UNITED STATES OF AMERICA v. KENNETH DANIELS, Appellant
No. 17-3503
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
February 7, 2019
PRECEDENTIAL
On Appeal from the United States District Court For the Eastern District of Pennsylvania (D.C. Crim. No. 2-15-cr-00127-001) Honorable Berle M. Schiller, District Judge
Submitted under Third Circuit L.A.R. 34.1(a) October 23, 2018
BEFORE: KRAUSE, COWEN, and FUENTES, Circuit Judges
(Opinion Filed: February 7, 2019)
Emily McKillip William M. McSwain Timothy M. Stengel Robert A. Zauzmer Office of United States Attorney 615 Chestnut Street Suite 1250 Philadelphia, PA 19106
Attorneys for Appellee
Karl D. Schwartz P.O. Box 8846 Elkins Park, PA 19027
Attorney for Appellant
COWEN, Circuit Judge.
Kenneth Daniels appeals from the criminal sentence entered by the United States District Court for the Eastern District of Pennsylvania. He argues that a violation of the Pennsylvania Controlled Substance, Drug, Device and Cosmetic Act,
I.
Pursuant to a plea agreement, Daniels entered a guilty plеa to one count of being a convicted felon in possession of a firearm in violation of
II.
The District Court had subject matter jurisdiction under
Because this appeal raises questions of law, we exercise de novo review. See, e.g., Gibbs, 656 F.3d at 184.
III.
Under
(e)(1) In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g).
(2) As used in this subsection—
(A) the term “serious drug offense” means—
(i) an offense under the Controlled Substances Act (
21 U.S.C. 801 et seq. ), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq. ), or chapter 705 of title 46, for which a maximum term of imprisonment of ten years or more is prescribed by law; or(ii) an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (
21 U.S.C. 802 )), for which a maximum term of imprisonment of ten years or more is prеscribed by law;
(B) the term “violent felony” means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable
by imprisonment for such term if committed by an adult, that— (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another; and
(C) The term “conviction” includes a finding that a person has committed an act of juvenile delinquency involving a violent felony.
It is undisputed that we must apply the “categorical” approach in order to decide whether Daniels had at least three previous convictions for “a serious drug offense.” Id. “When deciding whether a previous conviction counts as a ‘violent felony or a serious drug offense’ under the ACCA, a sentencing court may look only to the elements of a defendant‘s prior conviction, not ‘to the particular facts underlying those convictions.‘” United States v. Abbott, 748 F.3d 154, 157 (3d Cir. 2014) (quoting Descamps v. United States, 570 U.S. 254, 260-61 (2013)). As the government states in its appellate brief, “the issue is whether the elements of the prior crime encompass and are no broader than the elements described in the federal definition.” (Appellee‘s Brief at 14 (citing Abbott, 748 F.3d at 157)). If the elements of the prior conviction are identical to (or narrower than) the elements of the generic ACCA crime, the prior conviction can serve as an ACCA predicate. See, e.g., Descamps, 570 U.S. at 261. “But if the statute sweeps more broadly than the generic crime, a conviction under that law cannot count as an ACCA predicate, even if the defendant actually committed the offense in its generic form.” Id. The categorical approach “requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.” Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). A defendant may establish such a probability by showing that the state statute was so applied in his or her own case or by pointing to other cases in which the state courts applied the statute in a non-generic fashion. See, e.g., id. Furthermore, a “modified” categorical approach may apply to divisible statutes, i.e., a statute of conviction that lists alternative elements (as opposed to alternative means for committing the same offense). See, e.g., Mathis v. United States, 136 S. Ct. 2243, 2248-50 (2016). Documents like the indictment, jury instructions, a plea agreement, or a colloquy may then be employed to determine the specific crime of conviction. See, e.g., id. at 2249. “The court can then compare that crime, as the categorical approach commands, with the relevant generic offense.” Id.
