UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RASHUN RAFAEL SUNCAR, a/k/a Blackie, Defendant - Appellant.
No. 23-4765
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
July 2, 2025
PUBLISHED
Argued: December 10, 2024 Decided: July 2, 2025
Before DIAZ, Chief Judge, and AGEE and RICHARDSON, Circuit Judges.
Affirmed by published opinion. Chief Judge Diaz wrote the opinion in which Judge Agee and Judge Richardson joined.
ARGUED: Jenny R. Thoma, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Clarksburg, West Virginia, for Appellant. Carly Cordaro Nogay, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for Appellee. ON BRIEF: John A. Schwab, JOHN SCHWAB LAW, LLC, Pittsburgh, Pennsylvania, for Appellant. William Ihlenfeld, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for Appellee.
Rashun Suncar challenges the district court‘s decision to apply the career offender enhancement to his federal drug conviction. The court did so because Suncar had two prior Pennsylvania state convictions for delivery of a controlled substance, in violation of
We disagree and affirm the judgment.2
I.
Twice, Suncar sold a confidential informant oxycodone pills, some of which contained a detectable amount of fentanyl. Law enforcement then obtained a warrant to search Suncar‘s home, where they found crack cocaine, marijuana, and a pistol.
Suncar ultimately pleaded guilty to one count of distribution of fentanyl, in violation of
Suncar‘s two prior state drug convictions were for delivery of cocaine under
A presentence report assigned Suncar a base offense level of twenty and applied a two-level enhancement for possession of a dangerous weapon. The report also applied the career offender enhancement, but reduced Suncar‘s offense level by three points for acceptance of responsibility, leaving him with a total offense level of 29. Without the career offender enhancement, Suncar‘s guideline range was 46-57 months’ imprisonment. With it, his applicable guidelines range jumped to 151-188 months’ imprisonment.
Suncar challenged the career offender enhancement. He argued (as he does here) that
The district court disagreed. It explained that the Third Circuit had previously held that the Pennsylvania statute “[was] in fact [an] appropriate predicate[] for [a] career offender finding” in United States v. Dawson, 32 F.4th 254 (3d Cir. 2022). J.A. 158. And because “[t]he Third Circuit obviously is the [c]ourt charged with interpreting those [Pennsylvania] statutes,” the district court would “follow Dawson [until] told otherwise.” J.A. 158.
The district court nonetheless imposed a sentence of 92 months’ imprisonment, “well below the applicable sentence called for by the guidelines as a career offender.” J.A. 168-69. The court also “note[d] that in the event the guideline determination made in this case [was] found to be incorrect, [it] would still impose a sentence identical to that imposed in this case.” J.A. 169.
This appeal followed.
II.
On appeal, Suncar argues that the district court erred by applying the career offender enhancement because the Pennsylvania delivery statute on which his predicate offenses rested is categorically overbroad. First, he asserts that “the least culpable conduct [section] 780-113(a)(3) criminalizes [is] offers to sell, which [is] categorically broader than the ordinary meaning of distribution [under the guidelines].” Appellant‘s Br. at 5. Second, Suncar contends that “Pennsylvania delivery also [criminalizes] attempted transfer[s],” which he claims are also “broader than the ordinary meaning of distribution [under the guidelines].” Id.
Whether a prior conviction qualifies as a “controlled substance offense” under the guidelines is a “legal issue that we review de novo.” United States v. Groves, 65 F.4th 166, 169 (4th Cir. 2023).
A.
Before tackling Suncar‘s arguments, we provide some background on how we treat controlled substance offenses under the guidelines, including the categorical approach we use to determine whether a state law is a predicate for the career offender enhancement.
