NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

________________ No. 15

- 3689

________________ UNITED STATES OF AMERICA

v. NICHOLAS RIVERA, a/k/a Nike Nicholas Rivera, Appellant

____________________________________ On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 1

- 14

- cr - 00175

- 001) District Judge : Honorable Christopher C. Conne r

____________________________________ Submitted under Third Circuit L.A.R. 34.1(a)

on March 19, 2019
Before: SHWAR TZ, KRAUSE , and BIBAS, Circuit Judges

(Opinion filed: April 4, 2019 )

OPINION *

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.2

KRAUSE, Circuit Judge

. Appellant Nicholas Rivera appeals his sentence on the ground s that the District Court erroneously applied the career

- offender enhancement under § 4B1.1 of the Unite d States Sentencing Guidelines and that it violated Federal Rule of Criminal Procedure 32(i)(1)(A) by failing to verify that he reviewed the Presentence Report (PSR) with his
counsel

. For the reasons that follow, we will affirm.
I. Background Rivera pleaded guilty to a one

- count superseding information charging him with distribution and possession with intent to distribute heroin and cocaine hydrochloride , in violation of 21 U.S.C. § 841(a)(1)

. At Rivera’s sentencing hearing, the District Cour t applied the career

- offender enhancement based on his two prior state convictions for possession with intent to distribute narcotics in violation of 35 Pa . Stat. Ann. § 780

- 113(a)(30). As a result, Rivera’s Guidelines range was 151

- 188 months’ imprisonment,
and the District Court sentenced him to the bottom of the range . Rivera timely appealed. On July 5, 2018, a motions panel of this C ourt granted Rivera’s counsel’s motion
to withdraw under Anders v. California , 386 U.S. 738 (1967) , but directed that new counsel be appointed to address, inter alia , “whether use of the word ‘delivery’ in [ 35 Pa.
Stat. Ann. ] § 780

- 113(a)(30) makes the statute potentially broader than the generic controlled substance offense defined by the U.S. Sentencing Guidelines, which does not
contain that term.” Order, United State v. Rivera , No. 15

- 3689 (3d Cir. July 5, 2018)

. However , i n the time bet ween the issuance of that order and Rivera’s filing of his3

opening brief, we issued our opinion in United States v. Glass , where we held that “because [35 Pa. Stat. Ann.] § 780

- 113(a)(30) does not sweep more broadly
than [U.S.S.G.] § 4B1.2 , it is a ‘controlled substance offense’ and may serve as a predicate offense to a career

- offender enhancement under § 4B1.1.” 904 F .3d 319 , 324 (3d Cir. 2018).
II. Discussion 1
Rivera makes two arguments on appeal, both of which are unavailing.
First , 2 recognizing that his argument about the supposed differing scope of “delivery” under Pennsylvania law and federal law is now foreclosed by Glass , Rivera
contends that Glass failed to consider the significance of Commonwealth v. Dona h ue , 630 A.2d 1238 (Pa. Super. Ct. 1993); that Dona hue demonstrates that Pennsylvania’s definition of “delivery” reaches “a wider range of conduct” than its federal counterpart, “including, most notably, mere offers to buy or sell controlled substances” ; and that we
therefore should “recons ider and abrogate” Glass , Appellant’s Br. 11

- 12

. We decline this
invitation

. As a threshold matter, “the holding of a pa nel in a precedential opinion is binding on subsequent panels” absent intervening authority, which Donahue is not . 3d Cir. I.O.P.
9.1 (2018) ; see United States v. Tann , 577 F.3d 533, 541 (3d Cir. 2009)

. And, in any

1 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231 . We have jurisdiction pursuant to 28 U.S.C. § 1291

.

2 We exercise plenary review of an i nterpretation of the Guidelines and review factual findings for clear error. See United States v. Grier , 475 F.3d 556, 570 (3d Cir. 2007) (en banc).4

event, we recently rejected Rivera’s argument on the merits: In United States v. Daniels , we explained that Donahue does not undermine our conclusion in Glass that 35 Pa. Stat.
Ann. § 780

- 113(a)(30) is no broader than the Guidelines’ definition of a “ controlled
substance offense ” because the Guidelines definition, too, “applies not only to a stat ute that bars distribution of controlled substance s , but also to ‘the offenses of aiding and abetting, conspiring, and attempting to commit such offenses

. ’” Daniels , 915 F.3d 148,
152 , 163

- 64 (3d Cir. 2019) (emphasis removed) (quoting Glass , 904 F.3d at 322 , and
U.S.S.G. § 4B1.2 cmt. n.1)

