                                                             NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                     No. 18-1622
                                    _____________

                           UNITED STATES OF AMERICA

                                           v.

                                    JEROME KING,
                                             Appellant
                                    _____________


                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                         District Court No. 1-16-cr-00321-001
                    District Judge: The Honorable Sylvia H. Rambo

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                 December 10, 2018

          Before: SMITH, Chief Judge, McKEE, and FISHER, Circuit Judges

                               (Filed: January 30, 2019)
                               _____________________

                                     OPINION*
                               _____________________




SMITH, Chief Judge



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Jerome King entered a conditional guilty plea to one count of being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), retaining the right to appeal

the denial of his motion to suppress and to challenge the applicability of the Armed

Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e).1 King asserts that the District Court

erred in concluding: (1) that the “emergency aid exception” to the warrant requirement of

the Fourth Amendment justified the warrantless entry into his apartment that led to the

seizure of the firearm; and (2) that his previous drug offenses under Pennsylvania law do

not count as predicate offenses for purposes of the ACCA. Neither contention has merit.

Accordingly, we will affirm.

                                             I.

       Jerome King was arrested in Harrisburg, Pennsylvania, on July 6, 2016 after

police responded to a report of a man with a shotgun threatening his neighbors. The first

arriving officer observed a man walking outside of a building—later identified as King—

who matched the caller’s description. Because the dispatch had warned of an armed

suspect, the first arriving officer waited for backup. When backup arrived, King entered

the building through a fire escape while a woman emerged from the same building.

       At the officers’ request, the woman yelled for King, who reemerged from the

building’s main entrance. A protective pat down of King did not yield any weapons.

Officers observed three small children, appearing to be under the age of six, standing on



1
  The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
                                             2
the landing of the fire escape that King had ascended earlier. When the children

reentered the building, the first arriving officer decided to check on the situation to assure

the children’s well-being. He climbed the fire escape and entered a hallway, where he

observed an open apartment door to his right. Through the apartment door, the officer

saw the children and a partially covered shotgun which lay on an ottoman located

between the children and the door. The officer radioed the officers outside the building

to arrest King. He then entered the apartment and seized the shotgun.

       A grand jury returned an indictment charging King with unlawful possession of a

firearm by a felon (18 U.S.C. § 922(g)(1)), possession of an unregistered short barrel

shotgun (26 U.S.C. §§ 5841, 5861(d), and 5871), and possession of a short-barrel shotgun

not identifiable by a serial number (26 U.S.C. §§ 5841, 5861(i), and 5871). The

government also charged King as an armed career criminal under 18 U.S.C. § 924(e) due

to his four previous convictions for drug offenses under Pennsylvania law.

       King filed motions to suppress the shotgun and other items later recovered by the

police from his apartment, as well as statements he made following his arrest. The

District Court denied his motions. Pursuant to an agreement, King entered his

conditional plea. The agreement preserved King’s right to appeal the denial of his

motion to suppress the shotgun and to challenge the applicability of the ACCA.

Although King argued that he did not qualify as an armed career criminal, the District

Court disagreed. The judge adopted that portion of the presentence report (“PSR”) that

determined King was an armed career criminal, then varied downward from the

                                              3
calculated Sentencing Guidelines range of 188 to 235 months, imposing the mandatory

minimum sentence of 180 months’ imprisonment.

                                             II.

       King challenges the District Court’s conclusion that the warrantless entry of the

apartment and seizure of the shotgun, despite being in plain view and near children, was

permissible under the emergency aid exception. We review factual determinations

relating to a motion to suppress for clear error and legal determinations relating to those

facts de novo. United States v. Mallory, 765 F.3d 373, 381-83 (3d Cir. 2014). Because

we find that the officer’s actions were a reasonable response to a true threat to the safety

of the children, we will affirm the District Court.

