PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
               _____________

                   No. 15-1562
                  _____________

         UNITED STATES OF AMERICA

                         v.

              ROGER HENDERSON,
                           Appellant
                _____________

   On Appeal from the United States District Court
      for the Western District of Pennsylvania
      (D.C. Criminal No. 2-13-cr-00134-001)
    District Judge: Honorable David S. Cercone
                 ______________

             Argued November 6, 2015
                 ______________

Before: FUENTES, JORDAN, and VANASKIE, Circuit
                    Judges.

         (Opinion Filed: November 8, 2016)
                 ______________
Rebecca R. Haywood, Esq.
Laura S. Irwin, Esq. (ARGUED)
Office of United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219

      Counsel for Appellee, United States of America


Linda E. J. Cohn, Esq.
Renee Pietropaolo, Esq. (ARGUED)
Office of Federal Public Defender
1001 Liberty Avenue
1500 Liberty Center
Pittsburgh, PA 15222

      Counsel for Appellant, Roger Henderson

                      _____________

                       OPINION
                      _____________

VANASKIE, Circuit Judge.

       Roger Henderson appeals the District Court’s
determination that he was an Armed Career Criminal
pursuant to the Armed Career Criminal Act (“ACCA”), 18
U.S.C. § 924(e). To resolve this case, we must determine
whether 35 Pa. Stat. Ann. § 780–113(f)(1) of Pennsylvania’s
Controlled Substance, Drug, Device and Cosmetic Act is
“divisible” and subject to the modified categorical approach




                             2
in light of the Supreme Court’s decision in Mathis v. United
States, 

(2016). We find that it is, and that the
District Court properly used the modified categorical
approach to determine that Henderson had three qualifying
predicate offenses under ACCA. We will affirm.

                               I.

       The underlying facts are not in dispute. On October 6,
2012, detectives who were conducting surveillance on a
middle school in Pittsburgh, Pennsylvania observed
Henderson in the bleachers with a firearm and called
uniformed police officers to the scene. When the uniformed
officers arrived, Henderson slid the firearm from his
waistband, placed it behind a seat, and walked away. The
uniformed officers recovered the weapon and placed
Henderson under arrest after recognizing him as a known
felon.

       A grand jury returned an indictment charging
Henderson with unlawful possession of a firearm by a
convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and
924(e)(1). Henderson entered a guilty plea on March 6, 2014.
Henderson’s Presentence Investigation Report revealed that
Henderson had at least three qualifying convictions for
serious drug offenses within the meaning of ACCA.1

       1
        If convicted under 18 U.S.C. 922(g), ACCA provides
for a minimum fifteen year sentence when a defendant has
three previous convictions for serious drug offenses. See 18
U.S.C. § 924(e)(1) (“In the case of a person who violates
section 922(g) of this title and has three previous convictions
by any court referred to in section 922(g)(1) of this title for a




                               3
Henderson objected to the classification of two of his prior
convictions as serious drug offenses. The District Court
disagreed, finding that three of Henderson’s prior convictions
were ACCA serious drug offenses within the meaning of
ACCA.

        Specifically, the District Court, referencing various
charging instruments and other pertinent documents, found
that Henderson had separate convictions for possession with
intent to deliver cocaine on June 25, 2002; possession with
intent to deliver cocaine on January 25, 2004;2 and possession
with intent to deliver heroin on March 13, 2009. Each
conviction was for a violation of 35 Pa. Stat. Ann § 780–
113(a)(30), and the District Court concluded that each
conviction constituted “a serious drug offense within the
meaning of the ACCA.” (App. 11.) Henderson was
sentenced to the mandatory minimum prison term of fifteen
years. This appeal followed.

                              II.

      The District Court had jurisdiction under 18 U.S.C. §
3231. We have jurisdiction over this appeal under 28 U.S.C.


violent felony or a serious drug offense, or both, committed
on occasions different from one another, such person shall be
fined under this title and imprisoned not less than fifteen
years”).
       2
         The substance charged in the underlying state court
indictment actually was heroin, not cocaine, as stated by the
District Court. The District Court’s error is inconsequential.




