                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 17-2508
                                    ____________

                          UNITED STATES OF AMERICA

                                          v.

                            REGINALD L. LOMAX, JR.,

                                              Appellant
                                    ____________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                              (D.C. No. 1-15-cr-00263-001)
                    District Judge: Honorable William W. Caldwell
                                     ____________

                             Argued June 12, 2018
            Before: AMBRO, JORDAN, and HARDIMAN, Circuit Judges.

                               (Filed: August 10, 2018)

Ronald A. Krauss
Quin M. Sorenson [Argued]
Office of Federal Public Defender
100 Chestnut Street
Suite 306
Harrisburg, PA 17101
       Counsel for Appellant
James T. Clancy [Argued]
Office of United States Attorney
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108
       Counsel for Appellee
                                   ____________

                                         OPINION*
                                       ____________

HARDIMAN, Circuit Judge.

       Reginald Lomax, Jr. appeals his judgment of conviction and sentence following a

conditional plea of guilty to being a felon in possession of a firearm in violation of 18

U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e). We will affirm.

                                              I1

       In conjunction with his guilty plea, Lomax reserved the right to challenge the

denial of his motion to suppress evidence found by York City police when they searched

his jacket incident to arrest. The constitutionality of that search—which yielded a gun and

drugs—turns on a factual dispute as to the location of the jacket at the time of the arrest.

In the District Court, Lomax and the two arresting police officers gave divergent accounts

of the search. After hearing the testimony of Lomax and the officers, the District Court




       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
       1
        The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
                                              2
found as a matter of fact that when Officer James Knarr came upon Lomax and ordered

him to put his hands behind his back, Lomax first “t[ook] off the jacket and set it aside.”

United States v. Lomax, 2016 WL 2347102, at *4 (M.D. Pa. May 4, 2016). After

handcuffing Lomax, Knarr picked up the jacket, which “was within [Lomax]’s reach,”

and felt a gun in one pocket and a bag of drugs in the other. Id. Based on those factual

findings, the District Court determined that the jacket was within Lomax’s immediate

control, and under those circumstances the search of the jacket was reasonable. Id.; see

Arizona v. Gant, 556 U.S. 332, 343 (2009) (holding that a warrantless vehicle search

incident to arrest is justified “when the arrestee is unsecured and within reaching distance

of the passenger compartment”). Accordingly, suppression of the evidence was not

warranted.

       The District Court relied principally on cases citing our decision in United States

v. Shakir, 616 F.3d 315 (3d Cir. 2010). In Shakir, we applied the Gant rule to a protective

sweep of a bag an arrestee had dropped beside him during his arrest in a hotel lobby. Id.

at 316–18. The key question was whether the handcuffed arrestee “retained sufficient

potential access to his bag to justify a warrantless search.” Id. at 319. We held that he did,

because even though he “was handcuffed and guarded by two policemen, [his] bag was

literally at his feet, so it was accessible if he had dropped to the floor.” Id. at 321.

       Lomax finds himself on even weaker footing than the arrestee in Shakir, who was

not suspected of having a weapon. See id. at 316–17. Here, Knarr had been advised that

                                                3
Lomax had a gun, and the District Court found as a matter of fact that “Knarr was by

himself with [Lomax], in a small room, and the jacket was within [Lomax]’s reach,”

Lomax, 2016 WL 2347102, at *4. And even though Lomax’s hands were cuffed behind

his back at the time of the search, that fact is unavailing to Lomax because Shakir’s

“lenient standard” requires only “a reasonable possibility” that Lomax could have

accessed the gun hidden in the jacket he had dropped beside him. See 616 F.3d at 320–

21. The District Court found that the jacket containing the gun was within Lomax’s

reach, and under those circumstances, he didn’t need to be “an acrobat [or] a Houdini” to

access it. See United States v. Myers, 308 F.3d 251, 267 (3d Cir. 2002) (quoting United

States v. Abdul-Saboor, 85 F.3d 664, 669 (D.C. Cir. 1996)).

