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United States v. Sunday

United States District Court, W.D. Pennsylvania

July 25, 2018



          David Stewart Cercone Senior United States District Judge.

         On November 13, 2008, a grand jury returned a two-count indictment against Timothy Sunday ("defendant") charging him with possession of a firearm and possession of ammunition by a felon, in violation of 18 U.S.C. § 922(g)(1). Each count further charged that defendant possessed the prohibited object after having been convicted of three prior offenses that triggered the enhanced penalties mandated by the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). On April 8, 2011, defendant pled guilty to the charge of being a felon in possession of a firearm. On August 11, 2011, he was sentenced to a term of incarceration of 180 months. On January 20, 2017, his sentence was vacated pursuant to a determination that one of the prior predicate offenses used to enhance his sentence was for Pennsylvania burglary and as a result his sentence had been rendered unconstitutional by the Supreme Court's decision in Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551 (2015). Presently before the court are the parties' submissions in conjunction with resentencing. The parties vehemently disagree about whether defendant remains subject to the enhanced penalties mandated by 18 U.S.C. § 924(e). For the reasons set forth below, we conclude that the government has met its burden of showing defendant continues to qualify as an armed career criminal offender and thus remains subject to those penalties.

         The government seeks to subject defendant to the ACCA based on three prior Pennsylvania convictions - one for a controlled substance offense and two for felony robbery. Defendant advances objections predicated on the contention that Pennsylvania's robbery statute is indivisible, further inquiry into the factual conduct on which the convictions were based is prohibited by the Sixth Amendment and the fact-based inquiry needed to sentence defendant under the ACCA is precluded by Mathis v. United States, 579 U.S. ___, 136 S.Ct. 2243 (2016).

         The ACCA provides:

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 serious drug offense ... committed on different occasions from one another, such person shall be ... imprisoned not less than fifteen years.

18 U.S.C. § 924(e)(1). It defines a "serious drug offense" 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[.]

18 U.S.C. § 924(e)(2)(A)(ii); United States v. Abbott, 748 F.3d 154, 159 (3d Cir. 2014). It defines a "violent felony" as:

any crime punishable by imprisonment for a term exceeding one year . . . 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 . . . .

18 U.S.C. § 924(e)(2)(B) (emphasis added); Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551, 2555 (2016).

         Application of the ACCA "raises the penalty for possession of a firearm by a felon from a maximum of 10 years . . . to a mandatory minimum sentence of 15 years and a maximum of life in prison." United States v. Kole, 164 F.3d 164, 168 (3d Cir. 1998) (quoting Custis v. United States, 511 U.S. 485 (1994))). A defendant subject to the ACCA is classified as an armed career criminal pursuant to § 4B1.4 of the Sentencing Guidelines. See U.S.S.G. § 4B1.4.

         "The ACCA is a sentence enhancement statute and does not create a separate offense." United States v. Mack, 229 F.3d 226, 231 (3d Cir. 2000), cert. denied, 532 U.S. 1045 (2001). It is triggered in part by the existence of three prior predicate convictions for a violent felony and/or a serious drug offense. 18 U.S.C. § 924(e). As to the existence of these qualifying prior convictions, neither Descamps v. United States, ___ U.S. ___ 133 S.Ct. 2276 (2013) nor Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151 (2013) altered the exception under Almendarez-Torres v. United States, 523 U.S. 224 (1998), that "a judge, rather than a jury, may determine 'the fact of a prior conviction.'" United States v. Blair, 734 F.3d 218, 226 (3d Cir. 2013) (Descamps and Alleyne did "nothing to restrict the established exception under Almendarez-Torres that allows judges to consider prior convictions."); United States v. Burnett, 773 F.3d 122, 135 (3d Cir. 2014) (Almendarez-Torres remains as controlling law and permits judges to find the existence of prior convictions for the purpose of enhanced penalties).

         Sentencing courts determining whether a prior conviction is a violent felony or serious drug offense under the ACCA must apply a categorical approach. Mathis, 136 S.Ct. at 2248; Abbott, 748 F.3d at 157; Sykes v. United States, 131 S.Ct. 2267, 2272 (2011) (a categorical approach is employed in determining whether a specific conviction satisfies the statutory definition of a qualifying prior offense). Descamps clarified "the analytical approach that sentencing courts must use to determine if a prior conviction is a predicate offense under ACCA." Blair, 734 F.3d at 222. Mathis further clarified this approach in cases involving statutes that have "multiple alternative elements." Mathis, 136 S.Ct. at 2249.