Section 780-113(a)(30) prohibits (except as authorized by the Pennsylvania drug statute) “the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, or knowingly creating, delivering or possessing with intent to deliver, a counterfeit controlled substance.” As we recognized in Glass, “Pennsylvania law goes on to define ‘deliver’ as ‘the actual, constructive, or attempted transfer from one person to another of a controlled substance.‘” Glass, 904 F.3d at 322 (quoting
According to Daniels, Section 780-113(a)(30) sweeps more broadly than the generic federal definition of “a serious drug crime.” Daniels vigorously argues that, unlike the Pennsylvania drug statute, a “serious drug crime” under the ACCA does not include attempts. He further argues that, “[e]ven assuming that attempted drug offenses are properly included as serious drug offense predicates,” Pennsylvania‘s drug act includes conduct that is too inchoate and incipient to satisfy federal drug law—specifically “mere offers, mere рreparation, and mere solicitation (from the buyer).” (Appellant‘s Brief at 20.) Given our ruling in Gibbs, we conclude that the ACCA‘s definition of a “serious drug offense” encompasses attempts, as defined under federal law, to manufacture, distribute, or possess with intent to manufacture or distribute a controlled substance. We likewise determine that, based on this Court‘s recent Glass and Martinez decisions, the scope of attempt and accomplice liability under Pennsylvania law is coextensive with the meaning of those terms under federal law.
A. A “Serious Drug Offense” and Attempts
Glass and Martinez were not ACCA cases. On the contrary, the Glass court considered whether the District Court appropriately applied a career offender enhancement under the Guidelines. See Glass, 904 F.3d at 321-24. The Guidelines application note “states that the term ‘controlled substance offense’ applies not only to a statute that bars distribution of controlled substances, but also to ‘the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.‘” Id. at 322 (quoting U.S.S.G. § 4B1.2 cmt. n.1). Martinez was an immigration case, see Martinez, 906 F.3d at 284-87, and the immigration provisions at issue explicitly refer to attempts or require a match with the CSA‘s ban on drug trafficking,3 see
In this case, it is undisputed that Daniels‘s prior convictions involved cocaine. The government also does not take issue with Daniels‘s characterization of Section 780-113(a)(30) as indivisible with respect to the manner of committing the offense (i.e., whether by manufacture, delivery, or possession with intent to manufacture or deliver, attempted manufacture, delivery, or possession with intent to manufacture or deliver, or acting as an accomplice).
But Gibbs did consider the meaning of a “serious drug offense” under the ACCA. The government appealed from the district court‘s ruling that a prior conviction under Delaware law for wearing body armor while committing a felony is not a predicate offense under the ACCA. Gibbs, 656 F.3d at 182. The defendant had been charged in state court under this body armor statute and for possession with intent to deliver. Id. at 183. He pled guilty to the first count but not the second one. Id. On appeal, we agreed with the government and held “that the body armor conviction is an ACCA predicate offense because it involved the possession of cocaine with intent to distribute. Id. at 182. In short, “[i]t is ‘a serious drug offense.‘” Id. (quoting
In reaching our decision, we began with the text of the ACCA:
The issue is whether the body armor conviction “involv[ed] manufacturing, distributing, or possessing, with intent to manufacture or distribute, a controlled substance.”
Congress‘s use of the term “involving” expands the meaning of a serious drug offense beyond the simple offenses of manufacturing, distributing, and possessing a controlled substance. See, e.g., United States v. James, 834 F.2d 92, 93 (4th Cir. 1987) (stating that “violations ‘involving’ the distribution, manufacture, or importation of controlled substances must be read as including more than merely crimes of distribution, manufacturing, and importation themselves“). The plain meaning of “involve” is “to relate closely” or to “connect closely.” United States v. McKenney, 450 F.3d 39, 43 (1st Cir. 2006) (citing Webster‘s Third New International Dictionary 1191 (1993) and The American Heritage Dictionary 921 (4th ed. 2000), respectively). The definition of a serious drug offense should be construed to extend “§ 924(e) beyond the precise offenses of distributing, manufacturing, or possessing, and as encompassing as well offenses that are related to or connected with such
conduct.” United States v. King, 325 F.3d 110, 113 (2d Cir. 2003). In adopting this position, we conform with all courts of appeals that have addressed the scope of the definition of a serious drug offense. See United States v. Vickers, 540 F.3d 356, 365 (5th Cir. 2008); McKenney, 450 F.3d at 42; United States v. Alexander, 331 F.3d 116, 131 (D.C. Cir. 2003); King, 325 F.3d at 113; United States v. Brandon, 247 F.3d 186, 191 (4th Cir. 2001).
