United States v. Hassan Ward

• Court: Court of Appeals for the Third Circuit
• Decided: November 2, 2018
• Docket: 17-3766
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________

No. 17-3766 ______________

UNITED STATES OF AMERICA

v.

HASSAN WARD, Appellant ______________

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (D.C. No. 1-16-cr-00160-001) District Judge: Hon. John E. Jones, III ______________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) October 1, 2018 ______________

Before: SHWARTZ, ROTH, and FISHER, Circuit Judges.

(Filed: November 2, 2018)

______________

OPINION* ______________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. SHWARTZ, Circuit Judge.

Hassan Ward appeals his sentence under the Armed Career Criminal Act

(“ACCA”), 18 U.S.C. § 924(e), of 180 months’ imprisonment. Because the District

Court’s rulings concerning Ward’s prior convictions were correct, we will affirm.

I

Ward was charged with and pleaded guilty to being a felon in possession of a

firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). The ACCA prescribes a 180-

month mandatory minimum sentence for “a person who violates section 922(g) . . . and

has three previous convictions by any court . . . for . . . a serious drug offense.” 18 U.S.C.

§ 924(e)(1). Because Ward had previous convictions for serious drug offenses, the

presentence investigation report (“PSR”) stated that the ACCA mandatory minimum

sentence applied to him. Ward objected to the ACCA classification and to a four-level

increase for possession of a firearm in connection with another felony offense.

The District Court overruled his objection regarding the ACCA, concluding that

he had four prior convictions under Pennsylvania law, 35 Pa. Stat. § 780-113(a)(30), for

delivery of crack cocaine. Specifically, he was convicted of selling crack cocaine on

May 20, 2003, and April 27, April 29, and May 13, 2010. Although the 2010 drug sales

were consolidated for plea and sentencing, the Court concluded that the 2010 sales “were

distinct, separate offenses and each can be considered as a previous ‘serious drug offense’

under the ACCA,” App. 12, 14. Having overruled Ward’s ACCA objection, the Court

found that his four-level-increase objection was moot and determined that his Guideline

2 range was 180 to 188 months’ imprisonment. The District Court sentenced him to 180

months.

Ward appeals.

II1

A

We exercise plenary review over Ward’s challenge to the District Court’s

application of the ACCA. United States v. Henderson, 841 F.3d 623, 626 (3d Cir. 2016).

Ward’s separate argument that his convictions under § 780-113(a)(30) cannot serve as

predicate serious drug offenses for purposes of the ACCA was not preserved at

sentencing, so we review it for plain error. Fed. R. Crim. P. 52(b); United States v.

Foster, 891 F.3d 93, 113 n.15 (3d Cir. 2018).

B

Ward first argues that he was improperly sentenced under the ACCA because the

record does not “conclusively” show that his prior offenses were committed on different

occasions. Appellant’s Br. at 9. He also asserts that he was improperly sentenced under

the ACCA for his prior convictions under § 780-113(a)(30) for delivery, manufacture, or

possession with intent to deliver a controlled substance because the state statute is

broader than § 924(e)(2)(A)(ii)’s definition of a “serious drug offense.” Both arguments

fail.

1 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). 3 1

As noted above, the ACCA provides a mandatory minimum sentence of 180

months’ imprisonment when a person violates § 922(g) and has at least three previous

convictions for a serious drug offense “committed on occasions different from one

another.” 18 U.S.C. § 924(e)(1). Under the “‘separate episodes’ test,” “individual

convictions may be counted for purposes of [the ACCA] sentencing enhancement so long

as the criminal episodes underlying the convictions were distinct in time.” United States

v. Schoolcraft, 879 F.2d 64, 73, 74 (3d Cir. 1989) (citation omitted); see also United

States v. Cardenas, 217 F.3d 491, 492 (7th Cir. 2000) (counting two sales of crack, which

occurred within just over 24 hours of each other, as separate offenses under the ACCA;

stating that a court must “look to the nature of the crimes, the identities of the victims,

and the locations,” and “ask whether the defendant had sufficient time to cease and desist

or withdraw from the criminal activity” (citation and internal quotation marks omitted)).

As a result, multiple convictions can be consolidated and still be considered separate

offenses for purposes of the ACCA.

Under this test, Ward’s previous convictions are separate offenses. As reflected in

the criminal information and PSR, Ward was charged with and convicted of selling

cocaine base (crack) to a confidential informant on April 27, April 29, and May 13, 2010.

Reliance on these two sources was proper. See United States v. Blair, 734 F.3d 218, 228-

29 (3d Cir. 2013) (charging instrument); United States v. Hendrix, 509 F.3d 362, 376 (7th

Cir. 2007) (PSR). Each of these sources contain “factual matter that was sufficient for

the District Court to conclude that” these offenses “occurred on separate occasions,”

4 Blair, 734 F.3d at 228, and were “distinct in time,” Schoolcraft, 879 F.2d at 73, as they

reflect the transactions were separated by days or weeks. The separation in time provided

Ward ample opportunity to “cease and desist or withdraw from the criminal activity.”

