United States v. Kenneth Daniels

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 17-3503
______________
UNITED STATES OF AMERICA
v.
KENNETH DANIELS,
Appellant
______________
On Appeal from the United States District Court
For the Eastern District of Pennsylvania
(D.C. Crim. No. 2-15-cr-00127-001)
Honorable Berle M. Schiller, District Judge
______________
Submitted under Third Circuit L.A.R. 34.1(a)
October 23, 2018
BEFORE: KRAUSE, COWEN, and FUENTES,
Circuit Judges
(Opinion Filed: February 7, 2019)
______________
Emily McKillip
William M. McSwain
Timothy M. Stengel
Robert A. Zauzmer
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Attorneys for Appellee
Karl D. Schwartz
P.O. Box 8846
Elkins Park, PA 19027
Attorney for Appellant
______________
OPINION OF THE COURT
______________
COWEN, Circuit Judge.
Kenneth Daniels appeals from the criminal sentence
entered by the United States District Court for the Eastern
District of Pennsylvania. He argues that a violation of the
Pennsylvania Controlled Substance, Drug, Device and Cosmetic
Act, 35 Pa. Stat. Ann. § 780-113(a)(30), does not qualify as a
“serious drug offense” under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e)(2)(A)(ii). We must first decide
whether § 924(e)(2)(A)(ii)’s definition of a “serious drug
offense” encompasses attempts (as defined under federal law) to
2
manufacture, distribute, or possess with intent to manufacture or
distribute a controlled substance. If it does, we must then
consider whether the scope of attempt and accomplice liability
under Pennsylvania law is coextensive with the meaning of
those terms under federal law. Based in large part on our recent
rulings in United States v. Glass, 904 F.3d 319 (3d Cir. 2018),
petition for cert. filed (U.S. No. 18-6748) (Nov. 14, 2018), and
Martinez v. Attorney General, 906 F.3d 281 (3d Cir. 2018), as
well as our older yet still precedential opinion in United States
v. Gibbs, 656 F.3d 180 (3d Cir. 2011), we answer both questions
in the affirmative. Accordingly, Daniels’s sentence will be
affirmed.
I.
Pursuant to a plea agreement, Daniels entered a guilty
plea to one count of being a convicted felon in possession of a
firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). He
had at least three previous convictions under the Pennsylvania
drug statute, 35 Pa. Stat. Ann. § 780-113(a)(30), for possession
with intent to deliver cocaine.
Daniels reserved his right to challenge the government’s
allegation that he was an armed career criminal under 18 U.S.C.
§ 924(e).1 If applied, § 924(e) triggers a fifteen-year mandatory
minimum. According to Daniels, his convictions cannot count
as ACCA predicates because the elements of the state drug
statute sweep more broadly than the generic definition of a drug
1
Pursuant to United States v, Zudick, 523 F.2d 848 (3d
Cir. 1975), Daniels also preserved his right to appeal the District
Court’s denial of his suppression motion. He does not, however,
raise that issue in this appeal.
3
distribution crime. He argued that, “[b]y virtue of
Pennsylvania’s treatment of solicitation and mere offers to sell,
it is far from clear that a violation of 35 Pa.C.S. § 780-
113(a)(30), is, as a categorical matter, a ‘serious drug offense’
within the meaning of ACCA.” (JA25.) At sentencing, Daniels
also argued that, without his armed career criminal designation,
his Guidelines range would have been 92 to 115 months.
However, application of this designation would result in a
Guideline range of 180 months (the statutory minimum) to 210
months. The District Court rejected Daniels’s challenge and
sentenced him to 180 months’ imprisonment.
II.
The District Court had subject matter jurisdiction under
18 U.S.C. § 3231. We possess appellate jurisdiction pursuant to
18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
Because this appeal raises questions of law, we exercise
de novo review. See, e.g., Gibbs, 656 F.3d at 184.
III.
Under 18 U.S.C. § 922(g)(1), it is unlawful for a felon to
possess a firearm. The ACCA mandates a minimum sentence of
fifteen years’ imprisonment if the felon in possession of a
firearm has three previous convictions for either “a violent
felony” or “a serious drug offense” (or both):
(e)(1) 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
4
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, and, notwithstanding any
other provision of law, the court shall not suspend
the sentence of, or grant a probationary sentence
to, such person with respect to the conviction
under section 922(g).
(2) As used in this subsection—
(A) the term “serious drug offense” means—
(i) an offense under the Controlled
Substances Act (21 U.S.C. 801 et
seq.), the Controlled Substances
Import and Export Act (21 U.S.C.
951 et seq.), or chapter 705 of title
46, for which a maximum term of
imprisonment of ten years or more
is prescribed by law; or
(ii) 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;
5
(B) The term “violent felony” means any
crime punishable by imprisonment for a term
exceeding one year, or any act of juvenile
delinquency involving the use or carrying of a
firearm, knife, or destructive device that would
be punishable by imprisonment for such term if
committed by an adult, that—
(i) has as an element the use,
attempted use, or threatened use of
physical force against the person of
another; or
(ii) is burglary, arson, or extortion,
involves use of explosives, or
otherwise involves conduct that
presents a serious potential risk of
physical injury to another; and
(C) The term “conviction” includes a finding that a
person has committed an act of juvenile delinquency
involving a violent felony.
18 U.S.C. § 924(e).
It is undisputed that we must apply the “categorical”
approach in order to decide whether Daniels had at least three
previous convictions for “a serious drug offense.” Id. “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.’” United States v. Abbott, 748 F.3d 154, 157 (3d
6
Cir. 2014) (quoting Descamps v. United States, 570 U.S. 254,
260-61 (2013)). As the government states in its appellate brief,
“the issue is whether the elements of the prior crime encompass
and are no broader than the elements described in the federal
definition.” (Appellee’s Brief at 14 (citing Abbott, 748 F.3d at
157)). If the elements of the prior conviction are identical to (or
narrower than) the elements of the generic ACCA crime, the
prior conviction can serve as an ACCA predicate. See, e.g.,
Descamps, 570 U.S. at 261. “But if the statute sweeps more
broadly than the generic crime, a conviction under that law
cannot count as an ACCA predicate, even if the defendant
actually committed the offense in its generic form.” Id. The
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.”
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). A
defendant may establish such a probability by showing that the
state statute was so applied in his or her own case or by pointing
to other cases in which the state courts applied the statute in a
non-generic fashion. See, e.g., id. Furthermore, a “modified”
categorical approach may apply to divisible statutes, i.e., a
statute of conviction that lists alternative elements (as opposed
to alternative means for committing the same offense). See,
e.g., Mathis v. United States, 136 S. Ct. 2243, 2248-50 (2016).
Documents like the indictment, jury instructions, a plea
agreement, or a colloquy may then be employed to determine
the specific crime of conviction. See, e.g., id. at 2249. “The
court can then compare that crime, as the categorical approach
commands, with the relevant generic offense.” Id.
Section 780-113(a)(30) prohibits (except as authorized by
the Pennsylvania drug statute) “the manufacture, delivery, or
possession with intent to manufacture or deliver, a controlled
7
substance by a person not registered under this act, or a
practitioner not registered or licensed by the appropriate State
board, or knowingly creating, delivering or possessing with
intent to deliver, a counterfeit controlled substance.” As we
recognized in Glass, “Pennsylvania law goes on to define
‘deliver’ as ‘the actual, constructive, or attempted transfer from
one person to another of a controlled substance.’” Glass, 904
F.3d at 322 (quoting 35 Pa. Stat. Ann. § 780-102(b)). “[T]he
federal counterpart to this statute, the Controlled Substances Act
(CSA), also defines the ‘delivery’ of a controlled substance to
mean ‘the actual, constructive, or attempted transfer of a
controlled substance,’ 21 U.S.C. § 802(8).”2 Glass, 904 F.3d at
322. In turn, 21 U.S.C. § 802(11) states that “[t]he term
‘distribute’ means to deliver (other than by administering or
dispensing) a controlled substance or a listed chemical.”
