NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT 

_____________

No. 16-1215

_____________

UNITED STATES OF AMERICA

v.

RAYMOND ZARECK,

 Appellant 

_____________

 

On Appeal from the United States District Court

for the Western District of Pennsylvania 

District Court No. 2-09-cr-00168-001

District Judge: The Honorable Joy Flowers Conti

 

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

September 27, 2016

Before: AMBRO, SMITH, and FISHER, Circuit Judges

(Filed: September 29, 2016) 

_____________________

 OPINION

_____________________ 

 

SMITH, Circuit Judge.

 

 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does 

not constitute binding precedent.
2

A jury convicted Raymond Zareck of being (1) a felon in possession of a 

firearm and (2) a drug user or addict in possession of a firearm, in violation of 18 

U.S.C. §§ 922(g)(1), (3) and 924(e)(1). After this Court vacated his initial 

sentence on a narrow legal error, the District Court conducted a limited 

resentencing and sentenced Zareck to 188 months in prison. This was the same 

sentence he received initially. Zareck now appeals his sentence for the second 

time. We will affirm.

I. BACKGROUND

In April of 2009, police arrested Zareck after he sold drugs to a confidential 

informant as part of a controlled buy. During a subsequent search of Zareck’s 

home, officers found a shotgun, ammunition, and a number of other incriminating 

items. Based on this, a federal grand jury indicted Zareck on one count of being a 

felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1),1and one 

count of being a drug user or addict in possession of a firearm, in violation of 18 

U.S.C. § 922(g)(3). A jury convicted Zareck on both counts. 

At sentencing, because Zareck had three previous convictions for “serious 

drug offense[s]” prior to committing the instant offense, the District Court 

concluded that he qualified as an armed career criminal under the Armed Career 
3

Criminal Act (ACCA), thus triggering the fifteen-year mandatory minimum 

sentence under 18 U.S.C. § 924(e)(1). Consistent with § 4B1.4(b)(3)(B) of the 

United States Sentencing Guidelines (U.S.S.G.), the District Court therefore set 

Zareck’s offense level at 33. It also relied on these previous drug convictions to 

calculate Zareck’s criminal history category under U.S.S.G. § 4A1.1, resulting in a 

criminal history category of IV and an advisory Guidelines range of 188 to 235 

months imprisonment. Based on this range, the Court sentenced Zareck to 188 

months in prison on the § 922(g)(1) felon-in-possession count, and a concurrent 

188 month sentence on the § 922(g)(3) drug-user-in-possession count. 

Zareck then appealed his convictions and sentence to this Court, arguing that 

his previous state-court drug convictions did not qualify as “serious drug offenses” 

for purposes of his ACCA enhancement and that the District Court erred by 

imposing separate sentences for each of the § 922(g) convictions even though 

those convictions were based on the same conduct. The government conceded that 

it was error for the District Court to impose separate sentences for each of Zareck’s 

convictions under § 922(g)(1) and (3). As for the first point, a panel of this Court 

summarily rejected Zareck’s argument that his state-court convictions were not 

“serious drug offenses,” calling this argument “meritless.” United States v. Zareck, 

 

1 As alleged in the indictment, Zareck was previously convicted of several state-
4

588 F. App’x 100, 100 n.2 (3d Cir. 2014) (Zareck I). The panel vacated his 

sentence and remanded to the District Court to determine under which subpart of 

§ 922(g) to impose sentence and to resentence Zareck accordingly. Id. at 101.

On remand, the District Court determined that the offense level (and 

therefore the Guidelines range) was the same under both counts. And because the 

panel in Zareck I had already considered and rejected Zareck’s arguments 

regarding the treatment of his state-court convictions as predicate offenses for

purposes of the ACCA enhancement, the District Court concluded that it did not 

need to give de novo consideration to these arguments. Instead, the Court on 

remand allowed Zareck to try to satisfy the standard for obtaining reconsideration 

by showing that relevant law has changed, by presenting previously unavailable 

evidence, or by demonstrating that manifest injustice would result absent 

reconsideration. Because he failed to meet this burden, it stayed with its original 

findings regarding Zareck’s status as a career criminal under ACCA and again 

imposed a sentence of 188 months in prison solely on the § 922(g)(1) felon-inpossession count. Zareck then filed a timely notice of appeal.2

II. ANALYSIS

 

court crimes punishable by imprisonment for a term exceeding one year. 
5

On appeal (for the second time), Zareck raises two principal arguments. 

First, he claims it was error for the District Court to limit the scope of the 

resentencing to simply selecting the appropriate subpart of § 922(g) to sentence 

him under; instead, he argues that the Court should have conducted a de novo 

resentencing.3 Second, he claims that the District Court erred by treating his statecourt convictions as predicate offenses under ACCA. We address each argument 

in turn.

A. Scope of Mandate for Resentencing

Zareck claims that, because the panel opinion in Zareck I did not specify 

whether his resentencing should be de novo or limited to only certain issues, the 

District Court should have conducted a de novo resentencing. We disagree.