       Lomax urges us to ignore these factual findings, claiming they are “undermin[ed]”

by the District Court’s “fail[ure] to make explicit credibility determinations in the face of

conflicting testimony on critical factual matters.” Lomax Br. 14–15. We cannot do so. A

district court need not reconcile conflicting accounts and “make . . . express credibility

determinations” where its findings obviously “derive[] from [the] conclusion that the

[officers] were credible and that [the defendant] was not.” United States v. Marcavage,

609 F.3d 264, 281 (3d Cir. 2010). We ask only whether the court’s findings were clearly

erroneous. See United States v. Perez, 280 F.3d 318, 336 (3d Cir. 2002). Here, where

Knarr’s testimony was “coherent and plausible,” we have no reason to believe “a mistake

has been committed”—let alone the “definite and firm conviction” the clear error

                                              4
standard requires. Cf. United States v. Igbonwa, 120 F.3d 437, 440–41 (3d Cir. 1997).

Accordingly, the District Court did not err when it denied Lomax’s motion to suppress.

                                             II

       Lomax also contends the District Court committed legal error when it designated

him an armed career criminal. The career offender enhancement of the Armed Career

Criminal Act (ACCA) applies when a defendant has three prior convictions for a violent

felony or “serious drug offense,” which is defined to include state-law offenses

“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 by law.” 18 U.S.C. § 924(e)(1), (e)(2)(A)(ii). According to

Lomax, neither his 2006 marijuana conviction nor his 2008 conviction for the sale of

cocaine qualify as ACCA predicates. We address each argument separately.

                                             A

       In 2006 Lomax was convicted of possession with intent to deliver marijuana in

violation of section 780-113(a)(30) of the Pennsylvania Crimes Code. Although that

crime carries with it a statutory maximum of five years’ imprisonment, 35 Pa. Stat. Ann.

§ 780-113(f)(2), Lomax was subject to a maximum sentence of ten years because he was

a recidivist. See id. § 780-115. As the District Court explained, “it would seem that the

2006 marijuana conviction qualifies as a serious drug offense under the ACCA because

the offense is punishable by up to ten years in prison.” United States v. Lomax, 2017 WL

                                             5
878404, at *3 (M.D. Pa. Mar. 6, 2017).

       Lomax counters that his 2006 conviction cannot be a serious drug offense because,

under Mathis v. United States, 136 S. Ct. 2243 (2016), “a state crime cannot qualify as an

ACCA predicate if its elements are broader than those of a listed generic offense.”

Lomax Br. 28–29 (citing Mathis, 136 S. Ct. at 2251). Specifically, he argues that the

recidivist statute (section 780-115) is broader than ACCA’s definition of a serious drug

offense since it “does not distinguish between controlled substances and counterfeit

controlled substances” and instead increases the penalties for distributing either. Id. at 28.

       Lomax’s argument fails because it is based on the fallacy that the ACCA predicate

offense is section 780-115.2 The true predicate offense in this case is section

780-113(a)(30). See Lomax, 2017 WL 878404, at *4 (explaining that section 780-115

“simply . . . enhances a sentence for a substantive offense occurring under section

780-113(a)(30)”); see also Commonwealth v. Aponte, 855 A.2d 800, 808–09 (Pa. 2004).

The Supreme Court reached the same conclusion under very similar circumstances in

United States v. Rodriquez, 553 U.S. 377 (2008), where it considered whether a drug

offense carrying a ten-year sentence as a result of a Washington recidivism provision like


       2
        Our dissenting colleague makes the same mistake. As the cases cited by the
dissent make clear—see, e.g., Mathis v. United States, 136 S. Ct. 2243, 2248 (2016)
(focusing on “the elements of the crime of conviction” (emphasis added)), and Descamps
v. United States, 570 U.S. 254, 261 (2013) (centering analysis on “a conviction under that
law” (emphasis added))—the focus of the categorical approach is the crime of conviction.
Lomax was charged and convicted under section 780-113(a)(30), while his sentence was
imposed consistent with section 780-115.
                                              6
section 780-115 was a serious drug offense under ACCA. Id. at 382–83. The Court

rejected the same categorical-approach argument Lomax advances here, explaining that

Mathis’s predecessor, Taylor v. United States, 495 U.S. 575 (1990), had “no connection”

to this particular ACCA issue. Rodriquez, 553 U.S. at 387. Faced with this binding

precedent, the only response Lomax can muster is that “Rodriquez predates Mathis,”

Reply Br. 2–3, but he does not explain why Mathis—which reaffirmed Taylor’s

categorical approach—leads to a different outcome here. Accordingly, we follow

Rodriquez and hold that Lomax’s 2006 marijuana conviction under section

780-113(a)(30) is a serious drug offense as defined by ACCA.