Pennsylvania’s drug law also defines “distribute” to mean “to
deliver other than by administering or dispensing a controlled
substance, other drug, device or cosmetic.” § 780-102(b). Both
federal and Pennsylvania law include statutory provisions
addressing attempt and accomplice liability. See 18 U.S.C. § 2
(“Principals”); 21 U.S.C. § 846 (“Attempt and conspiracy”); 18
Pa. Cons. Stat. Ann. §§ 306 (“Liability for conduct of another;
2
The full federal and state definitions of “deliver” or
“delivery” are nearly identical. According to federal law, “[t]he
terms ‘deliver’ or delivery’ means the actual, constructive, or
attempted transfer of a controlled substance or a listed chemical,
whether or not there exists an agency relationship.” 21 U.S.C. §
802(8). Pennsylvania law states that these two terms mean “the
actual, constructive, or attempted transfer from one person to
another of a controlled substance, other drug, device or cosmetic
whether or not there is an agency relationship.” 35 Pa. Stat.
Ann. § 780-102(b).
8
complicity”), 901 (“Criminal attempt”).
According to Daniels, Section 780-113(a)(30) sweeps
more broadly than the generic federal definition of “a serious
drug crime.” Daniels vigorously argues that, unlike the
Pennsylvania drug statute, a “serious drug crime” under the
ACCA does not include attempts. He further argues that,
“[e]ven assuming that attempted drug offenses are properly
included as serious drug offense predicates,” Pennsylvania’s
drug act includes conduct that is too inchoate and incipient to
satisfy federal drug law—specifically “mere offers, mere
preparation, and mere solicitation (from the buyer).”
(Appellant’s Brief at 20.) Given our ruling in Gibbs, we
conclude that the ACCA’s definition of a “serious drug offense”
encompasses attempts, as defined under federal law, to
manufacture, distribute, or possess with intent to manufacture or
distribute a controlled substance. We likewise determine that,
based on this Court’s recent Glass and Martinez decisions, the
scope of attempt and accomplice liability under Pennsylvania
law is coextensive with the meaning of those terms under
federal law.
A. A “Serious Drug Offense” and Attempts
Glass and Martinez were not ACCA cases. On the
contrary, the Glass court considered whether the District Court
appropriately applied a career offender enhancement under the
Guidelines. See Glass, 904 F.3d at 321-24. 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.’”
Id. at 322 (quoting U.S.S.G. § 4B1.2 cmt. n.1). Martinez was an
9
immigration case, see Martinez, 906 F.3d at 284-87, and the
immigration provisions at issue explicitly refer to attempts or
require a match with the CSA’s ban on drug trafficking,3 see 8
3
In United States v. Abbott, 748 F.3d 154 (3d Cir. 2014),
we considered whether “[Section 780-113(a)(30)] is a ‘divisible’
statute under [Descamps],” id. at 156. In that ACCA case, we
concluded that Section 780-113(a)(30) is divisible by drug type,
thereby permitting the application of the modified categorical
approach. Id. at 157-60; see also United States v. Henderson,
841 F.3d 623, 626-63 (3d Cir. 2016) (reaching same conclusion
as to 35 Pa. Stat. Ann. § 780-113(f)(1)). Daniels is correct that
Abbott did not specifically address either the question of
whether a “serious drug offense” under § 924(e)(2)(A)(ii)
encompasses attempt crimes or the scope of the Pennsylvania
drug statute as to attempt offenses or accomplice liability.
However, we did state that “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.” Abbott, 748 F.3d at 160.
According to our recent opinion in Glass, “[w]e have already
held that conviction under § 780-113(a)(30) for cocaine-based
offenses is not overbroad in the context of the ACCA’s
definition of ‘serious drug offense.’” Glass, 904 F.3d at 323
(citing Abbott, 748 F.3d at 160).
In this case, it is undisputed that Daniels’s prior
convictions involved cocaine. The government also does not
take issue with Daniels’s characterization of Section 780-
113(a)(30) as indivisible with respect to the manner of
committing the offense (i.e., whether by manufacture, delivery,
or possession with intent to manufacture or deliver, attempted
10
U.S.C. §§ 1101(a)(43)(B) (stating that “aggravated felony”
means “illicit trafficking in a controlled substance (as defined in
section 802 of title 21), including a drug trafficking crime (as
defined in section 924(c) of title 18)”), 1227(a)(2)(B)(i) (“Any
alien who at any time after admission has been convicted of a
violation of (or a conspiracy or attempt to violate) any law or
regulation of a State, the United States, or a foreign country
relating to a controlled substance (as defined in section 802 of
title 21), other than a single offense involving possession for
one’s own use of 30 grams or less of marijuana, is deportable.”).
But Gibbs did consider the meaning of a “serious drug
offense” under the ACCA. The government appealed from the
district court’s ruling that a prior conviction under Delaware law
for wearing body armor while committing a felony is not a
predicate offense under the ACCA. Gibbs, 656 F.3d at 182.
The defendant had been charged in state court under this body
armor statute and for possession with intent to deliver. Id. at
183. He pled guilty to the first count but not the second one. Id.
On appeal, we agreed with the government and held “that the
body armor conviction is an ACCA predicate offense because it
involved the possession of cocaine with intent to distribute. Id.
at 182. In short, “[i]t is ‘a serious drug offense.’” Id. (quoting §
924(e)(1)).
In reaching our decision, we began with the text of the
ACCA:
The issue is whether the body armor conviction
“involv[ed] manufacturing, distributing, or
manufacture, delivery, or possession with intent to manufacture
or deliver, or acting as an accomplice).
11
possessing, with intent to manufacture or
distribute, a controlled substance.”
Congress’s use of the term “involving”
expands the meaning of a serious drug offense
beyond the simple offenses of manufacturing,
distributing, and possessing a controlled
substance. See, e.g., United States v. James, 834
F.2d 92, 93 (4th Cir. 1987) (stating that
“violations ‘involving’ the distribution,
manufacture, or importation of controlled
substances must be read as including more than
merely crimes of distribution, manufacturing, and
importation themselves”). The plain meaning of
“involve” is “to relate closely” or to “connect
closely.” United States v. McKenney, 450 F.3d
39, 43 (1st Cir. 2006) (citing Webster’s Third
New International Dictionary 1191 (1993) and
The American Heritage Dictionary 921 (4th ed.
2000), respectively). The definition of a serious
drug offense should be construed to extend Ҥ
924(e) beyond the precise offenses of distributing,
manufacturing, or possessing, and as
encompassing as well offenses that are related to
or connected with such conduct.” United States
v. King, 325 F.3d 110, 113 (2d Cir. 2003). In
adopting this position, we conform with all courts
of appeals that have addressed the scope of the
definition of a serious drug offense. See United
States v. Vickers, 540 F.3d 356, 365 (5th Cir.
2008); McKenney, 450 F.3d at 42; United States
v. Alexander, 331 F.3d 116, 131 (D.C. Cir. 2003);
King, 325 F.3d at 113; United States v. Brandon,
12
247 F.3d 186, 191 (4th Cir. 2001).
Id. at 184-85.
The Gibbs Court then considered and rejected the
defendant’s theory that the definition of state serious drug
offenses set forth in Section 924(e)(2)(A)(ii) should be limited
to the types of crimes identified by the three federal statutes
(including the CSA) referenced in Section 924(e)(2)(A)(i). Id.
at 185. “While both subsections relate to the same subject, there
is no reason to think that subsection (i) should limit our
construction of subsection (ii). If Congress wished to do this, it
could have done so [as it did in the “three strikes” law, 18
U.S.C. § 3559(c)].” Gibbs, 656 F.3d at 185. “Instead, Congress
used broad terminology—‘involving’—to define the category of
serious drug offenses without limiting its scope to federal
statutes.” Id. “Congress adopted a broad interpretation of ‘a
serious drug offense’ because it intended to define ‘an entire
class of state offenses “involving” certain activities, namely,
“manufacturing, distributing, or possessing with intent to
manufacture or distribute” a controlled substance.’ Alexander,
331 F.3d at 131 (quoting 18 U.S.C. § 924(e)(2)(A)(ii)).” Gibbs,
656 F.3d at 185 (“Each state has different serious drug crimes
and different definitions for similar crimes. Thus, Congress
relied upon general language referencing the entire class of
serious state drug offenses.”).
