                                                                 NOT PRECEDENTIAL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. No. 1-13-cr-00231-001)
                         District Judge: Hon. John E. Jones, III
                                    ______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                   March 30, 2017
                                  ______________

           Before: VANASKIE, KRAUSE, and RESTREPO, Circuit Judges

                                   (Filed: July 26, 2017)
                                     ______________

                                        OPINION *
                                     ______________

VANASKIE, Circuit Judge.




       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
       In this Anders case, Malachi Glass was found to be a career offender after

pleading guilty to possession of cocaine with intent to distribute, resulting in a higher

Sentencing Guidelines range than otherwise would have pertained. The career offender

designation was based upon two Pennsylvania controlled substances offenses, one in

2001 and the other in 2004. Glass directly appealed his sentence, but his court-appointed

attorney filed an Anders motion to withdraw from his representation of Glass, arguing

there are no nonfrivolous issues for the Court to adjudicate. Glass opposes the Anders

motion, and we find that two independent reasons support his position: First, the record

suggests that Glass’s 2004 conviction was for simple possession, not possession with

intent to deliver, and for that reason the District Court may have erred in counting the

conviction as a predicate for the career offender sentencing enhancement. Second, Glass

has a nonfrivolous argument that his 2001 Pennsylvania drug conviction also may not

count as a predicate because the state statute’s use of the term “delivery” arguably

reaches more broadly than the Sentencing Guidelines’ definition of “controlled

substances offense.” We will deny the Anders motion, restore the case to the calendar,

and direct the Clerk of Court to appoint new counsel to represent Glass.

                                              I.

       In October 2013, the United States indicted Malachi Glass on one count of

possession with intent to distribute cocaine hydrochloride in violation of 21 U.S.C.

§ 841(a)(1), (b)(1)(C). Glass was indigent, and represented by a court-appointed

attorney. Two years later Glass pleaded guilty following a plea colloquy.



                                              2
       At sentencing, the District Court found that Glass was a “career offender” under

U.S.S.G. § 4B1.1 due to two prior drug offenses from 2001 and 2004. State court docket

sheets from those two cases provide context: For the 2001 case, Glass pleaded guilty to

two separate counts charging him with the manufacture, delivery, or possession with

intent to manufacture or deliver a controlled substance, in violation of 35 Pa. Stat. Ann.

§ 780-113(a)(30). (App. 16-17 (“Manuf/Del/Poss/W Int Manuf Or Del”).) The case was

summarized and noted in the Probation Office’s pre-sentencing investigation report,

submitted to the District Court. 1

       In the 2004 case, the docket sheet reveals that Glass was indicted on two counts

for two separate offenses: one count of intentional possession of a controlled substance

in violation of 35 Pa. Stat. Ann. § 780-113(a)(16) (App. 23 (“Int Poss Contr Subst By Per

Not Reg”)), and one count of manufacture or delivery or possession with intent to

manufacture or deliver a controlled substance in violation of § 780-113(a)(30) (App. 23

(“Manuf/Def/Poss/W Int Manuf Or Del”)). The docket sheet also shows that Glass

pleaded “Nolo Contendere” to the first charge, for the (a)(16) offense, but that the second

charge—the (a)(30) charge—was “Quashed, Dismissed, Demurrer Sustained.” (App.

23.)



       1
         The two 2001 offenses qualified as only one predicate offense for career-
offender purposes because Glass received his sentence for the 2001 offenses on the same
day, and one sentence applied to both offenses. See U.S.S.G. § 4A1.2 (stating that, for
purposes of identifying predicate offenses, two offenses must be counted as only one if
there was no “intervening arrest,” the defendant received sentences for the offenses
“result[ing] from . . . the same charging instrument,” or the defendant received the
sentences “on the same day”); id. § 4B1.2(c) (defining “two prior felony convictions”).
                                             3
       When the District Court applied the career-offender enhancement, it doubled

Glass’s Guidelines range. Without the enhancement, the range would have been 84 to

125 months (7 to 10.4 years), but with the enhancement the range increased to 168 to 210

months (14 to 17.5 years). Starting from the enhanced range, the District Court varied

downward and sentenced Glass to 108 months’ incarceration.

       Attorney Ronald Krauss was appointed to represent Glass with his appeal, and

Krauss then filed the Anders motion at issue now. The United States filed a brief in

support, and Glass filed a pro se brief in opposition.

                                              II.

       The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate

jurisdiction under 28 U.S.C. § 1291.

                                              III.

       Our evaluation of a court-appointed attorney’s request to withdraw from his

client’s direct appeal is governed by the rules laid out in Anders v. California, 386 U.S.

