UNITED STATES OF AMERICA v. DORIAN DAWSON, Appellant
No. 20-3338
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
April 28, 2022
PRECEDENTIAL
Argued February 10, 2022
District Judge: Honorable David S. Cercone
Before: GREENAWAY, JR., SCIRICA, and RENDELL, Circuit Judges.
Lisa B. Freeland
Renee Pietropaolo (argued)
Office of Federal Public Defender
1001 Liberty Avenue
Suite 1500
Pittsburgh, PA 15222
Counsel for Appellant
Adam N. Hallowell (argued)
Laura S. Irwin
Office of the United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
Counsel for Appellee
OPINION OF THE COURT
RENDELL, Circuit Judge.
Dorian Dawson appeals his sentence for possession of fentanyl with intent to distribute. He raises two claims of error. First, Dawson argues that he should not have been subject to a career offender enhancement because his state drug trafficking convictions are not “controlled substance offenses” under the Sentencing Guidelines. We hold that those convictions are career offender predicates, as the state offense,
Accordingly, we will affirm.
I.
On October 17, 2016, Dawson was arrested in Brentwood, Pennsylvania. He was caught driving a car containing bags of fentanyl, stamped with the label “Peace of Mind“. Earlier that day, Police had responded to the overdose death of one “L.B.“, who was found with empty and full bags of fentanyl bearing the same “Peace of Mind” label. Investigation of L.B.‘s cell phone revealed that Dawson had been supplying L.B. with fentanyl; Police then used the deceased‘s phone to set up a drug deal with Dawson, apprehending him upon his arrival.
Dawson was initially charged in state court with various drug trafficking offenses, including drug delivery resulting in death,
Dawson was caught with only four grams of fentanyl, but a lengthy history of drug dealing—he had been convicted four times of heroin trafficking under
On November 5, 2020, the District Court sentenced Dawson to 142 months’ imprisonment, reflecting a 46-month downward variance from the bottom end of his Guidelines range. Although the District Court conclusively overruled his objection to the PSR‘s inclusion of L.B.‘s overdose, the Court neither held that Dawson caused the death nor deemed the issue irrelevant to crafting a sentence under the
Dawson timely appealed.
II.
The District Court had jurisdiction pursuant to
III.
A.
We begin by addressing the career offender enhancement. The District Court agreed with Probation that Dawson had at least two qualifying predicate convictions—his repeated violations of
Nasir is distinguishable because
The Sixth Circuit‘s analysis provides a useful paradigm for our consideration of Pennsylvania‘s drug trafficking statute. Although the Commonwealth‘s courts have provided little guidance on the meaning of “attempted transfer,” careful analysis of statutory structure and prosecutorial practice reveal that
To start with, Pennsylvania prosecutes legal attempts to deliver drugs under the Code‘s general attempt provision,
Further, the “attempted transfer” of drugs cannot be an inchoate offense because drug “transfer” is not a codified crime. The Commonwealth defines “criminal attempt” as follows: “A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime.”
Finally, Dawson‘s hypothesized inchoate offense would be inconsistent with Pennsylvania mens rea caselaw. If “attempted transfer” is an inchoate crime like any other, then ‘intent’ must be the applicable mens rea, as Dawson insists. But the mens rea applicable to drug “delivery” is merely knowing. See Commonwealth v. Murphy, 844 A.2d 1228, 1234 (2004). The better reading of state law avoids such anomalies.
In sum, Nasir does not control here because it addressed only true inchoate offenses, none of which appear in
1.
We use the categorical approach to determine if a past conviction is a career offender predicate, considering only the elements of the conviction statute, not the facts of the defendant‘s actual misconduct. United States v. Williams, 898 F.3d 323, 333 (3d Cir. 2018) (citing United States v. Chapman, 866 F.3d 129, 133 (3d Cir. 2017)). We compare the elements of that statute with the relevant Guidelines provision—here,
Assessing categorical fit here, we look first to the conduct proscribed by Dawson‘s predicate offenses: his violations
Now to the Guidelines, they define a “controlled substance offense” as:
an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.
The Parties agree that we must analyze the ordinary meaning of the Guideline text to determine if
2.