Although the statutory language broadly carves out a
class of serious state drug crimes, Gibbs observed that there are
limits to how widely we could construe this class. Id. “As the
First Circuit noted, ‘(n)ot all offenses bearing any sort of
relationship with drug manufacturing, distribution, or possession
with intent to manufacture or distribute will qualify as predicate
13
offenses under ACCA. The relationship must not be too remote
or tangential.’” Id. (quoting McKenney, 450 F.3d at 45).
“We must therefore determine whether Gibbs’ body
armor conviction is related to or connected with manufacturing,
distributing, or possessing, with intent to manufacture or
distribute, a controlled substance or if it is too remote or
tangential.” Id. at 185-86. Initially, this Court went beyond the
terms of the statute of conviction (which simply proscribes the
wearing of body armor during the commission of a felony) to
consider the indictment (alleging in Count I that Gibbs
knowingly wore body armor during the commission of felony
possession with intent to deliver cocaine as set forth in Count II,
which was incorporated by reference) pursuant to the modified
categorical approach. Id. at 186-88. We then examined
“whether manufacturing, distributing, or possessing, with intent
to manufacture or [distribute], a controlled substance, is ‘an
inherent part or result of the generic crime’ of wearing body
armor while committing a felony, where that felony is
possession with intent to distribute cocaine.” Id. at 188 (quoting
Brandon, 247 F.3d at 188). We found that the underlying felony
is an inherent part of the offense because “it must be proven in
order to be guilty of the body armor offense.” Id. While the
defendant need not be convicted of a drug offense, the
prosecution must still prove the elements of the drug offense in
order to establish that the defendant is guilty of some underlying
felony. Id. “In pleading guilty to the body armor offense, Gibbs
pled guilty to the elements of possession with intent to distribute
cocaine.” Id. Wearing body armor also serves to promote and
advance the underlying drug crime (in other words, it makes it
more likely that a felony will occur).4 Id.
4
We also rejected Gibbs’s argument that “this
14
We have no trouble concluding that a conviction under
state law for attempted manufacturing, distributing, or
possessing with intent to manufacture or distribute a controlled
substance that also meets the requirements for an attempted drug
crime under federal law would satisfy the approach we adopted
in Gibbs.
Daniels asserts that Gibbs does not extend the definition
of a “serious drug offense” beyond the generic categories of
manufacturing, distributing, and possession with intent. Citing
our ruling in United States v. Tucker, 703 F.3d 205, 213 (3d Cir.
2012), he contends that “the Gibbs Court held only that a
possession-with-intent offense does not cease to be a serious
drug offense on the ground that it was the factual predicate for
the felony establishing the crime of possession of body armor in
course of a felony.” (Appellant’s Reply Brief at 5 (citing Gibbs,
656 F.3d at 188).) However, the Tucker Court merely rejected
the government’s argument that the state court charge of
conspiracy to sell drugs (which resulted in a conviction)
incorporated a separate possession with intent to deliver
(“PWID”) cocaine charge (which resulted in an acquittal) as the
overt act. Tucker, 703 F.3d at 212-13. We distinguished Gibbs
because, unlike the body armor count (which expressly
incorporated the drug charge), “neither the conspiracy Bill nor
the conspiracy incorporated the separate PWID charge.” Id. at
213. “The jury could legally have found the overt act to be
possession of marijuana with the intent to deliver. Nothing
‘actually required’ the jury to treat the separate PWID cocaine
charge as the overt act.” Id.
interpretation of ‘a serious drug offense’ raises a constitutional
problem of fair notice.” Gibbs, 656 F.3d at 188-89.
15
Simply put, if a body-armor conviction is sufficiently
“related to or connected with” manufacturing, distributing, or
possessing with the intent to manufacture or distribute a
controlled substance to pass muster under Gibbs, the federal
inchoate versions of these enumerated offenses clearly satisfy
the test. As the government aptly explains, “[t]o say that an
attempt to manufacture methamphetamine does not involve
manufacturing methamphetamine, or that an attempt to
distribute cocaine does not involve the distribution of cocaine, is
untenable.” (Appellee’s Brief at 21.) The criminal attempt to
commit an offense “involves” the completed offense.
In McKenney, the First Circuit explained why “[t]he
plain meaning of ‘involve’ is ‘to relate closely’ or to ‘connect
closely.’” Gibbs, 656 F.3d at 184 (quoting McKenney, 450 F.3d
at 43). Rejecting the defendant’s narrow definition of “involve”
as meaning “has as an element,” to “include,” or to “contain as a
part,” the First Circuit observed that his argument would require
“an awkward and unusual construction of the text to mean that a
conspiracy to possess with intent to distribute does not ‘involve’
possession with intent to distribute.” McKenney, 450 F.3d at 43
(emphasis in original) (footnote omitted). “Conspiracies
“involve’ their objects, as that term is used in common
parlance.” Id. The First Circuit explained: “[w]e need not
decide today where the line is: we hold only that the
relationship between the inchoate offense of conspiracy and its
object—its entire purpose—is plainly close enough that a
conspiracy to possess with intent to distribute is, under the
ACCA, an offense ‘involving . . . possessing with intent to . . .
distribute.’” Id. at 45 (citing United States v. Fiore, 983 F.2d 1,
3-4 & n.4 (1st Cir. 1992), abrogated on other grounds by United
States v. Giggey, 551 F.3d 27 (1st Cir. 2008) (en banc); United
16
States v. Hawkins, 139 F.3d 29, 34 (1st Cir. 1998)); see also id.
at 44 (“By contrast, in McKenney’s case, there is no question
that the possession at the heart of the conspiracy was possession
with intent to distribute. That is the charge to which McKenney
pled.”). Likewise, the relationship between the inchoate offense
of attempt and the completed offense the defendant attempted to
commit is plainly close enough that an attempt to manufacture,
distribute, or possess with intent to manufacture or distribute a
controlled substance is, under the ACCA, an offense involving
manufacturing, distributing, or possessing with intent to
manufacture or distribute a controlled substance.
In Gibbs, we indicated that “all courts of appeals that
have addressed the scope of the definition of a serious drug
offense” have adopted an expansive understanding of this
concept. Gibbs, 656 F.3d at 185 (citing Vickers, 540 F.3d at
365; McKenney, 450 F.3d at 42; Alexander, 331 F.3d at 131;
King, 325 F.3d at 113; Brandon, 247 F.3d at 191). Since our
2011 ruling, the circuit courts have continued to apply an
expansive reading of § 924(e)(2)(A)(ii) (and Daniels has not
cited any contrary case law). See United States v. Herrold, 813
F.3d 595, 599-600 (5th Cir. 2016), cert. granted & vacated on
other grounds, 137 S. Ct. 310 (2016); United States v.
Whindleton, 797 F.3d 105, 108-11 (1st Cir. 2015); United States
v. Bynum, 669 F.3d 880, 884-88 (8th Cir. 2012). It is also
uncontested that every court of appeals to have considered the
specific question of whether a “serious drug offense” under §
924(e)(2)(A)(ii) includes attempts has answered this question in
the affirmative.5 See United States v. Coleman, 700 F.3d 329,
5
The government cites to a number of non-precedential
dispositions that have reached the same conclusion regarding the
inclusion of attempt crimes. See United States v. White, 288 F.
17
339 (8th Cir. 2012); United States v. Williams, 488 F.3d 1004,
1008-09 (D.C. Cir. 2007); United States v. Winbush, 407 F.3d
703, 705-08 (5th Cir. 2005); Alexander, 331 F.3d at 130-31;
King, 325 F.3d at 112-15.