The Gibbs Court then considered and rejected the defendant‘s theory that the definition of state serious drug offenses set forth in Section 924(e)(2)(A)(ii) should be limited to the types of crimes identified by the three federal statutes (including the CSA) referenced in Section 924(e)(2)(A)(i). Id. at 185. “While both subsections relate to the same subject, there is no reason to think that subsection (i) should limit our construction of subsection (ii). If Congress wished to do this, it could have done so [as it did in the ‘three strikes’ law,
Although the statutory language broadly carves out a class of serious state drug crimes, Gibbs observed that there are limits to how widely we could construe this class. Id. “As the First Circuit noted, ‘(n)ot all offenses bearing any sort of relationship with drug manufacturing, distribution, or possession with intent to manufacture or distribute will qualify as predicate offenses under ACCA. The relationship must not be too remote or tangential.‘” Id. (quoting McKenney, 450 F.3d at 45).
“We must therefore determine whether Gibbs’ body armor conviction is related to or connected with manufacturing, distributing, or possessing, with intent to manufacture or distribute, a controlled substance or if it is too remote or tangential.” Id. at 185-86. Initially, this Court went beyond the terms of the statute of conviction (which simply proscribes the wearing of body armor during the commission of a felony) to consider the indictment (alleging in Count I that Gibbs knowingly wore body armor during the commission of felony possession with intent to deliver cocaine as set forth in Count II, which was incorporated by referenсe) pursuant to the modified categorical approach. Id. at 186-88. We then examined “whether manufacturing, distributing, or possessing, with intent to manufacture or [distribute], a controlled substance, is ‘an inherent part or result of the generic crime’ of wearing body armor while committing a felony, where that felony is possession with intent to distribute cocaine.” Id. at 188 (quoting Brandon, 247 F.3d at 188). We found that the underlying felony is an inherent part of the offense because “it must be proven in order to be guilty of the body armor offense.” Id. While the defendant need not be convicted of a drug offense, the prosecution must still prove the elements of the drug offense in order to establish that the defendant is guilty of some underlying felony. Id. “In pleading guilty to the body
We have no trouble concluding that a conviction under state law for attempted manufacturing, distributing, or possessing with intent to manufacture or distribute a controlled substance that also meets the requirements for an attempted drug crime undеr federal law would satisfy the approach we adopted in Gibbs.
Daniels asserts that Gibbs does not extend the definition of a “serious drug offense” beyond the generic categories of manufacturing, distributing, and possession with intent. Citing our ruling in United States v. Tucker, 703 F.3d 205, 213 (3d Cir. 2012), he contends that “the Gibbs Court held only that a possession-with-intent offense does not cease to be a serious drug offense on the ground that it was the factual predicate for the felony establishing the crime of possession of body armor in course of a felony.” (Appellant‘s Reply Brief at 5 (citing Gibbs, 656 F.3d at 188).) However, the Tucker Court merely rejected the government‘s argument that the state court charge of conspiracy to sell drugs (which resulted in a conviction) incorporated a separate possession with intent to deliver (“PWID“) cocaine charge (which resulted in an acquittal) as the overt act. Tucker, 703 F.3d at 212-13. We distinguished Gibbs because, unlike the body armor count (which expressly incorporated the drug charge), “neither the conspiracy Bill nor the conspiracy incorporated the separate PWID charge.” Id. at 213. “The jury could legally have found the overt act to be possession of marijuana with the intent to deliver. Nothing actually required’ the jury to treat the separatе PWID cocaine charge as the overt act.” Id.