         Under the categorical approach, a sentencing court must review the elements of the predicate offense in order to determine whether the offense falls within the statutory definitions. A "prior conviction qualifies as an ACCA predicate only if the statute's elements are the same as, or narrower than, those of the [statutorily defined predicate offense]." United States v. Brown, 765 F.3d 185, 189 (3d Cir. 2014). A categorical review is limited to the elements of the defendant's prior conviction "without inquiry into the specific conduct of [the] particular offender." James v. United States, 550 U.S. 192, 202 (2007); United States v. Johnson, 587 F.3d 203, 208 (3d Cir. 2009); accord Abbott, 748 F.3d 156 ("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.'") (quoting Descamps, 133 S.Ct. at 2283 (quoting Taylor v. United States, 495 U.S. 575, 600 (1990)). In other words, only the fact of conviction and the statutory definition of the prior offense are relevant in determining whether an offense is a predicate offense. James, 550 U.S. at 202; accord Sykes, 131 S.Ct. at 2273; Mathis, 136 S.Ct. at 2248 ("And ACCA, as we have always understood it, cares not a whit about [the brute facts].") (citing Taylor, 495 U.S. at 599-602).

         By identifying separate categories of predicate offenses based on the underlying elements, Congress evidenced an intent to have prior predicate offenses identified by uniform definitions that are independent of the labels employed under the various States' criminal codes. Taylor, 495 U.S. at 592: Mathis, 136 S.Ct. at 2251-52. These uniform definitions are confined to the elements that a jury necessarily would have found in order to convict, regardless of whether the conviction arises from a verdict or the entry of a guilty plea. Descamps, 133 S.Ct. at 2288; Mathis, 136 S.Ct. at 2252. In other words, "the only facts the court can be sure the jury [] found [in rendering a prior guilty verdict] are those constituting elements of the offense - as distinct from amplifying but legally extraneous circumstances [and] . . . when a defendant pleads guilty to a crime, he waives his right to a jury determination of only that offense's elements[.]" Descamps, 133 S.Ct. at 2288; accord Mathis, 136 S.Ct. at 2248 (elements are the constituent parts of a crime's legal definition - they are the things a jury must find beyond a reasonable doubt to convict and the things to which a defendant must admit to enter a valid guilty plea). Implemented in this manner, the categorical approach comports with the ACCA's text and history, avoids the Sixth Amendment concerns that would arise from sentencing courts making findings of fact that properly belong to juries and "averts 'the practical difficulties and potential unfairness of a factual approach.'" Descamps, 133 S.Ct. at 2288 (quoting Taylor, 495 U.S. at 601).

         A variant of the categorical approach known as the "modified categorical approach" has been approved for use in "a narrow range of cases." Brown, 765 F.3d at 189; Descamps, 133 S.Ct. at 2281; Mathis, 136 S.Ct. at 2249. Use of this approach is appropriate where "a prior conviction is for violating a so-called 'divisible statute.'" Descamps, 133 S.Ct. at 2281. A divisible statute "sets out one or more elements of the offense in the alternative." Id.; Brown, 765 F.3d at 190. If at least one of the alternative versions of the offense reflects the elements of a predicate offense under the ACCA, then "the modified categorical approach permits sentencing courts to consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant's prior conviction." Descamps, 133 S.Ct. at 2281; Brown, 765 F.3d at 189; Mathis, 136 S.Ct. at 2249. Where the conviction arises from the entry of a guilty plea, the list of approved documents are "the charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented." Brown, 765 F.3d at 189-90 (quoting Shepard v. United States, 544 U.S. 13, 16 (2005)); accord Descamps, 133 S.Ct. at 2284 (in Shepard, "we again authorized sentencing courts to scrutinize a restricted set of materials -- here, 'the terms of a plea agreement or transcript of colloquy between judge and defendant' -- to determine if the defendant had pleaded guilty to [the offense of burglary as generically defined].").

