United States v. Dorian Dawson ( 2022 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 20-3338
_____________
UNITED STATES OF AMERICA
v.
DORIAN DAWSON,
Appellant
_____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(District Court No. 2:18-cr-00085-001)
District Judge: Honorable David S. Cercone
_____________________________________
Argued February 10, 2022
(Filed: April 28, 2022)
Before: GREENAWAY, JR., SCIRICA, and RENDELL,
Circuit Judges.
Lisa B. Freeland
Renee Pietropaolo (argued)
Office of Federal Public Defender
1001 Liberty Avenue
Suite 1500
Pittsburgh, PA 15222
Counsel for Appellant
Stephen R. Kaufman
Adam N. Hallowell (argued)
Laura S. Irwin
Office of the United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
Counsel for Appellee
_________
OPINION OF THE COURT
_________
RENDELL, Circuit Judge.
Dorian Dawson appeals his sentence for possession of
fentanyl with intent to distribute. He raises two claims of error.
First, Dawson argues that he should not have been subject to a
career offender enhancement because his state drug trafficking
convictions are not “controlled substance offenses” under the
Sentencing Guidelines. We hold that those convictions are
career offender predicates, as the state offense, 35 Pa. Cons.
Stat. §780-113(a)(30), does not criminalize a broader range of
conduct than the Guidelines. Second, Dawson contends that
his sentence cannot stand because the District Court erred in
failing to rule on a controverted issue of fact at sentencing—to
2
wit, whether Dawson caused one of his fentanyl ‘clients’ to die
from a drug overdose. See Fed. R. Crim. P. 32(i)(3)(B).
However, Dawson failed to preserve this argument for plenary
review, as he did not object when the putative error became
evident. Reviewing for plain error then, we find that Dawson
has not shown his substantial rights were affected.
Accordingly, we will affirm.
I.
On October 17, 2016, Dawson was arrested in
Brentwood, Pennsylvania. He was caught driving a car
containing bags of fentanyl, stamped with the label “Peace of
Mind”. Earlier that day, Police had responded to the overdose
death of one “L.B.”, who was found with empty and full bags
of fentanyl bearing the same “Peace of Mind” label.
Investigation of L.B.’s cell phone revealed that Dawson had
been supplying L.B. with fentanyl; Police then used the
deceased’s phone to set up a drug deal with Dawson,
apprehending him upon his arrival.
Dawson was initially charged in state court with various
drug trafficking offenses, including drug delivery resulting in
death, 18 Pa. Cons. Stat. § 2506, for his alleged role as the
supplier of L.B.’s fatal dose. However, the case was ultimately
adopted by federal authorities in the Western District of
Pennsylvania, who indicted Dawson on one count of
possessing fentanyl with intent to distribute, 21 U.S.C. §§
841(a)(1), (b)(1)(C). Dawson entered an open guilty plea to
this sole count.
3
Dawson was caught with only four grams of fentanyl,
but a lengthy history of drug dealing—he had been convicted
four times of heroin trafficking under 35 Pa. Cons. Stat. § 780-
113(a)(30)—led Probation to classify him as a career offender
and calculate a substantial guidelines range of 188 to 235
months’ imprisonment. Dawson objected to this career
offender designation, yet he conceded that then-controlling
precedent, United States v. Hightower, 25 F.3d 182 (3d Cir.
1994), foreclosed his argument that § 780-113(a)(30) is not
categorically a “controlled substance offense” under the
applicable Guideline, U.S.S.G. § 4B1.2(b) (“The term
‘controlled substance offense’ means an offense under federal
or state law . . . that prohibits the manufacture, import, export,
distribution, or dispensing of a controlled substance . . . .”). As
we discuss at length below, the new life given to this contention
by our overruling of Hightower in United States v. Nasir, 17
F.4th 459 (3d Cir. 2021), grounds the primary issue in this
appeal.
Dawson also objected to the Pre-Sentence Report’s
(“PSR”) mention of L.B.’s death from drug overdose and, in
their pre-sentencing submissions, Dawson and the
Government sparred over whether the death should be
attributed to Dawson at sentencing under 18 U.S.C. § 3553(a).
Prior to sentencing, the District Court tentatively overruled
Dawson’s objection to those portions of the PSR dealing with
the overdose and invited him to make further submissions on
the matter at the upcoming hearing.
On November 5, 2020, the District Court sentenced
Dawson to 142 months’ imprisonment, reflecting a 46-month
downward variance from the bottom end of his Guidelines
range. Although the District Court conclusively overruled his
4
objection to the PSR’s inclusion of L.B.’s overdose, the Court
neither held that Dawson caused the death nor deemed the issue
irrelevant to crafting a sentence under the § 3553(a) factors.
See Fed. R. Crim. P. 32(i)(3)(B). However, as we explain in
detail below, Dawson did not preserve any claim of error
stemming from this purported omission.
Dawson timely appealed.
II.
The District Court had jurisdiction pursuant to 18
U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291and 18 U.S.C. § 3742(a). The interpretation of the Guidelines
is a legal question, so we exercise plenary review. United
States v. Wilson, 880 F.3d 80, 83 (3d Cir. 2018). We review
unpreserved objections for plain error. United States v. Dahl,
833 F.3d 345, 349 (3d Cir. 2016).
III.
A.
We begin by addressing the career offender
enhancement. The District Court agreed with Probation that
Dawson had at least two qualifying predicate convictions—his
repeated violations of 35 Pa. Cons. Stat. § 780-113(a)(30)—for
“controlled substance offense[s]” under the Guidelines,
making him a career offender. See U.S.S.G. § 4B1.1(a) (“A
defendant is a career offender if . . . [he] has at least two prior
5
felony convictions of . . . a controlled substance offense.”).1
Before us, Dawson disputes this finding, arguing that § 780-
113(a)(30) is not a controlled substance offense.2 His
argument relies on the fact that one element of § 780-
113(a)(30), the “delivery . . . [of] a controlled substance,” can
be satisfied by the “attempted transfer . . . of a controlled
substance.” 35 Pa. Cons. Stat. § 780-102. Dawson insists this
means that Pennsylvania drug “delivery” cannot be a drug
“distribution” offense under U.S.S.G. § 4B1.2(b).
The District Court examined this issue through the lens
of then-applicable precedent, United States v. Hightower, 25
1
The Parties do not dispute that § 4B1.1(a)’s other
requirements are met here: Dawson was at least 18 years old
when he committed the instant offense and that offense—21
U.S.C. § 841(a) and § 841(b)(1)(C)—is a Guidelines
“controlled substance offense.” See, e.g., United States v.