Simply put, if a body-armor conviction is sufficiently “related to or connected with” manufacturing, distributing, or possessing with the intent to manufacture or distribute a controlled substance to pass muster under Gibbs, the federal inchoate versions of these enumerated offenses clearly satisfy the test. As the government aptly explains, “[t]o say that an attempt to manufacture methamphetamine does not involve manufacturing methamphetamine, or that an attempt to distribute cocaine does not involve the distribution of cocaine, is untenable.” (Appellee‘s Brief at 21.) The criminal attempt to commit an offense “involves” the completed offense.
In McKenney, the First Circuit explained why “[t]he plain meaning of ‘involve’ is ‘to relate closely’ or to ‘connect closely.‘” Gibbs, 656 F.3d at 184 (quoting McKenney, 450 F.3d at 43). Rejecting the defendant‘s narrow definition of “involve” as meaning “has as an element,” to “include,” or to “contain as a part,” the First Circuit observed that his argument would require “an awkward and unusual construction of the text to mean that a conspiracy to possess with intent to distribute does not ‘involve’ possession with intent to distribute.” McKenney, 450 F.3d at 43 (emphasis in original) (footnote omitted). “Conspiracies ‘involve’ their objects, as that term is used in common parlance.” Id. The First Circuit explained: “[w]e need not decide today where the line is: we hold only that the relationship between the inchoate offense of conspiracy and its object—its entire purpose—is plainly close enough that a conspiracy to possess with intent to distribute is, under the ACCA, an
In Gibbs, we indicated that “all courts of appeals that have addressed the scope of the definition of a serious drug offense” have adopted an expansive understanding of this concept. Gibbs, 656 F.3d at 185 (citing Vickers, 540 F.3d at 365; McKenney, 450 F.3d at 42; Alexander, 331 F.3d at 131; States v. King” cite=“325 F.3d 110” pinpoint=“113” court=“2d Cir.” type=“short“>King, 325 F.3d at 113; Brandon, 247 F.3d at 191). Since our 2011 ruling, the circuit courts have continued to apply an expansive reading of
Defending the narrower definition expressly considered and rejected by the First Circuit in McKenney, Daniels invokes the canon of “expressio unius est exclusio alterius—when a statute specifically enumerates some categories, it impliedly excludes others.” Ray v. Kertes, 285 F.3d 287, 296 (3d Cir. 2002) (citing Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993)). According to Daniels, “the offenses listed under
Nevertheless, the expressio unius canon has its limits, e.g., it “does not apply to every statutory listing or grouping; it has force only when the items expressed are members of an ‘associated group or series,’ justifying the inference that items not mentioned were excluded by deliberate choice, not inadvertence.” Barnhart, 537 U.S. at 168 (citing United States v. Vonn, 535 U.S. 55, 65 (2002)). There was no reason for Congress to add specific language regarding attempt crimes because it had already included the term “involving“—a term that both this Court and every other circuit court to have addressed the issue has concluded must be interpreted broadly (and that, under this existing case law, clearly encompasses attempts). Neither
In his reply brief, Daniels recognizes that “the character of federal drug offenses can inform the question of whether a prior drug offense sweeps more broadly than the elements of the generic offense.” (Appellant‘s Reply Brief at 4 (citing United States v. Mitchell, 218 F. Supp. 3d 360, 368 (M.D. Pa. 2016)).) A “serious drug offense” includes an offense under state law involving “distributing” or “possessing with intent to distribute” a controlled substance.
