PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 16-2906

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UNITED STATES OF AMERICA

v.

MALACHI M. GLASS,

Appellant 

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On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Crim. No. 1-13-cr-00231-001)

District Judge: Honorable John E. Jones, III

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Submitted Under Third Circuit L.A.R. 34.1(a)

August 17, 2018

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Before: VANASKIE, KRAUSE, and RESTREPO, Circuit 

Judges

(Opinion Filed: August 22, 2018)

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2

Edward J. Rymsza, III

Miele & Rymsza

125 East Third Street

Williamsport, PA 17701

Counsel for Appellant

David J. Freed

Daryl F. Bloom

Stephen R. Cerutti

Office of United States Attorney

228 Walnut Street, P.O. Box 11754

220 Federal Building and Courthouse

Harrisburg, PA 17108

Counsel for Appellee

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OPINION OF THE COURT

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VANASKIE, Circuit Judge.

Appellant Malachi Glass appeals his criminal sentence, 

in particular the District Court’s application of a careeroffender enhancement under the United States Sentencing 

Guidelines (“U.S.S.G.”) § 4B1.1. We will affirm. 

I.

Glass pleaded guilty to one count of possession with 

intent to distribute cocaine hydrochloride in violation of 21 

U.S.C. § 841(a)(1). At Glass’s sentencing hearing, the District 

Court applied a career-offender enhancement pursuant to 
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U.S.S.G. § 4B1.1. The enhancement was based on two prior 

state convictions under 35 Pa. Cons. Stat. § 780-113(a)(30)—

one from 2001, CP-22-CR-2630-2001; and one from 2004, 

CP-31-CR-460-2004. Despite the enhancement, the District 

Court applied a downward variance. The District Court based 

the variance primarily on the observation that the pre-sentence 

investigation report (“PSR”) overstated the seriousness of 

Glass’s criminal past. The District Court also justified varying 

downward by citing Glass’s significant family responsibilities, 

his drug addiction, and his relatively young age. The District 

Court ultimately imposed a prison term of 132 months. 

Glass filed a timely notice of appeal, challenging the 

career-offender enhancement. We appointed appellate 

counsel. In July 2017, this Court denied appointed counsel’s 

motion to withdraw under Anders v. California, 386 U.S. 738 

(1967), recognizing that Glass had raised two non-frivolous 

arguments concerning the use of his state court convictions as 

predicates for a sentencing enhancement under the Sentencing 

Guidelines’ career criminal provisions.1

 The Court then 

appointed new appellate counsel and ordered the parties to 

brief the merits of the appeal. We address the merits of Glass’s 

appeal below.

II.

 1 Under Anders, “if counsel finds his [client’s] case to 

be wholly frivolous, after a conscientious examination of it, 

he should so advise the court and request permission to 

withdraw.” 386 U.S. at 744.
4

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. 

The parties dispute which standard of review should 

govern our analysis. Glass argues he preserved his challenge 

to the career-offender enhancement, which would trigger de 

novo review. Alternatively, he claims he did not waive his 

challenge and, at the very least, plain error review should 

apply. On the other hand, the government contends that Glass 

either waived or forfeited his challenge, permitting us to 

disregard his argument or review it for plain error, respectively.

While it is true that Glass made several arguments 

regarding his criminal history to the District Court, Glass failed 

to challenge the inclusion of his convictions as predicate 

offenses for career-offender purposes prior to appeal. Even 

Glass’s first appellate counsel acknowledged that trial counsel 

had conceded the issue and thus, plain error review should 

apply. In light of Glass’s trial counsel’s repeated concessions 

that Glass was a career offender, we think it appropriate to 

review the imposition of the career-offender enhancement for 

plain error. See United States v. Dahl, 833 F.3d 345, 357 (3d 

Cir. 2016) (applying plain error review “because Dahl did not 

object to the application of [a sentencing enhancement] on the 

grounds he asserts here”). 

“To demonstrate ‘plain error’ an appellant bears the 

burden of proving that: (1) the court erred; (2) the error was 

‘plain’ at the time of appellate consideration; and (3) the error 

affected substantial rights, usually meaning that the error ‘must 

have affected the outcome of the district court proceedings.’” 

Gov’t of the Virgin Islands v. Rosa, 399 F.3d 283, 293 (3d Cir. 
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2005) (quoting United States v. Olano, 507 U.S. 725, 734 

(1993)).

III.

