United States v. Vontez Scales

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 21-3212
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UNITED STATES OF AMERICA
v.
VONTEZ SCALES, a/k/a TEZ,
Appellant
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2:18-cr-00576-005)
U.S. District Judge: Honorable Mark A. Kearney
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Submitted Under Third Circuit L.A.R. 34.1(a)
on September 13, 2022
Before: KRAUSE, BIBAS, and RENDELL, Circuit Judges
(Filed: November 7, 2022)
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OPINION*
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BIBAS, Circuit Judge.
Vontez Scales was convicted of two drug crimes: conspiracy to distribute methamphet-
amine and possession with intent to distribute heroin and fentanyl. United States v. Scales,
2021 WL 3854765, at *1, *3 (3d Cir. Aug. 30, 2021). On his first appeal, we affirmed his
*
This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding
precedent.
conviction but remanded his case for resentencing under United States v. Nasir, 982 F.3d
144 (3d Cir. 2020) (en banc). On remand, the District Court found that Scales’s two prior
drug convictions made him a career offender under the Sentencing Guidelines. That meant
that his Guidelines range was 262 to 327 months. The court gave him a small downward
variance and sentenced him to 240 months.
Scales now appeals again, challenging his sentence in three ways. None succeeds. We
review questions of law de novo and findings of fact for clear error. United States v. Bell,
947 F.3d 49, 54 (3d Cir. 2020).
First, Scales argues that the District Court should not have considered his prior drug
convictions because the government had not accurately documented them. To be a career
offender, Scales must have at least two prior felony convictions for controlled-substance
offenses. U.S.S.G. § 4B1.1(a). And the government has shown that he has twice been con-
victed of cocaine trafficking. So he seems to be a career offender.
But wait, says Scales. His signed plea agreement for one of those convictions mentions
heroin and marijuana trafficking, not cocaine trafficking. True enough. Yet elsewhere in
the plea agreement, he signed and initialed that he was pleading guilty to cocaine traffick-
ing, just as the state-court judgment shows. In any event, a conviction for heroin and ma-
rijuana trafficking would still make him a career offender. See U.S.S.G. § 4B1.2(b).
Second, Scales argues that his prior convictions cannot make him a career offender un-
der Nasir. There, we held that inchoate crimes do not count toward career-offender status.
United States v. Nasir, 17 F.4th 459, 469–72 (3d Cir. 2021) (en banc). Scales says that his
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drug convictions were under a law that includes inchoate crimes. See 35 Pa. Stat. & Cons.
Stat. § 780-113(a)(30). So under Nasir, he claims, his convictions cannot count.
But we recently foreclosed this argument. Earlier this year, we thoroughly examined
§ 780-113(a)(30) and its relationship to the Guidelines. United States v. Dawson, 32 F.4th
254, 258–67 (3d Cir. 2022). We found that this law does not criminalize any inchoate of-
fenses. Id. at 260. So “even after Nasir, § 780-113(a)(30) remains a career offender predi-
cate.” Id. at 267. Though Scales asks us to reject Dawson, that precedent binds us.
Finally, Scales claims that he should not have been sentenced for his meth conviction.
He points out that the government never seized any meth. Instead, it presented an inter-
cepted photo of two baggies containing something that, according to a detective’s testi-
mony, looked like meth. Scales argues that meth cannot be identified by sight alone and
that the government had to prove that the drug was “marketable and consumable.” Appel-
lant’s Br. 19 (citing United States v. Rodriguez, 975 F.2d 999 (3d Cir. 1992)).
These arguments are foreclosed too. On Scales’s first appeal, we held that the District
Court had properly admitted this testimony. Scales, 2021 WL 3854765, at *5. And even
without it, we observed, there was still plenty of evidence that Scales was part of a meth-
trafficking conspiracy. Id. at *4. Plus, although Scales says that he is challenging his sen-
tence, in fact he is attacking his conviction and should have raised these objections at trial
and on his first appeal. He cannot wait until round two. See Skretvedt v. E.I. DuPont de
Nemours, 372 F.3d 193, 202–03 (3d Cir. 2004). Lastly, the case that Scales relies on for his
“marketable and consumable” argument was about how to define a “mixture” of drugs; it
did not require marketable and consumable drugs for all drug convictions. See Rodriguez,
3
975 F.2d at 1004–08. And here, there was no evidence that any of the meth was fake or
non-consumable.
In short, Scales’s two prior drug felonies make him a career offender under the Guide-
lines. And his effort to challenge his meth conviction fails. So we will affirm.
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