                               4
§ 1291 and 18 U.S.C. § 3742(a). We exercise plenary review
over purely legal questions, such as Henderson’s legal
challenge to the District Court’s application of ACCA. See
United States v. Jones, 

, 690 (3d. Cir. 2003).
We review Henderson’s challenge to the constitutionality of
ACCA de novo. See United States v. Fontaine, 

,
225 n.7 (3d Cir. 2012).

                              III.

       Henderson argues that two of his previous convictions
do not qualify as serious drug offenses under ACCA. We
disagree.3


       3
          Henderson also challenges the constitutionality of
ACCA, arguing that his Fifth and Sixth Amendment rights
were violated when his sentence was increased due to three
prior convictions that were not charged in the indictment. As
Henderson concedes, however, this argument is foreclosed by
Almendarez–Torres v. United States, 

(1998).
Justice Thomas, concurring in Descamps v. United States,

, 2295 (2013), observed that the Supreme
Court has not yet reconsidered Almendarez–Torres, which
draws an exception to the Apprendi line of cases for judicial
fact-finding that concerns a defendant’s prior convictions.”
We, of course, remain bound by Almendarez–Torres, because
only the Supreme Court has the power to overrule one of its
precedents, even where the viability of that precedent has
been called into question by subsequent Supreme Court
decisions. See Agostini v. Felton, 

, 237 (1997)
(“We reaffirm that if a precedent of this Court has direct
application in a case, yet appears to rest on reasons rejected in




                               5
       Under ACCA, a “serious drug offense” includes “an
offense under State law, involving manufacturing,
distributing, or possessing with intent to manufacture or
distribute, a controlled substance (as defined in section 102 of
the Controlled Substances Act (21 U.S.C. 802)), for which a
maximum term of imprisonment of ten years or more is
prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii). The State
law at issue here is Pennsylvania’s Controlled Substance Act,
which prohibits “the manufacture, delivery, or possession
with intent to manufacture or deliver, a controlled substance
by a person not registered under this act, . . . or knowingly
creating, delivering or possessing with intent to deliver, a
counterfeit controlled substance.” 35 Pa. Stat. Ann. § 780–
113(a)(30).      Section 780–113(f)(1) of Pennsylvania’s
Controlled Substance Act sets forth the following penalty for
violating Section 780–113(a)(30) of the statute:

              (f) Any person who violates
              clause . . . (30) of subsection (a)
              with respect to:

                 (1) A controlled substance or
                 counterfeit substance classified
                 in Schedule I or II which is a
                 narcotic drug, is guilty of a
                 felony and upon conviction
                 thereof shall be sentenced to

some other line of decisions, the Court of Appeals should
follow the case which directly controls, leaving to this Court
the prerogative of overruling its own decisions.” (internal
quotation marks omitted)).




                               6
                 imprisonment not exceeding
                 fifteen years . . . .



35 Pa. Stat. Ann. § 780–113(f)(1) (internal footnote omitted).
Notably, this section disjunctively incorporates all of the
“controlled substances classified in Schedule I or II” as the
substances for which a defendant may receive a maximum
sentence of fifteen years for possession with intent to deliver.
See 

       In order to identify the
“substances classified in Schedule I or II,” Section 780–
113(f)(1) cross-references Section 780–104 of Pennsylvania’s
Controlled Substance Act, which provides an exhaustive list
of controlled substances that fall within each schedule of
prohibited drugs. See 35 Pa. Stat. Ann. §§ 780–104(1), (2).

        To determine whether Henderson’s convictions under
Pennsylvania’s Controlled Substance Act are ACCA
predicate offenses, we employ a “categorical approach” that
involves comparing “the elements of the statute forming the
basis of the defendant’s conviction with the elements of the
‘generic’ crime—i.e., the offense as commonly understood.”
Descamps v. United States, 

, 2281 (2013).
When applying the categorical approach, we “‘look only to
the statutory definitions’—i.e., the elements—of a
defendant’s prior offenses, and not ‘to the particular facts
underlying those convictions.’” 

(quoting Taylor v.
United States, 

, 600 (1990)). The Supreme
Court has explained that “[t]he prior conviction qualifies as
an ACCA predicate only if the statute’s elements are the same
as, or narrower than, those of the generic offense.” 

