Sunday, February 10, 2019

924(e)’s definition of “serious drug offense” (ACCA) encompasses attempt, and the attempt and accomplice provisions of Pennsylvania’s possession with intent to distribute statute, 35 Pa. Stat. Ann § 780-113(a)(30), are co-extensive with federal law for purposes of the categorical approach

In United States v. Daniels, Appeal No. 17-3503 (Feb. 7, 2019),, the Third Circuit affirmed a 15-year mandatory minimum sentence under ACCA, 18 U.S.C. § 924(e)( 2)(A)(ii), based on Daniels’s three Pennsylvania convictions for possession with intent to distribute, 35 Pa. Stat. Ann § 780-113(a)(30). Subsection (a)(30) prohibits “the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance.” The Pennsylvania and federal definitions of delivery are nearly identical and both Pennsylvania and federal law include provisions for attempt and accomplice liability. United States v. Glass, 904 F.3d 319 (3d Cir. 2018) (citing 21 U.S.C. § 802(8) and 21 U.S.C. § 846).

Although the definition of “serious drug offense” in the ACCA does not include attempts, as does the definition of “violent felony” in (e)(2)(B), the ACCA’s use of the term “involving” sufficiently expands the meaning of a serious drug offense beyond the simple offenses of manufacturing, distributing, and possessing a controlled substance to include attempt. The Court left open whether mere offers to sell sweep more broadly than the federal counterpart.

The Court also found that Pennsylvania and federal law similarly criminalize conduct under an attempt and accomplice framework. Pennsylvania’s and the federal approaches to attempt liability for drug offenses “are essentially identical.” Both follow the Model Penal Code’s requirements of intent and a substantial step. Likewise, Pennsylvania and federal law base their respective approaches to accomplice liability on the Model Penal Code: all three define an accomplice as a person who had the specific intent to facilitate a crime and acted to facilitate it. The Court rejected that Pennsylvania courts would hold a defendant liable under subsection (a)(30) for offers to sell,  mere preparation, or a buyer’s solicitation.

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