Act“-the ACCA provision makes it clear that the parenthetical modifies more than just “a controlled substance.” “Congress has [also] demonstrated that it does not view attempted drug trafficking offenses as any less serious than completed acts” because it subjected any person who attempts or conspires to commit a drug offense to the same penalties applicable to the completed offenses. Coleman, 700 F.3d at 339 (quoting
The D.C. Circuit relied on another well-established canon of statutory construction to reject the defendant‘s expressio unius argument:
Moreover, as the district court recognized, the use of “attempted” in
section 924(e)(2)(B)(i) does not-by itself-indicate that the Congress intended to exclude attempt convictions from the definition of “serious drug offense[s]” insection 924(e)(2)(A)(ii) . Indeed, well-established principles of statutory construction counsel otherwise; if we were to adopt Alexander‘s reading ofsection 924(e)(2)(A)(ii) , the term “involving” would be rendered meaningless-“distribution alone would qualify as a crime ‘involving’ distribution” and possession with intent to distribute alone would qualify as a crime “involving” possession with intent to distribute. United States v. Contreras, 895 F.2d 1241, 1244 (9th Cir. 1990) (rejecting argument that possession with intent to distribute is not crime “involving” distribution). . . . .
Daniels challenges this line of reasoning, claiming that the “term ‘involving’ is necessary to avoid the problem of nomenclaturе that necessarily arises when a federal statute incorporates fifty state statutes.” (Appellant‘s Reply Brief at 13.)
Daniels offers no case law or any other support for his rather complicated reading. Both Pennsylvania and federal drug laws provide essentially identical definitions of distribution and delivery, defining “delivery” or “deliver” as the actual, constructive, or attempted transfer of a controlled substance and “distribute” as “to deliver” (other than by administering or dispensing the substance). Compare
Given our precedential opinion in Gibbs, it is not too surprising that Daniels asks us to reconsider this ruling in light of subsequent Supreme Court case law. See, e.g., 3d Cir. I.O.P. 9.1 (“it is the tradition of this court that the holding of a panel in a precedential opinion is binding on subsequent panels. Thus, no subsequent panel overrules the holding in a precedential opinion of a previous panel. Court en banc consideration is required to do so.“). It is also not unexpected that he challenges the various rulings from other circuits adopting an expansive interpretation of
Given the narrow scope of our holding in this case, we reject Daniels‘s assertion that Gibbs and the existing case law interpreting
We also do not agree with the other assertions raised by Daniels. Daniels (yet again) cites to no case law rejecting Gibbs or the numerous “serious drug offense” rulings from other circuits based on Mathis, the rule of lenity, or vagueness concerns. On the contrary, he draws more attention to this lack of case law by observing that the Supreme Court in James (which was overruled by Johnson) “pointed out, as the Government has here, that ‘every Court of Appeals that ha[d] construed the’ [attempted burglary] issue in James, ‘ha[d] held the offense qualifies as [an ACCA predicate.]‘” (Appellant‘s Reply Brief at 14 (quoting James v. United States, 550 U.S. 192, 204 (2007)).) Furthermore, the limits of the modified categorical approach recently addressed by the Supreme Court in Mathis have no bearing on the current appeal. Daniels was not convicted under a statute criminalizing “wear[ing] body armor during the commission of a felony,” Gibbs, 656 F.3d at 184 (quoting
B. Attempts and Accomplice Liability under Federal and Pennsylvania Law
Because
Similarly, both states, as well as the federal government and the Model Penal Code, treat some solicitations as attempts. Under New Jersey law, solicitation constitutes an attempt only if it is strongly corroborative of the actor‘s criminal purpose. Id. As we explained in Martinez:
New Jersey‘s approach, like that of federal law, follows the Model Penal Code. Both federal law and the Model Penal Code recognize that “solicitation accompanied by the requisite intent may constitute an attempt.” United States v. Am. Airlines, Inc., 743 F.2d 1114, 1121 (5th Cir. 1984); see, e.g., United States v. Cornelio-Pena, 435 F.3d 1279, 1286-87 (10th Cir. 2006); Model Penal Code § 5.01(2)(g). Our Court agrees. Glass, [904 F.3d at 323 n.3]. So New Jersey law tracks federal law: Solicitation may amount to an attempt when it strongly corroborates the actor‘s criminal purpose. Not all solicitations make the cut, but some do.
