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: A pril 4, 2014 )

Stuart M. Wilder, Esq. [ARGUED] Pratt, Bret & Luce 68 East Court Street P.O. Box 6592 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 proscribin g possessi on with intent to distribute a controlled substance , 35 P A

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. § 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 t hat statute are subject to the modified categorical approach when determining if they are predicate offenses und er the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“the ACCA”). We hold th at 35 P A

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. § 780

- 113(a)(30) is divisible and, accordingly, the trial c ourt’s use of the modified ca tegorical approach wa s proper. 1 We will affirm.

1 We previously concluded the modified categorical approach was proper when assessing whether a conviction3 I.

The under lying fac ts are not in dispute. After a jury trial, Kevin Abbott was convicted o f possession of a firearm by a convicted felon in violat ion of 18 U.S.C. § 922(g)

, among other charges . His sentence included a fifteen

- year mandatory minimum for violating the ACCA . Th at 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 year s [.]

18 U.S. C. § 924 (e)(1). The sentencing court found that three of Abbott’s previous convictions were “serious drug offenses” under the ACC A and invoked the fifteen

- year minimum. Abbott’s attorney did not object to the use of these prior convictions as ACCA predicates.

under 35 P A

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. A NN . § 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 P A

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- 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 p etition under 28 U.S.C. § 2255

, and we appointed counsel

. The lone issue presented in h is 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 in tent to distribute

, under 35 P A

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. A NN . § 780

- 113(a)(30), as an ACCA predicate offense . The District Court denied the petition without a hearing, noting that the sentenci ng court properly employed the modified categorical approach. I t concluded Abbott s uffered no prejud ice from his attorney’s alleged shortcomings

. N oting the then

- pending Descamps v. United States , 133 S. Ct. 2276 (2013 )

, t he District Court issued a certificate of appealability under 28 U.S.C. § 2253 on the sole of issue of whether Desca mps alter ed the ACCA analysis

. That issue is now before us. 2

I I.

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

- ye ar 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, i n a case in which the defendant has been convicted of § 922(g) and the prosecuti on 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 d rug 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
, 13 3 S. Ct. at 2283 (quoting Taylor v. United States , 495 U.S. 575, 600 (1 990)). This elements

- based inquiry has com e to be called the “categorical approach. ” See Descamps , 133 S. Ct. at 22 81

. For example, in Taylor , the Supreme Court confronted a case in which the defendant had been convicted of a § 922(g) violation and the s entencing court w as asked to invoke the fifteen

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

. T he 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 i ndividuals 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 definition6 of the prior off ense.” Id. at 602. A court should “not [look] to the particular facts underlying those convictions.” Id. at 600.

The Taylor decision d id, however, admit of a “narrow range of cases ” when a sentencing court may look beyond the elements of a prior convicti on to decide if it can serve a s 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 convicti on “lists multiple, alternative elements, ” 133 S. Ct. at 2285, rather than a “sing le, indivisible set of elements, ” i d. at 2282. The Supreme Court referred to such statutes as “divisible statutes.” Id. at 2281. The p urpose of the modified categorical
appro ach 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 cou rt 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 w as involved in the defendant’s conviction. Shepard v. United States , 544 U.S. 13, 1 6 (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 constit uted 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 applying7 the cate gorical 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 “act ually required to find” which of t he alternatives (either a building or an automobile) had been proved then the sentencing court could look beyond the fac e 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

.

I II

.

Abbot t contends the District Court erred because it applied the modified cate gorical approach to an indivisible
statute. Specifically, Abbott contends the District Court improperly looked beyond the statutory elements of 35 P A

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. § 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 78 0

- 113(a)(30) outlaws “ the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substa nce [

. ] ” 35 P A

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. A NN

. § 780

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

- 113(a)(30) depends on the type of controlled substance. 3 If the violation

3 35 P A

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. A NN . § 780

- 104 lis ts the schedules of Pennsylvania’s controlled substances.8 results from possession of Barbital, for example, the maximum punishment is three years. 35 P A

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. § 780

- 113(f)(3). I f the violation results from possession of less than 1,000 pounds of marijuana

, a maximum imprisonment of five years applies . 35 P A

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. § 780

- 113(f)(2). And i f the possession involves any “ derivative or preparation of coca lea ves , ” a maximum imprisonment of ten years applies

. 35 P A

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. A NN . § 780

- 113(f)(1.1 )

. The type of controlled substance involved in the violation similarly affects the mandatory minimum term of imprisonment. See 18 P A

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. § 7508(a).

Abbott cont ends the statute is indivisible because it simply outlaws possession with the intent to distribute “a controlled substance.” U nlike the theoretical statute in Taylor that outlawed burglary of an “automobile as well as a building ,” the statute here, he c ont ends, 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 un specified “controlled substance ”

— whether the controlled substance is marijuana or

co caine is of no moment.

Abbott’s contention lacks merit . The Supre me 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

rea sonable doubt. Alleyne v. United States , 133 S. Ct. 215 1, 2160 (2013) (quoting Apprendi v. New Jersey , 530 U.S. 466, 490 (2000) ). As noted , t he type of controlled substance invol ved in a violation of 35 P A

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. A NN

. § 780

- 113 (a)(30) alters the prescribed range of penalties. Accordingly, the type of drug, inso far as it increases the9 possible range of penalties, is an element of the crime. 4
Because 35 P A

. STAT

. A NN

. § 780

- 113(a)(30) can be violated by the possession of and intent to distribute many differen t drugs, the type s of which can increase the prescribed range of penaltie s, the statute include s several alternative elements and is therefore divisible

. T he District C ourt ’s reliance on the mod ified 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 po ssession with the intent to distribute a controlled substance under 35 P A

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. § 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 o nly 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 typ e 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) (recog nizing 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

- 16.10 I V.

The District Cour t properly employed the modified
cat egorical approach to conclude Abbott’s previous conviction for possession with intent to distribute cocaine is

a n ACCA predicate offense

. A fter the c ourt determined that the modified categorical approach was proper , i t l ooked to the charging document to determine which alt ernative element had been proved. This was proper under Shepard v. United States

, 544 U.S. 13, 26 (2005)

. The charging document

— t he Bill of Information

— specified that the drug at issue was crack cocaine.

A previous conviction is a n ACCA predicate if it is “a violent felony or a ser ious 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 posse ssing 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[.]11 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 P A

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. A NN

. § 780

- 113(f)(1.1). Accordingl y, Abbott’s previous conviction under 35 P A

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. § 780

- 1 13(a)(3 0 ) for possession with intent to distribute cocaine is a “serious drug offense” and properly served as a predicate offen se for the imposition of the fifteen

- year minimum sentence under the ACCA.

V.

Pennsylvania’s possession with intent to distribu te statute, 35 P A

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. A NN

. § 780

- 113(a)(30), is divisible

. According ly

, 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 prop erly 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.