In United States v. Ciavarella, 716 F.3d 705 (3d Cir. 2013), we explained 

that “[d]istrict courts should resentence de novo when an interdependent count of 

an aggregate sentence is vacated.” Id. at 734 (citing United States v. Davis, 112 

F.3d 118, 123 (3d Cir. 1997)). Counts are interdependent when they “result in an 

aggregate sentence, not sentences which may be treated discretely.” United States 

 

2 The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231. 

We have appellate jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. 

§ 3742(a).
6

v. Miller, 594 F.3d 172, 180 (3d Cir. 2010). But when vacating a count of 

conviction does not “affect [the defendant’s] total offense level, Guideline range, 

or sentence, . . . resentencing de novo is not required.” Ciavarella, 716 F.3d at 

735. 

Zareck explicitly acknowledges that his initial sentence did not involve 

interdependent counts.4 Nevertheless, he argues that vacating one of the two 

 

3 Whether the District Court erred by conducting a limited resentencing presents a 

legal question subject to plenary review. See United States v. Diaz, 639 F.3d 616, 

619 (3d Cir. 2011).

4 Miller and Davis provide examples of aggregate sentences involving 

interdependent counts. In Miller, the defendant was convicted of (among other 

crimes) one count of receiving child pornography and one count of possessing 

child pornography. 594 F.3d at 175-76. At sentencing, the district court grouped 

the two child pornography offenses together and used the count with the highest 

offense level (the receipt count) to determine the group’s offense level in order to 

calculate the defendant’s Guidelines range. Id. at 180-81. After we ordered the 

district court to vacate one of the defendant’s child pornography counts on double 

jeopardy grounds, the district court vacated the receipt count and resentenced the 

defendant. Id. at 176. Because the counts were grouped at the initial sentencing, 

we concluded that the defendant’s sentence was an aggregate sentence requiring de 

novo resentencing. Id. at 181. 

Similarly, in Davis, the defendant was convicted of various drug offenses and of 

using a firearm in connection with a drug trafficking offense. 112 F.3d at 119. 

The drug counts and the firearm count were grouped at sentencing. After we 

vacated the defendant’s firearm count and remanded for resentencing, the district 

court applied a sentencing enhancement (for possessing a firearm during a drug 

trafficking offense, see U.S.S.G. § 2D1.1(b)(1)) that the court previously was 

unable to apply because of the presence of the firearm count. We upheld the 

court’s application of this enhancement after concluding that the defendant’s initial 

sentence was an aggregate sentence involving interdependent counts. Thus, de 

novo resentencing was required. Id. at 121.
7

§ 922(g) counts “materially changed the picture before the [District] Court on 

resentencing.” Appellant Br. 16. Besides this bare assertion, however, Zareck 

fails to explain how the “picture” looked any different upon resentencing – either 

in terms of the § 3553(a) factors or with reference to any other relevant metric –

such that de novo resentencing was required. And, based on our own analysis, 

neither can we perceive any material change.

Zareck’s reliance on the Supreme Court’s decision in Pepper v. United 

States, 562 U.S. 476 (2011), is similarly unavailing. In Pepper, the Court held that 

a sentencing court must be permitted to consider evidence of post-sentencing 

rehabilitation when resentencing a defendant whose initial sentence has been 

overturned on appeal. Id. at 490. But Zareck did not attempt to present to the 

District Court any evidence that he has been rehabilitated since his initial 

sentencing. Nor does he claim on appeal that he would have presented such 

evidence had the District Court conducted a de novo resentencing. 

We conclude, therefore, that the District Court did not err by limiting the 

scope of Zareck’s resentencing to the issues for which this Court in Zareck I

remanded for resentencing. 

B. State-court Convictions as Predicates under ACCA
8

Because we conclude that the District Court correctly limited the scope of 

Zareck’s resentencing, and because Zareck I already considered and rejected 

Zareck’s arguments regarding his eligibility for the ACCA enhancement based on 

his previous state-court drug convictions, see Zareck I, 588 F. App’x at 100 n.2, we 

review his ACCA arguments only to ensure that the prior determination was not so 

clearly erroneous as to result in manifest injustice. In re City of Phila. Litig., 158 

F.3d 711, 718 (3d Cir. 1998) (“[T]he [law of the case] doctrine does not preclude 

our reconsideration of previously decided issues in extraordinary circumstances 

such as where: (1) new evidence is available; (2) a supervening new law has been 

announced; or (3) the earlier decision was clearly erroneous and would create 

manifest injustice.”).5 

The first of Zareck’s ACCA predicate convictions involved a pair of 

prescription drug sales to the same confidential informant that took place about a 

week apart back in 1988. Based on these, Zareck was charged with, and entered a 

plea of nolo contendere to, two counts of violating 35 Pa. Cons. Stat. § 780-

113(a)(30), which prohibits “the manufacture, delivery, or possession with intent to 

 

5 Zareck does not claim that he has found previously unavailable evidence to 

support his arguments, nor that there has been any intervening change in the law 

since the Court in Zareck I rejected his career criminal arguments. Indeed, he 

explicitly relies solely on the “manifest injustice” exception to the law of the case 

doctrine. 
9

manufacture or deliver, a controlled substance.” His second conviction came after 

Zareck engaged in three prescription drug sales over the course of about six weeks 

later in 1988. Again, he was charged with multiple counts of violating 35 Pa. 

