                                      PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                _____________

                    No. 16-2906
                   _____________

          UNITED STATES OF AMERICA

                          v.

               MALACHI M. GLASS,
                             Appellant

                   _____________

    On Appeal from the United States District Court
        for the Middle District of Pennsylvania
         (D.C. Crim. No. 1-13-cr-00231-001)
     District Judge: Honorable John E. Jones, III
                   ______________

     Submitted Under Third Circuit L.A.R. 34.1(a)
                  August 17, 2018
                 ______________

Before: VANASKIE, KRAUSE, and RESTREPO, Circuit
                    Judges

           (Opinion Filed: August 22, 2018)
                  ______________
Edward J. Rymsza, III
Miele & Rymsza
125 East Third Street
Williamsport, PA 17701
      Counsel for Appellant

David J. Freed
Daryl F. Bloom
Stephen R. Cerutti
Office of United States Attorney
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108
       Counsel for Appellee
                      ______________

                OPINION OF THE COURT
                    ______________

VANASKIE, Circuit Judge.

       Appellant Malachi Glass appeals his criminal sentence,
in particular the District Court’s application of a career-
offender enhancement under the United States Sentencing
Guidelines (“U.S.S.G.”) § 4B1.1. We will affirm.

                              I.

       Glass pleaded guilty to one count of possession with
intent to distribute cocaine hydrochloride in violation of 21
U.S.C. § 841(a)(1). At Glass’s sentencing hearing, the District
Court applied a career-offender enhancement pursuant to




                              2
U.S.S.G. § 4B1.1. The enhancement was based on two prior
state convictions under 35 Pa. Cons. Stat. § 780-113(a)(30)—
one from 2001, CP-22-CR-2630-2001; and one from 2004,
CP-31-CR-460-2004. Despite the enhancement, the District
Court applied a downward variance. The District Court based
the variance primarily on the observation that the pre-sentence
investigation report (“PSR”) overstated the seriousness of
Glass’s criminal past. The District Court also justified varying
downward by citing Glass’s significant family responsibilities,
his drug addiction, and his relatively young age. The District
Court ultimately imposed a prison term of 132 months.

        Glass filed a timely notice of appeal, challenging the
career-offender enhancement.        We appointed appellate
counsel. In July 2017, this Court denied appointed counsel’s
motion to withdraw under Anders v. California, 386 U.S. 738
(1967), recognizing that Glass had raised two non-frivolous
arguments concerning the use of his state court convictions as
predicates for a sentencing enhancement under the Sentencing
Guidelines’ career criminal provisions. 1 The Court then
appointed new appellate counsel and ordered the parties to
brief the merits of the appeal. We address the merits of Glass’s
appeal below.

                              II.




       1
        Under Anders, “if counsel finds his [client’s] case to
be wholly frivolous, after a conscientious examination of it,
he should so advise the court and request permission to
withdraw.” 386 U.S. at 744.




                               3
      The District Court had jurisdiction pursuant to 18
U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. §
1291 and 18 U.S.C. § 3742.

       The parties dispute which standard of review should
govern our analysis. Glass argues he preserved his challenge
to the career-offender enhancement, which would trigger de
novo review. Alternatively, he claims he did not waive his
challenge and, at the very least, plain error review should
apply. On the other hand, the government contends that Glass
either waived or forfeited his challenge, permitting us to
disregard his argument or review it for plain error, respectively.

       While it is true that Glass made several arguments
regarding his criminal history to the District Court, Glass failed
to challenge the inclusion of his convictions as predicate
offenses for career-offender purposes prior to appeal. Even
Glass’s first appellate counsel acknowledged that trial counsel
had conceded the issue and thus, plain error review should
apply. In light of Glass’s trial counsel’s repeated concessions
that Glass was a career offender, we think it appropriate to
review the imposition of the career-offender enhancement for
plain error. See United States v. Dahl, 833 F.3d 345, 357 (3d
Cir. 2016) (applying plain error review “because Dahl did not
object to the application of [a sentencing enhancement] on the
grounds he asserts here”).

       “To demonstrate ‘plain error’ an appellant bears the
burden of proving that: (1) the court erred; (2) the error was
‘plain’ at the time of appellate consideration; and (3) the error
affected substantial rights, usually meaning that the error ‘must
have affected the outcome of the district court proceedings.’”
Gov’t of the Virgin Islands v. Rosa, 399 F.3d 283, 293 (3d Cir.




