924(e). Taylor, 495 U.S. at 602. Under the Court’s
previous reasoning, only a burglary of a building could count
as a predicate offense. Id. at 599. A sentencing court applying
6
the categorical approach—looking only at the face of the
statute of conviction—would be unable to tell if a burglary
conviction counted as a “crime of violence” because it could
have been for burglary of either an automobile or a building.
But if the jury was “actually required to find” which of the
alternatives (either a building or an automobile) had been
proved then the sentencing court could look beyond the face
of the statute to determine which alternative had been found
beyond a reasonable doubt. Id. at 602. In that example, if the
jury “necessarily had to find an entry of a building to convict,
then the Government should be allowed to use the conviction
for enhancement.” Id.III.
Abbott contends the District Court erred because it
applied the modified categorical approach to an indivisible
statute. Specifically, Abbott contends the District Court
improperly looked beyond the statutory elements of 35 PA.
STAT. ANN. § 780-113(a)(30) to determine that his conviction
was an ACCA predicate. We do not agree. The statute in
question is divisible and, as such, convictions are properly
assessed under the modified categorical approach.
Section 780-113(a)(30) outlaws “the manufacture,
delivery, or possession with intent to manufacture or deliver,
a controlled substance[.]” 35 PA. STAT. ANN. § 780-
113(a)(30). The punishment for violating § 780-113(a)(30)
depends on the type of controlled substance.3 If the violation
3
35 PA. STAT. ANN. § 780-104 lists the schedules of
Pennsylvania’s controlled substances.
7
results from possession of Barbital, for example, the
maximum punishment is three years. 35 PA. STAT. ANN. §
780-113(f)(3). If the violation results from possession of less
than 1,000 pounds of marijuana, a maximum imprisonment of
five years applies. 35 PA. STAT. ANN. § 780-113(f)(2). And if
the possession involves any “derivative or preparation of coca
leaves,” a maximum imprisonment of ten years applies. 35
PA. STAT. ANN. § 780-113(f)(1.1). The type of controlled
substance involved in the violation similarly affects the
mandatory minimum term of imprisonment. See 18 PA. CONS.
STAT. § 7508(a).
Abbott contends the statute is indivisible because it
simply outlaws possession with the intent to distribute “a
controlled substance.” Unlike the theoretical statute in Taylor
that outlawed burglary of an “automobile as well as a
building,” the statute here, he contends, does not list
alternative elements. In order to secure a conviction, he
continues, the jury must find that the defendant possessed
with the intent to distribute an unspecified “controlled
substance”—whether the controlled substance is marijuana or
cocaine is of no moment.
Abbott’s contention lacks merit. The Supreme Court
has clarified that “‘any facts that increase the prescribed
range of penalties to which a criminal defendant is exposed’
are elements of the crime” and must be found beyond a
reasonable doubt. Alleyne v. United States, 133 S. Ct. 2151,
2160 (2013) (quoting Apprendi v. New Jersey, 530 U.S. 466,
490 (2000)). As noted, the type of controlled substance
involved in a violation of 35 PA. STAT. ANN. § 780-
113(a)(30) alters the prescribed range of penalties.
Accordingly, the type of drug, insofar as it increases the
8
possible range of penalties, is an element of the crime.4
Because 35 PA. STAT. ANN. § 780-113(a)(30) can be violated
by the possession of and intent to distribute many different
drugs, the types of which can increase the prescribed range of
penalties, the statute includes several alternative elements and
is therefore divisible. The District Court’s reliance on the
modified categorical approach was proper.5
4
The Pennsylvania Superior Court has reached a
similar conclusion. In Commonwealth v. Swavely, 554 A.2d
946 (Pa. Super. Ct. 1989), the defendant was arrested and
charged with multiple counts of possession with the intent to
distribute a controlled substance under 35 PA. STAT. ANN.
§ 780-113(a)(30), among other charges. Two of the charges
stemmed from the delivery of two different prohibited
narcotics in a single plastic vial. The defendant argued only
one offense occurred when he sold the vial because he had
only once delivered controlled substances. Accordingly, he
contended, two punishments for the single sale would violate
the Double Jeopardy Clause. The majority disagreed,
declaring that the type of drug was an element of the offense.
554 A.2d at 949. It concluded, “when the vial containing the
two separate drugs was delivered, two separate offenses
occurred[.]” Id. See also Commonwealth v. Munday, 78 A.3d
661, 665-66 (Pa. Super. Ct. 2013) (recognizing Alleyne
requires any fact that increases a defendant’s mandatory
minimum be treated as an element of a new offense).
5
Abbott also asserts that Commonwealth v. Kelly, 409
A.2d 21 (Pa. 1979), stands for the proposition that the fact
finder does not need to find which drug type was involved in
the § 780-113(a)(30) violation. We addressed that contention
in Tucker and rejected it. 703 F.3d at 215-16.
9
IV.
The District Court properly employed the modified
categorical approach to conclude Abbott’s previous
conviction for possession with intent to distribute cocaine is
an ACCA predicate offense. After the court determined that
the modified categorical approach was proper, it looked to the
charging document to determine which alternative element
had been proved. This was proper under Shepard v. United
States, 544 U.S. 13, 26 (2005). The charging document—the
Bill of Information—specified that the drug at issue was
crack cocaine.
A previous conviction is an ACCA predicate if it is “a
violent felony or a serious drug offense.” 18 U.S.C.
§ 924(e)(1). Under the ACCA, a “serious drug offense” is
defined as:
an offense under State law,
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[.]
10
18 U.S.C. § 924(e)(2)(A)(ii).6 Under Pennsylvania law,
possession with the intent to distribute cocaine is punishable
by a maximum term of imprisonment of ten years. 35 PA.
STAT. ANN. § 780-113(f)(1.1). Accordingly, Abbott’s
previous conviction under 35 PA. STAT. ANN. § 780-
113(a)(30) for possession with intent to distribute cocaine is a
“serious drug offense” and properly served as a predicate
offense for the imposition of the fifteen-year minimum
sentence under the ACCA.
V.
Pennsylvania’s possession with intent to distribute
statute, 35 PA. STAT. ANN. § 780-113(a)(30), is divisible.
Accordingly, a conviction for its violation is subject to the
modified categorical approach when determining whether the
conviction is a predicate offense under the ACCA. The
District Court properly conducted the modified categorical
approach and correctly concluded Abbott suffered no
prejudice from his attorney’s alleged shortcomings at
sentencing.
We will affirm the judgment of conviction and
sentence.
6
Cocaine is a controlled substance under the
Controlled Substances Act. 21 U.S.C. §§ 802(6), 812.
11