USCA4 Appeal: 23-4765 Doc: 55 Filed: 07/02/2025 Pg: 1 of 15
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 23-4765
UNITED STATES OF AMERICA,
Plaintiff − Appellee,
v.
RASHUN RAFAEL SUNCAR, a/k/a Blackie,
Defendant – Appellant.
Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. John Preston Bailey, District Judge. (5:23−cr−00039−JPB−JPM−1)
Argued: December 10, 2024 Decided: July 2, 2025
Before DIAZ, Chief Judge, and AGEE and RICHARDSON, Circuit Judges.
Affirmed by published opinion. Chief Judge Diaz wrote the opinion in which Judge Agee and Judge Richardson joined.
ARGUED: Jenny R. Thoma, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Clarksburg, West Virginia, for Appellant. Carly Cordaro Nogay, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for Appellee. ON BRIEF: John A. Schwab, JOHN SCHWAB LAW, LLC, Pittsburgh, Pennsylvania, for Appellant. William Ihlenfeld, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for Appellee. USCA4 Appeal: 23-4765 Doc: 55 Filed: 07/02/2025 Pg: 2 of 15
DIAZ, Chief Judge:
Rashun Suncar challenges the district court’s decision to apply the career offender
enhancement to his federal drug conviction. The court did so because Suncar had two prior
Pennsylvania state convictions for delivery of a controlled substance, in violation of 35 Pa.
Stat. and Cons. Stat. § 780-113(a)(30). Suncar maintains on appeal that section 780-
113(a)(30) criminalizes (1) offers to sell drugs, and (2) the attempted transfer of drugs,
both of which make Pennsylvania’s statute categorically broader than the conduct
criminalized under the then applicable federal sentencing guidelines. 1
We disagree and affirm the judgment. 2
1 The Sentencing Commission later amended the guidelines to include “attempt[s] to commit” a “controlled substance offense” within the definition of a “controlled substance offense.” U.S.S.G. § 4B1.2(d) (2023). 2 In his reply brief, Suncar argues that the district court procedurally erred in two other ways and imposed a substantively unreasonable sentence. But Suncar forfeited these arguments by failing to raise them in his opening brief. Grayson O Co. v. Agadir Int’l LLC, 856 F.3d 307, 316 (4th Cir. 2017). In any event, Suncar conceded at oral argument that we couldn’t reach his otherwise-forfeited arguments unless we agreed that the district court erred in imposing the career offender enhancement. See Oral Argument at 15:40– 15:58, United States v. Suncar, No. 23-4765 (4th Cir. Dec. 10, 2024), http://www.ca4.uscourts.gov/OAarchive/mp3/23-4765-20241210.mp3. Because the district court correctly applied the enhancement, we don’t consider Suncar’s other arguments.
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I.
Twice, Suncar sold a confidential informant oxycodone pills, some of which
contained a detectable amount of fentanyl. Law enforcement then obtained a warrant to
search Suncar’s home, where they found crack cocaine, marijuana, and a pistol.
Suncar ultimately pleaded guilty to one count of distribution of fentanyl, in violation
of 21 U.S.C. § 841(a)(1) and (b)(1)(C). Under his plea agreement, he reserved “the right
to appeal an adverse sentencing determination on the issue of whether his prior felony drug
convictions qualified as a ‘controlled substance offense’ as contemplated by U.S.S.G.
§ 4B1.2(b).” J.A. 10.
Suncar’s two prior state drug convictions were for delivery of cocaine under 35 Pa.
Stat. and Cons. Stat. § 780-113(a)(30). That statute prohibits “the manufacture, delivery,
or possession with intent to manufacture or deliver, a controlled substance . . . or knowingly
creating, delivering or possessing with intent to deliver, a counterfeit controlled substance.”
35 Pa. Stat. and Cons. Stat. § 780-113(a)(30). The statute, in turn, defines “delivery” as
“the actual, constructive, or attempted transfer from one person to another of a controlled
substance, other drug, device or cosmetic whether or not there is an agency relationship.”
Id. § 780-102(b).
A presentence report assigned Suncar a base offense level of twenty and applied a
two-level enhancement for possession of a dangerous weapon. The report also applied the
career offender enhancment, but reduced Suncar’s offense level by three points for
acceptance of responsibility, leaving him with a total offense level of 29. Without the
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career offender enhancement, Suncar’s guideline range was 46–57 months’ imprisonment.
With it, his applicable guidelines range jumped to 151–188 months’ imprisonment.