McQuilkin, 97 F.3d 723, 725 n.3 (3d Cir. 1996) (stating that §
841(a) is a “controlled substance offense[]”); United States v.
Ward, 972 F.3d 364, 371 n.8 (4th Cir. 2020). As we discuss in
detail below, however, Dawson’s position commits him to the
untenable conclusion that § 841(a) is not categorically a
controlled substance offense.
2
The Government insists that we settled this very issue in
United States v. Glass, 904 F.3d 319 (3d Cir. 2018). There, we
stated expansively that Ҥ 780-113(a)(30) does not sweep more
broadly than § 4B1.2.” Id. at 324. This broad language cannot
be considered controlling, however, as the Glass Court ruled
only on the question of whether the state statute was overbroad
insofar as it proscribed mere offers to sell drugs. See id. at
322–23.
6
F.3d 182 (3d Cir. 1994), in which we relied on the Sentencing
Commission’s Commentary to hold that § 4B1.2(b) includes
inchoate drug offenses. Under this rule, Dawson’s point went
nowhere: even if § 780-113(a)(30) somehow codifies an
inchoate crime within an otherwise substantive provision, it
would nonetheless be included in the Guideline via the
Commentary. After Dawson had been sentenced, however, we
reversed course in United States v. Nasir, 17 F.4th 459 (3d Cir.
2021), overruling Hightower and holding that “inchoate crimes
are not included in” § 4B1.2(b)’s “controlled substance
offense” definition, id. at 472. Our about-face would revive
Dawson’s argument but for one fact: § 780-113(a)(30) is not
an inchoate drug crime.
Nasir is distinguishable because § 780-113(a)(30) is a
completed offense which, in one definition, uses the word
7
“attempted” in its ordinary sense.3 4 This subtle distinction was
first discerned by Chief Judge Sutton, writing in a Sixth Circuit
case comparable to Nasir. See United States v. Havis, 929 F.3d
317, 319 (6th Cir. 2019) (Sutton, J., concurring in the denial of
en banc reconsideration) (noting that the term “attempted
transfer,” as used to define “delivery” in a drug trafficking
statute, takes its “ordinary,” rather than “legal term-of-art,”
meaning). The Sixth Circuit went on to adopt and apply this
distinction in a case materially identical to Dawson’s. See
United States v. Thomas, 969 F.3d 583, 584-85 (6th Cir. 2020)
(per curiam); see also United States v. Garth, 965 F.3d 493,
497 (6th Cir. 2020).5
3
In Nasir, we considered whether § 4B1.2(b) “include[s]
inchoate crimes.” 17 F.4th at 469 n.10 (citing Offense,
BLACK'S LAW DICTIONARY (11th ed. 2019)) (“An inchoate
offense is ‘[a] step toward the commission of another crime,
the step itself being serious enough to merit punishment.’
Inchoate offenses include, for example, the attempt,
conspiracy, or solicitation to commit a crime.”). Nasir had
been classified as a career offender owing, in part, to a prior
Virginia conviction for “attempting to possess cocaine with
intent to distribute.” Id. at 464. On appeal, he argued that the
plain meaning of § 4B1.2(b) did not sweep in inchoate drug
crimes like his and we should not defer to the Commentary’s
interpretation. We agreed and, accordingly, found that Nasir
was not a career offender.
4
At Oral Argument, Dawson conceded that “Nasir is
distinguishable.” Oral Arg. Tr. at 18.
5
In United States v. Thomas, the appellant argued that his prior
convictions for heroin delivery under Michigan law were not
Guideline career offender predicates because the state statute
could be satisfied by an “attempted transfer” of drugs. 969
8
The Sixth Circuit’s analysis provides a useful paradigm
for our consideration of Pennsylvania’s drug trafficking
statute. Although the Commonwealth’s courts have provided
little guidance on the meaning of “attempted transfer,” careful
analysis of statutory structure and prosecutorial practice reveal
that § 780-113(a)(30) is not an inchoate crime. Instead, drug
“delivery” is a complete offense, whether it is committed via
actual or attempted transfer of drugs.
To start with, Pennsylvania prosecutes legal attempts to
deliver drugs under the Code’s general attempt provision, 18
Pa. Cons. Stat. § 901, rather than by charging a violation of §
780-113(a)(30) and then invoking § 780-102(b)’s “attempted
transfer” definition.6 To interpret “attempted transfer” as an
embedded inchoate offense would mean holding that
F.3d 583, 584–85 (6th Cir. 2020) (per curiam). The Sixth
Circuit disagreed, observing that “the definition of delivery
used under Michigan (and federal) law—again, ‘the actual,
constructive, or attempted transfer of a controlled substance’—
does not include ‘attempted delivery.’ Instead, it includes only
‘attempted transfer.’ And an attempted transfer qualifies as a
completed delivery.” Id. (internal citations omitted).
6
See, e.g., Commonwealth v. Bernard, 2019 PA Super 271,
218 A.3d 935, 938 n.1 (2019) (offense of “attempt to deliver a
controlled substance” charged under 18 Pa. Cons. Stat. § 901);
Commonwealth v. Taylor, No. 796 MDA 2018, 2019 WL
618749, at *1 (Pa. Super. Ct. Feb. 14, 2019) (same);
Commonwealth v. McCullough, No. 1642 MDA 2013, 2014
WL 10752176, at *1 (Pa. Super. Ct. Dec. 9, 2014) (same);
Commonwealth v. Mills, 478 A.2d 30, 31 (1984) (same).
9
Pennsylvania has codified a redundant, vestigial crime—
violating the canon against surplusage. See Marx v. Gen.
Revenue Corp., 568 U.S. 371, 386 (2013) (canon against
surplusage “is strongest when an interpretation would render
superfluous another part of the same statutory scheme”)
(internal citations omitted).
Further, the “attempted transfer” of drugs cannot be an
inchoate offense because drug “transfer” is not a codified
crime. The Commonwealth defines “criminal attempt” as
follows: “A person commits an attempt when, with intent to
commit a specific crime, he does any act which constitutes a
substantial step toward the commission of that crime.” 18 Pa.
Cons. Stat. § 901(a) (emphasis added). To be guilty of a legal
attempt then, one must have the intent to commit some distinct,
“specific crime.” So, one cannot attempt “transfer” in the
technical sense because the Commonwealth criminalizes only
actual transfer, constructive transfer, and attempted transfer—
not mere “transfer.” 35 Pa. Cons. Stat. § 780-102(b); Garth,
965 F.3d at 497 (“Delivery means attempted transfer, not
attempted delivery.”).