                                             B

      We turn next to Lomax’s 2008 conviction for possession with intent to deliver

cocaine. Lomax concedes that he was charged under 35 Pa. Stat. Ann. § 780-113(a)(30),

a felony punishable by up to ten years’ imprisonment and a $100,000 fine. But he argues

that an “ambigu[ity]” arose when both the written plea colloquy and the sentencing court

referred to a seven-year sentence—a penalty associated with third-degree felonies in

Pennsylvania3—rather than a ten-year sentence. Lomax Br. 26.

      The District Court rejected this argument, finding that this discrepancy was

“simply a mistake” because 35 Pa. Stat. Ann. § 780-113(a)(30) was the only cited

offense, and Lomax admitted to delivering cocaine as charged. Lomax, 2017 WL 878404,


      3
          18 Pa. Cons. Stat. §§ 106(b)(4), 1101(3).
                                              7
at *1–2. The District Court did not err when it concluded that such a “mistake . . . does

not control” for ACCA purposes, id., and Lomax cites no authority that would convince

us otherwise.

       In sum, because Lomax’s 2006 and 2008 convictions both qualify as ACCA

predicate offenses, the District Court did not err in sentencing Lomax as a career

offender.

                                      *      *      *

       For the reasons stated, we will affirm the District Court’s judgment of conviction

and sentence.




                                             8
            United States of America v. Reginald Lomax, Jr., Appellant
                                   No. 17-2508
_______________________________________________________________________

AMBRO, Circuit Judge, dissenting

       I agree with my colleagues that the District Court did not err in denying Reginald

Lomax’s motion to suppress and that his 2008 conviction for possession with intent to

deliver cocaine is a serious drug offense under the Armed Career Criminal Act

(“ACCA”). They and I part ways, however, as to Lomax’s 2006 conviction for

possession with intent to deliver marijuana (“2006 conviction”). Because I believe their

analysis of the conviction disregards our own case law and Supreme Court precedent, I

respectfully dissent in part.

I.     Supreme Court precedent directs us to apply the categorical approach.

       I begin with ACCA’s text. It states a defendant may be imprisoned for at least 15

years if he has three previous convictions for a violent felony, serious drug offense, or

both. In relevant part, it defines “serious drug offense” as “an offense under State law,

involving manufacturing, distributing, or possessing with intent to manufacture or

distribute, a controlled substance (as defined in section 102 of the Controlled Substances

Act (21 U.S.C. [§] 802)), for which a maximum term of imprisonment of ten years or

more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii).

       The Supreme Court has given us a framework for deciding if a conviction

qualifies as a “serious drug offense.” It has told us to apply the categorical approach,

“focus[ing] solely on whether the elements of the crime of conviction sufficiently match

the elements of [ACCA]. . . .” Mathis v. United States, 136 S. Ct. 2243, 2248 (2016). If

                                             1
they do, the conviction is, in legalese, an “ACCA predicate.” However, if the statute

“sweeps more broadly . . . , a conviction under that law cannot count as [such]. . . .”

Descamps v. United States, 570 U.S. 254, 261 (2013). Thus, in the context of our case,

our mandate is clear: we must compare Lomax’s 2006 conviction to the elements of

ACCA. His conviction is an ACCA offense if its elements correspond to those of

ACCA. However, if the elements of his conviction are broader, it is not a serious drug

offense and cannot be used to enhance his sentence.

       My colleagues do not agree. They claim the categorical approach “ha[s] ‘no

connection’ to this particular ACCA issue (i.e., convictions for serious drug offenses)”

and rely on the Supreme Court’s decision in United States v. Rodriquez, 553 U.S. 377

(2008), in support of their position. Majority Op. at 7 (quoting Rodriquez, 553 U.S. at

387). But Rodriquez did nothing to jettison the categorical approach. Indeed, our Circuit

and our sister Circuits still apply the categorical approach in the wake of Rodriquez. See

United States v. Tucker, 703 F.3d 205, 209-10 (3d Cir. 2012) (employing the categorical

approach to conclude that “neither of [Appellant’s] prior convictions qualif[y] as a

‘serious drug offense’”); see also United States v. White, 837 F.3d 1225, 1229 (11th Cir.

