United States District Court, W.D. Pennsylvania
Stewart Cercone Senior United States District Judge.
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.
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).
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
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
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.
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
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.
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).
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).
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
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)).
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)).
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).
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
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
(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).
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.").
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
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.
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 ...