United States of America v. Oronde Shelton

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
Nos. 24-1302, 24-1322
UNITED STATES OF AMERICA
v.
ORONDE SHELTON,
Appellant
______________
No. 24-1491
UNITED STATES OF AMERICA,
Appellant
v.
ORONDE SHELTON
______________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Nos. 2:09-cr-00232-001, 2:21-cr-00216-001)
U.S. District Judge: Honorable Christy Criswell Wiegand
______________
Submitted Under Third Circuit L.A.R. 34.1(a)
September 30, 2025
______________
Before: SHWARTZ, MATEY, and SCIRICA, Circuit Judges.
(Filed: October 3, 2025)

-- 1 of 5 --

2
______________
OPINION*
______________
SHWARTZ, Circuit Judge.
Oronde Shelton appeals his conviction and sentences for his violation of the
federal firearms laws and his supervised release, and the Government cross-appeals
Shelton’s firearms sentence. For the following reasons, we will affirm in part, vacate in
part, and remand for resentencing.
I
While on supervised release for a drug conviction, Shelton possessed firearms,
including a machinegun, as a convicted felon in violation of 18 U.S.C. §§ 922(g)(1),
924(e), and 922(o). He pleaded guilty but later moved to withdraw his plea and dismiss
the indictment, claiming that the felon-in-possession and machinegun charges violate the
Second Amendment. The District Court denied his motions and prepared for sentencing.
The Presentence Report (“PSR”) calculated Shelton’s base offense level as 20 and
increased it by 4 levels, under U.S.S.G. § 2K2.1(b)(6)(B), for his use of a firearm in
connection with another felony, resulting in an adjusted offense level of 24. The PSR
also found that Shelton was subject to the sentencing enhancement under the Armed
Career Criminal Act (“ACCA”) because he had at least three serious drug convictions,
resulting in an offense level of 34. Because this offense level was greater than the level
* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.

-- 2 of 5 --

3
under § 2K2.1, the PSR noted that § 4B1.4(b) required the higher offense level apply.
Thus, after reducing the offense level of 34 by 2 levels for acceptance of responsibility
and noting the criminal category was VI in light of the ACCA status (and the ACCA’s
mandatory minimum of 15 years’ imprisonment), the PSR recommended a Guidelines
range of 210 to 262 months’ imprisonment for the violation of § 922(g)(1) but noted that
the punishment for the § 922(o) offense was capped at the statutory maximum term of
120 months.
At sentencing, the District Court overruled Shelton’s objection to the
§ 2K2.1(b)(6)(B) enhancement but sustained his objection to the application of the
ACCA, finding that his prior state cocaine offenses are not ACCA predicate offenses
because “Pennsylvania’s definition of cocaine [was] broader” than the federal drug
schedules in effect at the time of Shelton’s federal offenses. App. 782. Without the
ACCA sentencing enhancement, Shelton had a total offense level of 22 (which included
the reduction for acceptance of responsibility) and a criminal history category of III,
resulting in an advisory Guidelines range of 51 to 63 months’ imprisonment. The Court
varied upward from this range and sentenced Shelton to 120 months’ imprisonment on
each count, to run concurrently, followed by 3 years’ supervised release. The Court also
revoked his supervised release for his drug conviction and sentenced him to 57 months’
imprisonment to run consecutive to his 120-month sentence.
Shelton appeals, and the Government cross-appeals.

-- 3 of 5 --

4
II1
The District Court properly denied Shelton’s motions to withdraw his guilty plea
and to dismiss the indictment because his charges under § 922(g)(1) and § 922(o) did not
violate the Second Amendment. Shelton committed these firearm-possession offenses
while on supervised release and thus did “not have a Second Amendment right to possess
a firearm.” United States v. Moore, 111 F.4th 266, 273 (3d Cir. 2024) , cert. denied, No.
24-968, 2025 WL 1787742 (U.S. June 30, 2025). Therefore, his Second Amendment
challenge fails.2
Shelton, however, must be resentenced. The District Court, in assessing whether
Shelton’s state drug convictions count as ACCA predicate offenses, erroneously
considered the drug schedules in effect at the time of his federal offenses rather than the
schedules in effect at the time of his state predicate offenses.3 Brown v. United States,
1 The District Court had jurisdiction under 18 U.S.C. § 3231, and we have
jurisdiction under 28 U.S.C. § 1291. We exercise de novo review over the District
Court’s legal conclusions. United States v. Bergrin, 650 F.3d 257, 264 (3d Cir. 2011);
United States v. Blair, 734 F.3d 218, 221 n.3 (3d Cir. 2013).
2 Although Moore involved a Second Amendment challenge to § 922(g)(1), its
reasoning that “history and tradition support disarming convicts who are completing their
sentences” applies equally to Shelton’s challenge to his § 922(o) conviction because he
possessed a machinegun while completing his sentence. 111 F.4th at 273. While we
doubt that he preserved a facial challenge to either statute, it too fails because his as-
applied challenge fails. Id. at 273 n.5.
3 We need not reach Shelton’s challenge to the U.S.S.G. § 2K2.1(b)(6)(B)
enhancement because his challenge may become moot if the ACCA sentencing
enhancement applies, as the ACCA enhancement would result in an offense level that
would exceed the offense level if the § 2K2.1(b)(6)(B) enhancement applies. See
U.S.S.G. § 4B1.4(b); cf. United States v. Abdullah, 905 F.3d 739, 749-50 (3d Cir. 2018)
(holding moot defendant’s claim that the court erroneously enhanced his offense level
because, even if the enhancement were subtracted, his “final offense level would remain
unaffected” as “the career-offender enhancement requires that his minimum offense level

-- 4 of 5 --

5
602 U.S. 101, 123 (2024). We therefore will vacate both sentences4 and remand for the
District Court to consider whether the ACCA applies based on the state and federal drugs
schedules in effect at the time of Shelton’s state offenses.
III
For the foregoing reasons, we will affirm in part, vacate in part, and remand for
resentencing.
be 34”). Because we will vacate his firearms sentence, we also need not address
Shelton’s challenges to its procedural or substantive unreasonableness. See United States
v. Payano, 930 F.3d 186, 191 n.2 (3d Cir. 2019) (“Because we will vacate [defendant’s]
sentence, we need not address his two additional arguments on appeal: (1) that the
District Court procedurally erred by not adequately explaining its upward variance, and
(2) that the imposition of a four-year sentence was substantively unreasonable.”).
4 Because we are unable to determine whether the sentence imposed for the
firearms offenses impacted the District Court’s supervised release sentence, we also
vacate that sentence. Nothing herein, however, constitutes a ruling concerning any
challenge made to that sentence.

-- 5 of 5 --