Under the guidelines, a sentencing court may apply the career offender enhancement if a defendant “has at least two prior felony convictions of... a controlled substance offense.” United States v. Davis, 75 F.4th 428, 441 (4th Cir. 2023) (cleaned up). “As we[‘ve] explained... to determine whether a conviction under an asserted predicate offense statute . . . constitutes
That “approach requires us to focus on the elements of the prior offense rather than the conduct underlying the conviction.” Id. (cleaned up). So, “[i]f the least culpable conduct criminalized by the predicate offense statute does not qualify as a ‘controlled substance offense,’ the prior conviction cannot support a Guidelines enhancement.” Id. (cleaned up).
Section 4B1.2(b) of the guidelines defines a “controlled substance offense” as one 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.”
Now recall the Pennsylvania delivery statute. It prohibits “the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance ... or knowingly creating, delivering or possessing with intent to deliver, a counterfeit controlled substance.”
Our task is to compare the “distribution” term in the guidelines with Pennsylvania‘s “attempted transfer” (or under Suncar‘s interpretation, implied offer to sell) term to determine whether the least culpable conduct implicated by the Pennsylvania statute matches conduct criminalized under the guidelines.
B.
Suncar insists that the least culpable conduct that
In Commonwealth v. Walker, No. 222-EDA-2021, 2021 WL 5314436, at *6 (Pa. Super. Ct. Nov. 16, 2021), the Superior Court of Pennsylvania equated
There, the Third Circuit held that
United States v. Brown, No. 23-2296, 2024 WL 2953127, at *3 (3d Cir. June 12, 2024).
To be sure, “a federal court must follow the decision of an intermediate state appellate court unless there is persuasive data that the highest court would decide differently.” United States v. Little, 52 F.3d 495, 498 (4th Cir. 1995) (cleaned up). But where, as here, we think the Supreme Court of Pennsylvania would reach a different result under the plain language of the statute, we choose a different path. To explain why, we take a closer look at Walker.
To begin, the defendant in Walker argued that the trial court abused its discretion in calculating his “prior record score” because the court equated the defendant‘s prior New York drug conviction to a Pennsylvania drug conviction under
The Walker court reviewed the trial court‘s finding “that the language of the Pennsylvania statute [was] similar to the language of the New York statute which specifically includes an offer to sell.” Id. (cleaned up). The trial court had found the statutes sufficiently analogous because “an offer to sell” in the New York statute, was
“substantial in nature to the attempted transfer from one person to another of a controlled substance as defined in the Pennsylvania statute.” Id. (cleaned up).
The Walker court affirmed, concluding “that the trial court did not abuse its discretion” in equating the two statutes. Id. First, it noted that Glass was “not binding authority” on a “determination of the Superior Court.” Id. Second, it explained that ”Glass did not involve a comparison of New York‘s and Pennsylvania‘s drug statutes,” but “assessed whether a conviction under
Still, the Walker court added that it “would reject the conclusion in Glass that
Suncar would make a mountain out of Walker‘s molehill, but that‘s wrong on two fronts.
For starters, the Walker court decided the case under a deferential abuse-of-discretion standard (unlike our de novo review) and qualified the decision as non-precedential. Then, in addressing Glass,
Writing on a clean slate, we don‘t think that
The Glass court likewise rejected the defendant‘s reliance on the definition of “deliver” under the Texas Health and Safety Code, which the Fifth Circuit recognized as including offers to sell. Id. (citing United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016)). But as the Glass panel explained, the Fifth Circuit did so because the Texas Code defined “deliver” to “include[] offering to sell a controlled substance.” Id. (quoting
At bottom, Suncar doesn‘t explain why the Third Circuit erred in Glass. Instead, he relies solely on the fact that Walker rejected Glass. But in its drive-by critique of Glass, the Walker court did no more than “leav[e] open the possibility that the [Pennsylvania] legislature intended
To the first point, we agree with Glass that the Pennsylvania legislature‘s choice to include offers to sell in one provision of
Even more so when our sister circuits have found predicate offenses criminalizing offers to sell to be categorically overbroad based on express language in the respective criminal statutes. See, e.g., United States v. Palos, 978 F.3d 373, 375 (6th Cir. 2020); United States v. Cavazos, 950 F.3d 329, 337 (6th Cir. 2020); United States v. McKibbon, 878 F.3d 967, 972 (10th Cir. 2017); United States v. Madkins, 866 F.3d 1136, 1145 (10th Cir. 2017); Hinkle, 832 F.3d at 572; United States v. Savage, 542 F.3d 959, 966 (2d Cir. 2008). Absent such express language here or authority from the state‘s highest court, we take the Pennsylvania legislature at its word.6 See United States v. Johnson, 945 F.3d 174, 182 (4th Cir. 2019) (rejecting defendant‘s argument that Maryland possession with intent
to distribute statute included offers to sell because “such ‘offer to sell’ language
To the Walker court‘s second point, we decline to collapse an “offer to sell” into an “attempted transfer,” which is a separate crime and, under our precedent (as we discuss below), a completed delivery. All said, we reject Suncar‘s argument that
C.