2016) (per curiam) (“[T]he categorical approach requires us to determine whether first-

degree possession of marijuana and cocaine trafficking . . . fall within the definition of a

serious drug offense set forth in . . . ACCA.”); United States v. Buie, 547 F.3d 401, 405

(2d Cir. 2008) (stating Rodriquez “do[es] not establish any exception to the categorical

approach for a case” involving serious drug offenses). More importantly, the Supreme

Court has repeatedly affirmed the categorical approach, see, e.g., Mathis, 136 S. Ct. at

                                              2
2248, and has specified that it applies to ACCA in its entirety, see Taylor v. United

States, 495 U.S. 575, 600 (1990) (“[Section] 924(e) mandates a formal categorical

approach. . . .”); see also Carachuri-Rosendo v. Holder, 560 U.S. 563, 577 n.11 (2010)

(noting Rodriquez “employed” the categorical approach).

       Thus, in light of binding precedent, I am not persuaded that the categorical

approach is inapplicable here. By overlooking it, my colleagues adopt a holding that has

no basis in our own case law or decades of Supreme Court precedent.

II.    The recidivism statute is the predicate offense.

       Moving on to the statute of conviction, the parties dispute whether the predicate

offense is the marijuana statute (§ 780-113(a)(30) of the Pennsylvania Crimes Code) or

the recidivism statute (§ 780-115 of the Pennsylvania Crimes Code). My colleagues

contend the former is the statute of conviction. They again rely on Rodriquez and tell us

the Supreme Court reached the same conclusion there.

       Rodriquez, however, did not reach that holding. Nor did it categorically exclude

recidivism statutes from qualifying as ACCA predicates. To the contrary, it instructed us

to consider recidivism statutes to determine the “maximum term of imprisonment” for

purposes of ACCA. 553 U.S. at 393 (“[W]e hold that the ‘maximum term of

imprisonment . . . prescribed by law’ for the state drug convictions at issue in this case

was the 10–year maximum set by the [state] recidivist provision.” (second alteration in

original)). Its holding is apt here, as Lomax’s 2006 conviction was based on a recidivism

statute. Accordingly, we must look to that statute (§ 780-115) to calculate the maximum

term of imprisonment in this case.

                                              3
       Both the Government and the majority acknowledge this point, but maintain that

§ 780-113(a)(30) (i.e., the substantive statute for marijuana offenses) is the predicate

offense. I disagree. No court has stated that the substantive statute is in play here. Nor

has any court adopted the majority’s position that the substantive statute lays out the

elements of the offense but the recidivism statute lists the maximum term of

imprisonment. Instead, courts have focused their analysis on the recidivism statute and

have concluded that it specifies the predicate offense. See, e.g., United States v. Weekes,

611 F.3d 68, 72 (1st Cir. 2010) (Souter, J.) (“Rodriquez instructs us to look to ‘the

maximum term prescribed by the relevant criminal statute. . . .’” (quoting 553 U.S. at

391)); United States v. Hill, 539 F.3d 1213, 1220 (10th Cir. 2008) (“Focusing on the

maximum sentence for the predicate crime of conviction is mandated by the Supreme

Court’s analysis in Rodriquez.”), overruled on other grounds by United States v. Brooks,

751 F.3d 1204 (10th Cir. 2014); United States v. Staggs, 527 F.3d 680, 682 (8th Cir.

2008) (“[T]he [Rodriquez] Court determined that the relevant law is the provision[]

prescribing the maximum term for both a first offense and a second or subsequent

offense.” (emphases in original) (internal quotation marks omitted)).

       While none of these cases are binding, we should be “mindful of our obligation to

avoid [C]ircuit conflict” or depart from other Circuits’ reading of Supreme Court

precedent. PNC Bank Del. v. F/V Miss Laura, 381 F.3d 183, 186 (3d Cir. 2004). In line

with these observations, the conclusion for me is simple. The predicate offense for

Lomax’s 2006 conviction is the recidivism statute, § 780-115, and the elements of the

substantive statute have no controlling weight in our analysis.

