                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 18-1449
                                       ___________

                                  JEFFREY TARRATS,
                                               Appellant

                                             v.

                            WARDEN ALLENWOOD FCI
                       ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                         (D.C. Civil Action No. 4-17-cv-00432)
                      District Judge: Honorable Matthew W. Brann
                      ____________________________________

                 Submitted Pursuant to Third Circuit LAR 34.1(a)
                                January 28, 2019
       Before: GREENAWAY, JR., RESTREPO and FUENTES, Circuit Judges

                              (Opinion filed: April 29, 2020)
                                      ___________

                                        OPINION *
                                       ___________

PER CURIAM

       Jeffrey Tarrats appeals from the District Court’s order dismissing his petition for a

writ of habeas corpus, which he filed under 28 U.S.C. § 2241. We will affirm.


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

       In 2004, Tarrats pleaded guilty to drug charges in the United States District Court

for the Eastern District of Virginia. That court sentenced Tarrats as a “career offender”

under U.S.S.G. § 4B1.1 to 262 months in prison. In doing so, the court relied on

Tarrats’s three prior convictions of possessing with the intent to distribute controlled

substances in violation of Va. Code § 18.2-248 (two of which involved cocaine).

       Tarrats appealed, but the Fourth Circuit Court of Appeals dismissed his appeal on

the basis of an appellate waiver contained in his plea agreement. See United States v.

Linder, 174 F. App’x 174, 175-76 (4th Cir. 2006). Tarrats has since unsuccessfully

challenged his sentence on numerous occasions, including in a motion under 28 U.S.C. §

2255 with his sentencing court, see United States v. Tarrats, 251 F. App’x 256, 257 (4th

Cir. 2007), and in a § 2241 petition with his court of confinement in this Circuit, see

Tarrats v. Warden Allenwood USP, 592 F. App’x 52, 53-54 (3d Cir. 2014).

       At issue here is another § 2241 petition that Tarrats filed in his court of

confinement. This time, Tarrats argued that, under Mathis v. United States, 136 S. Ct.

2243 (2016), his convictions under Va. Code § 18.2-248 do not qualify as “controlled

substance offenses” as defined in U.S.S.G. § 4B1.2(b). The District Court dismissed

Tarrats’s petition on the ground that his claim was not cognizable under § 2241 and the

theory that we recognized in In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997), because he

challenged only his sentencing designation as a career criminal and not his convictions


                                              2
for his underlying crimes. Tarrats appeals. 1

                                                II.

       The parties dispute whether federal prisoners can challenge career-offender

designations under § 2241 and the theory that we recognized in Dorsainvil. We have not

decided that question, see United States v. Doe, 810 F.3d 132, 160-61 (3d Cir. 2015), and

we need not do so in this case because we agree with the Government’s alternative

argument that Tarrats’s claim lacks merit. See Shepherd v. Krueger, — F.3d —, No. 17-

1362, 2018 WL 6787294, at *1 (7th Cir. Dec. 26, 2018) (electing to “bypass . . .

procedural hurdles” regarding a Mathis-based § 2241 petition where the petition “can be

resolved most simply on the merits”).

       Tarrats claims that his convictions under Va. Code § 18.2-248 do not qualify as

“controlled substance offenses” as defined in U.S.S.G. § 4B1.2(b). In particular, Tarrats

argues that the Virginia statute is broader than § 4B1.2(b) and that a conviction under the

Virginia statute thus does not qualify under the strict categorical approach first required

by Taylor v. United States, 495 U.S. 575 (1990). Tarrats further argues that, under

Mathis, convictions under the Virginia statute must be assessed by that strict categorical

approach rather than the modified categorical approach because the Virginia statute is not


1
 Federal prisoners do not require a certificate of appealability to appeal the dismissal of a
§ 2241 petition. See Reese v. Warden Phila. FDC, 904 F.3d 244, 246 (3d Cir. 2018).
Thus, we have jurisdiction under 28 U.S.C. § 1291. We may affirm for any reason
supported by the record. See Gardner v. Warden Lewisburg USP, 845 F.3d 99, 102 (3d
Cir. 2017).

                                                3
divisible.

       This claim lacks merit because, regardless of whether convictions under the

Virginia statute are assessed under the categorical approach or the modified categorical

approach, Tarrats has not shown that the Virginia statute is broader than § 4B1.2(b) in

any way. The relevant provisions of the statute and Guidelines definition are set forth in

the margin. 2

       Tarrats argued below that the Virginia statute is broader than the Guidelines

definition in two respects. First, he argued that the Virginia statute criminalizes

possession with intent to “give,” Va. Code § 18.2-248(A), while § 4B1.2(b) does not use

that word and instead requires possession with intent to “distribute or dispense.” Tarrats

has not repeated that argument in arguing the merits of his claim on appeal, so we could

deem it waived.

       In any event, Tarrats has raised nothing suggesting that the Virginia statute’s use

of the word “give” is broader than § 4B1.2(b)’s use of the word “distribute.” Courts

interpreting the term “distribute” as used in 21 U.S.C. § 841(a) have recognized that

“drugs may be distributed by giving them away for free.” United States v. Bobadilla-

Pagán, 747 F.3d 26, 32 (1st Cir. 2014) (quoting United States v. Cortés-Cabán, 691 F.3d


2
  Section 4B1.2(b) defines as a controlled substance offense “an offense under federal or
state law . . . that prohibits . . . the possession of a controlled substance . . . with intent to
manufacture, import, export, distribute, or dispense.” The Virginia statute in turn makes
it “unlawful for any person to . . . possess with intent to manufacture, sell, give or
distribute a controlled substance[.]” Va. Code § 18.2-248(A).

                                                 4
1, 19 (1st Cir. 2012), and citing, inter alia, United States v. Washington, 41 F.3d 917, 919

(4th Cir. 1994)). Tarrats has not addressed this point, let alone raised anything

suggesting that the term “distribute” as used in § 4B1.2(b) should be interpreted any

differently.

       Second, Tarrats relied on another section of the Virginia statute providing for a

reduced sentence if the defendant is able to prove that he or she acted “only as an

accommodation to another individual.” Va. Code. § 18.2-248(D). Thus, he argued that

the Virginia statute is broader than § 4B1.2(b) because he could have violated the

Virginia statute merely by making an “accommodation” to another.

       “According to Virginia case law,” however, “§ 18.2-248(D) is relevant only to

sentencing and allows the defendant to mitigate his punishment; it does not change the

offense, which remains distribution regardless of whether an accommodation is

involved.” United States v. Rodriguez, 523 F.3d 519, 524 (5th Cir. 2008) (collecting

Virginia cases in addressing a challenge to the application of a different Sentencing

Guideline). Thus, even if the Virginia statute can be violated by giving drugs away for

free or otherwise distributing them merely as an accommodation, the Virginia statute still

requires an intent to distribute just as § 4B1.2(b) does.

       In sum, Tarrats has raised nothing suggesting that the Virginia statute is broader

than § 4B1.2(b) in any way. Thus, even if Mathis requires application of the strict

categorical approach to convictions under the Virginia statute (which we do not decide),

Tarrats has not shown that a conviction under that statute no longer qualifies as a
                                              5
controlled substance offense as defined in § 4B1.2(b).

                                           III.

      For these reasons, we will affirm the judgment of the District Court.




                                            6