Cons. Stat. § 780-113(a)(30).6 Again, he entered a plea of nolo contendere on all 

counts. Then, in 1990, Zareck was caught selling prescription drugs to an 

undercover agent. He was again charged with multiple counts of violating 35 Pa. 

Cons. Stat. § 780-113(a)(30), as well as several other state-law counts. This time, 

a jury convicted him. 

Zareck first argues that these three state-court drug convictions cannot serve 

as three separate predicate offenses under ACCA because they were all “part of a 

larger course of conduct” and thus should have been treated as a single conviction 

for purposes of the ACCA enhancement. Appellant’s Br. 22-23. Zareck is wrong. 

Per United States v. Schoolcraft, 879 F.2d 64 (3d Cir. 1989), we apply the 

“‘separate episodes’ test,” id. at 74 (quoting United States v. Towne, 870 F.2d 880, 

889 (2d Cir. 1989)), whereby “individual convictions may be counted for purposes 

of [the ACCA] sentencing enhancement so long as the criminal episodes 

underlying the convictions were distinct in time,” id. at 73. Each of Zareck’s state-

 

6 Zareck was also charged with multiple counts of violating 35 Pa. Cons. Stat. 

§ 780-113(a)(14), which criminalizes “[t]he administration, dispensing, delivery, 
10

court convictions was based on different drug sales to different individuals, with 

months, if not years, separating each transaction. Thus, the District Court did not 

err – much less clearly so – in concluding that the convictions should be counted 

separately for ACCA purposes. 

Zareck’s next set of arguments centers on whether his state-court 

convictions constitute “serious drug offenses” under ACCA. As an initial matter, 

it is clear that a conviction under 35 Pa. Cons. Stat. § 780-113(a)(30) can serve as a 

predicate offense under ACCA, so long as the controlled substance at issue 

conviction carries with it a maximum sentence of at least ten years. See United 

States v. Abbott, 748 F.3d 154, 158-59 (3d Cir. 2014). On appeal, Zareck does not 

argue that the controlled substances for which he was convicted under this statute 

fail to meet this requirement. Thus, we cannot conclude that the District Court 

clearly erred in concluding that Zareck’s convictions constituted “serious drug 

offenses” under ACCA.7

Nevertheless, Zareck claims that two of his three state-court convictions 

cannot count as ACCA predicates because they resulted from pleas of nolo 

 

gift or prescription of any controlled substance by any practitioner or professional 

assistant under the practitioner’s direction and supervision . . . .”

7 According to the government, at least one of the § 780-113(a)(30) counts in each 

of Zareck’s convictions was based on a controlled substance the maximum penalty 
11

contendere. Unfortunately for Zareck, however, all that matters under ACCA is 

whether the defendant has “three previous convictions.” 18 U.S.C. § 924(e)(1) 

(emphasis added). Under Pennsylvania law, any “adjudication of guilt” constitutes 

a “conviction” for purposes of § 924(e)(1), United States v. Jefferson, 88 F.3d 240, 

243 (3d Cir. 1996), and a plea of nolo contendere appears to have the same legal 

effect as a guilty plea, see Eisenberg v. Com., Dep’t of Pub. Welfare, 512 Pa. 181, 

185 (1986) (“A plea of nolo contendere, when accepted by the court, is, in its 

effect upon the case, equivalent to a plea of guilty. . . . The judgment of conviction 

follows upon such plea as well as upon a plea of guilty.” (quoting Commonwealth 

v. Ferguson, 44 Pa. Super. Ct. 626, 628 (1910))). Thus, Zareck cannot hide behind 

his nolo contendere pleas to contest his ACCA status.8

We conclude that the District Court did not clearly err in finding Zareck 

eligible for the sentencing enhancement under ACCA.

III. CONCLUSION

 

for which is fifteen years. We need not confirm the accuracy of this information 

since Zareck does not challenge it on appeal. 

8 Finally, Zareck appears to argue that his convictions under § 780-113(a)(30) are 

invalid because he was a registered pharmacist at the time he committed the 

offenses. Whether Zareck is correct is of no moment at this stage; except in the 

narrowest of circumstances not applicable here, defendants facing a sentencing 

enhancement under ACCA are unable to collaterally attack the validity of their 

predicate state-court convictions. Custis v. United States, 511 U.S. 485, 487 

(1994).
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We will uphold the District Court’s judgment of conviction and sentence.