United States v. Dorian Dawson, 32 F.4th 254

Dawson was arrested with fentanyl packages stamped “Peace of Mind” after an earlier overdose death (L.B.) found with the same packaging; text messages tied Dawson to L.B.
State authorities charged Dawson with drug offenses including delivery resulting in death; federal authorities later adopted the case and charged him with possession of fentanyl with intent to distribute under 21 U.S.C. § 841; Dawson pleaded guilty.
Probation classified Dawson as a career offender based on four prior Pennsylvania convictions under 35 Pa. Cons. Stat. § 780-113(a)(30), producing a Guidelines range of 188–235 months; the district court varied downward and sentenced him to 142 months.
Dawson appealed, arguing (1) his Pennsylvania § 780-113(a)(30) convictions are not “controlled substance offenses” under U.S.S.G. § 4B1.2(b) because they encompass “attempted transfer,” and (2) the district court violated Fed. R. Crim. P. 32(i)(3)(B) by failing to rule on the controverted factual question whether Dawson caused L.B.’s death.
The Third Circuit evaluated (a) whether Nasir (which excluded inchoate offenses from § 4B1.2(b)) controlled here, and (b) whether Dawson preserved his Rule 32 argument or, if forfeited, could show plain error affecting substantial rights.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 780-113(a)(30) is a § 4B1.2(b) "controlled substance offense"	§ 780-113(a)(30) can be satisfied by an “attempted transfer,” so it criminalizes inchoate conduct beyond the Guideline’s ordinary meaning of “distribution”	The Guideline’s use of “distribution” includes the CSA definition of “deliver,” which covers actual, constructive, or attempted transfer; Pennsylvania’s statute thus fits the Guideline	The convictions qualify as career-offender predicates: § 780-113(a)(30) is not an inchoate offense for categorical purposes and “distribution” in the Guidelines includes attempted transfer; career-offender designation affirmed
Whether the district court violated Rule 32(i)(3)(B) by not ruling on whether Dawson caused L.B.’s death	The court failed to resolve the controverted factual matter at sentencing as Rule 32(i)(3)(B) requires	The Government urged the PSR portions were proper; the district court said it would rule on causation only if the Government argued it at sentencing; defense did not object post-sentence	The claim was forfeited because defense counsel did not object when the alleged error became final; plain-error review fails because Dawson cannot show a reasonable probability the court relied on the death or that his substantial rights were affected; sentence affirmed

United States v. Nasir, 17 F.4th 459 (3d Cir. 2021) (held inchoate crimes are not included in § 4B1.2(b))
United States v. Hightower, 25 F.3d 182 (3d Cir. 1994) (prior precedent had read Commentary to include inchoate drug offenses)
United States v. Glass, 904 F.3d 319 (3d Cir. 2018) (addressed overbreadth as to offers to sell under § 780-113(a)(30))
United States v. Whyte, 892 F.2d 1170 (3d Cir. 1989) (career-offender guideline implements 28 U.S.C. § 994(h) and contemplates § 841 offenses)
United States v. Flores-Mejia, 759 F.3d 253 (3d Cir. 2014) (en banc) (preservation rule: timely objection must be made when procedural error becomes evident at sentencing)
United States v. Havis, 929 F.3d 317 (6th Cir. 2019) (distinguished attempted transfer as a completed delivery for categorical analysis)
United States v. Thomas, 969 F.3d 583 (6th Cir. 2020) (applied Havis to hold state delivery statutes that criminalize attempted transfer count as distribution predicates)
United States v. Winstead, 890 F.3d 1082 (D.C. Cir. 2018) (declined to expand Guideline categories but did not resolve meaning of “distribution” vis-à-vis CSA definitions)
Greer v. United States, 141 S. Ct. 2090 (U.S. 2021) (plain-error burden and standards reaffirmed)
Olano v. United States, 507 U.S. 725 (U.S. 1993) (sets plain-error framework)