Suncar challenged the career offender enhancement. He argued (as he does here)
that section 780-113(a)(30) criminalizes offers to sell and attempted transfers of drugs,
while U.S.S.G. § 4B1.2(b) punished neither at the time of Suncar’s conviction. Because
of those apparent discrepancies, Suncar contended that his Pennsylvania convictions
weren’t “controlled substance offenses” and couldn’t serve as predicates for the career
offender enhancement.
The district court disagreed. It explained that the Third Circuit had previously held
that the Pennyslvania statute “[was] in fact [an] appropriate predicate[] for [a] career
offender finding” in United States v. Dawson, 32 F.4th 254 (3d Cir. 2022). J.A. 158. And
because “[t]he Third Circuit obviously is the [c]ourt charged with interpreting those
[Pennsylvania] statutes,” the district court would “follow Dawson [until] told otherwise.”
J.A. 158.
The district court nonetheless imposed a sentence of 92 months’ imprisonment,
“well below the applicable sentence called for by the guidelines as a career offender.” J.A.
168–69. The court also “note[d] that in the event the guideline determination made in this
case [was] found to be incorrect, [it] would still impose a sentence identical to that imposed
in this case.” J.A. 169.
This appeal followed.
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II.
On appeal, Suncar argues that the district court erred by applying the career offender
enhancement because the Pennsylvania delivery statute on which his predicate offenses
rested is categorically overbroad. First, he asserts that “the least culpable conduct [section]
780-113(a)(3) criminalizes [is] offers to sell, which [is] categorically broader than the
ordinary meaning of distribution [under the guidelines].” Appellant’s Br. at 5. Second,
Suncar contends that “Pennsylvania delivery also [criminalizes] attempted transfer[s],”
which he claims are also “broader than the ordinary meaning of distribution [under the
guidelines].” Id.
Whether a prior conviction qualifies as a “controlled substance offense” under the
guidelines is a “legal issue that we review de novo.” United States v. Groves, 65 F.4th 166,
169 (4th Cir. 2023).
A.
Before tackling Suncar’s arguments, we provide some background on how we treat
controlled substance offenses under the guidelines, including the categorical approach we
use to determine whether a state law is a predicate for the career offender enhancement.
Under the guidelines, a sentencing court may apply the career offender enhancement
if a defendant “has at least two prior felony convictions of . . . a controlled substance
offense.” United States v. Davis, 75 F.4th 428, 441 (4th Cir. 2023) (cleaned up). “As
we[’ve] explained . . . , to determine whether a conviction under an asserted predicate
offense statute . . . constitutes a ‘controlled substance offense’ as defined by the Sentencing
Guidelines, we employ the categorical approach.” Groves, 65 F.4th at 171 (cleaned up).
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That “approach requires us to focus on the elements of the prior offense rather than
the conduct underlying the conviction.” Id. (cleaned up). So, “[i]f the least culpable
conduct criminalized by the predicate offense statute does not qualify as a ‘controlled
substance offense,’ the prior conviction cannot support a Guidelines enhancement.” Id.
(cleaned up).
Section 4B1.2(b) of the guidelines defines a “controlled substance offense” as one
that “prohibits the manufacture, import, export, distribution, or dispensing of a controlled
substance (or a counterfeit substance) or the possession of a controlled substance (or a
counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.”
U.S.S.G § 4B1.2(b) (emphasis added). 3
Now recall the Pennsylvania delivery statute. It prohibits “the manufacture,
delivery, or possession with intent to manufacture or deliver, a controlled substance . . . or
knowingly creating, delivering or possessing with intent to deliver, a counterfeit controlled
substance.” 35 Pa. Stat. and Cons. Stat. § 780-113(a)(30). And the statute defines
“delivery” as “the actual, constructive, or attempted transfer from one person to another of
a controlled substance, other drug, device or cosmetic whether or not there is an agency
relationship.” Id. § 780-102(b) (emphasis added).
Our task is to compare the “distribution” term in the guidelines with Pennsylvania’s
“attempted transfer” (or under Suncar’s interpretation, implied offer to sell) term to
3 The parties don’t dispute the definition of “distribution” under the guidelines. We have defined it by its “readily apparent meaning.” United States v. Ward, 972 F.3d 364, 370–71 (4th Cir. 2020) (citing dictionary definitions of “distribution”).
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determine whether the least culpable conduct implicated by the Pennsylvania statute
matches conduct criminalized under the guidelines.
B.
Suncar insists that the least culpable conduct that section 780-113(a)(30)
criminalizes is an offer to sell, which is broader than “distribution” under the guidelines.