                                              4
III.   Under the categorical approach, the recidivism statute does not spell out a
       serious drug offense.

       To recap, we must apply the categorical approach to the recidivism statute, § 780-

115. In order to do so, we start with the text of the statute. In full it states:

       (a) Any person convicted of a second or subsequent offense under clause
       (30) of subsection (a) of section 13 of this act [35 Pa. Cons. Stat. § 780-
       113(a)(30)1] or of a similar offense under any statute of the United States or
       of any state may be imprisoned for a term up to twice the term otherwise
       authorized, fined an amount up to twice that otherwise authorized, or both.

       (b) For purposes of this section, an offense is considered a second or
       subsequent offense, if, prior to the commission of the second offense, the
       offender has at any time been convicted under clause (30) of subsection (a)
       of section 13 [35 Pa. Cons. Stat. § 780-113(a)(30)] of this act or of a similar
       offense under any statute of the United States or of any state relating to
       controlled substances.

35 Pa. Cons. Stat. § 780-115 (footnote omitted). As noted, § 780-115 contains two

subsections. The first subsection lists the recidivism enhancement for “a second or

subsequent offense.” Id. § 780-115(a). The second subsection states the enhancement

applies if an individual has a previous conviction under § 780-113(a)(30). See id. § 780-

115(b). As Lomax points out, § 780-113(a)(30) penalizes individuals for distributing or

possessing controlled substances or counterfeit controlled substances. See supra note 1

(explaining the reach of § 780-113(a)(30)). Thus, under the categorical approach an

individual may be convicted under § 780-115 even if he has a previous conviction for a

counterfeit controlled substance.

       1
         This provision criminalizes the delivery or possession of controlled or counterfeit
controlled substances. See 35 Pa. Cons. Stat. § 780-113(a)(30) (prohibiting “[1] the
manufacture, delivery, or possession with intent to manufacture or deliver, a controlled
substance by a person not registered under this act . . . or [2] knowingly creating,
delivering or possessing with intent to deliver, a counterfeit controlled substance”).
                                                5
       This is broader than the terms of ACCA, as the latter only includes controlled

substances offenses as defined in 21 U.S.C. § 802. Moreover, if we turn to § 802, it

explicitly excludes a counterfeit substance from its definition of “controlled substance.”

Compare 21 U.S.C. § 802(6) (defining “controlled substance”), with 21 U.S.C. § 802(7)

(defining “counterfeit substance”).

       Consequently, § 780-115 criminalizes conduct that is outside the realm of ACCA,

and it cannot sustain Lomax’s ACCA-enhanced sentence. As such, I part with the

District Court’s holding that the 2006 conviction was an ACCA predicate, and I would

vacate Lomax’s sentence and remand it for resentencing.

IV.    Even if the substantive statute was the predicate offense, it would still fail to
       specify a serious drug offense.

       My conclusion remains unchanged even if I accept the majority’s position that

Lomax was convicted under the substantive statute, § 780-113(a)(30). Under its statutory

scheme, an individual convicted of a marijuana offense may be imprisoned for a

maximum term of five years. See 35 Pa. Cons. Stat. § 780-113(f)(2). This is not enough

for ACCA, which states serious drug offenses carry “a maximum term of imprisonment

of ten years or more.” 18 U.S.C. § 924(e)(2)(A)(ii). Accordingly, § 780-113(a)(30)

cannot qualify as an ACCA predicate.

                               *      *      *      *      *

       Per Supreme Court precedent, we must apply the categorical approach to

determine if a conviction is a serious drug offense under ACCA. Here it dictates that

neither the recidivism statute nor the marijuana statute are serious drug offenses, as both


                                             6
statutes criminalize conduct that exceeds the scope of ACCA. Thus Lomax’s enhanced

sentence should be vacated and remanded for resentencing.

       My colleagues not only reach the opposite conclusion, but they also fail to apply

the categorical approach. They discount decades of Supreme Court precedent and go

against our own case law to reach their holding. See, e.g., Taylor, 495 U.S. at 600;

Tucker, 703 F.3d at 209-10. In the end, their analysis has drastic consequences for

Lomax, saddling him with a 15-year sentence for an offense that does not match ACCA’s

terms. Because I cannot join their reasoning, I respectfully dissent in part.




                                             7