. 3
Second , Rivera argues , co ncededly on plain error review, that the District Court erred by failing to comply with Rule 32(i)(1)(A) , which provi d es, “[a]t sentencing, the court: (A) must verify that the defendant and the defendant’s attorney have read and discussed the presentence r eport and any addendum to the report .” Fed. R. Crim. P. 32(i)(1)(A). A party claiming plain error must prove that (1) the court erred; (2) the error was plain; and (3) it “ affect[ed] substantial rights.” United States v. Olano , 507 U.S. 725,
732 (1993 ). For “substantial rights” to be affected, “‘the error must have been prejudicial,’ that is, ‘[i]t must have affected the outcome of the district court

3 In Donahue , the Pennsylvania Superior Court affirmed the appellant’s conviction as an accomplice for a violation of 35 Pa. Stat. Ann. § 780

- 113(a)(30), see Dona hue , 630 A.2d at 270

- 72, and as we noted in D aniels , “Pennsylvani a’s law of accomplice liability

. . . is essentially identical to the federal approach to liability for aiding and abetting ,” 915 F.3d at 164 ; see also Model Penal Code § 2.06(3). Thus, if anything, Donahue illustrates that the elements that must be proven for a conviction under 35 Pa. Stat. Ann. § 780

- 113(a)(30) bas ed on accomplice liability are co - extensive with those required under federal law, reinforcing our holding in Glass that a con viction under 35 Pa . Stat. Ann. § 780

- 113(a)(30) categorically qualifies as a “controlled substance offense” under U.S.S.G. § 4B1.2.5

proceedings.’” United States v. Stevens , 223 F.3d 239, 242 (3d Cir. 2000) (alternation in original) ( quoting Olano , 507 U.S. at 734). In addition, th e error must “seriously affect[ ] the fairness, integrity, or public reputation of judicial proceedings.” United States v. Vazquez , 271 F.3d 93, 9 9 (3d Cir. 2001) (en banc) (quoting Johnson v. United States , 520 U.S. 461, 466

- 67 (1997))

. We “ha[ve] declined to interpret Rule 32 [(i)(1)(A)] as creating ‘an absolute requirement that the court personally ask the defendant if he has had the opportunity to read the report an d discuss it with counsel, ’ ” and “[i]nstead, . . . ha ve allowed for a more functional fulfillment of the rule, requiring only that the district court ‘somehow determine that the defendant has had this opportunity.’” 4 Stevens , 223 F.3d at 241 (quoting United States v. Mays , 798 F.2d 78, 80 (3d Cir. 1986)). Here, t he Government argues that “functional” fulfillment of Rule 32(i)(1)(A) was achieved because, in advance of sentencing, Rivera’ s c ounsel submitted a letter to the U.S. Probation Office, which was
attached as an addendum to the PS R, in which he raised certain objections to the PSR and
asserted that “[he] and Mr. Rivera have reviewe d your [PSR] , ” Gov’t Br. 21, thereby demonstrating that “ prior to the sentencing hearing, the district court had been advised in writing that defense counsel had reviewed t he PSR with Rivera. ” Gov’ t Br. 21

- 22

. We agree with the Government. W hile Rule 32(i)(1)(A) requires that the district court verify “[a]t sentencing” the defendant’s review and discussion of the PSR with counsel, w e did not specify in Stevens that the court must fulfill the Rule’s requirements

4 At the time of Stevens , the PSR verification requirement was codified as Rule 32(c)(3)(A).6

at the sentencing hearing itself; rather, we stated that Rule 32(i)(1)(A) requires the court
to do so “before imp osing sentence.” 223 F.3d at 241

. And t he District Court complied
with that obligation here : Based on Rivera’s counsel’s submission, t he Court was able to verify in advance of sentencing that Rivera re viewed the PSR with his counsel.
Moreo ver, at the sentencing hearing itself , the District Court implicitly acknowledged
that fact by noting that Rivera had submitted objections to the PSR

. We therefore perceive no error on the part of the District Court, much less “plain error.” 5 Accordingly, we will affirm the sentence imposed by the District Court.

5 Even assuming error, moreover, Rivera has not demonstrated prejudice or the denial of substantial rights. See Stevens , 223 F.3d at 246 (holding that a Rule 32(i)(1)(A) error does not constitute a “structural defect” and will not be corrected “[i]n the absence of any showing of prejudice or the denial of substantial rights caused by th[e] error”).