United State of America v. Dale Brandon

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-3914
UNITED STATE OF AMERICA
v.
DALE BRANDON,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Action No. 2-07-cr-00677-003)
District Judge: Honorable Norma L. Shapiro
Submitted Under Third Circuit LAR 34.1(a)
November 9, 2009
Before: AMBRO, GARTH, and ROTH, Circuit Judges
(Opinion filed December 18, 2009)
OPINION
AMBRO, Circuit Judge
Dale Brandon appeals the sentence imposed on him by the District Court after he
pled guilty to a two-count indictment for (1) conspiracy to distribute heroin in violation of
21 U.S.C. §§ 846 and 841(b)(1)(C), and (2) aiding and abetting the distribution of heroin

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in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 18 U.S.C. § 2. Brandon claims that
the Court erred in sentencing him pursuant to the career offender enhancement in the
United States Sentencing Guidelines § 4B1.1. He contends that the charging document
for a predicate offense did not prove that it was a felony controlled substance offense
punishable by over one year in prison, even though he was actually sentenced to two to
four years’ imprisonment for that offense. We affirm in all respects.
I.
In October 2007, Brandon was indicted by a grand jury for violations of the
statutes noted above. He was arrested in November 2007, and pled guilty in February
2008. This was an open plea, not pursuant to any written agreement with the
Government.
In May 2008, the final Pre-Sentence Investigation Report (“PSR”) was issued by
the assigned United States Probation Officer. The PSR concluded that Brandon was
subject to the career offender provisions of § 4B1.1 of the Guidelines. This conclusion
was based on two predicate offenses: (1) a state court conviction for robbery; and (2) a
state court conviction for possession of a controlled substance with intent to distribute.
Brandon does not dispute that the first offense qualifies as a predicate offense. He does,
however, dispute that the second offense qualifies. He challenged the PSR insofar as it
designated him a career offender, and declined to stipulate to any predicate offenses.
After the Government filed its response, Brandon was sentenced to 100 months’

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The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction1
under 28 U.S.C. § 1291. To the extent Brandon contends that his sentence was imposed
in violation of law, we have jurisdiction under 18 U.S.C. § 3742. Because Brandon raises
purely legal issues of statutory and constitutional interpretation, our review is plenary.
See, e.g., United States v. Singletary, 268 F.3d 196, 199 (3d Cir. 2001).
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imprisonment by the District Court in August 2008, and he appeals.1
II.
Brandon’s claim essentially is this: although he was actually sentenced to two to
four years’ imprisonment for a predicate offense, that is not sufficient to show that it was
an offense punishable by more than one year imprisonment for the purposes of the career
offender enhancement. We disagree.
We begin by looking to the career offender provision of the Guidelines. Section
4B1.1 defines a career offender as follows:
A defendant is a career offender if (1) the defendant was at least eighteen
years old at the time the defendant committed the instant offense of
conviction; (2) the instant offense of conviction is a felony that is either a
crime of violence or a controlled substance offense; and (3) the defendant
has at least two prior felony convictions of either a crime of violence or a
controlled substance offense.
Guidelines § 4B1.1(a). A controlled substance offense is also defined in the Guidelines:
The term “controlled substance offense” means an offense under federal or
state law, punishable by imprisonment for a term exceeding one year, that
prohibits the manufacture, import, distribution, or dispensing of a controlled
substance (or a counterfeit substance) or the possession of a controlled
substance (or a counterfeit substance) with intent to manufacture, import,
export, distribute, or dispense.
Guidelines § 4B1.2(b). Finally, a felony is defined as “a prior adult federal or state

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conviction for an offense punishable by . . . imprisonment for a term exceeding one year.”
Guidelines § 4B1.2 cmt. n.1.
Brandon pled guilty to a violation of 35 Pa. Cons. Stat. § 780-113(a)(30) in
September 2004. The statute reads as follows:
The following acts and the causing thereof within the Commonwealth are
hereby prohibited:
. . . .
(30) Except as authorized by this act, the manufacture, delivery, or
possession with intent to manufacture or deliver, a controlled substance by a
person not registered under this act, or a practitioner not registered or
licensed by the appropriate State board, or knowingly creating, delivering or
possessing with intent to deliver, a counterfeit controlled substance.
Subsection 780-113(f) establishes a penalty schedule for violations of § 780-113(a)(30).
It provides four categories of offense that are punishable by more than one year, and one
category that is punishable by less than one year.
In October 2004, Brandon was actually sentenced for this offense to, among other
things, “[n]ot less than Two nor more than Four years state custody.” The signed order of
sentence was presented to the District Court. At no point did Brandon object to or appeal
the sentence as being in violation of the penalty schedule in § 780-113(f), but Brandon
now submits that, because the offense could in some instances be punished by less than
one year, the evidence submitted by the Government as proof that his conviction for
possession with intent to distribute qualified as a “controlled substance offense” under
§ 4B1.1—namely, the signed order of sentence—was insufficient. He speculates that

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“perhaps [he] and his prior counsel agreed not to challenge the length of that sentence on
appeal, even though it is, in fact, greater than one year, because his guilty plea . . . would
not enhance a future federal court conviction, like the one currently before this Court.”
(Appellant’s Br. 20.) This argument falls far short of succeeding.
In United States v. Shepard, 544 U.S. 13, 16–17, 19 (2005), the Supreme Court
outlined the “modified categorical approach” to apply if the statutory elements of a prior
conviction are unclear as to whether they satisfy a sentence enhancement. While keeping
in mind the need to “avoid[] subsequent evidentiary enquiries into the factual basis for the
earlier conviction,” the Court did not limit the judicial inquiry strictly to charges and
instructions. Id. at 20. It also permitted reference to a judge’s formal rulings of law and
findings of fact, the statement of factual basis as shown by a transcript of plea colloquy or
written plea agreement presented to the court, or by a record of comparable findings of
fact adopted by the defendant upon entering the plea. Id. An order sentencing a
defendant to a term of imprisonment is certainly a judge’s formal ruling that a subsequent
court may look to under Shepard.
Accordingly, the formal order of the Court in 2004 for Brandon’s drug offense
under Pennsylvania law establishes that he was convicted of a controlled substance
offense felony punishable by imprisonment exceeding one year. Thus, the § 4B1.1
enhancement was proper.

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* * * * *
We hold that the Brandon met the requirements for a sentence enhancement under
Guidelines § 4B1.1, and thus affirm the judgment of the District Court.

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