                                                         NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT


                                     No. 09-4473


                          UNITED STATES OF AMERICA

                                          v.

                           JERRICK BART LIMEHOUSE,

                                                         Appellant


                   On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                      (D.C. Criminal No. 2-08-cr-00223-001)
                        District Judge: Hon. J. Curtis Joyner


                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   June 22, 2010

              BEFORE: SMITH, FISHER and COWEN, Circuit Judges

                                 (Filed: July 7, 2010)


                                      OPINION


COWEN, Circuit Judge

      Jerrick Limehouse appeals the District Court’s decision to enhance his sentence

under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). We will affirm.
I.       BACKGROUND

         Limehouse pleaded guilty to one count of conspiracy, in violation of 18 U.S.C.

§ 371, and two counts of possession of a firearm or ammunition by a convicted felon, in

violation of 18 U.S.C. § 922(g)(1). During his plea colloquy, he reserved the right to

challenge the applicability of the ACCA enhancement, but admitted that his record

included three prior Pennsylvania convictions, one for burglary and two for drug-related

offenses.

         The presentence investigation report (“PSR”) identified these three prior

convictions and recommended a sentencing enhancement under the ACCA. Limehouse

challenged the inclusion of his 1991 conviction for possession with intent to distribute

(CP 9112-4733) on the ground that the government failed to provide sufficient

documentation that the conviction at issue qualified as a “serious drug offense” under the

ACCA.1 Limehouse argued that the records submitted regarding that conviction are

ambiguous as to whether he was convicted of a “serious drug offense” or a lesser drug-

related charge. The government’s documentation included three certified records from

the Common Pleas Court of Philadelphia related to Limehouse’s conviction. First, the

record of conviction states that Limehouse was charged with:



     1
       Initially, he also challenged his 1990 conviction for possession with intent to
distribute; however, he withdrew his objection to the inclusion of this conviction during
sentencing. Accordingly, our review is limited to his challenge to inclusion of the 1991
conviction (CP 9112-4733).

                                              2
              80109 - - KNOWING OR INTENTIONALLY
              POSSESSING A CONTROLLED SUBSTANCE
              780-113)16)

              80406 - - MANUFACTURE, DELIVERY OR
              POSSESSION WITH INTENT TO MANUFACTURE OR
              DELIVER A CONTROLLED SUBSTANCE 780-113)30)

This record did not specify the particular controlled substance at issue.

       Second, the government submitted the information, or charging instrument,

indicating that Limehouse was charged with three counts.2 The first count asserts that

Limehouse “UNLAWFULLY DID KNOWINGLY AND INTENTIONALLY POSSESS

A CONTROLLED SUBSTANCE, TO WIT - COCAINE.” The second states that

Limehouse “FELONIOUSLY DID MANUFACTURE, DELIVER, OR POSSESS

WITH INTENT TO MANUFACTURE OR DELIVER A CONTROLLED

SUBSTANCE CLASSIFIED UNDER SCHEDULE I, II OR III.” The third states that

Limehouse “FELONIOUSLY DID MANUFACTURE, DELIVER, OR POSSESS

WITH INTENT TO MANUFACTURE OR DELIVER A CONTROLLED

SUBSTANCE CLASSIFIED UNDER SCHEDULE IV.” Notably, the second and third

counts are silent as to the particular substance involved.

       The final document included in the certified records from the Common Pleas

Court is the criminal complaint. It indicates that Limehouse was arrested for delivering



   2
       Initially, this document charged Limehouse with five counts, but two of these
counts were crossed out and are not at issue on appeal.

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one vial of crack cocaine to an informant and, upon arrest, was found to possess an

additional thirteen vials of crack cocaine. This document was signed by the officer who

arrested Limehouse.

       In addition to these certified records, the government submitted a copy of

Limehouse’s written guilty plea for the 1991 conviction. The guilty plea identifies the

crime charged as possession with intent to deliver and indicates that Limehouse faced a

maximum term of imprisonment of ten years. Limehouse signed the guilty plea, as did

his attorney, the prosecutor, and the judge.

       The District Court reviewed these documents and permitted the parties to argue

their positions during the sentencing hearing. Unpersuaded, the District Court rejected

Limehouse’s objection and enhanced his sentence under the ACCA, which resulted in a

mandatory minimum term of imprisonment of fifteen years. The District Court

determined that his base offense level was 32 and his criminal history category was six,

thereby making his advisory guidelines range 210 to 262 months. The District Court

sentenced him to a term of imprisonment of 216 months.