Finally, Dawson’s hypothesized inchoate offense would
be inconsistent with Pennsylvania mens rea caselaw. If
“attempted transfer” is an inchoate crime like any other, then
‘intent’ must be the applicable mens rea, as Dawson insists.
But the mens rea applicable to drug “delivery” is merely
knowing. See Commonwealth v. Murphy, 844 A.2d 1228, 1234
(2004). The better reading of state law avoids such anomalies.
In sum, Nasir does not control here because it addressed
only true inchoate offenses, none of which appear in § 780-
113(a)(30). This conclusion does not settle the career offender
10
issue, however, as Dawson argues further that—Nasir aside—
§ 780-113(a)(30) is categorically overbroad under the ordinary
meaning of the term “distribution” in § 4B1.2(b). It is to that
argument which we now turn.
1.
We use the categorical approach to determine if a past
conviction is a career offender predicate, considering only the
elements of the conviction statute, not the facts of the
defendant’s actual misconduct. United States v. Williams, 898
F.3d 323, 333 (3d Cir. 2018) (citing United States v. Chapman,
866 F.3d 129, 133 (3d Cir. 2017)). We compare the elements
of that statute with the relevant Guidelines provision—here, §
4B1.2(b)’s definition of a “controlled substance offense.” If
the statute proscribes a broader range of conduct than the
Guideline, then a conviction for the state offense will not count
as a controlled substance offense. Id. at 334 (citing Mathis v.
United States, 136 S. Ct. 2243 (2016)). But, if the statute
proscribes an identical or narrower range of conduct, then it is
a controlled substance offense. See United States v. Daniels,
915 F.3d 148, 151 (3d Cir. 2019).
Assessing categorical fit here, we look first to the
conduct proscribed by Dawson’s predicate offenses: his
violations of 35 Pa. Cons. Stat. § 780-113(a)(30). This statute
prohibits, inter alia, “the manufacture, delivery, or possession
with intent to manufacture or deliver, a controlled substance . .
. .” § 780-113(a)(30) (emphasis added). As noted above,
Pennsylvania law defines “deliver” and “delivery” as “the
actual, constructive, or attempted transfer from one person to
another of a controlled substance, other drug, device or
11
cosmetic whether or not there is an agency relationship.” 35
Pa. Cons. Stat. § 780-102(a) (emphasis added).
Now to the Guidelines, they define a “controlled
substance offense” as:
an offense under federal or state law, punishable
by imprisonment for a term exceeding one year,
that prohibits the manufacture, import, export,
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.
U.S.S.G. § 4B1.2(b) (emphasis added).7
The Parties agree that we must analyze the ordinary
meaning of the Guideline text to determine if § 780-113(a)(30)
is overbroad. They differ, however, on what that analysis
reveals and on the relevance of the Guideline’s context. We
will begin by considering the “plain text” of the Guideline,
Nasir, 17 F.4th at 471, and then go on to discuss its broader
context, policy, and history, see United States v. Perez, 5 F.4th
390, 395 (3d Cir. 2021) (citing Kisor v. Wilkie, 139 S. Ct. 2400,
2415 (2019)).
7
There is no dispute that § 780-113(a)(30) is an offense under
state law, punishable by more than one year imprisonment.
12
2.
Starting with the plain text of § 4B1.2(b), we ask if the
ordinary meaning of “an offense . . . that prohibits the . . .
distribution . . . of a controlled substance” includes offenses
that prohibit the “attempted transfer” of a controlled substance.
See, e.g., United States v. Loney, 219 F.3d 281, 294 (3d Cir.
2000). To assess ordinary usage, legal and general dictionaries
are a good place to start, United States v. Geiser, 527 F.3d 288,
294 (3d Cir. 2008), especially dictionaries “from the era” of the
Guideline’s enactment, see, e.g., Sandifer v. U.S. Steel Corp.,
571 U.S. 220, 227 (2014); see also Niz-Chavez v. Garland, 141
S. Ct. 1474, 1480 (2021) (“When called on to resolve a dispute
over a statute’s meaning, this Court normally seeks to afford
the law’s terms their ordinary meaning at the time Congress
adopted them.”). If legal sources provide definitions specific
to the relevant context, then we ought to rely on those, at least
when they are consistent with lay usage. See, e.g., Gresham v.
Meden, 938 F.3d 847, 849–50 (6th Cir. 2019).
“Distribution” means “giving out or division among a
number, sharing or parceling out, allotting, dispensing,
apportioning.” BLACK’S LAW DICTIONARY 475 (6th ed. 1990);
see also OXFORD ENGLISH DICTIONARY (2d ed. 1989) (“The
action of dividing and dealing out or bestowing in portions
among a number of recipients; apportionment, allotment.”).
Significantly, the Black’s Law Dictionary edition closest in
time to the adoption of § 4B1.2(b)’s current form provided
definitions of salient terms particularized to the criminal drug
law context; in that sense, “a person ‘distributes’ a dangerous
drug when he sells, transfers, gives or delivers to another . . . .”
BLACK’S LAW DICTIONARY 475 (6th ed. 1990) (emphasis
added). “In the context of illegal transfer of drugs, ‘deliver’
13
means the actual, constructive, or attempted transfer from one
person to another of a controlled substance.” See BLACK’S
LAW DICTIONARY 429 (6th ed. 1990) (emphasis added); see
also BLACK’S LAW DICTIONARY (5th ed. 1981) (same).
We find the authority of the Black’s Law Dictionary
persuasive here, as it provides definitions of the salient terms
in the precise, relevant context, and “context is everything in
interpretation. One can’t take the broadest (or for that matter
narrowest) lay definition and simply affix it to the statute.”
Gresham, 938 F.3d at 849. As we shall see, those definitions
reflect consistent legal usages at the time of the Guideline’s
adoption, see infra pp. 24–36, and they are consistent with the
OED’s broader lay definitions.
Applying those contextualized dictionary definitions
then, the ordinary meaning of drug “distribution” plainly
includes the “attempted transfer” of drugs, by way of the
meaning of “delivery”. The fact that Pennsylvania drug
trafficking law mirrors these linguistic relationships is a
facially compelling reason to find it comports with the
Guidelines.