Starting with the plain text of
“Distribution” means “giving out or division among a number, sharing or parceling out, allotting, dispensing, apportioning.” BLACK‘S LAW DICTIONARY 475 (6th ed. 1990); see also OXFORD ENGLISH DICTIONARY (2d ed. 1989) (“The action of dividing and dealing out or bestowing in portions among a number of recipients; apportionment, allotment.“). Significantly, the Black‘s Law Dictionary edition closest in time to the adoption of
We find the authority of the Black‘s Law Dictionary persuasive here, as it provides definitions of the salient terms in the precise, relevant context, and “context is everything in interpretation. One can‘t take the broadest (or for that matter narrowest) lay definition and simply affix it to the statute.” Gresham, 938 F.3d at 849. As we shall see, those definitions reflect consistent legal usages at the time of the Guideline‘s adoption, see infra pp. 24-36, and they are consistent with the OED‘s broader lay definitions.
Applying those contextualized dictionary definitions then, the ordinary meaning of drug “distribution” plainly includes the “attempted transfer” of drugs, by way of the meaning of “delivery“. The fact that Pennsylvania drug trafficking law mirrors these linguistic relationships is a facially compelling reason to find it comports with the Guidelines.
Simple examples of ordinary usage confirm the raw dictionary analysis. Consider a drug dealer who apportions his ‘stash’ into labeled packages, drives them to the local Post Office, and mails them out to buyers. Even if the packages are soon intercepted by Postal Inspectors, the dealer has already “distributed” the packages by mailing them, he has “attempted transfer” to the buyers. Or, take a mid-level drug captain who places allotments of drugs at pre-arranged locations for collection by street-level dealers. He has “distributed” the drugs, even if the Police discover the parcels before the transferee dealers do—again, a person can engage in drug “distribution” by attempting to transfer drugs. Likewise, when Police conduct a “buy-bust” operation in which a dealer is arrested before the drugs are finally handed over, the dealer engaged in the “distribution” of those drugs by attempting to transfer them.8
Dawson presents counter-hypotheticals showing that we sometimes use “distribute” in the narrow sense of a completed transfer. See Appellant‘s Reply Br. at 3. But these miss the point. What he needs to make out is the obverse: that there are “attempted transfers” which are not instances
3.
The Government also urges that the Controlled Substances Act (“CSA“),
The relevant definitions in the CSA track those in Black‘s Law Dictionary and map directly onto
The CSA has defined “distribute” to include “attempted transfer” (by way of “delivery“) since the time of its enactment in 1970; it did so when the term “distribution” was added to
The history of
Congress‘s instructions in the Sentencing Reform Act of 1984 (“SRA“), Pub. L. 98-473, Title II, § 217(a), 98 Stat. 1837, 2021 (eff. Oct. 12, 1984), also support the view that the meaning of “distribution” in
(h) The Commission shall assure that the guidelines specify a sentence to a term of imprisonment at or near the maximum term authorized for categories of defendants in which the defendant is eighteen years old or older and—
(1) has been convicted of a felony that is—
[. . .]
(B) an offense described in section 401 of the Controlled Substances Act (
21 U.S.C. [§] 841 ) . . .and
(2) has previously been convicted of two or more prior felonies, each of which is—
[. . .]
(B) an offense described in section 401 of the Controlled Substances Act (
21 U.S.C. [§] 841 )[.]
Worse, it would mean embracing the absurd proposition that
The caselaw of our sister Circuits is also instructive in a more direct way, as three of them have held that “distribution” in
In sum, Dawson would have us hold that any statute criminalizing the “attempted transfer” of drugs will not trigger the career offender enhancement. Following him would require us to find that: the Commission has flouted Congress‘s clear command for more than three decades; the universal assumption of the Circuit Courts has been incorrect; and the clear holdings of three Circuits are misguided. This we will not do. All the authority points in the contrary direction: the Guidelines category of “distribution” offenses includes prohibitions on the “attempted transfer” of drugs, including
Resisting this conclusion, Dawson contends that we should ignore the CSA‘s definitions when interpreting the meaning of “distribution” in the Guidelines. He cites several out-of-Circuit cases, none of which is on-point. His citations to United States v. Ruth, 966 F.3d 642 (7th Cir. 2020) and United States v. Ward, 972 F.3d 364 (4th Cir. 2020) do him little good, as those cases addressed a distinct issue: how to interpret the term “controlled substance” in
4.