(emphasis added). In other words, “when a statute sets
out a single (or ‘indivisible’) set of elements to define a single




                                7
crime,” this Court’s analysis is “straightforward” because we
need only “line[] up that crime’s elements alongside those of
the generic offense and see[] if they match.” Mathis v. United
States, 

, 2248 (2016).

        Our analysis, however, is not as straightforward when
faced with statutes that “list[] multiple, alternative elements”
that must be proven to secure a conviction for violating the
statute. See 

. These statutes are
known as “divisible statutes,” 

because they “list
elements in the alternative, and thereby define multiple
crimes.” 

. When faced with
divisible statutes, we apply a “modified categorical approach”
that allows us “to consult a limited class of documents . . . to
determine which alternative formed the basis of the
defendant’s prior conviction.” 

.
The modified categorical approach permits us to “do what the
categorical approach demands: compare the elements of the
crime of conviction (including the alternative element used in
the case) with the elements of the generic crime.” Id.; see
also 

(noting that “the modified approach merely
helps implement the categorical approach when a defendant
was convicted of violating a divisible statute” because it
“retains the categorical approach’s central feature: a focus on
the elements, rather than the facts, of a crime”).

       In United States v. Abbott, we determined that Section
780–113(a)(30) of Pennsylvania’s Controlled Substance
Act—the section that underlies Henderson’s previous
convictions—is “divisible” and subject to the modified
categorical approach. 

, 156 (3d Cir. 2014).
Henderson argues that Abbott is distinguishable because the
prior conviction at issue in Abbott involved cocaine, for
which defendants are sentenced under Section 780–



                               8
113(f)(1.1) of Pennsylvania’s Controlled Substance Act. 35
Pa. Stat. Ann. § 780–113(f)(1.1). Here, on the other hand,
Henderson stresses that his convictions were under Section
780–113(f)(1), therefore requiring a different analysis
because the Schedules in Section 780–113(f)(1) contain more
substances than the federal schedules.4 Because Section 780–
113(f)(1) lists more substances, Henderson contends Section
780–113(f)(1)’s listing of controlled substances under
“Schedule I or II” makes Section 780–113(f)(1) indivisible,
such that the modified categorical approach does not have a
role to play. Specifically, he maintains that Section 780–
113(f)(1) is indivisible because he contends it addresses
different means of committing the offense, rather than
different elements. We disagree. In light of the Supreme
Court’s recent decision in Mathis, 

, we find
Section 780–113(f)(1) is divisible because it addresses
different elements of the offense; not the different means of
committing the offense.

       In Mathis, the Supreme Court reiterated that we may
use the categorical approach to analyze a statute if it “lists
multiple elements disjunctively,” but may not do so if a
statute “enumerates various factual means of committing a
single 

. Accordingly, the Court
explained that “[t]he first task for a sentencing court faced
with an alternatively phrased statute is thus to determine
whether its listed items are elements or means.” 

“If they are elements,” the Court explained, we should

      4
        The Government concedes that Schedules I and II
from Section 780–113(f)(1) contain more drugs than—and
thus do not completely overlap with—the federal schedules.




                              9
“review the record materials to discover which of the
enumerated alternatives played a part in the defendant's prior
conviction, and then compare that element (along with all
others) to those of the generic crime.” 

they
are means,” however, the Supreme Court explained that we
have “no call to decide which of the statutory alternatives was
at issue in the earlier prosecution.” 

importance of the threshold inquiry—
elements or means—the Supreme Court stressed that
“[d]istinguishing between elements and facts is [] central to
ACCA’s 

. The Court explained
that “[e]lements are the constituent parts’ of a crime’s legal
definition—the things the ‘prosecution must prove to sustain
a conviction.” 

see also 

trial,
they are what the jury must find beyond a reasonable doubt to
convict the defendant; and at a plea hearing, they are what the
defendant necessarily admits when he pleads guilty.”)
(internal citations omitted). By contrast, the Court explained
that “[f]acts . . . are mere real-world things—extraneous to the
crime’s legal requirements.” Id.; see also 

circumstance[s] or event[s] having no legal effect [or]
consequence: In particular, they need neither be found by a
jury nor admitted by a defendant.”) (citation omitted).

        In Mathis, the Supreme Court outlined three methods
for sentencing courts to make the elements/means
determination. First, the sentencing court should ascertain
whether “a state court decision definitively answers the
question . . . .” 

