United States District Court, M.D. Pennsylvania
William W. Caldwell United States District Judge
pled guilty to a violation of 18 U.S.C. § 922(g), being
a felon in possession of a firearm. A presentence report
(PSR) was prepared which concludes that Defendant has three
prior Pennsylvania convictions (PSR ¶¶ 33, 35 and
36) that are serious drug offenses qualifying Defendant as an
armed career criminal under 18 U.S.C. § 924(e), the
Armed Career Criminal Act (ACCA). We are addressing four
objections Defendant made to the presentence report (PSR),
three of which he briefed in a sentencing memorandum, filed
December 20, 2016. Two of them deal with Defendant's
status as an armed career criminal.
The objection dealing with defendant's 2008 cocaine
first objection is that his 2008 cocaine offense (PSR ¶
36) is not a serious drug offense because it was treated in
state court as a third-degree felony punishable by only a
maximum sentence of seven years, not the maximum sentence of
ten years required for a serious drug offense under the ACCA.
pertinent part, the ACCA defines a serious drug offense as
(A) the term “serious drug offense” means -
. . . .
(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; . . .
18 U.S.C. § 924(e)(2)(A)(ii).
support of his claim that the offense does not qualify as a
serious drug offense, Defendant relies on the written
guilty-plea colloquy and the oral guilty-plea colloquy from
the records in state court. In the written colloquy,
Defendant is told that the charge is “delivery of
cocaine” for which the “maximum term of
confinement” is “7 years” and a
“maximum fine” of “$15, 000.” (Doc.
64-1, ECF p. 6). In the oral colloquy, the court informs
Defendant that he could face up to seven years in jail and a
fine of up to $15, 000. (Doc. 64-2, ECF p. 2). Defendant
observes that a third-degree felony is punishable with a
maximum sentence of seven years, 18 Pa. Cons. Stat. Ann.
§ 106(b)(4), and that a maximum fine of $15, 000 is
consistent with a third-degree felony. See 18 Pa. Cons. Stat.
Ann. § 1101(3). Defendant therefore concludes that his
2008 cocaine offense does not qualify as a serious drug
offense because it was treated as a third-degree felony under
reject this argument, essentially for the reasons the
government advances. The government argues that the reference
to a seven-year maximum sentence is simply a mistake that
does not control the issue here. It maintains the offense
qualifies as a serious drug offense because it meets the
definition of “serious drug offense” in the ACCA.
was charged in the affidavit of probable cause and in the
criminal information with a violation of 35 Pa. Stat. Ann.
§ 780-113(a)(30), (Doc. 67-1, ECF p. 3, 6), with both
documents charging that Defendant made a delivery of cocaine.
pertinent part, section 780-113(a)(30) makes the following
the manufacture, delivery, or possession with intent to
manufacture or deliver, a controlled 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 ...