United States v. Malachi Glass
904 F.3d 319
3rd Cir.2018Background
- Malachi Glass pleaded guilty to possession with intent to distribute cocaine (21 U.S.C. § 841(a)(1)).
- At sentencing the District Court applied a U.S.S.G. § 4B1.1 career-offender enhancement based on two prior Pennsylvania convictions under 35 Pa. Cons. Stat. § 780-113(a)(30) (2001 and 2004).
- The District Court nonetheless imposed a downward variance (to 132 months) citing an overstated PSR, family responsibilities, addiction, and youth.
- Glass appealed, challenging the career-offender enhancement; appellate counsel initially moved to withdraw under Anders and the court appointed new counsel to brief the merits.
- The Third Circuit reviewed the unpreserved claim for plain error because trial counsel had conceded career-offender status at sentencing.
- The central legal question was whether § 780-113(a)(30) is broader than U.S.S.G. § 4B1.2(b) because it (allegedly) criminalizes a mere offer to sell, which would disqualify those convictions as "controlled substance offenses" for § 4B1.1 purposes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Glass preserved the challenge to the career-offender enhancement | Glass contended the issue was preserved or, alternatively, plain error review should apply | Government argued Glass waived or forfeited the challenge so only plain error review applies | Court held the issue was not preserved and applied plain error review because trial counsel conceded career-offender status |
| Whether § 780-113(a)(30) criminalizes mere offers to sell and thereby is broader than U.S.S.G. § 4B1.2(b) | Glass argued Pennsylvania’s definition of “deliver” (including “attempted transfer”) implies it covers offers to sell, making the statute overbroad | Government argued § 780-113(a)(30) does not reach mere offers; Pennsylvania law’s definition differs from statutes that expressly criminalize offers | Court held § 780-113(a)(30) does not sweep more broadly than § 4B1.2 and thus qualifies as a “controlled substance offense” for career-offender purposes |
| Whether precedent and statutory language support reading § 780-113(a)(30) to include offers | Glass relied on the statutory language “attempted transfer” and analogies to other circuits finding overbreadth | Government pointed to absence of express “offer” language, lack of state authority prosecuting offers under § 780-113(a)(30), and legislative drafting choices | Court found: (1) "attempted transfer" ≠ mere offer; (2) other subsections expressly criminalize offers while (a)(30) does not; (3) no realistic probability Pennsylvania would prosecute mere offers under (a)(30) |
| Whether the two prior convictions could serve as § 4B1.1 predicates | Glass also argued one cited conviction was simple possession and thus not a predicate | Government noted there were at least two qualifying § 780-113(a)(30) convictions on the record | Court affirmed that two qualifying convictions existed (including a third conviction in the record) and that the enhancement was properly applied |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (counsel may seek to withdraw if appeal is wholly frivolous)
- Olano v. United States, 507 U.S. 725 (plain error review framework)
- Gov’t of the Virgin Islands v. Rosa, 399 F.3d 283 (clarifying plain error requirements)
- Mathis v. United States, 136 S. Ct. 2243 (state statute cannot qualify if elements are broader than generic offense)
- United States v. Dahl, 833 F.3d 345 (Third Circuit applied plain error to unpreserved sentencing-enhancement challenge)
- United States v. Hinkle, 832 F.3d 569 (discussing effect of statutes that expressly include offers on controlled-substance definitions)
- United States v. Madkins, 866 F.3d 1136 (Tenth Circuit: statute criminalizing offers is overbroad for § 4B1.2 purposes)
- United States v. Savage, 542 F.3d 959 (Second Circuit: statute reaching offers sweeps beyond § 4B1.2)
- United States v. Redden, 875 F.3d 374 (Seventh Circuit: Illinois definition of delivery did not encompass offers)
- United States v. Abbott, 748 F.3d 154 (Third Circuit: § 780-113(a)(30) not overbroad in ACCA context)
- Avila v. Attorney General, 826 F.3d 662 (Third Circuit: § 780-113(a)(30) analogous to federal possession with intent to distribute)
- United States v. Blair, 734 F.3d 218 (holding that an extra qualifying predicate obviates need to assess another conviction)
- United States v. Berrios, 676 F.3d 118 (explaining treatment of multiple predicate convictions)