                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 16-4060
                                       ___________

                            UNITED STATES OF AMERICA

                                             v.

                                 KEITH JACKSON,
                                         Appellant
                       ____________________________________

                     On Appeal from the United States District Court
                              for the District of New Jersey
                        (D.C. Criminal No. 1:13-cr-00429-004)
                      District Judge: Honorable Robert B. Kugler
                      ____________________________________

                     Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  September 15, 2017

            Before: VANASKIE, RENDELL, and FUENTES, Circuit Judges

                             (Opinion filed: October 5, 2017 )
                                        _________

                                        OPINION*
                                        _________




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
FUENTES, Circuit Judge

       Originally charged alongside seven codefendants for his part in a drug distribution

operation, appellant Keith Jackson agreed to plead guilty to a single count of conspiracy

to distribute heroin. He now challenges both his designation as a Career Offender under

the Sentencing Guidelines and his within-Guidelines sentence of 151 months in prison.

We will affirm.1

       We turn first to whether the Career Offender Guideline was properly applied. As

set out in U.S.S.G. § 4B1.1(a), a defendant is a Career Offender if he or she 1) is 18 or

older, 2) commits a crime of violence or a controlled substance offense, and 3) has at

least two prior adult felony convictions for crimes of violence or controlled substance

offenses. Whether Jackson properly fell within this definition mattered a great deal to his

putative sentencing exposure. Without the Career Offender enhancement, Jackson’s total

offense level/criminal history score would have been 23/IV, corresponding to a 70–87-

month custodial sentence; with the enhancement, it was 29/VI, corresponding to a 151–

188-month custodial sentence. The sentence ultimately imposed by the District Court,

151 months, was at the low end of the Career Offender range, but was still greater than


1
  We generally have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
Jackson’s plea agreement contains a waiver of appellate rights. However, he makes
reference in his opening and reply brief to handwritten exceptions to the waiver found on
the plea agreement docketed in the District Court, and referred to in the plea colloquy,
but not reflected in the copy of the plea agreement contained in the government's
Supplemental Appendix. We need not resolve this disparity, or determine the scope of the
exceptions, because we affirm instead on the merits.

                                             2
all but one of the sentences meted out to Jackson’s codefendants.

         The pre-sentence report flags three prior offenses that might qualify as Career

Offender predicates. We need focus only on two, both of which were stipulated to in the

plea agreement: “Possession of CDS [controlled dangerous substance] with Intent to

Distribute,” a Camden County conviction from 2001 for which Jackson received a three-

year sentence; and “Possess, Distribute, Manufacture CDS,” also from Camden County

and also drawing a three-year sentence.2

         The pre-sentence report does not specify which New Jersey law or laws Jackson

violated on each occasion—an omission of some importance, as Jackson’s classification

as a Career Offender depends on the elements of the statute of conviction.3 However, the

transcripts of the relevant plea and sentencing hearings reveal that despite their divergent

labeling in the pre-sentence report, both convictions were for charges under N.J. Stat.

Ann. § 2C:35-5(a)(1) and (b)(3), a statute that criminalizes manufacturing, distributing,

or dispensing a controlled dangerous substance, or possession with intent to do the same.4

This statute fits within the U.S.S.G. § 4B1.2(b) Guidelines definition of “controlled




2
    PSR ¶¶ 138, 140.

3
 See United States v. Lee, 704 F.3d 785, 788 (9th Cir. 2012); United States v. Stinson,
592 F.3d 460, 462 (3d Cir. 2010).

4
 We referred to the transcripts for the sole purpose of determining the statute under
which Jackson was actually charged.

                                               3
substance offense.”5 With two such prior convictions, Jackson was thus properly

classified as a Career Offender and subject to the enhanced offense level under the

Guidelines.6

         In his pro se Fed. R. App. P. 28(j) letters, which appellate counsel has forwarded

for our consideration, Jackson contends that under our non-precedential opinion in

Chang-Cruz v. Att’y Gen.,7 his New Jersey drug convictions were not Career Offender

predicates. But, as indicated by its name, Chang-Cruz is an immigration decision. The

petitioner there prevailed because a prior conviction under N.J. Stat. Ann. § 2C:35-7(a)

was not a “drug trafficking crime”—and was thus not a disqualifying “aggravated felony”

under the Immigration and Nationality Act—because § 2C:35-7(a) contained an element

(“dispensing”) absent in 21 U.S.C. § 860, the relevant generic federal statute.8 As

mentioned above, and unlike § 860, the Career Offender Guideline does cover




5
  The third-degree grading of the charges also authorized “imprisonment for a term
exceeding one year.” U.S.S.G. § 4B1.2; see also N.J. Stat. Ann. § 2C:43-6(a)(3)
(establishing three-to-five-year sentence for third-degree offenses).

6
 Jackson argues that one of his controlled substance convictions arose from “sharing
with friends,” which should not amount to a predicate offense under the Career Offender
Guideline. Jackson Br. 25. However, the particular circumstances of the conviction do
not matter under the categorical approach used to determine Career Offender status.

7
    659 F. App’x 114 (3d Cir. 2016).

8
    See id. at 117–19.

                                               4
“dispensing” in its disjunctive list of elements.9 Thus, Jackson’s reliance on Chang-Cruz

is misplaced.

         Jackson’s remaining arguments appear to contest the District Court’s refusal to

grant a downward departure or otherwise vary from the prescribed Guidelines sentence

on “policy” grounds. We are without jurisdiction to review a discretionary decision not

to depart from the Guidelines.10 Otherwise, Jackson points to no preserved or plain

procedural error, or defect in the consideration of the 18 U.S.C. § 3553(a) factors,

sufficient to call into question the presumptive reasonableness of his within-Guidelines

sentence.11 While the sentence is undoubtedly severe, despite falling at the low end of

the Guidelines range, we cannot say that “no reasonable sentencing court would have




9
    See U.S.S.G. § 4B1.2(b).

10
  See United States v. Rodriguez, 855 F.3d 526, 532 (3d Cir. 2017). Although the
District Court appeared to suggest both that the Career Offender Guideline was a
congressional enactment—not so, although it is promulgated in accordance with the
congressional directive of 28 U.S.C. § 994(h), see United States v. Pridgeon, 853 F.3d
1192, 1198–99 (11th Cir. 2017)—and that it was “not up to [the Judge]” to question the
seriousness of the offense grading, App. 64, it is apparent from context that the District
Court was aware of its discretion to depart if warranted. Cf. United States v. Stevens, 223
F.3d 239, 247 (3d Cir. 2000) (“If the ruling was based on the district court’s belief that a
departure on the grounds proffered by the defendant was legally impermissible, we have
jurisdiction to determine whether the district court’s understanding of the law was
correct.”).

11
  United States v. Freeman, 763 F.3d 322, 340 (3d Cir. 2014) (“Because there is no
procedural error, and the District Court imposed a within-Guidelines sentence, we may
presume the substantive reasonableness of its decision.”).

                                              5
imposed the same sentence on [him] for the reasons the [D]istrict [C]ourt provided.”12

         For the above reasons, the District Court’s judgment will be affirmed.




12
     United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en banc).

                                              6