The Pennsylvania statute, of course, says nothing about offers to sell, but Suncar asks us
to read in that language based on a single non-precedential decision from a Pennsylvania
court.
In Commonwealth v. Walker, No. 222-EDA-2021, 2021 WL 5314436, at *6 (Pa.
Super. Ct. Nov. 16, 2021), the Superior Court of Pennsylvania equated section 780-
113(a)(30) with a New York drug statute by reading offers to sell into the former. 4 But, in
so holding, the Walker court departed from the Third Circuit’s decision in United States v.
Glass, 904 F.3d 319 (3d Cir. 2018).
There, the Third Circuit held that section 780-113(a)(30) didn’t impliedly include
an offer to sell drugs, so the statute wasn’t categorically overbroad in the controlled
substance offense context. Id. at 324. Our sister circuit has since reiterated that holding in
several cases. See United States v. Hurtt, 105 F.4th 520, 525 (3d Cir. 2024); United States
The Superior Court of Pennsylvania is one of two intermediate appellate courts in 4
the Commonwealth. See The Superior Court of Pennsylvania, The Unified Jud. Sys. of Pa., https://www.pacourts.us/courts/superior-court [https://perma.cc/S8LN-CJTM]. Its rules dictate that a non-precedential decision “can be cited only for its persuasive value.” United States v. Brown, No. 23-2296, 2024 WL 2953127, at *3 n.3 (3d Cir. June 12, 2024) (citing Pa. R. App. P. 126(b); Pa. Super. Ct. R. 64.37(b)).
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v. Magobet, No. 23-2824, 2024 WL 3617296, at *3 (3d Cir. Aug. 1, 2024); United States
v. Brown, No. 23-2296, 2024 WL 2953127, at *3 (3d Cir. June 12, 2024).
To be sure, “a federal court must follow the decision of an intermediate state
appellate court unless there is persuasive data that the highest court would decide
differently.” United States v. Little, 52 F.3d 495, 498 (4th Cir. 1995) (cleaned up). But
where, as here, we think the Supreme Court of Pennsylvania would reach a different result
under the plain language of the statute, we choose a different path. To explain why, we
take a closer look at Walker.
To begin, the defendant in Walker argued that the trial court abused its discretion in
calculating his “prior record score” because the court equated the defendant’s prior New
York drug conviction to a Pennsylvania drug conviction under section 780-113(a)(30). 5
Walker, 2021 WL 5314436, at *4–5. The defendant, relying on the Third Circuit’s decision
in Glass, sought to distinguish the two convictions because the New York statute expressly
criminalized offers to sell while the Pennsylvania statute did not. Id. at *5.
The Walker court reviewed the trial court’s finding “that the language of the
Pennsylvania statute [was] similar to the language of the New York statute which
specifically includes an offer to sell.” Id. (cleaned up). The trial court had found the
statutes sufficiently analogous because “an offer to sell” in the New York statute, was
5 A defendant’s prior record score captures his or her prior criminal history. See Sentencing, Pa. Comm'n on Sent’g, https://pcs.la.psu.edu/guidelines-statutes/sentencing [https://perma.cc/S5Z6-VNPS].
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“substantial in nature to the attempted transfer from one person to another of a controlled
substance as defined in the Pennsylvania statute.” Id. (cleaned up).
The Walker court affirmed, concluding “that the trial court did not abuse its
discretion” in equating the two statutes. Id. First, it noted that Glass was “not binding
authority” on a “determination of the Superior Court.” Id. Second, it explained that “Glass
did not involve a comparison of New York’s and Pennsylvania’s drug statutes,” but
“assessed whether a conviction under section 780-113(a)(30) qualifies as a predicate
offense triggering the career offender enhancement under U.S.S.G. § 4B1.1(a).” Id. The
court thus found “that Glass [was] inapplicable to the issue at hand.” Id.
Still, the Walker court added that it “would reject the conclusion in Glass that
section 780-113(a)(1)’s use of the phrase ‘offer for sale,’ while that language [was] omitted
from section 780-113(a)(30) and the definition of ‘delivery,’ indicates that the legislature
did not intend for section 780-113(a)(30) to encompass an offer for sale.” Id. at *6. The
court did so in three sentences, without resort to any statutory interpretive tools or a review
of how drug sale attempts are prosecuted in Pennsylvania. It merely concluded that the
language in section 780-113(a)(1) “[left] open the possibility” that the legislature also
intended to criminalize offers to sell in section 780-113(a)(30). Id.
Suncar would make a mountain out of Walker’s molehill, but that’s wrong on two
fronts.
