NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 13-2387

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UNITED STATES OF AMERICA

v.

KEENAN BLACK, 

 Appellant

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On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 2-11-cr-00045-4)

District Judge: Hon. Arthur J. Schwab

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Submitted Under Third Circuit LAR 34.1(a)

March 4, 2014

Before: McKEE, Chief Judge, AMBRO AND JORDAN, Circuit Judges.

(Filed: March 5, 2014 )

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OPINION OF THE COURT

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JORDAN, Circuit Judge.

Keenan Black appeals the sentence imposed by the United States District Court for 

the Western District of Pennsylvania. He contends that the District Court erred in adding 

an Armed Career Criminal Act (“ACCA”) enhancement to his sentence based upon four 

earlier convictions. Because he has not demonstrated plain error, we will affirm.
2

I. Background

Following a bench trial, the District Court found Black guilty of possession of a 

firearm by a felon, in violation of 18 U.S.C. § 922(g)(1), along with other offenses.1 At 

the sentencing hearing, and based on the Presentence Report (“PSR”), the Court found 

that Black had a criminal history including four prior felony convictions: (1) Possession 

With Intent to Deliver a Controlled Substance; (2) Conspiracy in the Second Degree; (3) 

Trafficking in Cocaine; and (4) Possession of a Firearm During the Commission of a 

Felony. The Court thus imposed a fifteen-year enhancement under ACCA, 18 U.S.C. 

§ 924(e), which mandates that a felon-in-possession who has three previous convictions 

for violent felonies or serious drug offenses “shall be imprisoned ... [for] not less than 

fifteen years.” 

Although Black raised no objection to the ACCA enhancement in the District 

Court, he now challenges his sentence on appeal. 

 

1 Black does not appeal any aspect of the sentence related to his two other 

convictions: Possession With Intent to Distribute a Quantity of Heroin, in violation of 21 

U.S.C. §§ 841(a)(1) and 841(b)(1)(C); and Possession of a Firearm in Furtherance of a 

Drug Trafficking Crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i). 
3

II. Discussion2

While Black argues that his third and fourth prior convictions, as noted in the PSR, 

do not meet ACCA’s standards to be predicate convictions, he effectively concedes that 

he cannot carry his burden under a plain error standard. 

Again, to warrant an ACCA enhancement, a felon-in-possession must have a 

criminal history including at least three previous convictions for violent felonies or 

serious drug offenses. 18 U.S.C. § 924(e). Since the government acknowledges that 

Black’s third conviction – despite being labeled “Trafficking in Cocaine” – is in fact 

neither a violent felony nor a serious drug offense3and therefore cannot be an ACCA 

predicate conviction, the only issue before us is whether his fourth conviction qualifies as 

an ACCA predicate. Black argues that his fourth conviction would not qualify as an 

ACCA predicate conviction if he had pled guilty to possessing a gun while committing 

the crime of “simple possession of a controlled substance.” (Appellant’s Opening Br. at 

8.) However, as Black properly admits, when a defendant fails to raise such an argument 

before a district court and thus fails to preserve it, “the burden is on the defendant” to 

 

2

The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. We 

exercise jurisdiction pursuant to 28 U.S.C. § 1291. Since Black did not make an

argument to the District Court regarding the applicability of ACCA, we review his 

challenge to the sentence for plain error only. See, e.g., United States v. Turlington, 696 

F.3d 425, 427 (3d Cir. 2012). 

3

The Delaware statute that, in that particular instance, Black was convicted of 

violating, 16 Del. Code § 4753A, “does not contain an element or presumption of 

trafficking,” as it subsumes the lesser-included offense of possession. Gerbier v. Holmes, 

280 F.3d 297, 299 (3d Cir. 2002).
4

establish the factual bases for the argument. (Appellant’s Reply Br. at 5.) Black is 

unable to do so here. While he contends that he may have pled to a lesser offense in his 

fourth conviction, he concedes that his efforts to confirm his theory by locating the notes 

or transcript from the plea hearing “have not borne fruit.” (Appellant’s Reply Br. at 4.) 

In short, “[w]ithout a transcript of the guilty plea hearing, defendant cannot meet his 

burden.” (Id. at 5.) 

Without any grounds to remand for the evidentiary hearing that Black has 

requested, we must affirm. 

III. Conclusion

Accordingly, we will affirm the sentence imposed by the District Court.