Id. at 285-86; see also Glass, 904 F.3d at 323 n.3 (“In pointing out this flaw in the logic of Glass‘s argument, we are not suggesting that ‘attempted transfer’ in
As explained above, federal attempt law is explicitly based on the Model Penal Code. Both provide that any substantial step that strongly corroborates the actor‘s criminal purpose amounts to an attempt. Model Penal Code § 5.01(2). The Model Penal Code specifies that solicitation “shall not be held insufficient as a matter of law” if it is strongly corroborative, as we and other circuits recognize. Id. § 5.01(2)(g); see, e.g., Glass, [904 F.3d at 323 n.3]; Am. Airlines, 743 F.2d at 1121.
We see no reason to reject the Model Penal Code. Our precedent embraces it. Solicitation, like any number of other acts, can amount to a federal attempt. So New Jersey attempt law is no broader than federal law. Martinez‘s conviction is thus an aggravated felony, making him removable.
Id. at 286-87.
Likewise, Pennsylvania and federal law base their respective approaches to accomplice liability on the Model Penal Code.
“We have yet to determine whether or in what circumstances state statutes that
In his supplemental submission addressing Glass, Daniels “recognizes that Circuit precedent now holds that Pennsylvania does not impose liability for an offer to sell.” (Appellant‘s October 1, 2018 Letter at 3.) We reasoned that
In addition to seeking to preserve the “offer to sell” issue for later review, Daniels purportedly cites to an authority suggesting that Pennsylvania does in fact prosecute offers to sell. See, e.g., Duenas-Alvarez, 549 U.S. at 193 (“[T]o find that a state statute creates a crime outside the generic definition . .. requires a realistic probability, not a theoretical possibility, that the State would apply
In Commonwealth v. Donahue, 630 A.2d 1238 (Pa. Super. Ct. 1993), the defendant argued that the Berks County trial court lacked jurisdiction over the drug possession crimes because the prosecution failed to adduce evidence that he actually or constructively possessed marijuana in Berks County (where his supplier, Bieber, lived) as opposed to Bucks County (where the defendant resided and received the shipment of marijuana), id. at 1242-43. The Pennsylvania Superior Court, however, determined that Donahue was properly convicted as an accessory to Bieber‘s possession in Berks County. Id. at 1244. In the process, it looked to Pennsylvania‘s crime of solicitation,
The Donahue court accordingly applied Pennsylvania‘s law of accomplice liability-which is essentially identical to the federal approach to liability for aiding and abetting. The facts indicated that Bieber and Donahue were business associates involved in the distribution of marijuana. Id. at 1244. Donahue told Bieber by telephone that, if Bieber received a shipment, he would be interested in acquiring it. Id. The supplier then received a shipment at his home in Berks County and transported it to the defendant‘s home in Bucks County. Id. “Bieber also testified that he had conducted business with appellant five to ten times in the past.” Id. Based on their prior relationship, the Pennsylvania Superior Court believed it could be reasonably inferred that the statement to Bieber implied that Donahue “both encouraged and requested Bieber to obtain marijuana to sell to him.” Id. Accordingly, the evidence established that he solicited Bieber to purchase and possess the marijuana with the intent to deliver. Id. The evidence also established that he intended to promote or facilitate the commission of the offense under the accomplice liability provision: “Taken one step further, it is also reasonably clear that appellant intended to promote Bieber to commit the offense so that he, in turn could obtain marijuana to sell.” Id. In fact, Donahue‘s conviction was vacated on other grounds, and the Pennsylvania Superior Court specifically directed the trial judge to “instruct the jury that appellant may only be found guilty for those actions which occurred in Berks County if it finds that he was an accomplice to Bieber.” Id. at 1244 n.8.
