1

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 13-2216

___________

UNITED STATES OF AMERICA

v.

KEVIN ABBOTT,

 Appellant

_______________________

On Appeal from the District Court

for the Eastern District of Pennsylvania

D.C. Criminal No. 2-05-cr-00333-001

(Honorable Cynthia M. Rufe)

______________

ARGUED: January 8, 2014

Before: SMITH, SHWARTZ, and SCIRICA, Circuit Judges

(Filed: April 4, 2014)

Stuart M. Wilder, Esq. [ARGUED]

Pratt, Bret & Luce

68 East Court Street

P.O. Box 659
2

Doylestown, PA 18901

Counsel for Appellant

Elizabeth F. Abrams, Esq.

Robert A. Zauzmer, Esq. [ARGUED]

Office of United States Attorney

615 Chestnut Street

Suite 1250

Philadelphia, PA 19106

Counsel for Appellee

_________________

OPINION OF THE COURT

_________________

SCIRICA, Circuit Judge.

We are asked to determine whether Pennsylvania’s

criminal statute proscribing possession with intent to 

distribute a controlled substance, 35 PA. STAT. ANN. § 780-

113(a)(30), is a “divisible” statute under Descamps v. United 

States, 133 S. Ct. 2276 (2013). If it is divisible, then

convictions under that statute are subject to the modified 

categorical approach when determining if they are predicate 

offenses under the Armed Career Criminal Act, 18 U.S.C. § 

924(e) (“the ACCA”). We hold that 35 PA. STAT. ANN. § 

780-113(a)(30) is divisible and, accordingly, the trial court’s 

use of the modified categorical approach was proper.

1 We 

will affirm.

 

1 We previously concluded the modified categorical 

approach was proper when assessing whether a conviction 
3

I.

The underlying facts are not in dispute. After a jury 

trial, Kevin Abbott was convicted of possession of a firearm 

by a convicted felon in violation of 18 U.S.C. § 922(g), 

among other charges. His sentence included a fifteen-year

mandatory minimum for violating the ACCA. That act states:

In the case of a person who 

violates section 922(g) of this title 

and has three previous convictions 

by any court referred to in section 

922(g)(1) of this title for a violent 

felony or a serious drug offense, 

or both, committed on occasions

different from one another, such 

person shall be fined under this 

title and imprisoned not less than 

fifteen years[.]

18 U.S.C. § 924(e)(1). The sentencing court found that three 

of Abbott’s previous convictions were “serious drug 

offenses” under the ACCA and invoked the fifteen-year 

minimum. Abbott’s attorney did not object to the use of these 

prior convictions as ACCA predicates.

 

under 35 PA. STAT. ANN. § 780-113(a)(30) is a predicate 

offense under the ACCA. United States v. Tucker, 703 F.3d 

205 (3d Cir. 2012). We revisit the issue solely because Tucker

was decided before Descamps and did not address whether 35 

PA. STAT. ANN. § 780-113(a)(30) is divisible.
4

Abbott challenged an unrelated portion of his sentence 

on direct appeal. We affirmed. United States v. Abbott, 574 

F.3d 203 (3d Cir. 2009). Abbott then petitioned the United 

States Supreme Court for a writ of certiorari regarding that 

issue. The Supreme Court granted the petition and affirmed 

the sentence. Abbott v. United States, 131 S. Ct. 18 (2010).

Abbott filed a pro se petition under 28 U.S.C. § 2255,

and we appointed counsel. The lone issue presented in his 

counseled § 2255 petition is whether Abbott’s attorney at 

sentencing was ineffective for failing to contest the use of his

prior conviction for possession with the intent to distribute, 

under 35 PA. STAT. ANN. § 780-113(a)(30), as an ACCA 

predicate offense. The District Court denied the petition 

without a hearing, noting that the sentencing court properly 

employed the modified categorical approach. It concluded 

Abbott suffered no prejudice from his attorney’s alleged 

shortcomings. Noting the then-pending Descamps v. United 

States, 133 S. Ct. 2276 (2013), the District Court issued a 

certificate of appealability under 28 U.S.C. § 2253 on the sole 

of issue of whether Descamps altered the ACCA analysis. 

That issue is now before us.2

II.

Under 18 U.S.C. § 922(g), it is unlawful for a person 

who has been previously convicted of a felony to possess a 

firearm. A defendant convicted under that section is subject to 

a fifteen-year minimum sentence under the ACCA if he “has 

 

2 The District Court had jurisdiction under 28 U.S.C. 

§§ 1331 and 2255. We have jurisdiction under 28 U.S.C. §§ 

1291 and 2253.
5

three previous convictions . . . for a violent felony or a serious 

drug offense, or both[.]” 18 U.S.C. § 924(e). 

