                                                                NOT PRECEDENTIAL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. 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

                                (Filed: August 22, 2018)
                                    ______________

                                       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.
       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 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. Ronald A. Krauss was appointed as Glass’s appellate counsel. In July

2017, this Court denied Krauss’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




                                            2
enhancement under the Sentencing Guidelines’ career criminal provisions. 1 The Court

then appointed Edward J. Rymsza, III, as new appellate counsel and ordered the parties

to brief the merits of the appeal. We address the merits of Glass’s appeal below.

                                             II.

       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 Krauss, 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,



       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
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. 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




                                              4
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 the extent

it criminalizes a mere offer to sell drugs. We have yet to determine whether state

statutes that criminalize offers constitute “controlled substance offenses” under the

Guidelines. Increasingly, however, our sister Circuits have held they 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).



       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
       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. Pennsylvania 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).

       Glass argues, however, that an offer to sell drugs is impliedly included in § 780-

113(a)(30) because Pennsylvania’s definition of the word “delivery” includes “attempted

transfers.” We disagree. An “attempted transfer” cannot be equivalent to an offer to

sell. The Guidelines’ application note 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 Guidelines,

his argument, if accepted, would prove self-defeating, for if “attempt[]” in § 780-102(b)

included offers, then by his logic, so would “attempt” under U.S.S.G. § 4B1.2, making

§ 780-113(a)(30) and U.S.S.G. § 4B1.2 equally broad.

       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 delivery, holding, offering for sale, or possession of any controlled

                                              6
substance . . . .” (emphasis added)). This language—i.e., “offering for sale”—is

conspicuously absent from § 780-113(a)(30). Arguably, 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 attempted transfer’ . . . . Any conduct meeting the state’s

                                                7
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

§ 780-113(a)(30) is not overbroad in the context of the ACCA’s nearly-identical

definition of “serious drug offense.” See United States v. Abbott, 748 F.3d 154, 160 (3d

Cir. 2014). Additionally, we have held § 780-113(a)(30) 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




                                              8
Huntingdon County—we find no error in the District Court’s decision to apply the

enhancement. 2

                                         IV.

      For the foregoing reasons, we will affirm the District Court’s judgment entered

on June 13, 2016.




      2
         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)).
                                          9