738 (1967). The rules of legal ethics permit if not require a court-appointed attorney to

withdraw if counsel believes that the client’s appeal is “wholly frivolous,” but the Court

may grant such a withdrawal only after adhering to a specific set of procedures designed

to protect the client’s rights. Id. at 741-42, 744.

       These procedures involve three steps: First, the attorney requesting to withdraw

must file a “brief referring to anything in the record that might arguably support the

appeal,” id. at 744; the United States must file a responsive brief, 3d Cir. L.A.R. 109.2(a)

(2017); and the appellant may choose to file a brief, id. Second, the Court must examine

                                               4
the court-appointed attorney’s brief to see that counsel has “thoroughly examined the

record in search of appealable issues,” United States v. Youla, 241 F.3d 296, 300 (3d Cir.

2001); identified any “issue[s] arguably supporting the appeal,” Smith v. Robbins, 528

U.S. 259, 282, 285 (2000); and “explain[ed]” why any argument in support of any

identified issue would be “frivolous,” United States v. Marvin, 211 F.3d 778, 780-81 (3d

Cir. 2000). Third, the Court must perform an “independent review of the record” to

determine on its own whether nonfrivolous issues exist. Id. The Court may use the briefs

as a guide through the record and need not perform a “complete scouring of the record.”

Youla, 241 F.3d at 301.

      If after these three steps, the Court finds itself aware of no nonfrivolous issues for

adjudication, it will grant the Anders motion, permit the attorney to withdraw, and

dispose of the case. 3d Cir. L.A.R. 109.2(a) (2017). However, if even one nonfrivolous

issue exists, the Court will deny the Anders motion and either order the appointed

attorney to continue, or dismiss the attorney and order the Clerk to appoint new counsel.

Id.

                                            IV.

      Here, all parties fulfilled their Anders duties. Krauss submitted a thorough brief,

as did the United States; Glass submitted his own brief in opposition; and we have

performed our independent review of the record. However, the process has made it

apparent that nonfrivolous issues remain as to whether Glass was properly designated as

a career offender under the Sentencing Guidelines.



                                             5
        A defendant qualifies as a “career offender” under the Sentencing Guidelines if he

or she “has at least two prior felony convictions of either a crime of violence or a

controlled substance offense.” U.S.S.G. § 4B1.1. A “controlled substance offense,” in

turn, is defined as a conviction for an offense that (1) is punishable by a term of

imprisonment that exceeds one year and (2) involves “the manufacture, import, export,

distribution, or dispensing of a controlled substance (or counterfeit substance) or the

possession of a controlled substance (or counterfeit substance) with intent to

manufacture, import, export, distribute or dispense.” Id. § 4B1.2(b).

        Here, the District Court found that Glass’s 2001 and 2004 state court convictions

qualified as predicates for the career offender enhancement. The question before us now

is whether there is a nonfrivolous argument that either conviction should not have served

as a predicate for the career offender designation. We find that there is at least one

nonfrivolous argument that each of these offenses cannot serve as a predicate.

        A.    The 2004 Conviction

        The state court docket sheet for Glass’s 2004 conviction indicates that he pleaded

nolo contendere to a charge of violating 35 Pa. Stat. Ann. § 780-133(a)(16) (“(a)(16)”).

(App. 23.) This section prohibits a person from “[k]nowingly or intentionally possessing

a controlled or counterfeit substance by a person not registered under this act. . . .” Id.

The section has no additional element requiring delivery, manufacture, or importation, or

an intent to do so. Thus, an (a)(16) offense is a simple possession offense, and nothing

more.



                                              6
       Supreme Court precedent makes plain that a simple possession offense is not a

“controlled substance offense.” Salinas v. United States, 547 U.S. 188, 188 (2006) (per

curiam) (reversing the Fifth Circuit for “err[ing] in treating petitioner’s conviction for

simple possession as a ‘controlled substance offense’”). For that reason, Glass’s 2004

(a)(16) conviction may not serve as a predicate offense, and Glass possesses at least a

nonfrivolous argument on that matter.

       B.     The 2001 Conviction

       Glass’s 2001 conviction presents a much more complicated issue that is not

amenable to summary resolution. As noted above, Glass pleaded guilty to violating 35

Pa. Stat. Ann. § 780-113(a)(30), which 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.” To determine whether a conviction under § 780-113(a)(30) constitutes a

“controlled substance offense,” we are constrained to apply the categorical approach.

United States v. Abbott, 748 F.3d 154, 158-59 (3d Cir. 2014) (applying the categorical

approach to § 780-113(a)(30)). First we compare the elements of the statute behind the

prior offense with the Guidelines generic offense. Descamps v. United States, 133 S. Ct.

