PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________ No. 17-3503 ______________ UNITED STATES OF AMERICA v. KENNETH DANIELS, Appellant ______________ On Appeal from the United States District Court For the Eastern District of Pennsylvania (D.C. Crim. No. 2-15-cr-00127-001) Honorable Berle M. Schiller, District Judge ______________ Submitted under Third Circuit L.A.R. 34.1(a) October 23, 2018 BEFORE: KRAUSE, COWEN, and FUENTES, Circuit Judges (Opinion Filed: February 7, 2019) ______________ Emily McKillip William M. McSwain Timothy M. Stengel Robert A. Zauzmer Office of United States Attorney 615 Chestnut Street Suite 1250 Philadelphia, PA 19106 Attorneys for Appellee Karl D. Schwartz P.O. Box 8846 Elkins Park, PA 19027 Attorney for Appellant ______________ OPINION OF THE COURT ______________ COWEN, Circuit Judge. Kenneth Daniels appeals from the criminal sentence entered by the United States District Court for the Eastern District of Pennsylvania. He argues that a violation of the Pennsylvania Controlled Substance, Drug, Device and Cosmetic Act, 35 Pa. Stat. Ann. § 780-113(a)(30), does not qualify as a “serious drug offense” under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(A)(ii). We must first decide whether § 924(e)(2)(A)(ii)’s definition of a “serious drug offense” encompasses attempts (as defined under federal law) to 2 manufacture, distribute, or possess with intent to manufacture or distribute a controlled substance. If it does, we must then consider whether the scope of attempt and accomplice liability under Pennsylvania law is coextensive with the meaning of those terms under federal law. Based in large part on our recent rulings in United States v. Glass, 904 F.3d 319 (3d Cir. 2018), petition for cert. filed (U.S. No. 18-6748) (Nov. 14, 2018), and Martinez v. Attorney General, 906 F.3d 281 (3d Cir. 2018), as well as our older yet still precedential opinion in United States v. Gibbs, 656 F.3d 180 (3d Cir. 2011), we answer both questions in the affirmative. Accordingly, Daniels’s sentence will be affirmed. I. Pursuant to a plea agreement, Daniels entered a guilty plea to one count of being a convicted felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). He had at least three previous convictions under the Pennsylvania drug statute, 35 Pa. Stat. Ann. § 780-113(a)(30), for possession with intent to deliver cocaine. Daniels reserved his right to challenge the government’s allegation that he was an armed career criminal under 18 U.S.C. § 924(e).1 If applied, § 924(e) triggers a fifteen-year mandatory minimum. According to Daniels, his convictions cannot count as ACCA predicates because the elements of the state drug statute sweep more broadly than the generic definition of a drug 1 Pursuant to United States v, Zudick, 523 F.2d 848 (3d Cir. 1975), Daniels also preserved his right to appeal the District Court’s denial of his suppression motion. He does not, however, raise that issue in this appeal. 3 distribution crime. He argued that, “[b]y virtue of Pennsylvania’s treatment of solicitation and mere offers to sell, it is far from clear that a violation of 35 Pa.C.S. § ...
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