NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 16-2906 _____________ UNITED STATES OF AMERICA v. MALACHI M. GLASS, Appellant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 ...
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