For starters, the Walker court decided the case under a deferential abuse-of-
discretion standard (unlike our de novo review) and qualified the decision as non-
precedential. Then, in addressing Glass, the Walker court found that the Third Circuit’s
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analysis was “inapplicable” to the prior record score issue because Glass addressed
whether a section 780-113(a)(30) conviction was a predicate for the career offender
enhancement. Respectfully, we view Walker’s limited commentary on the merits of Glass
as mere dicta.
Writing on a clean slate, we don’t think that section 780-113(a)(30) criminalizes
offers to sell drugs for the reasons our sister circuit explained in Glass. The Glass court
noted, for example, that another provision of section 780-113 expressly criminalizes
“offer[ing] [drugs] for sale”—language that was “conspicuously absent from [section] 780-
113(a)(30).” 904 F.3d at 323. “Obviously,” said the Third Circuit, “the Pennsylvania
legislature knew how to criminalize offers; it simply chose not to in [section] 780-
113(a)(30).” Id.
The Glass court likewise rejected the defendant’s reliance on the definition of
“deliver” under the Texas Health and Safety Code, which the Fifth Circuit recognized as
including offers to sell. Id. (citing United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016)).
But as the Glass panel explained, the Fifth Circuit did so because the Texas Code defined
“deliver” to “include[] offering to sell a controlled substance.” Id. (quoting Tex. Health
& Safety Code Ann. § 481.002(8)). So Glass made the straightforward point that “[t]he
Texas Code expressly reaches offers, whereas Pennsylvania’s definition fails to include
similar language.” Id.
At bottom, Suncar doesn’t explain why the Third Circuit erred in Glass. Instead, he
relies solely on the fact that Walker rejected Glass. But in its drive-by critique of Glass,
the Walker court did no more than “leav[e] open the possibility that the [Pennsylvania]
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legislature intended section 780-113(a)(30) to criminalize an offer to sell a drug that [had]
not been adulterated or misbranded,” or that it meant to criminalize offers to sell within the
phrase “attempted transfer.” 2021 WL 5314436, at *6.
To the first point, we agree with Glass that the Pennsylvania legislature’s choice to
include offers to sell in one provision of section 780-113 and to exclude them in another
must mean something. Glass, 904 F.3d at 323. After all, we “assume that the legislature
used words that meant what it intended” and “that all words had a purpose and were meant
to be read consistently.” Blakely v. Ward, 738 F.3d 607, 611 (4th Cir. 2013) (cleaned up).
Conversely, we won’t read in text that appears to have been purposefully excluded.
Even more so when our sister circuits have found predicate offenses criminalizing
offers to sell to be categorically overbroad based on express language in the respective
criminal statutes. See, e.g., United States v. Palos, 978 F.3d 373, 375 (6th Cir. 2020);
United States v. Cavazos, 950 F.3d 329, 337 (6th Cir. 2020); United States v. McKibbon,
878 F.3d 967, 972 (10th Cir. 2017); United States v. Madkins, 866 F.3d 1136, 1145 (10th
Cir. 2017); Hinkle, 832 F.3d at 572; United States v. Savage, 542 F.3d 959, 966 (2d Cir.
2008). Absent such express language here or authority from the state’s highest court, we
take the Pennsylvania legislature at its word. 6 See United States v. Johnson, 945 F.3d 174,
182 (4th Cir. 2019) (rejecting defendant’s argument that Maryland possession with intent
6 As the Third Circuit noted in later declining to follow Walker, the decision “has not been cited by any state or federal court since it was issued [in 2021].” Brown, 2024 WL 2953127, at *3 n.3.
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to distribute statute included offers to sell because “such ‘offer to sell’ language [was]
nowhere to be found in Maryland law”).
To the Walker court’s second point, we decline to collapse an “offer to sell” into an
“attempted transfer,” which is a separate crime and, under our precedent (as we discuss
below), a completed delivery. All said, we reject Suncar’s argument that section 780-
113(a)(30) includes offers to sell.
C.
We turn next to Suncar’s argument that section 780-113(a)(30) is overbroad because
it criminalizes attempted transfers. Suncar relies on our decision in United States v.
Campbell, 22 F.4th 438 (4th Cir. 2022), to argue that the Pennsylvania delivery statute is
“independently overbroad” because the least culpable conduct it criminalizes is an
attempted transfer. Appellant’s Br. at 11. In Campbell, we held that an attempt offense
under a West Virginia statute was an inchoate crime that didn’t constitute a “controlled
substance offense” under the guidelines. 22 F.4th at 444. 7 Suncar says that “a
straightforward application of Campbell” compels reversing the career offender
enhancement here. Appellant’s Br. at 12.