       On appeal, Limehouse argues that the documentation of his 1991 conviction is

ambiguous and as such, cannot be included in the District Court’s ACCA analysis.3


   3
       Limehouse also argues that the District Court erred in overruling his objection to
the PSR’s inclusion of a four-level enhancement based on the use of a firearm in
connection with another felony offense under U.S.S.G. § 2K2.1(b)(6). The inclusion of
this enhancement would result in the calculation of a base offense level of 32. Excluding
consideration of the § 2K2.1(b)(6) enhancement, the same base level offense, 32, is

                                               4
II.    DISCUSSION

       Under the ACCA, anyone who “violates section 922(g) . . . and has three previous

convictions by any court referred to in section 922(g)(1) of this title for a violent felony

or a serious drug offense, or both, committed on occasions different from one another . . .

shall be . . . imprisoned not less than fifteen years . . . .” 18 U.S.C. § 924(e)(1). The

ACCA defines “serious drug offense” as including offenses “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 by law . . . .” 18 U.S.C. § 924(e)(2)(A)(ii). Limehouse was charged

with violating 35 Pa. Cons. Stat. § 780-113(a)(30). The maximum sentence that may be

imposed under this statute varies depending upon the particular drug possessed. A

conviction for the possession of cocaine would result in a maximum sentence of ten

years; whereas, a conviction for other substances would result in a lower maximum

sentence. Compare 35 Pa. Cons. Stat. § 780-113(f)(1), (1.1) with 35 Pa. Cons. Stat. §

780-113(f)(2)-(4).

       Courts apply a categorical approach to determining whether a prior conviction

qualifies as a serious drug offense. Taylor v. United States, 495 U.S. 575, 600 (1990)

(“The Courts of Appeals uniformly have held that § 924(e) mandates a formal categorical



reached by the enhancement under the ACCA, which this Court will affirm. Accordingly,
we decline to address Limehouse’s § 2K2.1(b)(6) argument as our ruling on the ACCA
enhancement is dispositive on the issue of the base offense level calculation.

                                              5
approach, looking only to the statutory definitions of the prior offenses, and not to the

particular facts underlying those convictions. We find the reasoning of these cases

persuasive.” (internal citations omitted)). However, when adherence to the categorical

approach does not resolve the court’s inquiry as to the conviction obtained, a court may

consider “the terms of the charging document, the terms of a plea agreement or transcript

of colloquy between judge and defendant in which the factual basis for the plea was

confirmed by the defendant, or to some comparable judicial record of this information.”

Shepard v. United States, 544 U.S. 13, 26 (2005); see also United States v. Howard, 599

F.3d 269, 272 (3d Cir. 2010) (explaining that to establish career offender status, “the

government may rely on certified copies of convictions” as well as “the terms of the plea

agreement, the charging document, the transcript of colloquy between judge and

defendant, and other comparable judicial records of sufficient reliability” (citing Shepard,

544 U.S. at 16)).

       As set forth above, neither the record of conviction nor the charging instrument

definitively resolve the ambiguity as to whether Limehouse was arrested for possession

of cocaine or some other substance, which could not serve as the basis of an

enhancement under the ACCA. Further, we cannot consider the arresting officer’s

complaint, even if it is a certified record. See Shepard, 544 U.S. at 16 (holding that a

sentencing court may not “look to police reports or complaint applications to determine

whether an earlier guilty plea” qualified as a prior violent felony under the ACCA).


                                              6
However, the written plea agreement resolves the ambiguity. It clearly states Limehouse

was subject to a maximum sentence of ten years, which makes this prior drug-related

conviction a “serious drug offense.”

       It appears that Limehouse challenges the authenticity of this document for the first

time on appeal; however, as such, that challenge is waived. Moreover, this argument

lacks merit. In signing the agreement, Limehouse acknowledged that he read the terms

of the agreement and understood them. Indeed, the judge himself, in signing the

agreement, certified that he explained the maximum sentence available, ten years, to

Limehouse. Limehouse, his attorney, the prosecutor, and the judge each signed the

agreement. There is nothing to suggest that this document is unreliable.

III.   CONCLUSION

       As set forth above, we will affirm the District Court’s determination to sentence

Limehouse under the ACCA.




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