                                4
2005) (quoting United States v. Olano, 507 U.S. 725, 734
(1993)).

                               III.

        As relevant here, a defendant qualifies for a career-
offender enhancement under the Guidelines if he or she “has at
least two prior felony convictions of . . . a controlled substance
offense.” U.S.S.G. § 4B1.1(a). A “controlled substance
offense” is an offense that (1) is punishable by a term of
imprisonment that exceeds one year and (2) “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.” Id. § 4B1.2(b). A state conviction
cannot qualify as a “controlled substance offense” if its
elements are broader than those listed in § 4B1.2(b). See
Mathis v. United States, 136 S. Ct. 2243, 2251 (2016) (holding,
in the Armed Career Criminal Act (“ACCA”) context, that “a
state crime cannot qualify as . . . [a] predicate if its elements
are broader than those of a listed generic offense”); see also
United States v. Hinkle, 832 F.3d 569, 574 (5th Cir. 2016)
(applying Mathis to analysis of § 4B1.1). 2

       Glass’s career-offender enhancement was based on two
convictions under 35 Pa. Cons. Stat. § 780-113(a)(30). Glass
argues that a violation of § 780-113(a)(30) is broader than the
Guidelines’ definition of a “controlled substance offense” to

       2
        The parties agree that, with some exceptions not
relevant here, cases concerning overbreadth of a state
criminal statute in the context of the ACCA also apply to the
career-offender context.




                                5
the extent it criminalizes a mere offer to sell drugs. We have
yet to determine whether or in what circumstances state
statutes that criminalize offers to sell constitute “controlled
substance offenses” under the Guidelines. Increasingly,
however, our sister Circuits have held state statutes expressly
criminalizing a mere “offer” do not. See, e.g., United States v.
Madkins, 866 F.3d 1136, 1147 (10th Cir. 2017) (concluding
Kansas law criminalized offers to sell and thus, swept beyond
§ 4B1.2(b)); Hinkle, 832 F.3d at 572 (noting government’s
concession that if Texas law covered mere offers, it would not
come within the definition of “controlled substance offense”
under § 4B1.2); United States v. Savage, 542 F.3d 959, 965–
66 (2d Cir. 2008) (concluding Connecticut statute that reached
fraudulent offers to sell criminalized more conduct than §
4B1.2(b)); see also United States v. Redden, 875 F.3d 374, 375
(7th Cir. 2017), cert. denied, 138 S. Ct. 1343 (2018) (granting
Anders motion where it was clear that Illinois law did not
criminalize offers to sell); United States v. Bryant, 571 F.3d
147, 158 (1st Cir. 2009) (concluding New York law that
criminalized only bona fide offers, i.e., offers that
demonstrated an intent and ability to sell, did not sweep beyond
§ 4B1.2).

        Assuming a state statute that criminalizes a mere offer
to sell sweeps beyond U.S.S.G. § 4B1.2, we are not convinced
the statute at issue here—§ 780-113(a)(30)—crosses that line.
Section 780-113(a)(30) 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.” It does not mention offers to sell drugs.

       Glass argues, however, that a mere offer to sell drugs is
impliedly included in § 780-113(a)(30) because Pennsylvania




                               6
law goes on to define “deliver” as “the actual, constructive, or
attempted transfer from one person to another of a controlled
substance . . . .” 35 Pa. Cons. Stat. § 780-102(b). We disagree.

        First, Glass omits that the federal counterpart to this
statute, the Controlled Substances Act (CSA), also defines the
“delivery” of a controlled substance to mean “the actual,
constructive, or attempted transfer of a controlled substance,”
21 U.S.C. § 802(8), and the Guidelines’ application note too
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.” U.S.S.G. § 4B1.2 cmt.
n.1 (emphasis added). As Glass does not dispute that “attempt”
under Pennsylvania law has the same meaning as “attempt” in
the CSA and the Guidelines, his argument, if accepted, would
prove self-defeating, for if § 780-102(b) sweeps in mere offers
to sell, then by his logic, so does 21 U.S.C. § 802(8) and
U.S.S.G. § 4B1.2, making the state offense broad, but no
broader then the federal one. 3

       Second, we note that at least one other provision
contained in § 780-113 expressly prohibits offers. See 35 Pa.
Cons. Stat. § 780-113(a)(1) (“The manufacture, sale or

       3
        In pointing out this flaw in the logic of Glass’s
argument, we are not suggesting that “attempted transfer” in
21 U.S.C. § 802(8) includes offers or solicitations other than
those that meet the requirements for “attempt” under the
CSA. Consistent with the Model Penal Code, federal
“attempt” requires intent and a substantial step towards the
commission of the crime. See United States v. Cruz-Jiminez,
977 F.2d 95, 101–03 (3d Cir. 1992); Model Penal Code §
5.01.