. Second, the
District Judge may look to “the statute on its face,” which
“may resolve the issue.” 

the Court, “if
state law fails to provide clear answers,” sentencing courts
may look to “the record of a prior conviction itself.” 

three approaches confirm that Section 780–113(f)(1) is
divisible and subject to the modified categorical approach,
and that the District Court properly found that Henderson’s
prior convictions were ACCA predicates.

                              A.

       For the first and “easy” method outlined by the
Supreme Court, we look to see if a Pennsylvania state court
decision definitively answers the question. 

. “When a ruling of that kind exists, a sentencing
judge need only follow what it says.” 

v.
Arizona, 

, 636 (1991) (plurality opinion)). In
Abbott, we recognized that the Pennsylvania Superior Court
has ruled that the particular type of drug is an element of the
offense under Section 780–113(a)(30). 

n.4 (citing Commonwealth v. Swavely, 

(Pa.
Super. Ct. 1989), petition for allowance of appeal denied, 

(Pa. 1989)). Specifically, as it pertains to the
delivery of controlled substances under Section 780–
113(a)(30), the Pennsylvania Superior Court found that the
specific type of drug used was an element of the offense; not
a means of committing the offense. See 

(“[W]hen the vial containing the two separate drugs was
delivered, two separate offenses occurred.”). As the Superior
Court in Swavely explained:

              [I]n order to find appellant guilty
              of count six, delivery of a
              Schedule IV controlled substance,
              [Drug 1], the jury had to conclude
              that there was a transfer of [Drug
              1] from appellant to another
              person. Thus, delivery of [Drug 1]




                              11
             is not a lesser offense to be
             included within the offense of
             delivery of [Drug 2]. Each offense
             includes an element distinctive of
             the other, i.e. the particular
             controlled substance.

see also Commonwealth v. Smith, No.
1140, 

, at *3 (Pa. Super. Ct. Sept. 23,
2013) (“Appellant was found in possession of three different
controlled substances. Each would support a separate criminal
count”); Pennsylvania Bar Institute, Pennsylvania Suggested
Standard Criminal Jury Instructions §§16.01, 16.13 (a)(30)(B)
(3d Ed. 2016).

       The same logic applies with respect to Section 780–
113(f)(1). In order to find Henderson guilty of possession of
heroin, a jury would have to conclude that Henderson, in fact,
possessed that specific drug which has been classified as a
controlled substance in Schedule I or II by the Pennsylvania
General Assembly. Those particular controlled substances
are, thus, distinct elements of the crime; not means of
committing the crime.5 Therefore, as dictated by the

      5
         This approach is also in accord with our previous
rulings. As we explained in United States v. Tucker,
“[p]ossession (or manufacture, or delivery) of a controlled
substance is an element of the offense [under Section 780–
113(a)(30)]; to prove it, the prosecution must prove that the
substance in question was one of those enumerated in
Pennsylvania’s controlled substance schedules. . . .” 

, 215 (3d Cir. 2012).           Henderson contends that
Commonwealth v. Kelly, 

(1979), supports his




                             12
Pennsylvania state courts, Section 780–113(f)(1) sets forth
different elements of the offense; not different means.

                               B.

        The second method outlined by the Supreme Court
leads to the same conclusion. For the second method, the
Supreme Court directs us to consider the language of Section
780–113(f)(1) to make the elements or means distinction. Cf.

. Specifically, the Court explained
that if “statutory alternatives carry different punishments,
then . . . they must be elements.” 

On
the other hand, the Court explained that “if a statutory list is
drafted to offer ‘illustrative examples,’ then it includes only a
crime’s means of commission.” 

alia, United
States v. Cabrera-Umanzor, 

(4th Cir. 2013)).

      Henderson points to the Fourth Circuit’s opinion in
United States v. Cabrera-Umanzor to support his argument
that Section 780–113(f)(1) provides different “means” of
committing the offense rather than different “elements.” In

argument that the specific Schedule I or II drugs are means
and not elements. This same argument was advanced in
Tucker and Abbott. Both times “[w]e addressed th[e]
contention . . . and rejected it.” 

n.5
(citing 

–16). Abbott remains good
law. See Avila v. Attorney Gen., 

, 666 (3d Cir.
2016) (“The statute under which [petitioner] was convicted,
35 Pa. Cons. Stat. § 780–113(a)(30), is divisible with regard
to both the conduct and the controlled substances to which it
applies.”) (citing 

). We see no reason
to find otherwise here.