Simple examples of ordinary usage confirm the raw
dictionary analysis. Consider a drug dealer who apportions his
‘stash’ into labeled packages, drives them to the local Post
Office, and mails them out to buyers. Even if the packages are
soon intercepted by Postal Inspectors, the dealer has already
“distributed” the packages—by mailing them, he has
“attempted transfer” to the buyers. Or, take a mid-level drug
captain who places allotments of drugs at pre-arranged
locations for collection by street-level dealers. He has
“distributed” the drugs, even if the Police discover the parcels
14
before the transferee dealers do—again, a person can engage
in drug “distribution” by attempting to transfer drugs.
Likewise, when Police conduct a “buy-bust” operation in
which a dealer is arrested before the drugs are finally handed
over, the dealer engaged in the “distribution” of those drugs by
attempting to transfer them.8
8
Dawson insists that examples such as these describe only
“actual” rather than “attempted” transfers, as “we don’t focus
on[:][D]id the receiver actually take [the items] into his
possession[?]” in ordinarily evaluating whether such a transfer
was completed or not. Oral Arg. Tr. at 15–16. We disagree.
“Transfer” means “[t]o convey or remove from one place,
person, etc., to another; pass or hand over from one to another;
specifically, to change over the possession or control of . . . .”
BLACK’S LAW DICTIONARY 1497 (6th ed. 1990). Each of these
senses supports the view that our focus remains receiver-
relative in discussing the distribution and transfer of drugs, the
applicable linguistic context. See Gresham v. Meden, 938 F.3d
847, 849 (6th Cir. 2019) (“[C]ontext is everything in
interpretation.”). First, we do not say that the dealer caught in
a buy-bust has “distributed” drugs just because he has
“remove[d]” them to the location of the deal. Rather, we care
about the fact that he has arrived there to “convey” the drugs
to another “person”. If the deal is interrupted, then our use of
“distribution” to describe the situation grasps onto the abortive
inter-personal transfer, that is, the attempt aspect. Second, the
“pass or hand over” and “change over” senses clearly focus our
attention on the attempt aspect as well; if the buy-bust dealer
tries but fails to “hand over” the drugs, then he has “attempted”
to transfer them without completing an “actual” transfer.
Finally, the specific drug trafficking definitions found in
15
Dawson presents counter-hypotheticals showing that
we sometimes use “distribute” in the narrow sense of a
completed transfer. See Appellant’s Reply Br. at 3. But these
miss the point. What he needs to make out is the obverse: that
there are “attempted transfers” which are not instances of
“distribution”. Only then would he show that § 780-113(a)(30)
might reach beyond the scope of the Guideline. This Dawson
fails to do. Indeed, he does not even address the fact that
“distribution” and “delivery” have specific meanings when
used in the drug trafficking context, meanings inconsistent
with Dawson’s narrow reading of the Guideline text.9
Black’s Law Dictionary flatly refute Dawson’s position that
“distribution” refers only to “actual transfer”.
9
Because we conclude that the “attempted transfer” of
controlled substances criminalized by § 780-113(a)(30) does
not “authorize the state government to [prosecute] broader
conduct” than is included in the federal definition, we need not
inquire whether there is a “realistic probability” that the
Commonwealth would prosecute such conduct. See Salmoran
v. Att'y Gen. United States, 909 F.3d 73, 82 (3d Cir. 2018);
Hylton v. Sessions, 897 F.3d 57, 63 (2d Cir. 2018) (“The
requirement that a defendant show a realistic probability that
the State would apply its statute to conduct that falls outside
the generic definition of a crime operates as a backstop when a
statute has indeterminate reach, and where minimum conduct
analysis invites improbable hypotheticals.” (internal quotation
marks omitted)).
16
3.
The Government also urges that the Controlled
Substances Act (“CSA”), 21 U.S.C. § 801 et seq., provides
significant guidance for interpreting the meaning of
“distribution”. Cf. Boumediene v. Bush, 553 U.S. 723, 776
(2008) (“When interpreting a statute, we examine related
provisions in other parts of the U.S. Code.”). We agree.
The relevant definitions in the CSA track those in
Black’s Law Dictionary and map directly onto § 4B1.2(b) and
§ 780-113(a)(30). The CSA defines “distribute” as “to deliver
(other than by administering or dispensing) a controlled
substance or a listed chemical.” 21 U.S.C. § 802(11). It
defines “deliver” and “delivery” as “the actual, constructive, or
attempted transfer of a controlled substance or a listed
chemical, whether or not there exists an agency relationship.”
21 U.S.C. § 802(8). Reading § 4B1.2(b)’s use of “distribution”
in light of these definitions, our ordinary language analysis
would appear to be confirmed. Although § 4B1.2(b) does not
incorporate the CSA’s conduct definitions by direct reference,
there are several reasons why they nonetheless should inform
our reading of the Guideline text.10
The CSA has defined “distribute” to include
“attempted transfer” (by way of “delivery”) since the time of
its enactment in 1970; it did so when the term “distribution”
was added to § 4B1.2(b) in 1989. See U.S.S.G. App. C, Vol.
I, at C. 138 (1989). Generally, when similar language is used
10
We take no position regarding the relationship between the
term “controlled substance” in § 4B1.2(b) and the controlled
substance schedules contained in the CSA.
17
in related statutes in functionally equivalent ways, we presume
the same meaning applies. See M.R. v. Ridley Sch. Dist., 868
F.3d 218, 224 (3d Cir. 2017) (citing Gomez-Perez v. Potter,
553 U.S. 474, 481 (2008); see also Azar v. Allina Health Servs.,
139 S. Ct. 1804, 1812 (2019) (“This Court does not lightly
assume that Congress silently attaches different meanings to
the same term in the same or related statutes.”). The noun and
verb forms “distribution”/“distribute”—neither Party contends
the formal difference matters—are used in functionally
equivalent ways in the CSA and § 4B1.2(b): in the former, as
a conduct prohibition; in the latter, to refer to convictions for
violating that species of prohibition. See 21 U.S.C. § 841(a)(1)
(making it unlawful to “distribute” a controlled substance).
Accordingly, our default assumption must be that the
Commission—and, by implication, Congress—intended
“distribution” to take the meaning long familiar from the
CSA.11
11
This assumption is bolstered when we consider that the
Uniform Controlled Substances Act of 1970’s identical
definitions of “distribute” and “delivery” had been adopted in
many states by 1989. See, e.g., Cal. Health & Safety Code §§
11012, 11009; Del. Code Ann. tit. 16, §§ 4701(9), (13); N.J.