Lastly, we consider the “purpose” behind, and policy of, the career offender Guidelines, Nasir, 17 F.4th at 471 (citing Kisor, 139 S. Ct. at 2415), which implement Congress‘s desire to impose “substantial prison terms” on “repeat drug traffickers,” Whyte, 892 F.2d at 1174. Considering that objective, we strive to avoid rendering the enhancement inapplicable to convictions obtained under the drug trafficking laws of numerous states. See Stokeling v. United States, 139 S. Ct. 544, 552 (2019) (“Where . . . the applicability of a federal criminal statute requires a state conviction, we have repeatedly declined to construe the statute in a way that would render it inapplicable in many States.“). Here, this principle militates against Dawson‘s position. Numerous states have adopted the CSA‘s definitions of “distribution” and “delivery” in codifying drug trafficking offenses. See supra n.11. Dawson asks us to hold that a conviction under any of those statutes is not categorically a “controlled substance offense” for career offender purposes. Plainly, the Government‘s contrary reasoning, “more so than [Dawson‘s], effectuates the purpose” of the career offender enhancement. Whyte, 892 F.2d at 1174. We discern no persuasive argument that would force us to neuter the Guideline.
***
We will not undo the District Court‘s decision to designate Dawson a career offender. Although the enhancement was based on our now-defunct decision in Hightower, it was nonetheless correct, as our extensive analysis of the Guidelines text—without recourse to the Commentary—and state law has shown. In short, even after Nasir,
B.
We turn now to Dawson‘s claim that the District Court failed to comply with
As we explained, the District Court sentenced Dawson to 142 months’ imprisonment, reflecting a 46-month downward variance from the bottom end of the Guidelines range. During a sealed sidebar conference early in the sentencing hearing, defense counsel reiterated his objection to the PSR‘s inclusion of L.B.‘s fatal overdose, asking the Court to make a ruling if it intended to hold Dawson responsible. Back in open court, the District Court observed that defense counsel was concerned “about the Court taking into consideration, when imposing sentence, that the conduct of your client caused” L.B.‘s death. Appx. at 223. The Court then overruled Dawson‘s objection, noting that the PSR did not claim Dawson caused L.B.‘s death. The Court announced that it would only decide on the causation issue—insofar as it transcended the PSR objection—should the Government press the point at the hearing. Defense counsel did not complain that the Court‘s ruling on the objection failed to dispose of the broader causation point. Neither did he object to the Court‘s announced intention to address that point only should the Government raise it.
Later in the hearing, defense counsel argued that the Court should vary downward because of the disparity between Dawson‘s sentencing exposure in state and federal court, noting that the case was adopted only after Dawson refused to plead guilty to the drug death count. The Court concluded, however, that this dimension of the case was irrelevant. The Government
(3) Court Determinations. At sentencing, the court:
[ . . . ]
(B) must--for any disputed portion of the presentence report or other controverted matter--rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing[.]
The rule is “strictly enforced” and requires the district court to make express findings on disputed facts or to disclaim reliance thereon. See United States v. Electrodyne Sys. Corp., 147 F.3d 250, 255 (3d Cir. 1998).
Dawson argues that the District Court disregarded its duty under
In United States v. Flores-Mejia, we held that:
a defendant must raise any procedural objection to his sentence at the time the procedural error is made, i.e., when sentence is imposed without the court having given meaningful review to the objection. Until sentence is imposed, the error has not been committed. At the time that sentence is imposed, if the objection is made, the court has the opportunity to rectify any error by giving meaningful review to the argument.