       A key component to the emergency aid exception is “the existence of a true

emergency.” Id. at 384 (internal citation and quotation marks omitted). In a case

involving the warrantless seizure of firearms, we determine whether the emergency aid

exception applies by examining multiple, non-exhaustive factors, including how soon

after the alleged offense the search occurred; whether the premises had been secured;

whether others were free to move about the scene unsupervised; how easily someone

could have obtained and used the firearm; and the degree of intrusiveness of the search.

See id. at 386.

       Applying these factors to King’s case, we see no error in the District Court’s

finding that the officer’s actions were “reasonable under the Fourth Amendment.” A136.

The scene was still active, the apartment was not secure, and there were unsupervised

                                              4
children in the vicinity of a firearm. Additionally, the degree of intrusiveness was minor

and limited to what was needed to protect the children; the shotgun was in plain view and

near the open door, and the officer entered the apartment only as far as needed to secure

the weapon. The District Court did not err in determining that the officer reasonably

believed that his action was necessary to protect the children. See Mallory, 765 F.3d at

386.

       King contends that the scene was under control and that there was no indication

that the children would touch the shotgun, thereby obviating any imminent threat.

Furthermore, King argues that the police officer had other options to protect the children

without entering and seizing the shotgun. According to King, he could have asked the

children to exit the apartment or asked their mother to enter and ensure they stayed away

from the shotgun. While we acknowledge the possibility of other courses of action—

whether or not they would have been feasible or safer—we disagree that these

hypothetical, retrospectively-identified alternatives compel a conclusion that the officer

acted unreasonably. The emergency aid exception exists because there are situations

where a delayed response “would gravely endanger . . . the lives of others[,]” making

speedy and decisive action essential. Warden, Md. Penitentiary v. Hayden, 387 U.S. 294,

298-99 (1967). Young children in close range of an unattended firearm are in obvious

danger. We see no error in the District Court’s application of the emergency aid




                                             5
exception under such circumstances.2

                                             III.

         King next challenges the PSR’s conclusion that he qualifies as an armed career

criminal. King asserts that his four previous state law drug convictions do not count as

“serious drug offenses” under the ACCA. See 18 U.S.C. § 924(e)(2). He contends that

the Pennsylvania statute under which he was convicted3 sweeps too broadly,

encompassing mere offers to sell controlled substances. Consequently, King argues these

offenses fall outside of the ACCA’s definition and make its application inappropriate.4

         We review de novo properly raised questions of law concerning the ACCA,

United States v. Henderson, 841 F.3d 623, 626 (3d Cir. 2016), and hold that convictions

under § 780-113(a)(30) count as “serious drug offenses” under the ACCA.

         Since the submission of briefs in this case, King’s argument has been largely

foreclosed by our decision in United States v. Glass, 904 F.3d 319 (3d Cir. 2018). In

Glass, we rejected a similar argument, albeit under plain error review, regarding the

definition of a “controlled substance offense” under § 4B1.2 of the Guidelines. Id at 324.



2
  The Government also argued that the seizure of the shotgun would be legal under the
inevitable discovery doctrine. Because we hold that the seizure was lawful under the
emergency aid exception, we need not reach the inevitable discovery issue.
3
    35 Pa. Cons. Stat. § 780-113(a)(30).
4
  In pertinent part, the ACCA defines a serious drug offense as “an offense under State law,
involving manufacturing, distributing, or possessing with intent to manufacture or
distribute, a controlled substance . . . for which a maximum term of imprisonment of ten
years or more is prescribed . . . .” 18 U.S.C. § 924(e)(2)(A)(ii).
                                              6
Significantly, we noted in Glass that Pennsylvania’s controlled substances statute has a

separate section, § 780-113(a)(1), that explicitly criminalizes “offering for sale” any

controlled substances, language not present in § 780-113(a)(30). See Glass, 904 F.3d at

322-23. This omission indicates that the conduct encompassed in § 780-113(a)(30) does

not include offers to sell. Accordingly, we hold that King’s previous drug offenses were

appropriately classified as predicate offenses for the ACCA.

       For the reasons set forth above, we will affirm the judgment of the District Court.




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