Stat. Ann. § 2C:35-2; N.Y. Pub. Health Law §§ 3302(7), (10);
Va. Code Ann. § 54.1-3401; see also Scott W. Parker, Note,
An Argument for Preserving the Agency Defense As Applied to
Prosecutions for Unlawful Sale, Delivery, and Possession of
Drugs, 66 FORDHAM L. REV. 2649, 2691 (1998) (observing
that not every state adopted the Uniform Act’s criminalization
of drug “delivery” but those that did generally followed the
Act’s definition). Thus, the CSA’s definitions would have
been doubly ready-to-hand for the Guideline drafters, given
their ubiquity in state criminal codes.
18
The history of § 4B1.2(b) also reveals that the
Commissioners had the CSA in mind in defining the universe
of crimes that would trigger the career offender enhancement.
The Guideline’s original version defined “controlled substance
offense” as “an offense identified in 21 U.S.C. §§ 841 . . . of
the Controlled Substance Act . . . and similar offenses.”
U.S.S.G. § 4B1.2(2) (1987). Then as now, 21 U.S.C. § 841makes it illegal to “distribute” under § 802’s definition of that
term. Although the Commission revised § 4B1.2(b) in 1989 to
replace specific statutory references with the current list of
generic offense categories, this was not a sub silentio
narrowing of the Guideline’s scope. Rather, the Commission
believed the new form provided “comparable but clearer
definitions.” See Sentencing Guidelines for United States
Courts, 54 Fed. Reg. 9122, 9162 (Mar. 3, 1989). There is no
reason to think that Congress had a different understanding of
the 1989 amendment when it later took effect.
Congress’s instructions in the Sentencing Reform Act
of 1984 (“SRA”), Pub. L. 98-473, Title II, § 217(a), 98 Stat.
1837, 2021 (eff. Oct. 12, 1984), also support the view that the
meaning of “distribution” in § 4B1.2(b) must be at least as
broad as under the CSA. In the SRA, Congress ordered the
Commission to design a career offender provision for the
Guidelines as follows:
(h) The Commission shall assure that the
guidelines specify a sentence to a term of
imprisonment at or near the maximum term
authorized for categories of defendants in which
the defendant is eighteen years old or older
and—
19
(1) has been convicted of a felony that is-
[. . .]
(B) an offense described in section
401 of the Controlled Substances Act
(21 U.S.C. [§] 841) . . .
and
(2) has previously been convicted of two
or more prior felonies, each of which is—
[. . .]
(B) an offense described in section
401 of the Controlled Substances Act
(21 U.S.C. [§] 841)[.]
28 U.S.C. § 994(h)(2)(B) (emphasis added). We have stated
that the career offender Guideline “implements 28 U.S.C. §
994(h)[.]” See United States v. Whyte, 892 F.2d 1170, 1174 (3d
Cir. 1989). And, as we explained above, § 841 proscribes
distributing drugs via “attempted transfer”. See 21 U.S.C. §§
802(8) and (11); United States v. Rowe, 919 F.3d 752, 759 (3d
Cir. 2019) (21 U.S.C. § 802 provides relevant definitions for
terms in 21 U.S.C. § 841). Consequently, to hold that the
Guideline excludes “attempted transfer” offenses would be
inconsistent with our holding in Whyte that “predicate drug
offenses” include those which “could have been prosecuted
under 21 U.S.C. § 841,” as “attempted transfer” can be so
prosecuted. 892 F.2d at 1174; see also United States v. Tobin,
20
676 F.3d 1264, 1289 (11th Cir. 2012) (affirming conviction as
instance of “attempted transfer”).
Worse, it would mean embracing the absurd proposition
that § 841—marked out by Congress as the paradigmatic
controlled substance statute—is not categorically a controlled
substance offense under the Guidelines. See United States v.
Booker, 994 F.3d 591, 596 (6th Cir. 2021) (“It would be
remarkable if [appellant] were right that § 841(a)(1) did not
describe a ‘controlled substance offense’ under U.S.S.G. §
4B1.2(b)). In directing the Sentencing Commission to enact
the career-offender Guidelines, Congress specifically
instructed that ‘offense[s] described in . . . 21 U.S.C. [§] 841’
be covered.”); Garth, 965 F.3d at 497 (“By this logic, federal
distribution encompasses attempted distribution, so all 21
U.S.C. § 841(a) convictions for distribution and possession
with intent to distribute (that is, most federal drug convictions)
would fall outside the guidelines’ definition of a controlled-
substance offense. That can’t be what the guidelines’ drafters
had in mind.”); United States v. Havis, 929 F.3d 317, 320 (6th
Cir. 2019) (Sutton, J., concurring in the denial of en banc
reconsideration) (“I agree that it would be bizarre if violating
the primary provision of the Controlled Substances Act turned
out not to be a controlled substance offense.”). That result
would be contrary to Dawson’s own implicit assumption
before us that § 841 convictions can function as the instant
offense, § 4B1.1(a)(2), triggering the career offender
Guideline, see Appellant’s Br. at 14–34 (arguing for reversal
based only on § 4B1.1(a)(3)). Dawson’s argument that
“attempted transfer” crimes cannot serve as Guideline
predicate offenses would prove too much, as the same
definition of “controlled substance offense” applies to both §
4B1.1(a)(2) and § 4B1.1(a)(3). He thus argues for a rule that
21
would fly in the face of long-established, universal Circuit
Court practice assuming the contrary.12 Our law does not
command such a bizarre result. See Quarles v. United States,
139 S. Ct. 1872, 1879 (2019) (“We should not lightly conclude
that Congress enacted a self-defeating statute.”).
The caselaw of our sister Circuits is also instructive in a
more direct way, as three of them have held that “distribution”
in § 4B1.2(b) has the same meaning as under the CSA. See
Thomas, 969 F.3d at 584–85; United States v. Madkins, 866
12
See, e.g., United States v. Murphy, 998 F.3d 549, 555 (3d
Cir. 2021); United States v. Winter, 22 F.3d 15, 17 (1st Cir.
1994); United States v. Richardson, 958 F.3d 151, 153 (2d Cir.
2020); United States v. Womack, 610 F.3d 427, 430 (7th Cir.
2010); United States v. Brown, 1 F.4th 617, 619 (8th Cir.
2021). Although § 841’s role in the career offender calculus is
usually as the triggering offense under § 4B1.1(a)(2), rather
than as a predicate offense under § 4B1.1(a)(3), these
categories are plainly identical. See, e.g., Powerex Corp. v.
Reliant Energy Servs., Inc., 551 U.S. 224, 232 (2007)
(“[I]dentical words and phrases within the same statute should
normally be given the same meaning[.]”); United States v.