                               13
Cabrera-Umanzor, however, the Fourth Circuit addressed a
statute that was fundamentally different from the statute
before us now because the statute at issue in Cabrera-
Umanzor addressed sexual abuse of children and provided a
list of sex crimes that Maryland’s highest court found to be
“‘merely illustrative . . . 

(quoting Walker
v. State, 

, 1084 (Md. 2013)). Because
Maryland’s state courts had deemed the list of sex crimes in
the statute to be illustrative, the Fourth Circuit rightly found
that the crimes listed “simply provide[d] examples of acts
that come within the [statutory] definition,” and “serve[d]
only as a non-exhaustive list of various means by which the
elements of sexual molestation or sexual exploitation can be
committed.” 

        Here, far from offering a list of illustrative examples,
Section 780–113(f)(1) provides a list of specific statutory
alternatives by cross-referencing the “Schedule I or II”
controlled substances listed in Section 780–104—a
disjunctive and exhaustive list of stand-alone alternative
definitions that captures the entire universe of substances for
which defendants may be convicted and given separate
maximum sentences for possession with intent to deliver
under Section 780–113(f)(1).6 By cross-referencing Section

       6
           Henderson argues that Section 780–104 of
Pennsylvania’s Controlled Substance Act provides a non-
exhaustive and “illustrative” list of substances. He places a
particular emphasis on Section 780–104’s language stating
that the “schedules include the controlled substances listed or
to be listed . . . .” 35 Pa. Stat. Ann. § 780-104. This language,
however, does not indicate that the schedules are meant to be




                               14
780–104, Section 780–113(f)(1) criminalizes the possession
of specific substances listed in Schedules I or II, creating
several alternative elements; not separate means of
commission. Cf. Coronado v. Holder, 

, 984 (9th
Cir. 2014), cert denied, 

(2015) (concluding
that a California controlled substances statute that “identifies
a number of California drug schedules and statutes and
organizes them into five separate groups, which are listed in
the disjunctive” is divisible and that use of the modified
categorical approach was appropriate).7 Accordingly, we find
that, on its face, Pennsylvania’s Controlled Substances Act
provides a clear answer with respect to the elements or means
inquiry, and is different from the statute at issue in Cabrera-

illustrative. To the contrary, even though other substances
may be added or removed through administrative or
legislative processes, 35 Pa. Stat. Ann. § 780–103, Section
780–104 specifically indicates that “[t]he [] controlled
substances [listed] are included in [the] schedules . . . .” 35
Pa. Stat. Ann. §§ 780-104(1), (2); see also 28 Pa. Code §
25.72 (noting that Section 780–104 “designates specific
substances for inclusion under the five schedules”) (emphasis
added).      Thus, Section 780–104 does not provide an
“illustrative” list of substances, because only the specific
controlled substances listed in Section 780–104 will fall
within the purview of Section 780–113(f)(1).
       7
           Notably, the statute at issue in Coronado was
strikingly similar to the statute at issue here, as it provided
that a person who “possesses any controlled substance which
is [] classified in Schedule III, IV, or V . . . . shall be punished
. . . 

.




                                15
Umanzor, because Section 780–113(f)(1) provides an
exhaustive list of all the specific controlled substances that
the Act intends to cover, thereby creating separate elements.
Section 780–113(f)(1) does not attempt to illustrate the
different means of carrying out the offense—i.e., the
countless ways people may manufacture, distribute, or
possess the specified controlled substances.8

                              C.

       The third method outlined by the Supreme Court in
Mathis leads to the same result. The final method from
Mathis calls for an examination of “the record of a prior
conviction itself” in order to make the means or elements

. Specifically, the Court
explained that sentencing courts may take a “peek at the
[record] documents [] for the sole and limited purpose of
determining whether [the listed items are] element[s] of the
offense.” 

(all alterations in original) (citation
and quotation omitted). When taking this peek, the Court
emphasized that the record materials must “speak plainly . . . .