Accordingly, in a case in which the defendant has been 

convicted of § 922(g) and the prosecution seeks the § 924(e) 

enhancement, a sentencing court must decide whether that 

defendant has three previous convictions for a “violent felony 

or a serious drug offense.” When deciding whether a previous 

conviction counts as a “violent felony or a serious drug 

offense” under the ACCA, a sentencing court may look only 

to the elements of a defendant’s prior conviction, not “to the 

particular facts underlying those convictions.” Descamps, 133 

S. Ct. at 2283 (quoting Taylor v. United States, 495 U.S. 575, 

600 (1990)). This elements-based inquiry has come to be 

called the “categorical approach.” See Descamps, 133 S. Ct.

at 2281.

For example, in Taylor, the Supreme Court confronted 

a case in which the defendant had been convicted of a § 

922(g) violation and the sentencing court was asked to invoke 

the fifteen-year minimum under the ACCA. 495 U.S. at 579. 

The sentencing court had to decide whether the defendant’s 

previous burglary conviction counted as a “violent felony.” 

Id. at 578. The Supreme Court declared the proper inquiry for 

a sentencing court is not whether the defendant’s actual 

conduct constituted a crime of violence (e.g., whether he, in 

fact, brought a gun, confronted any individuals inside the 

house, or conducted his crime in any particularly “violent”

way) but whether the elements of the crime of conviction

necessarily matched the elements of a “violent felony.” It 

concluded the ACCA “generally requires the trial court to 

look only to the fact of conviction and the statutory definition 
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of the prior offense.” Id. at 602. A court should “not [look] to 

the particular facts underlying those convictions.” Id. at 600.

The Taylor decision did, however, admit of a “narrow

range of cases” when a sentencing court may look beyond the 

elements of a prior conviction to decide if it can serve as an 

ACCA predicate offense. Id. at 602. This alternative method 

has become known as the “modified categorical approach.”

Under Descamps, the modified categorical approach may be 

used when a statute underlying a prior conviction “lists

multiple, alternative elements,” 133 S. Ct. at 2285, rather than 

a “single, indivisible set of elements,” id. at 2282. The 

Supreme Court referred to such statutes as “divisible 

statutes.” Id. at 2281. The purpose of the modified categorical 

approach is to “help effectuate the categorical analysis when a 

divisible statute . . . renders opaque which element played a 

part in the defendant’s conviction.” Id. at 2283. Once a 

sentencing court determines the modified categorical 

approach applies, the court may look beyond the face of the 

statute to the “charging document, written plea agreement, 

transcript of plea colloquy, and any explicit factual finding by 

the trial judge to which the defendant assented” to determine 

which of the alternative elements was involved in the 

defendant’s conviction. Shepard v. United States, 544 U.S. 

13, 16 (2005).

For example, the Court in Taylor considered, 

hypothetically, whether a defendant’s prior conviction under 

a state burglary statute that outlawed entry into both a 

building and an automobile constituted a “crime of violence” 

under § 924(e). Taylor, 495 U.S. at 602. Under the Court’s 

previous reasoning, only a burglary of a building could count 

as a predicate offense. Id. at 599. A sentencing court applying
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the categorical approach—looking only at the face of the 

statute of conviction—would be unable to tell if a burglary 

conviction counted as a “crime of violence” because it could

have been for burglary of either an automobile or a building.

But if the jury was “actually required to find” which of the 

alternatives (either a building or an automobile) had been 

proved then the sentencing court could look beyond the face 

of the statute to determine which alternative had been found 

beyond a reasonable doubt. Id. at 602. In that example, if the 

jury “necessarily had to find an entry of a building to convict, 

then the Government should be allowed to use the conviction 

for enhancement.” Id.

III.

Abbott contends the District Court erred because it 

applied the modified categorical approach to an indivisible 

statute. Specifically, Abbott contends the District Court 

improperly looked beyond the statutory elements of 35 PA.

STAT. ANN. § 780-113(a)(30) to determine that his conviction 

was an ACCA predicate. We do not agree. The statute in 

question is divisible and, as such, convictions are properly 

assessed under the modified categorical approach. 

Section 780-113(a)(30) outlaws “the manufacture, 

delivery, or possession with intent to manufacture or deliver, 

a controlled substance[.]” 35 PA. STAT. ANN. § 780-

113(a)(30). The punishment for violating § 780-113(a)(30) 

depends on the type of controlled substance.3If the violation 

 

3

35 PA. STAT. ANN. § 780-104 lists the schedules of 

Pennsylvania’s controlled substances.
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results from possession of Barbital, for example, the 

maximum punishment is three years. 35 PA. STAT. ANN. § 

780-113(f)(3). If the violation results from possession of less 

than 1,000 pounds of marijuana, a maximum imprisonment of 

five years applies. 35 PA. STAT. ANN. § 780-113(f)(2). And if 

the possession involves any “derivative or preparation of coca 

leaves,” a maximum imprisonment of ten years applies. 35 

PA. STAT. ANN. § 780-113(f)(1.1). The type of controlled 

substance involved in the violation similarly affects the 

mandatory minimum term of imprisonment. See 18 PA. CONS.