We turn next to Suncar‘s argument that
Suncar‘s contention highlights an “interesting dynamic” between Campbell and our later-decided precedent, beginning with United States v. Groves, 65 F.4th 166 (4th Cir.
2023). United States v. Jackson, 127 F.4th 448, 454 (4th Cir. 2025) (cleaned up). These later cases hold that even drug distribution statutes that are substantially like the one in Campbell are not categorically overbroad because an “attempted transfer” is a completed (rather than inchoate) offense. Groves, 65 F.4th at 172-73 (federal drug distribution statute); see also United States v. Miller, 75 F.4th 215, 229-31 (4th Cir. 2023) (North Carolina statute); United States v. Davis, 75 F.4th 428, 443 (4th Cir. 2023) (South Carolina statute).
In other words, the Groves court departed from Campbell because it didn‘t view an “attempted transfer” as an “attempted delivery” under federal or analogous state drug distribution statutes. Groves, 65 F.4th at 172 (citing cases) (emphases added). Instead, because under federal law the term “distribute” means “to deliver,” and the term “to deliver” includes “actual, constructive, or attempted transfer[s],” an “attempted transfer” is an actual delivery, not an attempted one. Id.
We grounded this conclusion on superfluity principles: that “attempt offenses are criminalized separately from completed offenses under the relevant federal and state schemes.” Id. If a court read the drug distribution provision as criminalizing attempt offenses when a separate provision already did so, it would render that separate provision superfluous. See id. at 173.
In deciding Groves, we cited the Third Circuit‘s decision in United States v. Dawson, which the district court relied on here. And, in fact, Dawson held that
The Dawson court explained that Pennsylvania separately “prosecutes legal attempts to deliver drugs under the... general attempt provision..., rather than by charging a violation of [section] 780-113(a)(30) and then invoking [section] 780-102(b)‘s ‘attempted transfer’ definition.” Id. at 259-60. To then “interpret ‘attempted transfer’ as an embedded inchoate offense would mean holding that Pennsylvania has codified a redundant, vestigial
We, of course, aren‘t bound by Dawson, but we are bound by Groves and its progeny. In Miller and Davis, we relied on Groves to hold that North Carolina‘s and South Carolina‘s drug distribution statutes—though like the West Virginia statute in Campbell—nonetheless qualified as “controlled substance offenses” under the guidelines. Miller, 75 F.4th at 230-31; Davis, 75 F.4th at 443. We distinguished those statutes from West Virginia‘s because “the [latter]—at least as it was presented in Campbell—does not criminalize attempt offenses separately from completed drug distribution offenses.” Davis, 75 F.4th at 444-45 (quoting Groves, 65 F.4th at 174).8
But Pennsylvania does criminalize attempts separately, as do North Carolina and South Carolina. So this case resembles Groves, Davis, and Miller (as well as Dawson) more than Campbell.9 Because Pennsylvania‘s statute is “materially distinguishable” from
West Virginia‘s, Davis, 75 F.4th at 445, and criminalizes only the completed offense of “attempted transfer,”
III.
For these reasons, the district court‘s judgment is
AFFIRMED.
DIAZ
CHIEF JUDGE