Piper, 35 F.3d 611, 616 n.3 (1st Cir. 1994). Thus, Courts that
have treated § 841 violations as career offender triggers—
whether sua sponte or by invitation of the parties—have
effectively assumed they must be predicate “controlled
substance offenses” as well. See, e.g., United States v.
Williams, 898 F.3d 323, 333 (3d Cir. 2018); United States v.
Hinkle, 832 F.3d 569, 571 (5th Cir. 2016); Booker, 994 F.3d at
596.
22
F.3d 1136, 1144 (10th Cir. 2017); United States v. McKibbon,
878 F.3d 967, 972 (10th Cir. 2017); United States v. Smith, 921
F.3d 708, 716 (7th Cir. 2019). The Sixth Circuit in particular
has thoroughly analyzed this issue, concluding that the CSA
can be “utilize[d] . . . in defining the relevant conduct covered
by the Guidelines.” United States v. Jackson, 995 F.3d 476,
481 (6th Cir. 2021); see also Havis, 929 F.3d at 319 (en banc)
(Sutton, J., concurring in the denial of en banc reconsideration)
(“Though [the Guidelines] do not define distribution, I see no
reason to give the word . . . a different meaning from the one
in the [CSA].”). The Tenth and Seventh Circuits have also held
that Guidelines “distribution” should be understood according
to the CSA’s definitions. See Madkins, 866 F.3d at 1144;
McKibbon, 878 F.3d at 972; Smith, 921 F.3d at 716.13
In sum, Dawson would have us hold that any statute
criminalizing the “attempted transfer” of drugs will not trigger
the career offender enhancement. Following him would
require us to find that: the Commission has flouted Congress’s
clear command for more than three decades; the universal
assumption of the Circuit Courts has been incorrect; and the
clear holdings of three Circuits are misguided. This we will
not do. All the authority points in the contrary direction: the
Guidelines category of “distribution” offenses includes
prohibitions on the “attempted transfer” of drugs, including §
841(a) and § 780-113(a)(30).
13
The Second Circuit has also appeared to indicate its
agreement, albeit in dicta. See United States v. Savage, 542
F.3d 959, 965 n.5 (2d Cir. 2008) (observing that a mere offer
to sell drugs does not constitute distribution “as Guidelines §
4B1.2(b) and 21 U.S.C. § 802(11) define the term.” (emphasis
added)).
23
Resisting this conclusion, Dawson contends that we
should ignore the CSA’s definitions when interpreting the
meaning of “distribution” in the Guidelines. He cites several
out-of-Circuit cases, none of which is on-point. His citations
to United States v. Ruth, 966 F.3d 642 (7th Cir. 2020) and
United States v. Ward, 972 F.3d 364 (4th Cir. 2020) do him
little good, as those cases addressed a distinct issue: how to
interpret the term “controlled substance” in § 4B1.2(b)—does
it refer only to drugs in the CSA schedules, or does it also reach
state schedules? See Ruth, 966 F.3d at 652–53 (distinguishing
the two issues). Neither side of that debate appears to doubt
that the Guidelines cover at least those substances in the CSA
schedules. See, e.g., id. at 653–54. Here, we come to an
analogous conclusion: the Guidelines cover “distribution”
offenses at least to the extent those are defined under the CSA,
which includes “attempted transfer”.14
14
Nor are we moved by the D.C. Circuit’s analysis in United
States v. Winstead, 890 F.3d 1082 (D.C. Cir. 2018). There, the
D.C. Circuit declined to add “attempted transfer” to the list of
offense categories in § 4B1.2(b). Id. at 1091–92. It reasoned
that the Sentencing Commission could have added such a
category to § 4B1.2(b)—as they did elsewhere in the
Guidelines—but chose not to, and § 4B1.2(b)’s list provides
the exclusive definition of the term “controlled substance
offense” in the Guidelines. Id. This reasoning has little
bearing on the question before us, which concerns how to
define a term—“distribution”—which is already on the list of
§ 4B1.2(b) offense categories and is not itself defined within
the Guidelines. We do not alter the text of the Guideline, which
was, in effect, the proposal facing the Winstead Court.
24
4.
Lastly, we consider the “purpose” behind, and policy of,
the career offender Guidelines, Nasir, 17 F.4th at 471 (citing
Kisor, 139 S. Ct. at 2415), which implement Congress’s desire
to impose “substantial prison terms” on “repeat drug
traffickers,” Whyte, 892 F.2d at 1174. Considering that
objective, we strive to avoid rendering the enhancement
inapplicable to convictions obtained under the drug trafficking
laws of numerous states. See Stokeling v. United States, 139
S. Ct. 544, 552 (2019) (“Where . . . the applicability of a federal
criminal statute requires a state conviction, we have repeatedly
declined to construe the statute in a way that would render it
inapplicable in many States.”). Here, this principle militates
against Dawson’s position. Numerous states have adopted the
CSA’s definitions of “distribution” and “delivery” in codifying
drug trafficking offenses. See supra n.11. Dawson asks us to
hold that a conviction under any of those statutes is not
categorically a “controlled substance offense” for career
offender purposes. Plainly, the Government’s contrary
reasoning, “more so than [Dawson’s], effectuates the purpose”
of the career offender enhancement. Whyte, 892 F.2d at 1174.
We discern no persuasive argument that would force us to
neuter the Guideline.
***
We will not undo the District Court’s decision to
designate Dawson a career offender. Although the
enhancement was based on our now-defunct decision in
Hightower, it was nonetheless correct, as our extensive
analysis of the Guidelines text—without recourse to the
Commentary—and state law has shown. In short, even after
25
Nasir, § 780-113(a)(30) remains a career offender predicate.
Dawson’s convictions under that statute justify his career
offender status.15
B.
We turn now to Dawson’s claim that the District Court
failed to comply with Federal Rule of Criminal Procedure 32.
We hold that Dawson failed to preserve this claim and he
cannot meet his burden under plain error review.
As we explained, the District Court sentenced Dawson
to 142 months’ imprisonment, reflecting a 46-month
downward variance from the bottom end of the Guidelines
range. During a sealed sidebar conference early in the
sentencing hearing, defense counsel reiterated his objection to
the PSR’s inclusion of L.B.’s fatal overdose, asking the Court
to make a ruling if it intended to hold Dawson responsible.