STAT. § 7508(a).

Abbott contends the statute is indivisible because it 

simply outlaws possession with the intent to distribute “a 

controlled substance.” Unlike the theoretical statute in Taylor

that outlawed burglary of an “automobile as well as a 

building,” the statute here, he contends, does not list 

alternative elements. In order to secure a conviction, he 

continues, the jury must find that the defendant possessed 

with the intent to distribute an unspecified “controlled 

substance”—whether the controlled substance is marijuana or 

cocaine is of no moment. 

Abbott’s contention lacks merit. The Supreme Court 

has clarified that “‘any facts that increase the prescribed 

range of penalties to which a criminal defendant is exposed’

are elements of the crime” and must be found beyond a 

reasonable doubt. Alleyne v. United States, 133 S. Ct. 2151, 

2160 (2013) (quoting Apprendi v. New Jersey, 530 U.S. 466, 

490 (2000)). As noted, the type of controlled substance

involved in a violation of 35 PA. STAT. ANN. § 780-

113(a)(30) alters the prescribed range of penalties. 

Accordingly, the type of drug, insofar as it increases the 
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possible range of penalties, is an element of the crime.4

Because 35 PA. STAT. ANN. § 780-113(a)(30) can be violated 

by the possession of and intent to distribute many different 

drugs, the types of which can increase the prescribed range of 

penalties, the statute includes several alternative elements and 

is therefore divisible. The District Court’s reliance on the

modified categorical approach was proper.

5

 

4 The Pennsylvania Superior Court has reached a 

similar conclusion. In Commonwealth v. Swavely, 554 A.2d 

946 (Pa. Super. Ct. 1989), the defendant was arrested and 

charged with multiple counts of possession with the intent to 

distribute a controlled substance under 35 PA. STAT. ANN. 

§ 780-113(a)(30), among other charges. Two of the charges 

stemmed from the delivery of two different prohibited 

narcotics in a single plastic vial. The defendant argued only 

one offense occurred when he sold the vial because he had 

only once delivered controlled substances. Accordingly, he 

contended, two punishments for the single sale would violate 

the Double Jeopardy Clause. The majority disagreed, 

declaring that the type of drug was an element of the offense. 

554 A.2d at 949. It concluded, “when the vial containing the 

two separate drugs was delivered, two separate offenses 

occurred[.]” Id. See also Commonwealth v. Munday, 78 A.3d 

661, 665-66 (Pa. Super. Ct. 2013) (recognizing Alleyne

requires any fact that increases a defendant’s mandatory 

minimum be treated as an element of a new offense).

5 Abbott also asserts that Commonwealth v. Kelly, 409 

A.2d 21 (Pa. 1979), stands for the proposition that the fact 

finder does not need to find which drug type was involved in 

the § 780-113(a)(30) violation. We addressed that contention 

in Tucker and rejected it. 703 F.3d at 215-16.
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IV.

The District Court properly employed the modified 

categorical approach to conclude Abbott’s previous 

conviction for possession with intent to distribute cocaine is 

an ACCA predicate offense. After the court determined that 

the modified categorical approach was proper, it looked to the 

charging document to determine which alternative element 

had been proved. This was proper under Shepard v. United 

States, 544 U.S. 13, 26 (2005). The charging document—the 

Bill of Information—specified that the drug at issue was 

crack cocaine.

A previous conviction is an ACCA predicate if it is “a 

violent felony or a serious drug offense.” 18 U.S.C. 

§ 924(e)(1). Under the ACCA, a “serious drug offense” is 

defined as:

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[.]
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18 U.S.C. § 924(e)(2)(A)(ii).6 Under Pennsylvania law, 

possession with the intent to distribute cocaine is punishable 

by a maximum term of imprisonment of ten years. 35 PA.

STAT. ANN. § 780-113(f)(1.1). Accordingly, Abbott’s 

previous conviction under 35 PA. STAT. ANN. § 780-

113(a)(30) for possession with intent to distribute cocaine is a

“serious drug offense” and properly served as a predicate 

offense for the imposition of the fifteen-year minimum 

sentence under the ACCA.

V.

Pennsylvania’s possession with intent to distribute 

statute, 35 PA. STAT. ANN. § 780-113(a)(30), is divisible. 

Accordingly, a conviction for its violation is subject to the 

modified categorical approach when determining whether the 

conviction is a predicate offense under the ACCA. The 

District Court properly conducted the modified categorical 

approach and correctly concluded Abbott suffered no 

prejudice from his attorney’s alleged shortcomings at 

sentencing.

We will affirm the judgment of conviction and 

sentence.

 

6 Cocaine is a controlled substance under the 

Controlled Substances Act. 21 U.S.C. §§ 802(6), 812.