We also reject Daniels‘s assertion that Commonwealth v. Parker, 957 A.2d 311 (Pa. Super. Ct. 2008), indicated that Pennsylvania effectively criminalizes mere preparation. In that case, a police officer conducting a traffic stop found that Parker had a substance that was made to look like cocaine but was actually candle wax. Id. at 317-18. The Pennsylvania Superior Court affirmed Parker‘s conviction for attempted delivery of a counterfeit controlled substance under
He was carrying the cocaine-like substance with him, packaged in plastic baggies “consistent with the way drug dealers handle or package crack cocaine,” and he admitted that he would sell it “if the opportunity presented itself.” In Commonwealth v. Irby, 700 A.2d 463 (Pa. Super. 1997), we found that a defendant who packaged candle wax in plastic baggies as cocaine and tried to sell it to an undercover officer, even though the sale never actually occurred, was sufficient to constitute delivery of a noncontrolled substance. Here, Parker took similar substantial steps toward the commission of the same crime, except that he was waiting for the opportunity of a possible buyer to present itself. Therefore, the evidence was sufficient to convict Parker of attempted delivery of a noncontrolled substance.
Id. at 318 (citation omitted). The state court thereby mirrors the Model Penal Code itself, which identifies both “possession of materials to be employed in the commission of the crime, that are specially designed for such unlawful use or that can serve no lawful purpose of the actor under the circumstances” and “possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, if such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances” as conduct that could be held to be a substantial step. Model Penal Code § 501(2)(e), (f).
Like Daniels, Martinez argued that “New Jersey law treats more forms of inchoate preparation for a crime as attempt than federal law does.” Martinez, 906 F.3d at 281. We rejected his argument, pointing out that the most recent explanation of attempt by the New Jersey Supreme Court distinguishes between mere preparation and a substantial step and thereby tracks both the Model Penal Code and federal law. Id. at 285 (quoting State v. Farrad, 753 A.2d 648, 653 (N.J. 2000)). “In dicta, Fornino stated: ‘It is only ‘very remote preparatory acts’ which are excluded from the ambit of attempt liability.‘” Id. (quoting State v. Fornino, 539 A.2d 301, 306 (N.J. App. Div. 1988)). Despite this statement (which goes farther than the language in Parker), we explained that Fornino was a plain error case and the state court thereby did not have an occasion to define attempt liability. Id. The New Jersey Appellate Division “simply noted that ‘some preparation may amount to an attempt. It is a question of degree.‘” Id. (quoting Fornino, 539 A.2d at 306). “So New Jersey courts wrestle with drawing that line, just as federal courts and the Model Penal Code do.” Id. The same is true with respect to the Pennsylvania courts.
Finally, Daniels insists that Pennsylvania criminalizes a buyer‘s solicitation. In other words, he argues that, while a drug purchaser cannot be held liable as an accomplice of the seller under federal law, he or she could be held liable under Pennsylvania law. In support, Daniels relies on the Pennsylvania Superior Court‘s ruling in Commonwealth v. Moss, 852 A.2d 374 (Pa. Super. Ct. 2004), “which conferred liability under
We nevertheless believe that Daniels takes both Moss and Abuelhawa too far. Daniels was not convicted under
According to Daniels, the Pennsylvania Superior Court cites Moss as an example of the breadth of what constitutes a substantial step for attempted delivery in Pennsylvania. See Commonwealth v. Rivers, No. 1004 EDA 2013, 2014 WL 10936727, at *2-*5, *16-*17 (Pa. Super. Ct. May 30, 2014) (non-precedential decision). In Rivers, the evidence clearly established that the defendant went beyond mere preparation (e.g., the defendant on his own initiative gave his telephone number to the undercover officer so that she could contact him to purchase illicit substances, they engaged in a telephone discussion to arrange a transаction, setting the price as well as the time and location, the defendant was proceeding toward and was near the site for the transaction when he was arrested, and he had a bag containing counterfeit cocaine). See, e.g., id. at *17. Daniels also claims that “it now appears that a person who solicits another to provide drugs - as by offering to pay a dealer - may be subject to conviction of delivery in violation of
suggestion that Abuelhawa altered the pleading requirements for offenses invoking accomplice liability, we have explained that “[t]he Abuelhawa Court simply addressed a narrow question regarding the scope of the term ‘facilitate’ under
IV.
For the foregoing reasons, we will affirm the mandatory minimum sentence of fifteen years’ imprisonment entered by the District Court.