OPINION
NOEL L. HILLMAN, District Judge.
This matter comes before the Court on Petitioner Daryl Pierce's motion to vacate, set aside, or correct his criminal sentence pursuant to 28 U.S.C. § 2255.1 On April 25, 2007, Petitioner pleaded guilty to Count 3 of a three-count indictment, which charged Petitioner with knowingly possessing a firearm after having been convicted of three crimes in courts in the Commonwealth of Pennsylvania, each punishable by imprisonment for a term exceeding one year and each constituting a violent felony or a serious drug offense, or both, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1), (2). (See 06-cr-916.)
The Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), requires the imposition of a minimum 15-year term of imprisonment for recidivists convicted of unlawful possession of a firearm under 18 U.S.C. 922(g), who have three prior state or federal convictions of a "violent felony" or "serious drug offense." Section 924(e) defines a serious drug offense as one punishable by imprisonment for 10 years or more. Section 924(e) defines a violent felony as "any crime punishable by imprisonment for a term exceeding one year . . . that— (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B).
In Johnson v. United States, 135 S.Ct. 2551 (U.S. 2015), the Supreme Court declared a portion of § 924(e)(2)(B) — "or otherwise involves conduct that presents a serious potential risk of physical injury to another," referred to as "the residual clause" — unconstitutionally vague and effectively void. In Welch v. United States, 136 S.Ct. 1257 (U.S. 2016), the Supreme Court found that Johnson announced a substantive rule that applied retroactively on collateral review.
In Mathis v. United States, 136 S.Ct. 2243 (U.S. 2016), the Supreme Court explained that in order to determine whether a past conviction is a "violent felony," including "burglary, arson, or extortion," under § 924(e)(2)(B), courts should compare the elements of the crime of conviction with the elements of the "generic" version of the listed offense — that is, how the offense is commonly understood. The Supreme Court further explained that "[f]or more than 25 years, our decisions have held that the prior crime qualifies as an ACCA predicate if, but only if, its elements are the same as, or narrower than, those of the generic offense." Mathis, 136 S. Ct. at 2247. The question in the case before the Supreme Court was "whether ACCA makes an exception to that rule when a defendant is convicted under a statute that lists multiple, alternative means of satisfying one (or more) of its elements." Id. at 2248. The Supreme Court "decline[d] to find such an exception." Id.
Here, Petitioner asserts that the offenses used to enhance his sentence under ACCA no longer qualify as predicate offenses in light of the Supreme Court decisions in Johnson and Mathis. The presentence report revealed in Petitioner's criminal case, 06-cr-916 (D.N.J.), that he had five prior drug convictions in Pennsylvania that qualified as "serious drug offenses" under the ACCA. Petitioner also had a burglary conviction in Pennsylvania.
In his guilty plea, Petitioner acknowledged that his prior convictions met the elements to receive a minimum 15-year term of imprisonment under ACCA. Petitioner now argues, however, that his burglary conviction cannot be considered a "violent felony" under ACCA as a result of Johnson. Petitioner further argues that his burglary conviction and his drug convictions were not considered on their elements as directed by Mathis.
Both of Petitioner's arguments are without merit. To receive an enhanced sentence under ACCA, a criminal defendant must have three prior state or federal convictions of a "violent felony" or "serious drug offense." At the plea hearing, the Government made an inquiry of Petitioner to support a factual basis for Count 3 of the indictment and the three prior convictions under ACCA § 924(e). The Government recited the burglary conviction and two drug convictions. Petitioner agreed that he committed those crimes, and the Court accepted Petitioner's plea of guilty to Count 3. The Court emphasized, however, that even though the plea agreement provided a term of imprisonment for 15 years, the Court at sentencing was not bound by that agreement, and Petitioner could not withdraw his plea if the Court imposed a sentence other than 15 years.
Petitioner's presentence report ("PSR") lists Petitioner's five prior drug offenses to support a sentencing enhancement under ACCA § 924(e). (PSR at 7.) Petitioner's burglary conviction is not listed relative to the ACCA enhancement. The PSR was prepared after Petitioner entered his guilty plea and provided to the Court in consideration of imposing Petitioner's sentence. Counsel for Petitioner acknowledged that Petitioner's prior convictions, without specifying which ones, qualified Petitioner as an armed career criminal under § 924(e) with a 15year prison term being the floor. Petitioner did not object to the contents of the PSR and the Court adopted it for purposes of sentencing. See Statement of Reasons ("The Court adopts the presentence investigation report without change.").
