United States v. Kevin Abbott
2014 U.S. App. LEXIS 6259
| 3rd Cir. | 2014Background
- Abbott was convicted of possession with intent to distribute under 35 Pa. Stat. Ann. § 780-113(a)(30) and faced a 15-year ACCA minimum based on three prior offenses.
- The ACCA requires three prior convictions for a violent felony or a serious drug offense; Descamps governs how to classify prior offenses.
- Descamps held that a sentencing court may use a modified categorical approach only for divisible statutes.
- Abbott argued § 780-113(a)(30) is indivisible and thus not subject to the modified categorical approach.
- The district court applied the modified categorical approach and concluded Abbott’s cocaine distribution conviction was a valid ACCA predicate.
- This court affirmed that § 780-113(a)(30) is divisible and proper use of the modified categorical approach.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is § 780-113(a)(30) divisible for ACCA purposes? | Abbott contends the statute is indivisible; it criminalizes possession with intent to distribute a controlled substance generally. | United States contends the statute is divisible because the penalty varies with the substance involved. | Yes; statute is divisible, so modified categorical approach applies. |
| May the court apply the modified categorical approach to determine ACCA predicate status? | Abbott argues modification is improper for an indivisible statute. | United States argues the approach is proper for divisible statutes to identify the specific element involved. | Yes; approach properly applied. |
| Did the district court correctly identify the specific drug involved from the charging document? | Abbott asserts no need to specify drug type. | United States says charging document can identify the drug to determine predicate status. | Charging document properly identified crack cocaine, validating predicate status. |
| Is a prior conviction for possession with intent to distribute cocaine a serious drug offense under ACCA? | Abbott would limit to specific lesser penalties. | United States contends it meets the “serious drug offense” definition since max term is 10 years. | Yes; cocaine distribution offense is a serious drug offense under ACCA. |
Key Cases Cited
- Descamps v. United States, 133 S. Ct. 2276 (2013) (divisible/statutory-element framework for ACCA)
- Taylor v. United States, 495 U.S. 575 (1990) (categorical approach; look at elements, not facts)
- Shepard v. United States, 544 U.S. 13 (2005) (allowing use of documents to identify which elements were proved)
- Alleyne v. United States, 133 S. Ct. 2151 (2013) (any fact increasing penalties is an element)
- Commonwealth v. Swavely, 554 A.2d 946 (Pa. Super. Ct. 1989) (drug-type element treated as separate offense)