2276, 2281 (2013). If the prior-offense elements are “the same as” or “narrower than”

the Guidelines offense, then the prior offense can serve as a predicate. Id. But the

analysis grows more complex if the prior-offense statute “lists multiple, alternative

elements.” Id. at 2285. In those instances the statute is divisible, and a modified

categorical approach permits the Court “to consult a limited class of documents . . . to

                                              7
determine which alternative formed the basis of the defendant’s prior conviction.” Id. at

2281. 2 Alternative elements, however, must be differentiated from alternative means: a

single element that can be violated by “various factual means” is unlike a list of several

elements in that the various factual means are not part of the “crime’s legal definition—

the things the ‘prosecution must prove to sustain a conviction.’” Mathis v. United States,

136 S. Ct. 2243, 2248 (2016) (quoting Black’s Law Dictionary 634 (10th ed. 2014)).

       Glass argues that the “delivery” alternative element in § 780-113(a)(30) is

categorically broader than the analogous Guidelines elements, and is itself indivisible.

This argument is not frivolous. The Guidelines definition of a generic predicate

controlled substance offense extends to “the manufacture, import, export, distribution, or

dispensing of a controlled substance,” and also to possession “with intent to manufacture,

import, export, distribute or dispense.” U.S.S.G. § 4B1.2(b) (emphasis added).

Pennsylvania’s offense, by comparison, covers “the manufacture, delivery, or possession

with intent to manufacture or deliver,” and the “knowingly creating, delivering or

possessing with intent to deliver.” 35 Pa. Stat. Ann. § 780-113(a)(30). Thus, where the

Guidelines use “import, export, distribution, and dispensing,” Pennsylvania uses

“delivery.” These terms are certainly not the “same.” Descamps, 133 S. Ct. at 2281. But

is “delivery” broader than the Guidelines terms? Or is the Venn diagram of “delivery”



       2
        Examples of appropriate documents are the indictment, jury instructions, plea
colloquy, and plea agreement from the prior offense. Mathis v. United States, 136 S. Ct.
2243, 2249 (2016); Descamps, 133 S. Ct. at 2285 n.2. The point is to examine
documents that reveal the elements of the crime for which the defendant was convicted.
Descamps, 133 S. Ct. at 2283.
                                             8
fully concentric with the conduct that constitutes “import, export, distribution, or

dispensing”? That is the dispositive question here—and it is a fair one.

       Supporting Glass’s position is United States v. Hinkle, 832 F.3d 569, 575-76 (5th

Cir. 2016), in which the court held that the “delivery” element in an analogous Texas

statute is broader than the Guidelines offense, because a person can “deliver” a drug even

by offering to sell the drug, without actually completing the sale, whereas importing,

exporting, distributing, and dispensing require more than an offer. The Fifth Circuit

reasoned that a conviction for a violation of Texas’s possession with intent to deliver

statute could not serve as a predicate offense for a career offender designation, because

“[t]he Government concedes that if Hinkle were convicted of delivering a controlled

substance ‘by offering to sell’ that substance, the crime would not come within the

definition of a controlled substance offense under § 4B1.2.” Id. at 572.

       The Hinkle case was recently distinguished by a panel of our Court in a non-

precedential opinion which held that New York’s use of the term “delivery” in its

controlled substances law was narrower than the Texas law, and so Hinkle’s rule did not

apply. United States v. Santana, 677 F. App’x 744, 746 (3d Cir. 2017). But we are

aware of no similar precedent interpreting Pennsylvania’s law.

       Thus, on its face, there is at least a nonfrivolous argument that Pennsylvania’s law

is more like Texas’s than New York’s. Pennsylvania, like Texas, defines “delivery” to

include the “attempted transfer” of a drug, which could arguably extend to offers to sell,

as did the Texas statute. See 35 Pa. Stat. Ann. § 780-102(b) (defining “Delivery”). And

Pennsylvania, like Texas, defines delivery in the same manner that the Hinkle court found

                                              9
to render Texas’s delivery-definition indivisible. Hinkle, 832 F.3d at 575-76. Those

aspects of the Texas statute contributed to it being too broad to constitute a Guidelines

career offender predicate, and the same nonfrivolous argument may be made in Glass’s

case. Perhaps the argument will not carry the day, but it is sufficiently weighty to deny

an Anders motion.

                                             V.

       In light of the presence of nonfrivolous issues, the Court will deny the Anders

motion. The Clerk is ordered to restore the case to the calendar, fix a briefing schedule,

and appoint new counsel to represent Glass.




                                             10