Back in open court, the District Court observed that defense
counsel was concerned “about the Court taking into
consideration, when imposing sentence, that the conduct of
your client caused” L.B.’s death. Appx. at 223. The Court
then overruled Dawson’s objection, noting that the PSR did not
claim Dawson caused L.B.’s death. The Court announced that
15
In his Supplemental Brief, Dawson also raises—for the very
first time—a new ground for reversal: that § 780-113(a)(30) is
overbroad because it includes mere “offers to sell” drugs. See
Appellant’s Supp. Br. at 7-9 (citing a nonprecedential Superior
Court decision reviewing for abuse of discretion). As this issue
was raised for the first time in a Supplemental Brief, we decline
to consider it. See, e.g., Alvin v. Suzuki, 227 F.3d 107, 118 (3d
Cir. 2000).
26
it would only decide on the causation issue—insofar as it
transcended the PSR objection—should the Government press
the point at the hearing. Defense counsel did not complain that
the Court’s ruling on the objection failed to dispose of the
broader causation point. Neither did he object to the Court’s
announced intention to address that point only should the
Government raise it.
Later in the hearing, defense counsel argued that the
Court should vary downward because of the disparity between
Dawson’s sentencing exposure in state and federal court,
noting that the case was adopted only after Dawson refused to
plead guilty to the drug death count. The Court concluded,
however, that this dimension of the case was irrelevant. The
Government neither pursued nor withdrew the argument that
Dawson caused L.B.’s death.16 In explaining sentence, the
Court made no reference to the drug death. After the
imposition of sentence, defense counsel did not object to the
District Court’s failure to make a ruling regarding the overdose
causation issue, telling the Court that there was nothing further
that needed to be dealt with.
Federal Rule of Criminal Procedure 32(i)(3)(B)
provides that:
(3) Court Determinations. At sentencing, the
court:
[. . .]
16
The Government did announce that “we stated our position
in our sentencing memorandum. We stand by it.” Appx. 250.
27
(B) must--for any disputed portion of the
presentence report or other controverted
matter--rule on the dispute or determine
that a ruling is unnecessary either because
the matter will not affect sentencing, or
because the court will not consider the
matter in sentencing[.]
The rule is “strictly enforced” and requires the district court to
make express findings on disputed facts or to disclaim reliance
thereon. See United States v. Electrodyne Sys. Corp., 147 F.3d
250, 255 (3d Cir. 1998).
Dawson argues that the District Court disregarded its
duty under Rule 32(i)(3)(B) by failing to rule on the
“controverted” question of whether he caused L.B.’s death.
Dawson maintains this objection was preserved at sentencing
by: (1) Defense counsel’s early requests for a ruling; and (2)
Counsel’s later statement that the overdose death should not be
considered. We disagree.
In United States v. Flores-Mejia, we held that:
a defendant must raise any procedural objection
to his sentence at the time the procedural error is
made, i.e., when sentence is imposed without the
court having given meaningful review to the
objection. Until sentence is imposed, the error
has not been committed. At the time that
sentence is imposed, if the objection is made, the
court has the opportunity to rectify any error by
giving meaningful review to the argument.
28
759 F.3d 253, 256 (3d Cir. 2014) (en banc). This preservation
rule allows for the rapid resolution of procedural errors,
without the need for time-consuming appeals, and prevents
“‘sandbagging’ of the court by a defendant who remains silent
about his objection to the explanation of the sentence, only to
belatedly raise the error on appeal if the case does not conclude
in his favor.” Id. at 257.17
The species of error at issue in Flores-Mejia was a
district court’s failure to rule on a defense request for a
variance, which had been made in both its sentencing
memorandum and was repeated at the sentencing hearing. Id.
at 255. Our preservation analysis in that context is equally
applicable in the Rule 32 context. See United States v. Fishoff,
949 F.3d 157, 163 n.12 (3d Cir. 2020) (applying Flores-Mejia
analysis in Rule 32 context, finding post-imposition objection
preserved claim of error); see also United States v. Wagner-
Dano, 679 F.3d 83, 90 (2d Cir. 2012) (“We review only for
plain error where, as here, an appellant asserts that the district
court neglected to address an objection to the PSR in violation
of Rule 32(i)(3)(B), but that appellant failed to alert the district
17
Of course, the requirement of post-imposition objection does
not apply to every error; we qualified in a footnote that: “A
party may . . . make an objection to a procedural error at an
earlier point as when, for example, a substantive request is
denied and procedurally the defendant has objected to a lack of
meaningful consideration of that request.” Flores-Mejia, 759
F.3d at 255 n.1. However, merely arguing the district court
should rule in your favor on an issue does not, alone, preserve
a procedural objection to the court’s ultimate failure to do so.
Id. at 255 (defense counsel argued for variance but did not
object to court’s failure to rule on the matter).
29
court of this procedural issue after the district court made its
findings or pronounced its sentence.”); United States v.
Warren, 737 F.3d 1278, 1284–85 (10th Cir. 2013) (plain error
review appropriate where defendant does not “speak up and
say the district court . . . violated Rule 32 or failed to properly
resolve disputed facts”).
In overruling Dawson’s PSR objection—which had
sought to excise those paragraphs discussing L.B.’s death—the
Court said it would address the broader matter of causation if
the Government should argue the point at the hearing.
Dawson’s counsel accepted this proposed procedure without
complaint. The Government proceeded to ignore the causation
argument, and the Court did not re-raise it sua sponte.
Crucially, when the District Court made its findings and
imposed sentence without ruling on Dawson’s role in L.B.’s
death, defense counsel remained silent. After sentence had
been imposed, the Court asked if counsel had any outstanding
issues that needed to be addressed, and defense counsel
responded that there were none. Counsel did not alert the
Court to any Rule 32 error; this objection was thus forfeited.
The Second Circuit faced a comparable scenario in
Wagner-Dano, 679 F.3d at 83. There, Wagner-Dano lodged a
variety of written objections to the PSR, which defense counsel
pressed at the sentencing hearing. Id. at 87. The district court
adopted the PSR in full, which effectively resolved some, but
not all, of the objections. Id. at 90. The unresolved
objections—which “did not directly dispute the facts as set
forth in the PSR, but rather attempted to clarify Wagner-
Dano’s motives or provide context for the PSR’s facts”—were
not separately addressed by the Court at any point; defense
counsel did not object to this omission. Id. On appeal,
30
Wagner-Dano argued that the Court had violated Rule
32(i)(3)(B). Id. The Second Circuit held that review would be
for plain error because Wagner-Dano “failed to alert the district
court of this procedural issue after the district court made its
findings or pronounced its sentence.” Id. (emphasis added).
The Circuit explained that substantive argument on a point is
not sufficient to preserve a related procedural objection, at least
where the issue implicated is simple and familiar. Id. at 90–92
(citing United States v. Villafuerte, 502 F.3d 204 (2d Cir.