                                7
delivery, holding, offering for sale, or possession of any
controlled substance . . . .” (emphasis added)).          This
language—i.e., “offering for sale”—is conspicuously absent
from § 780-113(a)(30).        Obviously, the Pennsylvania
legislature knew how to criminalize offers; it simply chose not
to in § 780-113(a)(30).

        Third, the parties have failed to uncover any authority,
such as state judicial decisions or pattern jury instructions,
suggesting Pennsylvania would prosecute a mere offer to sell
under § 780-113(a)(30). See Gonzales v. Duenas-Alvarez, 549
U.S. 183, 193 (2007) (“[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 its statute to conduct that falls outside the generic
definition of a crime.”).

        And fourth, contrary to Glass’s argument, we are not
convinced Pennsylvania’s definition of “deliver” is sufficiently
similar to the Texas definition at issue in Hinkle and Conley
such that a similar outcome is warranted. Under the Texas
Health and Safety Code, “deliver” means: “to transfer, actually
or constructively, to another a controlled substance, counterfeit
substance, or drug paraphernalia, regardless of whether there
is an agency relationship. The term includes offering to sell a
controlled substance, counterfeit substance, or drug
paraphernalia.” Tex. Health & Safety Code Ann. § 481.002(8)
(emphasis added). The Texas Code expressly reaches offers,
whereas Pennsylvania’s definition fails to include similar
language. If anything, the Pennsylvania definition of “deliver”
is more similar to the definition of “deliver” under Illinois law,
which the Seventh Circuit concluded did not encompass offers
to sell. See Redden, 875 F.3d at 375 (“The definition . . . tells
us that ‘deliver’ and ‘delivery’ mean an ‘actual, constructive or




                                8
attempted transfer’ . . . . Any conduct meeting the state’s
definition of ‘delivery’ comes within § 4B1.2(b) because
‘transfer’ is just another word for distribute or dispense.”).
Accordingly, we are confident concluding that § 780-
113(a)(30) is not broader than the Guidelines’ definition of a
“controlled substance offense.”

       We note that this conclusion is consistent with our prior
holdings regarding § 730-113(a)(30) outside the U.S.S.G. §
4B1.1 context. We have already held that conviction under
§ 780-113(a)(30) for cocaine-based offenses is not overbroad
in the context of the ACCA’s definition of “serious drug
offense.” See United States v. Abbott, 748 F.3d 154, 160 (3d
Cir. 2014). Additionally, we have held that conviction under §
780-113(a)(30) for a cocaine-based offense is “analogous to
the federal felony of possession with intent to distribute . . .
prohibited by [21 U.S.C.] § 841(a)(1) of the Controlled
Substances Act,” and is therefore an “aggravated felony” under
the Immigration and Nationality Act. Avila v. Attorney
General, 826 F.3d 662, 668 (3d Cir. 2016).

       In sum, because § 780-113(a)(30) does not sweep more
broadly than § 4B1.2, it is a “controlled substance offense” and
may serve as a predicate offense to a career-offender
enhancement under § 4B1.1. Because the record shows that
Glass possessed two such predicate offenses—(1) a 2001
conviction, CP-22-CR-2630-2001, for manufacturing,
delivering, or possessing marijuana in Dauphin County; and
(2) a 2004 conviction, CP-31-CR-461-2004, for
manufacturing, delivering, or possessing cocaine in




                               9
Huntingdon County—we find no error in the District Court’s
decision to apply the enhancement. 4

                            IV.

      For the foregoing reasons, we will affirm the District
Court’s judgment entered on June 13, 2016.




      4
         We recognize that the District Court based the
enhancement on convictions CP-22-CR-2630-2001 and CP-
31-CR-460-2004. Glass also argues that the latter conviction
is not a “controlled substance offense” because it was for
simple possession. We need not consider this argument
because the record shows Glass possessed a third § 780-
113(a)(30) conviction, CP-31-CR-461-2004, which qualifies
as a predicate offense under today’s decision. See United
States v. Blair, 734 F.3d 218, 222 (3d Cir. 2013) (citing
United States v. Berrios, 676 F.3d 118, 129 (3d Cir. 2012)).




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