Defending the narrower definition expressly considered
and rejected by the First Circuit in McKenney, Daniels invokes
the canon of “expressio unius est exclusio alterius—when a
statute specifically enumerates some categories, it impliedly
excludes others.” Ray v. Kertes, 285 F.3d 287, 296 (3d Cir.
2002) (citing Leatherman v. Tarrant County Narcotics
Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993)).
According to Daniels, “the offenses listed under Section
924(e)(2)(A)(ii) involve a comprehensive set of ways of
committing narcotics offenses (except for attempts), leading to
the conclusion that the exclusion was ‘not inadvertence.’”
(Appellant’s Reply Brief at 11 (quoting Barnhart v. Peabody
Coal Co., 537 U.S. 149, 168 (2003)).) “Indeed, the other ACCA
predicate ‘violent felony,’ does provide an attempt alternative.
See 18 U.S.C. § 924(e)(2)(B) (including ‘attempted use’ of
physical force as violent felony).” (Appellant’s Brief at 17.)
The CSA criminalizes attempted federal drug offenses, see 21
U.S.C. §§ 802(8), 846, and, in turn, 18 U.S.C. § 924(e)(2)(A)(i)
provides that a “serious drug offense” includes “an offense
under the Controlled Substances Act.” Daniels therefore argues
that Congress, if it had really “intended to include inchoate
conduct as a drug predicate” under § 924(e)(2)(A)(ii),
purportedly could have done what it did with respect to the other
ACCA predicate offenses. (Appellant’s Brief at 18.) The
App’x 89, 90 (4th Cir. 2008) (per curiam); United States v. Holt,
246 F. App’x 602, 609-10 (11th Cir. 2007); United States v.
Thomas, 13 F. App’x 233, 240-43 (6th Cir. 2001).
18
Guidelines’ application note addressed in Glass (as well as an
immigration provision considered in Martinez) also explicitly
refers to attempts. See 8 U.S.C. § 1227(a)(2)(B)(i); U.S.S.G. §
4B1.2 cmt. n.1.
Nevertheless, the expressio unius canon has its limits,
e.g., it “does not apply to every statutory listing or grouping; it
has force only when the items expressed are members of an
‘associated group or series,’ justifying the inference that items
not mentioned were excluded by deliberate choice, not
inadvertence.” Barnhart, 537 U.S. at 168 (citing United States
v. Vonn, 535 U.S. 55, 65 (2002)). There was no reason for
Congress to add specific language regarding attempt crimes
because it had already included the term “involving”—a term
that both this Court and every other circuit court to have
addressed the issue has concluded must be interpreted broadly
(and that, under this existing case law, clearly encompasses
attempts). Neither § 924(e)(2)(A)(i) nor § 924(e)(2)(B)(i)
includes such expansive language. See, e.g., Alexander, 331
F.3d at 131 (“As the government correctly observes, the
Congress defined the terms ‘violent felony’ and ‘serious drug
offense’ in decidedly different manners. Unlike the definition of
‘violent felony,’ the definition of ‘serious drug offense’ does not
speak in specifics; instead, it defines the term to include an
entire class of state offenses ‘involving’ certain activities,
namely ‘manufacturing, distributing, or possessing with intent to
manufacture or distribute’ a controlled substance.” (quoting §
924(e)(2)(A)(ii))). The career offender Guideline similarly
defines a “controlled substance offense” as, inter alia, an offense
that “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,
19
or dispense.” U.S.S.G. § 4B1.2(b) (emphasis added).
In his reply brief, Daniels recognizes that “the character
of federal drug offenses can inform the question of whether a
prior drug offense sweeps more broadly than the elements of the
generic offense.” (Appellant’s Reply Brief at 4 (citing United
States v. Mitchell, 218 F. Supp. 3d 360, 368 (M.D. Pa. 2016)).)
A “serious drug offense” includes an offense under state law
involving “distributing” or “possessing with intent to . . .
distribute” a controlled substance. 18 U.S.C. § 924(e)(2)(A)(ii).
The federal CSA defines this term “distribute” to mean “to
deliver (other than by administering or dispensing) a controlled
substance or a listed chemical.” 21 U.S.C. § 802(11). The
federal drug statute then defines the “terms ‘deliver’ or
‘delivery’ as including an “attempted transfer of a controlled
substance.” Id. § 802(8). Section 924(e)(2)(A)(ii) expressly
references the CSA in the parenthetical “(as defined in section
102 of the Controlled Substances Act (21 U.S.C. 802)).” This
Court stated in Rojas v. Attorney General, 728 F.3d 203 (3d Cir.
2013) (en banc), that “the parenthetical ‘(as defined in section
802 of Title 21)’ [used in §§ 1227(a)(2)(A)(i)(II) and
1227(a)(2)(B)(i)] is a restrictive modifier that affects only its
immediate antecedent, a ‘controlled substance,’” id. at 209.
However, the en banc Court was simply explaining that “the
controlled substance [must be] as such by federal law.” Id.
Moreover, this analysis does not translate to the ACCA
context because § 924(e)(2)(A)(ii) includes the terms
“manufacturing, distributing, or possessing with intent to
manufacture or distribute” immediately before the phrase “a
controlled substance” and the parenthetical itself. By referring
to the ways of committing a controlled substance offense—
which are defined in “section 802 of the Controlled Substance
20
Act”—the ACCA provision makes it clear that the parenthetical
modifies more than just “a controlled substance.” “Congress
has [also] demonstrated that it does not view attempted drug
trafficking offenses as any less serious than completed acts”
because it subjected any person who attempts or conspires to
commit a drug offense to the same penalties applicable to the
completed offenses. Coleman, 700 F.3d at 339 (quoting 21
U.S.C. § 846).
The D.C. Circuit relied on another well-established canon
of statutory construction to reject the defendant’s expressio
unius argument:
Moreover, as the district court recognized, the use
of “attempted” in section 924(e)(2)(B)(i) does
not—by itself—indicate that the Congress
intended to exclude attempt convictions from the
definition of “serious drug offense[s]” in section
924(e)(2)(A)(ii). Indeed, well-established
principles of statutory construction counsel
otherwise; if we were to adopt Alexander’s
reading of section 924(e)(2)(A)(ii), the term
“involving” would be rendered meaningless—
“distribution alone would qualify as a crime
‘involving’ distribution” and possession with
intent to distribute alone would qualify as a crime
“involving” possession with intent to distribute.
United States v. Contreras, 895 F.2d 1241, 1244
(9th Cir. 1990) (rejecting argument that
possession with intent to distribute is not crime
“involving” distribution). . . . .
Alexander, 331 F.3d at 131.
21
Daniels challenges this line of reasoning, claiming that
the “term ‘involving’ is necessary to avoid the problem of
nomenclature that necessarily arises when a federal statute
incorporates fifty state statutes.” (Appellant’s Reply Brief at
13.) Section 780-113(a)(3) of the Pennsylvania drug statute
prohibits the unauthorized “delivery” of a controlled substance,
but, unlike § 924(e)(2)(A)(ii), it does not use the term
“distributing.” Daniels appears to suggest that, if the ACCA
provision were to include only crimes that “prohibit” (as
opposed to “involve”) distribution, a violation of the
Pennsylvania drug statute would not constitute a “serious drug
offense.” (See id. (“In fact, a person can commit drug offenses
in Pennsylvania through ‘distribution’ just not under 35 Pa. Stat.
§ 780-113(a)(30). The terms have different definitions (see §
780-102(b)), notwithstanding that ‘delivery’ is the equivalent of
the generic “distribution” in Section 924(e)(2)(A)(ii).”).)
Daniels offers no case law or any other support for his
rather complicated reading. Both Pennsylvania and federal drug
laws provide essentially identical definitions of distribution and
delivery, defining “delivery” or “deliver” as the actual,
constructive, or attempted transfer of a controlled substance and
“distribute” as “to deliver” (other than by administering or
dispensing the substance). Compare 21 U.S.C. § 802(8), (11)
with 35 Pa. Stat. Ann. § 780-102(b). Although this issue was
not specifically addressed in our opinion, we still concluded in
Glass that Section 780-113(a)(30) constitutes a “controlled
substance offense” under the career offender Guidelines. The
Guidelines nevertheless define a “controlled substance offense”
as an offense that, inter alia, “prohibits” the distribution of a
controlled substance or the possession of controlled substance
with intent to distribute (thereby omitting any “involving”
22
language). Glass, 904 F.3d at 321-24.