       8
         Note that the Fourth Circuit has since distinguished
its Cabrera-Umanzor decision. See United States v. Vinson,

, 425-26 (4th Cir. 2015) (distinguishing
Cabrera-Umanzor and concluding that the statute at issue in
Vinson – N.C. Gen. Stat. § 14–33(c)(2) concerning domestic
violence – was divisible because it was “fundamentally
different,” as “[t]he nature and operation of the [elements of
the statute] indicate[d] that they operate as alternate
definitions or elements for the offense      . . . not alternate
means of committing the offense.”)




                              16
to satisfy ‘Taylor’s demand for certainty’ when determining
whether a defendant was convicted of a generic offense.” 

Shepard v. United States, 

, 21
(2005)). This leads to Henderson’s alternative argument: that
the documents underlying his felony conviction under Section
780–113(a)(30) stemming from a January 25, 2004
indictment do not establish a serious drug offense under
ACCA. Again, we disagree and find that the District Court
did not err in determining that Henderson’s conviction on the
January 25, 2004 indictment qualifies as a serious drug
offense under ACCA.

       Here, the District Court properly looked to
Henderson’s charging instrument, change of plea form,
sentencing order, and a conviction document to makes its
determination that Henderson “pled guilty to and was
sentenced for a serious drug offense within the meaning of
the ACCA.” (App. 11.) Henderson argues that the
documents—in particular, the charging instrument and the
conviction document from the convicting court—did not
establish with certainty that this conviction was a serious drug
offense under ACCA. A review of the record reveals this is
simply not the case.

       The conviction at issue here stemmed from “count
two” of the indictment at “Criminal Action No. 2004[0]-
2883.” (App. 9 (citing (App. 68.))) Count two of the cited
indictment specifically states that Henderson was charged
with possessing “Heroin.” (App. 68.) Because the second
qualifying conviction was for heroin, we find that the District
Court did not err by looking to Henderson’s charging
instrument to make the determination that Henderson’s
second qualifying conviction was a serious drug offense
under ACCA.



                              17
        With respect to the conviction document relied upon
by the District Court, Henderson contends that the conviction
document used was not proper because it was not his “actual”
conviction document.9        Actual conviction documents,
however, are not required to provide the requisite certainty
demanded by the Supreme Court. See 

(explaining that sentencing courts may look to “the
charging document . . . or . . . some comparable judicial
record of this information”) (emphasis added); see also
United States v. Howard, 

, 272 (3d Cir. 2010)
(“This Court has never established a per se rule that certified
copies of a conviction must be offered by the government
before a judge may determine a defendant’s career offender
status”). Indeed, we have deemed “other reliable judicial
records,” 

to be sufficient, including incomplete
certified conviction records and docket entries because we
have found that “both . . . are ‘records of the convicting
court.’” 

(quoting 

)
(footnote omitted).

      The District Court relied on a form entitled, “Report of
Courts Showing the Conviction of Certain Violations of the
Controlled Substance, Drug, Device and Cosmetic Act.”
(App. 70.) This form is a reliable judicial record.10 Thus,

      9
          Henderson’s actual conviction document is not in the
record.
      10
          The “Report of Courts” form was completed by the
Clerk of Courts in the Court of Common Pleas for Allegheny
Pennsylvania and was “to be used for reporting the [] listed
violations of the Controlled Substance, Drug, Device and
Cosmetic Act . . . .” (App. 70.) Notably, this judicial record




                               18
there was no error in considering it along with the other
mutually corroborating records relied upon by the District
Court. These “are the type of judicial records that are
permissible for sentencing courts to use to establish past
convictions for sentencing purposes.” 

; cf. 

. Thus, the District Court
properly determined that Henderson’s conviction on the
January 24, 2004 indictment involved heroin, which is a
controlled substance under 21 U.S.C. § 802, and was a
predicate offense for the imposition of ACCA’s fifteen-year
minimum sentence.

                            IV.

      For the foregoing reasons, we will affirm the judgment
of conviction and sentence.




from the convicting court indicated that Henderson was
convicted of violating Section 780–113(a)(30), and
specifically indicated that the violation was a felony.
Because this form was a “record[] of the convicting court,”

(quoting 

),
we find that the form was a reliable judicial record.




                            19