2007)). As compliance with Rule 32 is “neither novel nor
complex,” the parties must bring any such claim of procedural
error to the district court’s attention to avoid forfeiture. Id. at
91–92.18
We find the Second Circuit’s analysis to be relevant and
persuasive. Here too, the District Court appears to have
disposed of Dawson’s argument only in part, overruling the
narrow PSR objection without addressing the broader
causation point lurking behind it. But, if Dawson believed this
to be error, then he had to bring it to the Court’s attention.19
His substantive argument that L.B.’s death should not play a
role and early requests for a ruling “if the Court is going to rely
18
The Second Circuit also echoed our own rationale in Flores-
Mejia, explaining that requiring timely and specific objection
to Rule 32 error facilitates rapid judicial correction of any
problem, avoiding the delay and expense of appeals. See
Wagner-Dano, 679 F.3d at 91.
19
Instead, counsel acceded to the District Court’s decisions to:
(1) construe the PSR objection narrowly; and (2) rule on the
larger causation point only if the Government chose to argue it
at the hearing.
31
on [the death] as a factor in setting sentence” did not preserve
the objection. Appx. 265. As the Second Circuit found,
substantive argument will not preserve a procedural objection
to the manner of the substantive point’s resolution (or lack
thereof). And Dawson’s requests for a ruling were, at a
minimum, too premature to preserve an objection, as no error
had been committed at that time. See Flores-Mejia, 759 F.3d
at 255 n.1 (counsel must object to a procedural error when it
becomes “evident”)20.
In sum, if Dawson wanted to preserve a Rule 32(i)(3)(B)
objection, then he should have spoken up when that error was
allegedly consummated by the District Court’s imposition of
sentence without full resolution of the causation issue. His
20
By contrast, Fishoff, 949 F.3d 157, illustrates proper
preservation practice. There, the appellant argued that the
district court had violated Rule 32(i)(3)(B) by failing to rule on
an affirmative defense put forward in his sentencing
memorandum. Id. at 163. At the sentencing hearing, the Court
asked if the parties had any non-Guidelines objections to the
PSR and, after defense counsel sought clarification as to
whether this included his affirmative defense, the Court
announced that it would hear argument regarding that issue
“separate[ly].” Id. at 161–62. However, the Court proceeded
to calculate and impose sentence without mentioning the issue
again, drawing an objection from defense counsel
“remind[ing] the court that it had not addressed” the
affirmative defense. Id. at 162. We found that this post-
imposition objection preserved the Rule 32 issue. Id. at 163
n.12 (contrasting counsel’s failure in Flores-Mejia to raise
such a post-imposition objection).
32
failure to do so means that our standard of review is for plain
error.
Reviewing for plain error then, we find no cause to
disturb Dawson’s sentence. He “has ‘the burden of
establishing entitlement to relief for plain error.’” Greer v.
United States, 141 S. Ct. 2090, 2097 (2021) (quoting United
States v. Dominguez Benitez, 542 U.S. 74, 82 (2004)). An error
is plain if it is “clear” or “obvious,” “affects substantial rights,”
and “affects the fairness, integrity or public reputation of
judicial proceedings.” United States v. Dragon, 471 F.3d 501,
505 (3d Cir. 2006) (quoting United States v. Olano, 507 U.S.
725, 732–34 (1993)); Fed. R. Crim. P. 52. An error “affects
substantial rights when it is prejudicial,” that is, when it
“affected the outcome of the district court proceedings.” Id.(quoting Olano, 507 U.S. at 734); see also United States v.
Payano, 930 F.3d 186, 192 (3d Cir. 2019) (defendant must
show “reasonable probability” that result would have been
different but for the claimed error).
Even assuming arguendo that the District Court’s
omission was clear error, Dawson cannot show that it affected
his substantial rights. There is no indication in the record that
the District Court held Dawson responsible for L.B.’s death.
To the contrary, there is ample reason to believe that the
District Court did not take the death into account. The District
Court granted a substantial downward variance, imposing a
sentence 46 months below the bottom end of Dawson’s
Guideline range. That immediately suggests the Court did not
hold Dawson responsible for an uncharged homicide offense—
let alone one that the Court never mentioned in explaining the
basis for the sentence selected. This silence makes perfect
sense in light of the Court’s announced intention to hold
33
Dawson responsible for L.B.’s death only if the Government
were to argue the matter at the hearing and manage to convince
the Court on the point. The best reading of the record is that
the Court was true to its word: the Government did not press
the causation point, so it did not impact sentence.
Moreover, the Court was explicit regarding what factors
did influence the sentence. It explained that Dawson’s case
was no “exception” to its general policy to “factor mercy into
[its] sentences when possible.” Appx. 256–57. And, in
reviewing the § 3553(a) factors, the Court paid special
attention to “protect[ing] society from potential harm, an
inference that can easily be drawn from the defendant’s five
convictions that he does pose some danger to society,
specifically returning to dealing in serious drugs when the
going gets tough, as he has done in the past.” Appx. 259.
There is not even a hint that the District Court believed Dawson
caused L.B.’s death, choosing not to elaborate on the
“seriousness of the defendant’s conduct.” Appx. 259.
Dawson draws our attention to the District Court’s self-
described “struggl[e]” to justify an even greater variance,
Appx. 256, asking us to take this as proof that the Court was
reluctant to vary further only because it was considering L.B.’s
death. Dawson believes that he made very persuasive
arguments below which, absent consideration of the drug
death, would have generated a greater variance. See
Appellant’s Br. at 52–57. To the contrary, the record shows
that the District Court was reluctant to vary precisely because
it rejected the Defense’s arguments:
We’ve been in session almost three hours during
this proceeding, and I’ve heard a lot emanating
34
from the defense, but I’m not really hearing any
very persuasive arguments for a significant
variance from the guidelines.
Appx. 256. The Court was unmoved by the circumstances
which resulted in federal adoption of Dawson’s case, deeming
them irrelevant. It similarly rejected Dawson’s family
circumstances as inadequate to justify a larger variance. The
Court had only its general inclination towards “mercy” to fall
back on. Appx. 256–57.
In sum, Dawson has failed to meet his burden of
showing a realistic probability that his substantial rights were
adversely affected by any Rule 32 omission. The record does
not support a reasonable probability that the District Court
silently held Dawson responsible for L.B.’s death. There is
thus no Rule 32 ground upon which to disturb Dawson’s
sentence.
V.
Because Dawson was properly labeled a ‘career
offender’ under the Guidelines and any Rule 32 error did not
affect his substantial rights, we will affirm the District Court’s
judgment.
35