Given our precedential opinion in Gibbs, it is not too
surprising that Daniels asks us to reconsider this ruling in light
of subsequent Supreme Court case law. See, e.g., 3d Cir. I.O.P.
9.1 (“it is the tradition of this court that the holding of a panel in
a precedential opinion is binding on subsequent panels. Thus,
no subsequent panel overrules the holding in a precedential
opinion of a previous panel. Court en banc consideration is
required to do so.”). It is also not unexpected that he challenges
the various rulings from other circuits adopting an expansive
interpretation of § 924(e)(2)(A)(ii) and holding that this ACCA
provision encompasses attempts. Daniels contends that the
Supreme Court’s reasoning in Mathis v. United States, 136 S.
Ct. 2243 (2016), calls into question our interpretation of the
imprecise term “involving” as well as our application of the
modified categorical approach. According to Daniels, the focus
upon state statutory elements under the categorical approach
“cuts against the argument that the presence of the term
‘involving’ in Section 924(e)(2)(A)(ii) should encourage a more
elastic approach to inclusion of drug offenses that do not
approximate those listed in Section 924(e)(2)(A)(ii).”
(Appellant’s Reply Brief at 8.) Additionally, Daniels argues
“[i]t would violate due process to impose such liability in the
absence of any such reference [to attempts]. See United States
v. Lanier, 520 U.S. 259, 266 (1977) (‘[T]he canon of strict
construction of criminal statutes, or rule of lenity, ensures fair
warning by resolving ambiguity in a criminal statute as to apply
it only to conduct clearly covered’) (citations omitted).”
(Appellant’s October 1, 2018 Letter at 2.) Daniels finally
attempts to compare § 924(e)(2)(A)(ii) with the ACCA’s
“residual” clause (i.e., “violent felony” means any crime that,
inter alia, “otherwise involves conduct that presents a serious
23
potential risk of physical injury to another,” 18 U.S.C. §
924(e)(2)(B)(ii)). This clause was invalidated as
unconstitutionally vague by the Supreme Court in Johnson v.
United States, 135 S. Ct. 2551 (2015).
Given the narrow scope of our holding in this case, we
reject Daniels’s assertion that Gibbs and the existing case law
interpreting § 924(e)(2)(A)(ii) undermine the categorical
approach. We hold that the definition of a “serious drug
offense” under § 924(e)(2)(A)(ii) encompasses attempts, as
defined by federal law, to manufacture, distribute, or possess
with intent to manufacture or distribute a controlled substance.
Our holding thereby implicates a categorical comparison
between the elements of an inchoate drug crime under the
applicable state law with the elements of such an inchoate
offense under federal drug law (an analysis we conduct in the
next section of this opinion). We accordingly need not—and do
not—decide if “Section 924(e) does not require the state statute
under which a defendant was convicted to be co-extensive with
a federal drug statute.” (Appellee’s Brief at 8.) Given our
analysis of Pennsylvania and federal law governing attempts and
accomplice liability, we leave for another day the government’s
alternative arguments that, “even if the Pennsylvania statute
extended to offers to sell: any statute that bars an ‘offer to sell
drugs’ is one ‘involving’ the distribution of drugs under ACCA,
as many courts have held” (id. at 26 (citations omitted)), and
that, even if Pennsylvania’s solicitation law sweeps more
broadly than its federal counterpart, “[s]uch criminal conduct is
not so remote or tangential to its aim, that is, the actual or
constructive transfer of a controlled substance, to justify
disqualification as a ‘serious drug offense’ under ACCA” (id. at
29). See Glass, 904 F.3d at 322 (observing that we have yet to
determine whether or in what circumstances state statutes
24
criminalizing offers to sell constitute “controlled substance
offenses,” noting that other circuits have held state statutes
expressly criminalizing mere offers do not qualify, and,
assuming that such statute sweeps beyond career offender
Guideline, concluding that Section 780-113(a)(30) does not do
so).
We also do not agree with the other assertions raised by
Daniels. Daniels (yet again) cites to no case law rejecting Gibbs
or the numerous “serious drug offense” rulings from other
circuits based on Mathis, the rule of lenity, or vagueness
concerns. On the contrary, he draws more attention to this lack
of case law by observing that the Supreme Court in James
(which was overruled by Johnson) “pointed out, as the
Government has here, that ‘every Court of Appeals that ha[d]
construed the’ [attempted burglary] issue in James, ‘ha[d] held
the offense qualifies as [an ACCA predicate.]’” (Appellant’s
Reply Brief at 14 (quoting James v. United States, 550 U.S. 192,
204 (2007)).) Furthermore, the limits of the modified
categorical approach recently addressed by the Supreme Court
in Mathis have no bearing on the current appeal. Daniels was
not convicted under a statute criminalizing “wear[ing] body
armor during the commission of a felony,’” Gibbs, 656 F.3d at
184 (quoting 11 Del. C. § 1449), or stating that if two or more
persons conspire “‘[t]o commit any crime[,] . . . they are guilty
of a conspiracy,’” United States v. Trent, 767 F.3d 1046, 1052
(10th Cir. 2014) (quoting Okla. Stat. Ann. tit. 21, § 421(A)),
abrogated by Mathis, 136 S. Ct. at 2251 & n.1. Instead, he was
convicted of “violations of the Pennsylvania drug act, which
prohibits ‘the manufacture, delivery, or possession with intent to
manufacture or deliver, a controlled substance.’” (Appellant’s
Brief at 10 (quoting § 780-113(a)(30)).) It is Daniels who then
goes beyond the bare terms of Section 780-113(a)(30) to point
25
out that this specific provision includes attempts as well as
completed drug crimes. The Johnson Court also focused on the
“grave uncertainty about how to estimate the risk posed by a
crime,” Johnson, 135 S. Ct. at 2557, as well as “how much risk
it takes for a crime to qualify as a violent felony,” id. at at 2558.
Unlike the residual clause, § 924(e)(2)(A)(ii) does not include
any reference to a potential risk of injury.6
B. Attempts and Accomplice Liability under Federal
and Pennsylvania Law
Because § 924(e)(2)(A)(ii)’s definition of “a serious drug
offense” encompasses attempts (as defined under federal law) to
manufacture, distribute, or possess with intent to manufacture or
distribute a controlled substance, we must decide whether
Pennsylvania criminalizes conduct under the attempt or
accomplice framework that are not crimes under federal law.
According to Daniels, Pennsylvania law sweeps more broadly
than federal law because it criminalizes offers to sell, mere
preparation, and solicitation by the buyer. We do not agree.
Given our recent precedential opinions in Glass and Martinez,
we conclude that Pennsylvania’s approach to attempts as well as
the state’s doctrine of accomplice liability are coextensive with
its federal counterparts.
The federal and Pennsylvania approaches to attempt
liability in the drug offense context are essentially identical. As
we have already explained, Pennsylvania law defines “deliver”
or “delivery” as “the actual, constructive, or attempted transfer
6
We also note that Gibbs expressly considered and
rejected a vagueness challenge to our interpretation of a “serious
drug offense.” Gibbs, 656 F.3d at 188-89.
26
from one person to another of a controlled substance.” 35 Pa.
Stat. Ann. § 780-102(b). The federal CSA “also defines the
‘delivery’ of a controlled substance to mean ‘the actual,
constructive, or attempted transfer of a controlled substance.’”