"To prove a Johnson claim, [it is] incumbent on a § 2255 movant to demonstrate that his sentence necessarily implicates the residual clause, which may be shown either by evidence that the district court in fact sentenced him under the residual clause or proof that he could not have been sentenced under the elements or enumerated offenses clauses based on current case law, and that that made a difference in his sentence." United States v. Peppers, 899 F.3d 211, 236 n.21 (3d Cir. 2018) (further explaining that "it is appropriate to require the movant to prove by a preponderance of the evidence that his sentence depends on the ACCA's residual clause").
Thus, in order for Petitioner's guilty plea to be invalided under Johnson or Mathis, Petitioner must show that the sentencing court: (1) based the ACCA sentence on Petitioner's burglary conviction or drug convictions, and either (a) that the burglary conviction or the drug convictions were classified as ACCA predicates under the residual clause (Johnson challenge), or (b) the burglary conviction or the drug convictions had elements broader than those of the generic offenses (Mathis challenge).2
Petitioner, who has the burden to demonstrate these requirements, has failed to do so. With respect to Petitioner's burglary conviction, even though Petitioner acknowledged his burglary conviction at the plea hearing, Petitioner points to no record evidence that the Court considered his burglary conviction to serve as one of the three predicates for an ACCA enhancement at sentencing. Because burglary is an enumerated offense, and not part of the residual clause, if the Court based the ACCA enhancement on Petitioner's burglary conviction, the Court would have had to determine whether the elements of that crime in Pennsylvania were "the same as, or narrower than, those of the generic offense." Mathis, 136 S. Ct. at 2247. Neither the Court nor the parties discussed the burglary conviction at all.3
As for Petitioner's drug convictions, Petitioner's criminal history contains five "serious drug offenses" that satisfy § 924(e), with only three being necessary, and these "serious drug offenses" have not been subject to a new rule of constitutional law. Petitioner did not challenge the PSR that classified those Pennsylvania drug convictions as ACCA predicates, and this Court was permitted to rely on those convictions as set forth in the PSR.4 Indeed, the Court expressly adopted the PSR without change. See 18 U.S.C. § 3553(c) ("Statement of Reasons for Imposing a Sentence. The court, at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence. . . ."); AO 245, Statement of Reasons Form (providing a court with the selection, "The court adopts the presentence investigation report without change," or "The court adopts the presentence investigation report with the following changes. . . .").5
Petitioner argues here, however, that the Pennsylvania drug statute he was convicted under, 35 Pa. Stat. Ann. § 780-113(a)(30), is overbroad and therefore invalid under Mathis. The Third Circuit has squarely rejected the same argument. In United States v. Daniels, 915 F.3d 148, 155 (3d Cir. 2019), the Third Circuit found that 35 Pa. Stat. Ann. § 780-113(a)(30) constitutes a "serious drug offense" under ACCA § 924(e)(2)(A)(ii). The Third Circuit recently reaffirmed that conclusion. See United States v. Wilson, 2020 WL 525706, at *3 (3d Cir. Feb. 3, 2020) (rejecting the petitioners argument that his Pennsylvania state court convictions do not qualify as career-offender predicates because a violation of § 780-113(a)(30) is broader than the generic definition of "controlled substance offense" under the Guidelines).
Consequently, Petitioner has not met his burden to show that his sentencing as an armed career criminal was based on convictions which are invalid under Johnson and Mathis.6 Thus, the Court's sentencing of Petitioner as an armed career criminal was not "imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255.
Because the Court will deny Petitioner's § 2255 motion, the Court must determine whether to issue a certificate of appealability ("COA"). A COA is a "jurisdictional prerequisite" to an appeal on the merits, and "the COA statute establishes procedural rules and requires a threshold inquiry into whether the circuit court may entertain an appeal." U.S. v. Doe, 810 F.3d 132, 143 (3d Cir. 2015) (quoting Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)). Section 2253(c)(2) provides that "[a] certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." To satisfy that standard, a petitioner must demonstrate that "`jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.'" Banks v. Dretke, 540 U.S. 668, 705 (2004) (quoting Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)).
Here, jurists of reason could not disagree with the Court's resolution of Petitioner's claims. The Court will deny a certificate of appealability.
An appropriate Order will be entered.