As relevant here, a defendant qualifies for a careeroffender enhancement under the Guidelines if he or she “has at 

least two prior felony convictions of . . . a controlled substance 

offense.” U.S.S.G. § 4B1.1(a). A “controlled substance 

offense” is an offense that (1) is punishable by a term of 

imprisonment that exceeds one year and (2) “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.” Id. § 4B1.2(b). A state conviction 

cannot qualify as a “controlled substance offense” if its 

elements are broader than those listed in § 4B1.2(b). See 

Mathis v. United States, 136 S. Ct. 2243, 2251 (2016) (holding, 

in the Armed Career Criminal Act (“ACCA”) context, that “a 

state crime cannot qualify as . . . [a] predicate if its elements 

are broader than those of a listed generic offense”); see also 

United States v. Hinkle, 832 F.3d 569, 574 (5th Cir. 2016) 

(applying Mathis to analysis of § 4B1.1).2

Glass’s career-offender enhancement was based on two 

convictions under 35 Pa. Cons. Stat. § 780-113(a)(30). Glass 

argues that a violation of § 780-113(a)(30) is broader than the 

Guidelines’ definition of a “controlled substance offense” to 

 2 The parties agree that, with some exceptions not 

relevant here, cases concerning overbreadth of a state 

criminal statute in the context of the ACCA also apply to the 

career-offender context.
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the extent it criminalizes a mere offer to sell drugs. We have 

yet to determine whether or in what circumstances state 

statutes that criminalize offers to sell constitute “controlled 

substance offenses” under the Guidelines. Increasingly, 

however, our sister Circuits have held state statutes expressly 

criminalizing a mere “offer” do not. See, e.g., United States v. 

Madkins, 866 F.3d 1136, 1147 (10th Cir. 2017) (concluding 

Kansas law criminalized offers to sell and thus, swept beyond 

§ 4B1.2(b)); Hinkle, 832 F.3d at 572 (noting government’s 

concession that if Texas law covered mere offers, it would not 

come within the definition of “controlled substance offense” 

under § 4B1.2); United States v. Savage, 542 F.3d 959, 965–

66 (2d Cir. 2008) (concluding Connecticut statute that reached 

fraudulent offers to sell criminalized more conduct than § 

4B1.2(b)); see also United States v. Redden, 875 F.3d 374, 375 

(7th Cir. 2017), cert. denied, 138 S. Ct. 1343 (2018) (granting 

Anders motion where it was clear that Illinois law did not 

criminalize offers to sell); United States v. Bryant, 571 F.3d 

147, 158 (1st Cir. 2009) (concluding New York law that 

criminalized only bona fide offers, i.e., offers that 

demonstrated an intent and ability to sell, did not sweep beyond 

§ 4B1.2). 

Assuming a state statute that criminalizes a mere offer 

to sell sweeps beyond U.S.S.G. § 4B1.2, we are not convinced 

the statute at issue here—§ 780-113(a)(30)—crosses that line. 

Section 780-113(a)(30) 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.” It does not mention offers to sell drugs. 

Glass argues, however, that a mere offer to sell drugs is 

impliedly included in § 780-113(a)(30) because Pennsylvania 
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law goes on to define “deliver” as “the actual, constructive, or 

attempted transfer from one person to another of a controlled 

substance . . . .” 35 Pa. Cons. Stat. § 780-102(b). We disagree. 

First, Glass omits that the federal counterpart to this 

statute, the Controlled Substances Act (CSA), also defines the 

“delivery” of a controlled substance to mean “the actual, 

constructive, or attempted transfer of a controlled substance,” 

21 U.S.C. § 802(8), and the Guidelines’ application note too

states that the term “controlled substance offense” applies not 

only to a statute that bars distribution of controlled substances, 

but also to “the offenses of aiding and abetting, conspiring, and 

attempting to commit such offenses.” U.S.S.G. § 4B1.2 cmt. 

n.1 (emphasis added). As Glass does not dispute that “attempt” 

under Pennsylvania law has the same meaning as “attempt” in 

the CSA and the Guidelines, his argument, if accepted, would 

prove self-defeating, for if § 780-102(b) sweeps in mere offers 

to sell, then by his logic, so does 21 U.S.C. § 802(8) and 

U.S.S.G. § 4B1.2, making the state offense broad, but no 

broader then the federal one.

3

Second, we note that at least one other provision 

contained in § 780-113 expressly prohibits offers. See 35 Pa. 