Glass, 904 F.3d at 322 (quoting 21 U.S.C. § 802(8)). Section
846 of the CSA provides that “[a]ny person who attempts . . . to
commit any offense defined in this subchapter shall be subject to
the same penalties as those prescribed for the offense, the
commission of which was the object of the attempt.” Most
federal courts (including this Circuit) have followed the Model
Penal Code’s framework for attempt liability. See, e.g.,
Martinez, 906 F.3d at 284. “Consistent with the Model Penal
Code, federal ‘attempt’ requires intent and a substantial step
towards to the commission of the crime. See United States v.
Cruz-Jiminez, 977 F.2d 95, 101-03 (3d Cir. 1992); Model Penal
Code § 5.01.” Glass, 904 F.3d at 323 n.3; see also, e.g.,
Martinez, 906 F.3d at 284 (“So we too require a ‘substantial step
toward commission of the crime’ that ‘strongly corroborat[es]
the firmness of a defendant’s criminal purpose.’ United States
v. Cicco, 10 F.3d 980, 985 (3d Cir. 1993).”). 18 Pa. Cons. Stat.
Ann. § 901(a) states that “[a] person commits an attempt when,
with intent to commit a specific crime, he does any act which
constitutes a substantial step toward the commission of that
crime.” While it was undisputed in Glass that “‘attempt’ under
Pennsylvania law has the same meaning as ‘attempt’ in the CSA
and the Guidelines,” Glass, 904 F.3d at 322, Martinez concluded
that both New Jersey and federal attempt law follow the same
Model Penal Code approach, Martinez, 906 F.3d at 284-85 (“It
defines attempt as a purposeful ‘act or omission constituting
substantial step in a course of conduct planned to culminate in
[the] commission of the crime.” N.J. Stat. Ann. § 2C:5-1(a)(3).
And a ‘substantial step’ must be ‘strongly corroborative’ of the
actor’s criminal purpose.’ Id. § 2C:5-1(b).”). The Pennsylvania
27
attempt provision is also based on the Model Penal Code. See,
e.g., 18 Pa. Cons. Stat. Ann. § 901 Jt. State Gov’t Comm’n cmt.
(“This section is derived from Section 5.01 of the Model Penal
Code.”); Commonwealth v. Wojdak, 466 A.2d 991, 1008 n.3
(Pa. 1983) (Hutchinson, J., concurring and dissenting) (stating
that Pennsylvania attempt statute and Model Penal Code
“similarly define” criminal attempt). Accordingly, “[t]here is no
daylight between the federal and [Pennsylvania] formulations
[of attempt].” Martinez, 906 F.3d at 285.
Similarly, both states, as well as the federal government
and the Model Penal Code, treat some solicitations as attempts.
Under New Jersey law, solicitation constitutes an attempt only if
it is strongly corroborative of the actor’s criminal purpose. Id.
As we explained in Martinez:
New Jersey’s approach, like that of federal law,
follows the Model Penal Code. Both federal law
and the Model Penal Code recognize that
“solicitation accompanied by the requisite intent
may constitute an attempt.” United States v. Am.
Airlines, Inc., 743 F.2d 1114, 1121 (5th Cir.
1984); see, e.g., United States v. Cornelio-Pena,
435 F.3d 1279, 1286-87 (10th Cir. 2006); Model
Penal Code § 5.01(2)(g). Our Court agrees.
Glass, [904 F.3d at 323 n.3]. So New Jersey law
tracks federal law: Solicitation may amount to an
attempt when it strongly corroborates the actor’s
criminal purpose. Not all solicitations make the
cut, but some do.
Id. at 285-86; see also Glass, 904 F.3d at 323 n.3 (“In pointing
out this flaw in the logic of Glass’s argument, we are not
28
suggesting that ‘attempted transfer’ in 21 U.S.C. § 802(8)
includes offers or solicitations other than those that meet the
requirements for ‘attempt’ under the CSA. Consistent with the
Model Penal Code, federal ‘attempt’ requires intent and a
substantial step towards the commission of the crime.” (citing
Cruz-Jimenez, 977 F.2d at 101-03; Model Penal Code § 501)).
In reaching this conclusion, we expressly disagreed with a Ninth
Circuit solicitation case cited by Daniels. In Sandoval v.
Sessions, 866 F.3d 986 (9th Cir. 2017), the Ninth Circuit
addressed an Oregon delivery statute that resembles New
Jersey’s trafficking law (i.e., they both require a substantial step
that is strongly corroborative of the actor’s criminal purpose and
allow solicitation to amount to attempt). Martinez, 906 F.3d at
286 (citing Sandoval, 866 F.3d at 991). “Yet the Ninth Circuit
held that the Oregon law was broader than federal law.
‘Although [it may be] strongly corroborative of intent to commit
a crime,’ the court reasoned, ‘offering to deliver a controlled
substance does not cross the line between preparation and
attempt for the purposes of the [federal] Controlled Substances
Act.’” Id. (quoting Sandoval, 866 F.3d at 990). However, we
emphasized the shared origins of federal and state attempt law:
As explained above, federal attempt law is
explicitly based on the Model Penal Code. Both
provide that any substantial step that strongly
corroborates the actor’s criminal purpose amounts
to an attempt. Model Penal Code § 5.01(2). The
Model Penal Code specifies that solicitation
“shall not be held insufficient as a matter of law”
if it is strongly corroborative, as we and other
circuits recognize. Id. § 5.01(2)(g); see, e.g.,
Glass, [904 F.3d at 323 n.3]; Am. Airlines, 743
F.2d at 1121.
29
We see no reason to reject the Model Penal
Code. Our precedent embraces it. Solicitation,
like any number of other acts, can amount to a
federal attempt. So New Jersey attempt law is no
broader than federal law. Martinez’s conviction
is thus an aggravated felony, making him
removable.
Id. at 286-87.
Likewise, Pennsylvania and federal law base their
respective approaches to accomplice liability on the Model
Penal Code. 18 Pa. Cons. Stat. Ann. § 306(c)(1) states that a
person is an accomplice of another person in the commission of
the offense “if (1) with the intent of promoting or facilitating the
commission of the offense, he: (i) solicits such other person to
commit it or (ii) aids or agrees or attempts to aid such other
person in planning or committing it.” This definition is almost
identical to the Model Penal Code’s definition of accomplice
liability, e.g. “a person is an accomplice if: (a) with the purpose
of promoting or facilitating the commission of an offense, he (i)
solicits such other person to commit it, or (ii) aids or agrees or
attempts to aid such person in planning or committing it.”
Model Penal Code § 2.06(3). In turn, “[w]hoever commits an
offense against the United States or aids, abets, counsels,
commands, induces or procures its commission, is punishable as
a principal.” Id. at § 2(a). Both Pennsylvania law and the
Model Penal Code essentially require what we have stated is
required to prove aiding and abetting under federal law, i.e.,
proof that the defendant had the specific intent to facilitate the
crime and acted to facilitate it. See, e.g., United States v.
Mercado, 610 F.3d 841, 846 (3d Cir. 2010).
30
“We have yet to determine whether or in what
circumstances state statutes that criminalize offers to sell
constitute ‘controlled substance offenses’ under the Guidelines.
Increasingly, however, our sister Circuits have held state statutes
expressly criminalizing a mere ‘offer’ do not.” Glass, 904 F.3d
at 322 (citing United States v, Madkins, 866 F.3d 1136, 1147
(10th Cir. 2017); United States v. Hinkle, 832 F.3d 569, 572
(5th Cir. 2016); United States v. Savage, 542 F.3d 959, 965-66
(2d Cir. 2008); United States v. Redden, 875 F.3d 374, 375 (7th
Cir. 2017), cert. denied, 138 S. Ct. 1343 (2018); United States v.
Bryant, 571 F.3d 147, 158 (1st Cir. 2009)). Glass refrained
from answering this question because Section 780-113(a)(30)
does not criminalize mere offers to sell. Id. As we have already
observed in our discussion of § 924(e)(2)(A)(ii) and attempts,
we likewise need not—and do not—decide at this time whether
the government is correct that “any statute that bars an ‘offer to
sell drugs is one ‘involving’ the distribution under ACCA”
(Appellee’s Brief at 26 (citations omitted)) because the
Pennsylvania drug statute does not “cross[] that line,” id.
