UNITED STATES of America v. Kevin ABBOTT, Appellant.
No. 13-2216.
United States Court of Appeals, Third Circuit.
Argued: Jan. 8, 2014. Filed: April 4, 2014.
Haybarger v. Lawrence County Adult Prob. & Parole, 667 F.3d 408, 417 (3d Cir. 2012). The focus is on “the totality of the circumstances rather than on technical concepts of the employment relationship.” Id. at 418 (quotation marks omitted).
Here, the Amended Complaint alleges that Lamparello and Chapman “made decisions concerning Security Atlantic‘s and REMN‘s day-to-day operations, hiring, firing, promotions, personnel matters, work schedules, pay policies, and compensation.” App. 93. When a work or personnel issue arose at Security Atlantic that Thompson‘s immediate supervisor could not address alone, “the supervisor would consult with, among others, Chapman or Lamparello.” Id. And in June 2010, when Thompson asked Chapman about overtime compensation, he responded that he “did not pay overtime to underwriters.” App. 99.
Defendants argue that Thompson‘s allegations as to the workplace roles and responsibilities of Chapman and Lamparello are limited and conclusory. Thompson responds that, as a former low-level employee in a privately held corporation, she will not have access to the specific facts regarding Chapman and Lamparello‘s involvement in Security Atlantic and REMN until after discovery, and that her limited allegations regarding their substantial workplace decision-making authority and involvement in day-to-day operations are sufficient for purposes of the pleadings.
We conclude that Thompson provides enough information in the Amended Complaint, including allegations of the scope of the individual defendants’ workplace authority and of specific statements by Chapman as to overtime pay, to “allow[] the court to draw the reasonable inference that the defendant[s] [are] liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. We will therefore vacate the District Court‘s order with respect to its dismissal of Thompson‘s claims against Chapman and Lamparello in their individual capacities and remand for further proceedings.
IV.
For the foregoing reasons, we will vacate the District Court‘s order of August 31, 2012, and remand for further proceedings consistent with this Opinion.
Before: SMITH, SHWARTZ, and SCIRICA, Circuit Judges.
OPINION OF THE COURT
SCIRICA, Circuit Judge.
We are asked to determine whether Pennsylvania‘s criminal statute proscribing possession with intent to distribute a controlled substance,
I.
The underlying facts are not in dispute. After a jury trial, Kevin Abbott was convicted of possession of a firearm by a convicted felon in violation of
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[.]
Abbott challenged an unrelated portion of his sentence on direct appeal. We affirmed. United States v. Abbott, 574 F.3d 203 (3d Cir. 2009). Abbott then petitioned the United States Supreme Court for a writ of certiorari regarding that issue. The Supreme Court granted the petition and affirmed the sentence. Abbott v. United States, — U.S. —, 131 S.Ct. 18, 178 L.Ed.2d 348 (2010).
Abbott filed a pro se petition under
II.
Under
Accordingly, in a case in which the defendant has been convicted of § 922(g) and the prosecution seeks the § 924(e) enhancement, a sentencing court must decide whether that defendant has three previous convictions for a “violent felony or a serious drug offense.” 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.” Descamps, 133 S.Ct. at 2283 (quoting Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). This elements-based inquiry has come to be called the “categorical approach.” See Descamps, 133 S.Ct. at 2281.
For example, in Taylor, the Supreme Court confronted a case in which the defendant had been convicted of a § 922(g) violation and the sentencing court was asked to invoke the fifteen-year minimum under the ACCA. 495 U.S. at 579, 110 S.Ct. 2143. The sentencing court had to decide whether the defendant‘s previous burglary conviction counted as a “violent felony.” Id. at 578, 110 S.Ct. 2143. The Supreme Court declared the proper inquiry for a sentencing court is not whether the defendant‘s actual conduct constituted a crime of violence (e.g., whether he, in fact, brought a gun, confronted any individuals inside the house, or conducted his crime in any particularly “violent” way) but whether the elements of the crime of conviction necessarily matched the elements of a “violent felony.” It concluded the ACCA “generally requires the trial court to look only to the fact of conviction and the statutory definition of the prior offense.” Id. at 602, 110 S.Ct. 2143. A court should “not [look] to the particular facts underlying those convictions.” Id. at 600, 110 S.Ct. 2143.
The Taylor decision did, however, admit of a “narrow range of cases” when a sentencing court may look beyond the elements of a prior conviction to decide if it can serve as an ACCA predicate offense. Id. at 602, 110 S.Ct. 2143. This alternative method has become known as the “modified categorical approach.” Under Descamps, the modified categorical approach may be used when a statute underlying a prior conviction “lists multiple, alternative elements,” 133 S.Ct. at 2285, rather than a “single, indivisible set of elements,” id. at 2282. The Supreme Court referred to such statutes as “divisible statutes.” Id. at 2281. The purpose of the modified categorical approach is to “help effectuate the categorical analysis when a divisible statute ... renders opaque which element played a part in the defendant‘s conviction.” Id. at 2283. Once a sentencing court determines the
For example, the Court in Taylor considered, hypothetically, whether a defendant‘s prior conviction under a state burglary statute that outlawed entry into both a building and an automobile constituted a “crime of violence” under § 924(e). Taylor, 495 U.S. at 602, 110 S.Ct. 2143. Under the Court‘s previous reasoning, only a burglary of a building could count as a predicate offense. Id. at 599, 110 S.Ct. 2143. A sentencing court applying the categorical approach—looking only at the face of the statute of conviction—would be unable to tell if a burglary conviction counted as a “crime of violence” because it could have been for burglary of either an automobile or a building. But if the jury was “actually required to find” which of the alternatives (either a building or an automobile) had been proved then the sentencing court could look beyond the face of the statute to determine which alternative had been found beyond a reasonable doubt. Id. at 602, 110 S.Ct. 2143. In that example, if the jury “necessarily had to find an entry of a building to convict, then the Government should be allowed to use the conviction for enhancement.” Id.
III.
Abbott contends the District Court erred because it applied the modified categorical approach to an indivisible statute. Specifically, Abbott contends the District Court improperly looked beyond the statutory elements of
Section 780-113(a)(30) outlaws “the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance[.]”
Abbott contends the statute is indivisible because it simply outlaws possession with the intent to distribute “a controlled substance.” Unlike the theoretical statute in Taylor that outlawed burglary of an “automobile as well as a building,” the statute here, he contends, does not list alternative elements. In order to secure a conviction, he continues, the jury must find that the defendant possessed with the intent to distribute an unspecified “controlled substance“—whether the controlled substance is marijuana or cocaine is of no moment.
IV.
The District Court properly employed the modified categorical approach to conclude Abbott‘s previous conviction for possession with intent to distribute cocaine is an ACCA predicate offense. After the court determined that the modified categorical approach was proper, it looked to the charging document to determine which alternative element had been proved. This was proper under Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). The charging document—the Bill of Information—specified that the drug at issue was crack cocaine.
A previous conviction is an ACCA predicate if it is “a violent felony or a serious drug offense.”
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 prescribed by law[.]
V.
Pennsylvania‘s possession with intent to distribute statute,
We will affirm the judgment of conviction and sentence.
KOLON INDUSTRIES INCORPORATED, Plaintiff-Appellant, v. E.I. DUPONT DE NEMOURS & COMPANY, Defendant-Appellee.
No. 12-1587.
United States Court of Appeals, Fourth Circuit.
Argued: May 17, 2013. Decided: April 3, 2014.