Suncar’s contention highlights an “interesting dynamic” between Campbell and our
later-decided precedent, beginning with United States v. Groves, 65 F.4th 166 (4th Cir.
7 The question in Campbell was whether the guidelines commentary impermissibly expanded the guidelines text by including an attempt to commit an offense within the definition of a “controlled substance offense.” Campbell, 22 F.4th at 441–49. Answering yes, we adhered to the guidelines text. Id. at 443–47.
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2023). United States v. Jackson, 127 F.4th 448, 454 (4th Cir. 2025) (cleaned up). These
later cases hold that even drug distribution statutes that are substantially like the one in
Campbell are not categorically overbroad because an “attempted transfer” is a completed
(rather than inchoate) offense. Groves, 65 F.4th at 172–73 (federal drug distribution
statute); see also United States v. Miller, 75 F.4th 215, 229–31 (4th Cir. 2023) (North
Carolina statute); United States v. Davis, 75 F.4th 428, 443 (4th Cir. 2023) (South Carolina
statute).
In other words, the Groves court departed from Campbell because it didn’t view an
“attempted transfer” as an “attempted delivery” under federal or analogous state drug
distribution statutes. Groves, 65 F.4th at 172 (citing cases) (emphases added). Instead,
because under federal law the term “distribute” means “to deliver,” and the term “to
deliver” includes “actual, constructive, or attempted transfer[s],” an “attempted transfer”
is an actual delivery, not an attempted one. Id.
We grounded this conclusion on superfluity principles: that “attempt offenses are
criminalized separately from completed offenses under the relevant federal and state
schemes.” Id. If a court read the drug distribution provision as criminalizing attempt
offenses when a separate provision already did so, it would render that separate provision
superfluous. See id. at 173.
In deciding Groves, we cited the Third Circuit’s decision in United States v.
Dawson, which the district court relied on here. And, in fact, Dawson held that 35 Pa. Stat.
and Cons. Stat. § 780-113(a)(30)—the statute under which Suncar was twice convicted—
“is a completed offense,” “not an inchoate crime.” 32 F.4th at 259.
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The Dawson court explained that Pennsylvania separately “prosecutes legal
attempts to deliver drugs under the . . . general attempt provision . . . , rather than by
charging a violation of [section] 780-113(a)(30) and then invoking [section] 780-102(b)’s
‘attempted transfer’ definition.” Id. at 259–60. To then “interpret ‘attempted transfer’ as
an embedded inchoate offense would mean holding that Pennsylvania has codified a
redundant, vestigial crime—violating the canon against surplusage.” Id. at 260.
We, of course, aren’t bound by Dawson, but we are bound by Groves and its
progeny. In Miller and Davis, we relied on Groves to hold that North Carolina’s and South
Carolina’s drug distribution statutes—though like the West Virginia statute in Campbell—
nonetheless qualified as “controlled substance offenses” under the guidelines. Miller, 75
F.4th at 230–31; Davis, 75 F.4th at 443. We distinguished those statutes from West
Virginia’s because “the [latter]—at least as it was presented in Campbell—does not
criminalize attempt offenses separately from completed drug distribution offenses.” Davis,
75 F.4th at 444–45 (quoting Groves, 65 F.4th at 174). 8
But Pennsylvania does criminalize attempts separately, as do North Carolina and
South Carolina. So this case resembles Groves, Davis, and Miller (as well as Dawson)
more than Campbell. 9 Because Pennsylvania’s statute is “materially distinguishable” from
8 As we noted in Groves, “the government did not dispute in the Campbell proceedings that the West Virginia drug distribution statute criminalizes the attempt offense of attempted delivery.” 65 F.4th at 174 n.5. 9 We adhere to Campbell’s “core holding that an attempt offense cannot be a ‘controlled substance offense,’ as defined in Guidelines § 4B1.2(b).” Jackson, 127 F.4th at 455 (cleaned up). But because section 780-113(a)(30) doesn’t criminalize attempt
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West Virginia’s, Davis, 75 F.4th at 445, and criminalizes only the completed offense of
“attempted transfer,” section 780–113(a)(30) isn’t categorically overbroad as compared to
the guidelines.
III.
For these reasons, the district court’s judgment is
AFFIRMED.
offenses for the reasons explained in Groves and our later cases, Campbell’s holding is “distinguishable” from our holding today. Id.