In his supplemental submission addressing Glass, Daniels
“recognizes that Circuit precedent now holds that Pennsylvania
does not impose liability for an offer to sell.” (Appellant’s
October 1, 2018 Letter at 3.) We reasoned that Section 780-
113(a)(10) does not mention offers to sell (even though at least
one other provision contained in Section 780-113 does expressly
prohibit offers, see 35 Pa. Stat. Ann. § 780-113(a)(1)). Glass,
904 F.3d at 322-23. Glass argued that a mere offer to sell drugs
is implied by Pennsylvania’s definition of “deliver,” which, like
both the CSA and the Guidelines, includes attempted transfers.
Id. at 322. We rejected that argument, stating that, “[a]s Glass
does not dispute that ‘attempt’ under Pennsylvania has the same
31
meaning as ‘attempt’ in the CSA and the Guidelines, his
argument, if accepted, would prove self-defeating, for if § 780-
102(b) sweeps in mere offers to sell, then by his logic, so does
21 U.S.C. § 802(8) and U.S.S.G. § 4B1.2, making the state
offense broad, but no broader than the federal one.” Id. at 322-
23 (footnote omitted). Furthermore, “the parties have failed to
uncover any authority, such as state judicial decisions or pattern
jury instructions, suggesting that Pennsylvania would prosecute
a mere offer to sell under § 780-113(a)(30).” Id. at 323 (citing
Duenas-Alvarez, 549 U.S. at 193). The Glass Court then
distinguished Pennsylvania’s statutory definition of “deliver”
from the more expansive Texas definition at issue in Hinkle and
Conley (which expressly states that “deliver” includes offering
to sell) and compared it with the narrower Illinois understanding
of “deliver” addressed in Redden. Id. Finally, we noted that our
conclusion “is consistent with our prior holdings regarding §
730-113(a)(30) outside of the U.S.S.G. § 4B1.1 context,”
including our holding in Abbott that a conviction for cocaine-
based offenses “is not overbroad in the context of the ACCA’s
definition of ‘serious drug offense.’” Id. (citing Abbott, 748
F.3d at 160); see also, e.g., Martinez, 906 F.3d at 286
(distinguishing Texas law encompassing mere offer to sell
without evidence of possession or transfer as “far cry” from
conviction under New Jersey possession with intent statute).
In addition to seeking to preserve the “offer to sell” issue
for later review, Daniels purportedly cites to an authority
suggesting that Pennsylvania does in fact prosecute offers to
sell. See, e.g., Duenas-Alvarez, 549 U.S. at 193 (“[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.”). We do not agree.
32
In Commonwealth v. Donahue, 630 A.2d 1238 (Pa.
Super. Ct. 1993), the defendant argued that the Berks County
trial court lacked jurisdiction over the drug possession crimes
because the prosecution failed to adduce evidence that he
actually or constructively possessed marijuana in Berks County
(where his supplier, Bieber, lived) as opposed to Bucks County
(where the defendant resided and received the shipment of
marijuana), id. at 1242-43. The Pennsylvania Superior Court,
however, determined that Donahue was properly convicted as an
accessory to Bieber’s possession in Berks County. Id. at 1244.
In the process, it looked to Pennsylvania’s crime of solicitation,
18 Pa. Cons. Stat. Ann. § 902, as well as the state statutory
provision governing accomplice liability, see § 306. Donahue,
630 A.2d at 1243-44.
The Donahue court accordingly applied Pennsylvania’s
law of accomplice liability—which is essentially identical to the
federal approach to liability for aiding and abetting. The facts
indicated that Bieber and Donahue were business associates
involved in the distribution of marijuana. Id. at 1244. Donahue
told Bieber by telephone that, if Bieber received a shipment, he
would be interested in acquiring it. Id. The supplier then
received a shipment at his home in Berks County and
transported it to the defendant’s home in Bucks County. Id.
“Bieber also testified that he had conducted business with
appellant five to ten times in the past.” Id. Based on their prior
relationship, the Pennsylvania Superior Court believed it could
be reasonably inferred that the statement to Bieber implied that
Donahue “both encouraged and requested Bieber to obtain
marijuana to sell to him.” Id. Accordingly, the evidence
established that he solicited Bieber to purchase and possess the
marijuana with the intent to deliver. Id. The evidence also
33
established that he intended to promote or facilitate the
commission of the offense under the accomplice liability
provision: “Taken one step further, it is also reasonably clear
that appellant intended to promote Bieber to commit the offense
so that he, in turn could obtain marijuana to sell.” Id. In fact,
Donahue’s conviction was vacated on other grounds, and the
Pennsylvania Superior Court specifically directed the trial judge
to “instruct the jury that appellant may only be found guilty for
those actions which occurred in Berks County if it finds that he
was an accomplice to Bieber.” Id. at 1244 n.8.
We also reject Daniels’s assertion that Commonwealth v.
Parker, 957 A.2d 311 (Pa. Super. Ct. 2008), indicated that
Pennsylvania effectively criminalizes mere preparation. In that
case, a police officer conducting a traffic stop found that Parker
had a substance that was made to look like cocaine but was
actually candle wax. Id. at 317-18. The Pennsylvania Superior
Court affirmed Parker’s conviction for attempted delivery of a
counterfeit controlled substance under 18 Pa. Cons. Stat. Ann. §
901(a) and 35 Pa. Stat. Ann. § 780-113(a)(35)(ii). Id. Daniels
acknowledges that the Pennsylvania Superior Court employed
the substantial step standard (the well-established standard
applicable under the Model Penal Code as well as both New
Jersey and federal law) and found that the defendant had taken
such a step. He argues that, even under the interpretation most
favorable to the government, Parker did nothing more than
prepare the items for a later sale. But the Parker court never
suggested that it was applying some unique approach to the
well-established “substantial step” requirement. On the
contrary, it explained that the actions that Parker undertook
constituted a substantial step:
He was carrying the cocaine-like substance
34
with him, packaged in plastic baggies “consistent
with the way drug dealers handle or package
crack cocaine,” and he admitted that he would sell
it “if the opportunity presented itself.” In
Commonwealth v. Irby, 700 A.2d 463 (Pa. Super.
1997), we found that a defendant who packaged
candle wax in plastic baggies as cocaine and tried
to sell it to an undercover officer, even though the
sale never actually occurred, was sufficient to
constitute delivery of a noncontrolled substance.
Here, Parker took similar substantial steps toward
the commission of the same crime, except that he
was waiting for the opportunity of a possible
buyer to present itself. Therefore, the evidence
was sufficient to convict Parker of attempted
delivery of a noncontrolled substance.
Id. at 318 (citation omitted). The state court thereby mirrors the
Model Penal Code itself, which identifies both “possession of
materials to be employed in the commission of the crime, that
are specially designed for such unlawful use or that can serve no
lawful purpose of the actor under the circumstances” and
“possession, collection or fabrication of materials to be
employed in the commission of the crime, at or near the place
contemplated for its commission, if such possession, collection
or fabrication serves no lawful purpose of the actor under the
circumstances” as conduct that could be held to be a substantial
step. Model Penal Code § 501(2)(e), (f).
Like Daniels, Martinez argued that “New Jersey law
treats more forms of inchoate preparation for a crime as attempt
than federal law does.” Martinez, 906 F.3d at 281. We rejected
his argument, pointing out that the most recent explanation of
35
attempt by the New Jersey Supreme Court distinguishes
between mere preparation and a substantial step and thereby
tracks both the Model Penal Code and federal law. Id. at 285
(quoting State v. Farrad, 753 A.2d 648, 653 (N.J. 2000)). “In
dicta, Fornino stated: ‘It is only ‘very remote preparatory acts’
which are excluded from the ambit of attempt liability.’” Id.
(quoting State v. Fornino, 539 A.2d 301, 306 (N.J. App. Div.
1988)). Despite this statement (which goes farther than the
language in Parker), we explained that Fornino was a plain error
case and the state court thereby did not have an occasion to
define attempt liability. Id. The New Jersey Appellate Division
“simply noted that ‘some preparation may amount to an attempt.