Cons. Stat. § 780-113(a)(1) (“The manufacture, sale or 

 3 In pointing out this flaw in the logic of Glass’s 

argument, we are not suggesting that “attempted transfer” in 

21 U.S.C. § 802(8) includes offers or solicitations other than 

those that meet the requirements for “attempt” under the 

CSA. Consistent with the Model Penal Code, federal 

“attempt” requires intent and a substantial step towards the 

commission of the crime. See United States v. Cruz-Jiminez, 

977 F.2d 95, 101–03 (3d Cir. 1992); Model Penal Code §

5.01.
8

delivery, holding, offering for sale, or possession of any 

controlled substance . . . .” (emphasis added)). This 

language—i.e., “offering for sale”—is conspicuously absent

from § 780-113(a)(30). Obviously, the Pennsylvania 

legislature knew how to criminalize offers; it simply chose not 

to in § 780-113(a)(30). 

Third, the parties have failed to uncover any authority, 

such as state judicial decisions or pattern jury instructions, 

suggesting Pennsylvania would prosecute a mere offer to sell 

under § 780-113(a)(30). See Gonzales v. Duenas-Alvarez, 549 

U.S. 183, 193 (2007) (“[T]o find that a state statute creates a 

crime outside the generic definition . . . requires a realistic 

probability, not a theoretical possibility, that the State would 

apply its statute to conduct that falls outside the generic 

definition of a crime.”). 

And fourth, contrary to Glass’s argument, we are not 

convinced Pennsylvania’s definition of “deliver” is sufficiently 

similar to the Texas definition at issue in Hinkle and Conley 

such that a similar outcome is warranted. Under the Texas 

Health and Safety Code, “deliver” means: “to transfer, actually 

or constructively, to another a controlled substance, counterfeit 

substance, or drug paraphernalia, regardless of whether there 

is an agency relationship. The term includes offering to sell a 

controlled substance, counterfeit substance, or drug 

paraphernalia.” Tex. Health & Safety Code Ann. § 481.002(8) 

(emphasis added). The Texas Code expressly reaches offers, 

whereas Pennsylvania’s definition fails to include similar 

language. If anything, the Pennsylvania definition of “deliver” 

is more similar to the definition of “deliver” under Illinois law, 

which the Seventh Circuit concluded did not encompass offers 

to sell. See Redden, 875 F.3d at 375 (“The definition . . . tells 

us that ‘deliver’ and ‘delivery’ mean an ‘actual, constructive or 
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attempted transfer’ . . . . Any conduct meeting the state’s 

definition of ‘delivery’ comes within § 4B1.2(b) because 

‘transfer’ is just another word for distribute or dispense.”). 

Accordingly, we are confident concluding that § 780-

113(a)(30) is not broader than the Guidelines’ definition of a 

“controlled substance offense.” 

We note that this conclusion is consistent with our prior 

holdings regarding § 730-113(a)(30) outside the U.S.S.G. § 

4B1.1 context. We have already held that conviction under 

§ 780-113(a)(30) for cocaine-based offenses is not overbroad 

in the context of the ACCA’s definition of “serious drug 

offense.” See United States v. Abbott, 748 F.3d 154, 160 (3d 

Cir. 2014). Additionally, we have held that conviction under § 

780-113(a)(30) for a cocaine-based offense is “analogous to 

the federal felony of possession with intent to distribute . . . 

prohibited by [21 U.S.C.] § 841(a)(1) of the Controlled 

Substances Act,” and is therefore an “aggravated felony” under 

the Immigration and Nationality Act. Avila v. Attorney 

General, 826 F.3d 662, 668 (3d Cir. 2016).

In sum, because § 780-113(a)(30) does not sweep more 

broadly than § 4B1.2, it is a “controlled substance offense” and 

may serve as a predicate offense to a career-offender 

enhancement under § 4B1.1. Because the record shows that 

Glass possessed two such predicate offenses—(1) a 2001 

conviction, CP-22-CR-2630-2001, for manufacturing, 

delivering, or possessing marijuana in Dauphin County; and 

(2) a 2004 conviction, CP-31-CR-461-2004, for 

manufacturing, delivering, or possessing cocaine in 
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Huntingdon County—we find no error in the District Court’s 

decision to apply the enhancement.4

IV.

For the foregoing reasons, we will affirm the District 

Court’s judgment entered on June 13, 2016.

 4 We recognize that the District Court based the 

enhancement on convictions CP-22-CR-2630-2001 and CP31-CR-460-2004. Glass also argues that the latter conviction 

is not a “controlled substance offense” because it was for 

simple possession. We need not consider this argument 

because the record shows Glass possessed a third § 780-

113(a)(30) conviction, CP-31-CR-461-2004, which qualifies 

as a predicate offense under today’s decision. See United 

States v. Blair, 734 F.3d 218, 222 (3d Cir. 2013) (citing 

United States v. Berrios, 676 F.3d 118, 129 (3d Cir. 2012)).