759 F.3d 253, 256 (3d Cir. 2014) (en banc). This preservation rule allows for the rapid resolution of procedural errors, without the need for time-consuming appeals, and prevents “‘sandbagging’ of the court by a defendant who remains silent about his objection to the explanation of the sentence, only to belatedly raise the error on appeal if the case does not conclude in his favor.” Id. at 257.17
The species of error at issue in Flores-Mejia was a district court‘s failure to rule on a defense request for a variance, which had been made in both its sentencing memorandum and was repeated at the sentencing hearing. Id. at 255. Our preservation analysis in that context is equally applicable in the
In overruling Dawson‘s PSR objection—which had sought to excise those paragraphs discussing L.B.‘s death—the Court said it would address the broader matter of causation if the Government should argue the point at the hearing. Dawson‘s counsel accepted this proposed procedure without complaint. The Government proceeded to ignore the causation argument, and the Court did not re-raise it sua sponte. Crucially, when the District Court made its findings and imposed sentence without ruling on Dawson‘s role in L.B.‘s death, defense counsel remained silent. After sentence had been imposed, the Court asked if counsel had any outstanding issues that needed to be addressed, and defense counsel responded that there were none. Counsel did not alert the Court to any
The Second Circuit faced a comparable scenario in Wagner-Dano, 679 F.3d at 83. There, Wagner-Dano lodged a variety of written objections to the PSR, which defense counsel pressed at the sentencing hearing. Id. at 87. The district court adopted the PSR in full, which effectively resolved some, but not all, of the objections. Id. at 90. The unresolved objections—which “did not directly dispute the facts as set forth in the PSR, but rather attempted to clarify Wagner-Dano‘s motives or provide context for the PSR‘s facts“—were not separately addressed by the Court at any point; defense counsel did not object to this omission. Id. On appeal, Wagner-Dano argued that the Court had violated
We find the Second Circuit‘s analysis to be relevant and persuasive. Here too, the District Court appears to have disposed of Dawson‘s argument only in part, overruling the narrow PSR objection without addressing the broader causation point lurking behind it. But, if Dawson believed this to be error, then he had to bring it to the Court‘s attention.19 His substantive argument
In sum, if Dawson wanted to preserve a
Reviewing for plain error then, we find no cause to disturb Dawson‘s sentence. He “has ‘the burden of establishing entitlement to relief for plain error.‘” Greer v. United States, 141 S. Ct. 2090, 2097 (2021) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004)). An error is plain if it is “clear” or “obvious,” “affects substantial rights,” and “affects the fairness, integrity or public reputation of judicial proceedings.” United States v. Dragon, 471 F.3d 501, 505 (3d Cir. 2006) (quoting United States v. Olano, 507 U.S. 725, 732–34 (1993));
Even assuming arguendo that the District Court‘s omission was clear error, Dawson cannot show that it affected his substantial rights. There is no indication in the record that the District Court held Dawson responsible for L.B.‘s death. To the contrary, there is ample reason to believe that the District Court did not take the death into account. The District Court granted a substantial downward variance, imposing a sentence 46 months below the bottom end of Dawson‘s Guideline range. That immediately suggests the Court did not hold Dawson responsible for an uncharged homicide offense—let alone one that the Court never mentioned in explaining the basis for the sentence selected. This silence makes perfect sense in light of the Court‘s announced intention to hold Dawson responsible for L.B.‘s death
Moreover, the Court was explicit regarding what factors did influence the sentence. It explained that Dawson‘s case was no “exception” to its general policy to “factor mercy into [its] sentences when possible.” Appx. 256–57. And, in reviewing the
Dawson draws our attention to the District Court‘s self-described “struggl[e]” to justify an even greater variance, Appx. 256, asking us to take this as proof that the Court was reluctant to vary further only because it was considering L.B.‘s death. Dawson believes that he made very persuasive arguments below which, absent consideration of the drug death, would have generated a greater variance. See Appellant‘s Br. at 52–57. To the contrary, the record shows that the District Court was reluctant to vary precisely because it rejected the Defense‘s arguments:
We‘ve been in session almost three hours during this proceeding, and I‘ve heard a lot emanating from the defense, but I‘m not really hearing any very persuasive arguments for a significant variance from the guidelines.
Appx. 256. The Court was unmoved by the circumstances which resulted in federal adoption of Dawson‘s case, deeming them irrelevant. It similarly rejected Dawson‘s family circumstances as inadequate to justify a larger variance. The Court had only its general inclination towards “mercy” to fall back on. Appx. 256–57.
In sum, Dawson has failed to meet his burden of showing a realistic probability that his substantial rights were adversely affected by any Rule 32 omission. The record does not support a reasonable probability that the District Court silently held Dawson responsible for L.B.‘s death. There is thus no
V.
Because Dawson was properly labeled a “career offender” under the Guidelines and any