Cardenas, 217 F.3d at 492. Thus, the District Court properly counted each offense as a

separate serious drug offense because each was “committed on occasions different from

one another,” 18 U.S.C. § 924(e)(1). The Court therefore did not err in sentencing Ward

under the ACCA based on these previous state-law convictions for “serious drug

offenses.”

The District Court also did not err, plainly or otherwise, in holding that Ward’s

prior drug crimes constitute serious drug offenses. A “serious drug offense” under the

ACCA means, among other things, “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). Ward was previously convicted under

35 Pa. Stat. § 780-113(a)(30), which prohibits, among other things, “the manufacture,

delivery, or possession with intent to manufacture or deliver, a controlled substance by a

person not registered under this act” (except as authorized by the act), id., and the offense

is punishable by up to 10 years’ imprisonment, id. § 780-113(f)(1.1).

When deciding whether a previous conviction is a “serious drug offense” under

the ACCA, we must compare the elements of the crime of conviction (and not the

5 particular facts underlying the conviction) with the elements of the generic version of the

offense as set forth in the ACCA. Descamps v. United States, 570 U.S. 254, 261 (2013);

United States v. Abbott, 748 F.3d 154, 157 (3d Cir. 2014). This comparison—the

categorical approach—is “straightforward when a statute sets out a single (or

‘indivisible’) set of elements to define a single crime.” Mathis v. United States, 136 S.

Ct. 2243, 2248 (2016). When a prior conviction is for a violation of a “so-called

‘divisible statute,’” which “sets out one or more elements of the offense in the

alternative,” we use the modified categorical approach. Descamps, 570 U.S. at 257.

Under this approach, sentencing courts may consult a limited class of documents, known

as Shepard documents, which include indictments and jury instructions, to determine

which alternative formed the basis of the defendant’s prior conviction. Id. at 262; see

also Mathis, 136 S. Ct. at 2249. We have held that, contrary to Ward’s argument,

because § 780-113(a)(30) prohibits the sale of many different drugs and because “the

type of drug, insofar as it increases the possible range of penalties, is an element of the

crime,” § 780-113(a)(30) is divisible. Abbott, 748 F.3d at 159; see Henderson, 841 F.3d

at 629-32 (stating that the drugs listed on Pennsylvania’s controlled substances schedules,

35 Pa. Stat. §§ 780-113(f)(1), 780-104, are “distinct elements of the crime; not means of

committing the crime,” and holding that § 780-113(f)(1), which provides penalties for

violations of § 780-113(a)(30), is divisible). Accordingly, we will apply the modified

categorical approach to determine whether Ward’s previous convictions qualify as ACCA

predicate offenses. Henderson, 841 F.3d at 627-32; Abbott, 748 F.3d at 159.

6 Applying a modified categorical analysis, the Shepard documents show, and the

parties agree, that Ward was convicted of four separate violations of § 780-113(a)(30) for

the sale of cocaine base. Cocaine base is a controlled substance under federal law. 21

U.S.C. §§ 802(6), 802(17), 812 (Schedule II(a)(4)). Therefore, Ward was properly

sentenced under the ACCA because he was convicted of at least three serious drug

offenses—“offense[s] under [Pennsylvania] law, involving . . . distributing . . . 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).

Ward’s argument that § 780-113(a)(30) sweeps more broadly than federal law

because it prohibits “delivery” of a controlled substance, whereas § 924(e)(2)(A)(ii) uses

the term “distributing” is meritless. There is no meaningful difference between the terms.

For purposes of the ACCA, the term “[to] distribute” is defined as “to deliver (other than

by administering or dispensing) a controlled substance or a listed chemical.” 21 U.S.C.

§ 802(11). Under § 780, “‘[d]eliver’ or ‘delivery’ means the actual, constructive, or

attempted transfer from one person to another of a controlled substance . . . .” 35 Pa.

Stat. § 780-102(b). As these definitions suggest, “delivery” is simply “a method of

distribution.” Rice v. United States, Civ. A. No. 12-250, Crim. A. No. 09-218, 2012 WL

2574815, at *5 (W.D. Pa. July 2, 2012); see also United States v. Glass, 904 F.3d 319,

323 (3d Cir. 2018) (noting that both 35 Pa. Stat. § 780-102(b) and 21 U.S.C. § 802(8)

define delivery to mean a transfer). Thus, the District Court did not err in counting

Ward’s convictions under § 780-113(a)(30) as serious drug offenses under the ACCA.

7 III

For the foregoing reasons, we will affirm.