         Descamps made clear that the modified categorical approach always "retains the categorical approach's central feature: a focus on the elements, rather than the facts, of a crime." Id. (quoting Descamps, 133 S.Ct. at 2285). The sentencing court is permitted "to examine a limited class of documents [only] to determine which of a statute's alternative elements formed the basis of the defendant's prior conviction." Id. (quoting Descamps, 133 S.Ct. at 2284). "Review of these documents then permits the court to 'do what the categorical approach demands: compare the elements of the crime of conviction (including the alternative element used in the case) with the elements of the [predicate offenses as they are statutorily defined].'" Id. (quoting Descamps, 133 S.Ct. at 2284). Any lingering question about the limited nature of this inquiry was put to rest in Mathis. Mathis, 136 S.Ct. at 2251 ("Under ACCA, Taylor stated, it is impermissible for 'a particular crime [to] sometimes count towards enhancement and sometimes not, depending on the facts of the case.' Accordingly, a sentencing judge may look only to 'the elements of the [offense], not to the facts of [the] defendant's conduct.'") (quoting Taylor, 495 U.S. at 601)).

         The modified categorical approach is "applicable only to divisible statutes." Brown, 765 F.3d at 190. A divisible statute is one that "lists multiple, alternative elements, and so effectively creates 'several different crimes, '" at least one of which has the same or more narrow elements as the ACCA's statutorily defined predicate offenses. Descamps, 133 S.Ct. at 2283-85; Brown, 765 F.3d at 189 ("a statute is 'divisible' when it 'list[s] potential offense elements in the alternative.'") (quoting Descamps, 133 S.Ct. at 2283). But more than general divisibility is required: "a sentencing court should apply the modified approach to a divisible statute and examine extra-statutory documents only when 'at least one, but not all' of the separate versions of the offense is, by its elements, a predicate offense." Brown, 765 F.3d at 191 (citing with approval United States v. Cabrera-Umanzor, 728 F.3d 347, 352 (4th Cir. 2013) ("[g]eneral divisibility . . . is not enough; a statute is divisible for purposes of applying the modified categorical approach only if at least one of the categories into which the statute may be divided constitutes, by its elements, a crime of violence.”) (quoting Descamps, 133 S.Ct. at 2285)).

         In contrast, if a statute sweeps more broadly than a statutorily defined predicate offense because it consists of a "single, indivisible set of elements," then the statute is indivisible. Brown, 765 F.3d at 190 (quoting Descamps, 133 S.Ct. at 2282). Likewise, "[i]f a statute is generally divisible into multiple versions, but each version is overbroad (covers at least some conduct that is not a [predicate offense]) and indivisible (cannot be further divided into subversions based on the elements), the extra-statutory documents are irrelevant and a sentencing court's analysis has reached a dead-end: the prior conviction is not a predicate offense." Id. at 191 (citing Descamps, 133 S.Ct. at 2283). In either scenario the modified categorical approach has no application to the court's inquiry and a conviction under the statute cannot be converted into a predicate offense. Descamps, 133 S.Ct. at 2283; Brown, 765 F.3d at 193 (A statute that is "overbroad in that it criminalizes conduct that is not always considered a [prior predicate offense] and is thus indivisible "is categorically not a predicate offense for [the ACCA or career offender purposes]."). And this is so "even if the defendant actually committed the offense in its [statutorily defined] form." Descamps, 133 S.Ct. at 2282-83; Brown, 765 F.3d at 191 ("If the state statute 'sweeps more broadly' than the federal definition, a conviction under it is not a career offender predicate even if the defendant actually committed the offense in a way that involved the use (or threatened use) of physical force against another.") (quoting Descamps, 133 S.Ct. at 2283); Mathis, 136 S.Ct. at 2253 ("ACCA, as just explained, treats such facts as irrelevant: Find them or not, by examining the record or anything else, a court still may not use them to enhance a sentence. And indeed, our cases involving the modified categorical approach have already made exactly that point. '[T]he only [use of that approach] we have ever allowed,' we stated a few Terms ago, is to determine 'which element[s] played a part in the defendant's conviction.'") (quoting Descamps, 570 U.S. at ___, 133 S.Ct. at 2283, 2285).