It is a question of degree.’” Id. (quoting Fornino, 539 A.2d at
306). “So New Jersey courts wrestle with drawing that line, just
as federal courts and the Model Penal Code do.” Id. The same
is true with respect to the Pennsylvania courts.
Finally, Daniels insists that Pennsylvania criminalizes a
buyer’s solicitation. In other words, he argues that, while a drug
purchaser cannot be held liable as an accomplice of the seller
under federal law, he or she could be held liable under
Pennsylvania law. In support, Daniels relies on the
Pennsylvania Superior Court’s ruling in Commonwealth v.
Moss, 852 A.2d 374 (Pa. Super. Ct. 2004), “which conferred
liability under Section 7512 for a delivery, upon a buyer who
had, only by virtue of being a buyer, facilitated the delivery.”
(Appellant’s Reply Brief at 20.) 18 Pa. Cons. Stat. Ann. §
7512(a) provides that a person commits a felony of the third
degree if that person “uses a communication facility to commit,
cause or facilitate the commission or the attempt thereof of any
crime which constitutes a felony under this title or under the act
of April 14, 1972 (P.L. 233, No. 64), known as the Controlled
Substance, Drug, Device and Cosmetic Act.” In contrast, the
36
United States Supreme Court rejected the theory that an
analogous federal provision (prohibiting the use of a
communication facility in committing, causing, or facilitating
the commission of any act or acts constituting a felony under the
CSA) applies to someone “making a misdemeanor drug
purchase because his phone call to the dealer can be said to
facilitate the felony of drug distribution.” Abuelhawa v. United
States, 556 U.S. 816, 818 (2009) (addressing 21 U.S.C. §
843(b)). “To the contrary, Congress used no language spelling
out a purpose so improbable, but legislated against a background
usage of terms such as ‘aid,’ ‘abet,’ and ‘assist’ that points in the
opposite direction and accords with the CSA’s choice to classify
small purchases as misdemeanors.” Id. at 824 (footnote
omitted); see also, e.g., id. at 820 (“To begin with, the
Government’s literal sweep of ‘facilitate’ sits uncomfortably
with common usage. Where a transaction like a sale necessarily
presupposes two parties with specific roles, it would be odd to
speak of one party as facilitating the conduct of the other.”).
We nevertheless believe that Daniels takes both Moss
and Abuelhawa too far. Daniels was not convicted under
Section 7512. As we have already explained in some detail, the
federal and Pennsylvania principles governing accomplice as
well as attempt liability are essentially identical (after all, they
are both based on the Model Penal Code). In turn, neither the
Pennsylvania Superior Court nor the United States Supreme
Court was making broad pronouncements about the scope of
accomplice liability (or liability for attempt offenses). Although
it stated that the focus of its inquiry would be whether there was
sufficient evidence that the defendants’ telephone calls
facilitated the actual commission of an underlying felony, the
Moss court addressed at some length whether the defendants
took a substantial step toward delivery of a controlled substance
37
under the law of attempt. Moss, 852 A.2d at 382-84. It even
determined that there was insufficient evidence to support some
of the convictions.7 Id. at 383-84. Rejecting the district court’s
7
According to the Pennsylvania Superior Court, the
evidence was sufficient to sustain Sullivan’s conviction because
he placed a telephone call to Johnson inquiring about purchasing
drugs, Johnson agreed to make the sale, and Johnson was seen
briefly entering Sullivan’s home. Moss, 852 A.2d at 383.
“Appellant [Sullivan] made the necessary preparations and
arranged a meeting point at which he and Johnson would
complete the illicit transaction.” Id. “The record against Moss
establishes, as to Counts 1, 2, 6, 7, and 8, Moss engaged in
telephone conversations with a confidential informant and these
telephone conversations facilitated controlled buy transactions
between Moss and the informant.” Id. at 384; see also, e.g., id.
at 378 (“The only conclusion that can be reached from the
stipulation is that the telephone was used to make the
arrangements for the controlled buys that subsequently did occur
between the confidential informant and the Defendant.”).
However, the court found that Moss’s convictions on Counts 12
and 13 cannot stand because of the absence of any evidence that
Johnson actually attempted to make the delivery he discussed
with Moss. Id. at 384. “The Commonwealth may not obtain a
conviction under § 7512 based solely on evidence that the
Appellant engaged in drug-related telephone conversations with
a known drug trafficker.” Id. Likewise, “the record is devoid of
any evidence that the contemplated transaction between Austin
and Johnson actually occurred or that either Austin or Johnson
took a substantial step toward completion of the transaction they
discussed.” Id. at 383-84. “Viewed in the light most favorable
to the Commonwealth, the evidence establishes merely that
Austin engaged in drug-related telephone conversations with a
38
known drug trafficker.” Id. at 384.
According to Daniels, the Pennsylvania Superior Court
cites Moss as an example of the breadth of what constitutes a
substantial step for attempted delivery in Pennsylvania. See
Commonwealth v. Rivers, No. 1004 EDA 2013, 2014 WL
10936727, at *2-*5, *16-*17 (Pa. Super. Ct. May 30, 2014)
(non-precedential decision). In Rivers, the evidence clearly
established that the defendant went beyond mere preparation
(e.g., the defendant on his own initiative gave his telephone
number to the undercover officer so that she could contact him
to purchase illicit substances, they engaged in a telephone
discussion to arrange a transaction, setting the price as well as
the time and location, the defendant was proceeding toward and
was near the site for the transaction when he was arrested, and
he had a bag containing counterfeit cocaine). See, e.g., id. at
*17. Daniels also claims that “it now appears that a person who
solicits another to provide drugs – as by offering to pay a dealer
– may be subject to conviction of delivery in violation of
subsection (a)(30) as an accomplice.” (Daniels’s October 1,
2018 Letter at 3 (citing Commonwealth v. Murphy, 844 A.2d
1228, 1234 (Pa. 2004)).) “In federal law, by contrast,
solicitation will not support a drug trafficking conviction under
21 U.S.C. §§ 841(a) and 846. See United States v. Rivera-
Sanchez, 247 F.3d 905, 908-09 (9th Cir. 2001).” (Id.) The
Murphy court determined that the jury could have found that the
defendant intended to aid in the transfer of drugs by the seller to
the undercover officer “based on the evidence that Murphy
called out to Rivas after the trooper approached him, confirmed
to Rivas that the trooper was not a police officer, stayed with the
trooper while Rivas got drugs, and requested compensation from
the trooper for his efforts.” Murphy, 844 A.2d at 1237. The
39
suggestion that Abuelhawa altered the pleading requirements for
offenses invoking accomplice liability, we have explained that
“[t]he Abuelhawa Court simply addressed a narrow question
regarding the scope of the term ‘facilitate’ under § 843(b).”
United States v. Huet, 665 F.3d 588, 599 (3d Cir. 2012) (citing
Abuelhawa, 556 U.S. at 818); see also, e.g., id. (“Nor did the
decision modify the law of accomplice liability under 18 U.S.C.
§ 2. The elements of aiding and abetting under § 2 remain the
same.”). Like Huet, “[w]e decline to extend its holding any
further.”8 Id.
IV.
For the foregoing reasons, we will affirm the mandatory
minimum sentence of fifteen years’ imprisonment entered by the
District Court.
state supreme court further found that the evidence showed that
Murphy actually aided Rivas in transferring the drugs to the
trooper by screening the trooper for the seller. Id. Finally, we
expressly rejected the Ninth Circuit’s understanding of federal
attempt law in Martinez. 906 F.3d at 286-87.
8
Accordingly, we need not (and do not) consider
whether, even if Pennsylvania’s solicitation law sweeps more
broadly than its federal counterpart, “[s]uch criminal conduct is
not so remote or tangential to its aim, that is, the actual or
constructive transfer of a controlled substance, to justify
disqualification as a ‘serious drug offense’ under ACCA”
(Appellee’s Brief at 29).
40