         Here, the government seeks to subject defendant to the ACCA based on three prior convictions: one under Pennsylvania's Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-101 et seq. ("the CSDDCA") and two under Pennsylvania's robbery statute, 18 Pa. C. S. § 3701. Defendant maintains that under Mathis his robbery convictions no longer qualify as ACCA predicate offenses because 1) the statute contains subsections that sweep more broadly than the ACCA's force clause, 2) the subsections list means as opposed to elements in defining felony robbery, 3) even if the statute is divisible, the government has not produced appropriate documentation showing the specific offenses were violent felonies, and 4) any potential subsections do not satisfy the force clause in any event.

         The record demonstrates that defendant has three predicate offenses under the ACCA. The government advances one conviction for violation of the prohibited acts and penalties set forth at 35 P.S. § 780-113(a)(30) of the CSDDCA. This section provides:

(a) The following acts and the causing thereof within the Commonwealth are hereby prohibited:
(30) Except as authorized by this act, 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 possessing with intent to deliver, a counterfeit controlled substance.

35 P.S. § 780-113(a)(30). The pertinent penalty section provides:

(f) Any person who violates clause (12), (14) or (30) of subsection (a) with respect to:
(1) A controlled substance or counterfeit substance classified in Schedule I or II which is a narcotic drug, is guilty of afelony and upon conviction thereof shall be sentenced to imprisonment not exceeding fifteen years, or to pay a fine not exceeding two hundred fifty thousand dollars ($250, 000), or both or such larger amount as is sufficient to exhaust the assets utilized in and the profits obtained from the illegal activity.

35 P.S.§§ 780-113(f)(1).

         The United States Court of Appeals for the Third Circuit has held (post-Descamps) that 35 P.S. § 780-113(a)(30) is a divisible statute and that the use of the modified categorical approach is proper when determining whether a prior conviction thereunder is a predicate offense under the ACCA. Abbott, 748 F.3d at 156 ("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.").

         Drawing support from Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151 (2013), the Abbott court analyzed the structure of 35 P. S. § 780-113(a)(30) and its corresponding penalty section at 35 P. S.§ 780-113(f) and concluded that the controlled substance involved in a § 780-113(a)(30) offense determined both the applicable minimum and maximum penalties and thus the particular substance giving rise to the charge is an alternative element that must be proved to a jury beyond a reason doubt. Id. at 158-59. It further held: "[u]nder Pennsylvania law, possession with the intent to distribute cocaine is punishable by a maximum term of imprisonment of ten years" and a conviction for such an offense "is a 'serious drug offense' and properly [can serve] as a predicate offense for the imposition of the fifteen-year minimum sentence under the ACCA." Id. at 159-60.

         In United States v. Henderson, 841 F.3d 623 (3d Cir. 2016), the United States Court of Appeals for the Third Circuit revisited whether a conviction under 35 P. S. § 780-113(a)(30) and its corresponding penalty section at 35 P. S. § 780-113(f) constitutes a serious drug offense under the refined analysis set forth in Mathis, and concluded that such a conviction is a qualifying predicate offense. Henderson, 841 F.3d at 628. It first determined that the statute did not list different means of committing a singularly defined controlled substance offense but instead enumerated different elements. Id. ("the first task for a sentencing court faced with an alternatively phrased statute is thus to determine whether its listed items are elements or means."). It considered the three sources identified in Mathis that can inform the analysis, and concluded that each supported the determination that Pennsylvania's Controlled Substance Act was a divisible statute. Id. at 628-631. It further determined that the charging instruments and the records of conviction from the sentencing court contained the requisite level of certainty required under Shepard. Id. at 632.[1]

         Here, the government submitted records of defendant's June 25, 2001, conviction under the CSDDCA. They reflect that defendant was charged in a three count information on April 3, 1998. Count one charged delivery of heroin in violation of 35 P.S. § 780-113(a)(30); Count two charged possession of heroin with the intent to deliver in violation of 35 P.S. § 780-113(a)(30); and Count three charged possession of heroin in violation of 35 P.S. § 780-113(a)(16). See Information of January 25, 1999 (Doc. No. 124-1) at p. 2-3. Defendant entered a plea of guilty to all three counts on June 25, 2001. Id. at ...

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