Filed: Jun. 25, 2014
Latest Update: Jun. 25, 2014
Summary: MEMORANDUM ORDER TERRENCE F. McVERRY, District Judge. Now pending before the Court is Defendant Marcus John Carswell's MOTION TO CORRECT SENTENCE UNDER 28 U.S.C. 2255 (ECF No. 78), filed on his behalf by the Federal Public Defender. No response is necessary. Carswell argues that he should be re-sentenced because he no longer qualifies as a career offender under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. 924(e). Specifically, he argues that his prior conviction for manufacturing, d
Summary: MEMORANDUM ORDER TERRENCE F. McVERRY, District Judge. Now pending before the Court is Defendant Marcus John Carswell's MOTION TO CORRECT SENTENCE UNDER 28 U.S.C. 2255 (ECF No. 78), filed on his behalf by the Federal Public Defender. No response is necessary. Carswell argues that he should be re-sentenced because he no longer qualifies as a career offender under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. 924(e). Specifically, he argues that his prior conviction for manufacturing, de..
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MEMORANDUM ORDER
TERRENCE F. McVERRY, District Judge.
Now pending before the Court is Defendant Marcus John Carswell's MOTION TO CORRECT SENTENCE UNDER 28 U.S.C. § 2255 (ECF No. 78), filed on his behalf by the Federal Public Defender. No response is necessary.
Carswell argues that he should be re-sentenced because he no longer qualifies as a career offender under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). Specifically, he argues that his prior conviction for manufacturing, delivering, or possession with intent to manufacture or deliver a controlled substance under Pennsylvania law, 35 Pa.C.S.A. § 780-113(a)(30), is not a "serious drug offense" under the elements-driven categorical approach used in the recent Supreme Court decision in Descamps v. United States, 133 S.Ct. 2276 (2013).
Unfortunately for Carswell, this precise argument was rejected by the United States Court of Appeals for the Third Circuit in United States v. Abbott, 748 F.3d 154 (3d Cir. 2013), where the Court held that § 780-113(a)(30) is a "divisible" statute. Thus the modified-categorical approach may be applied to determine whether a prior conviction under that statute qualifies as an ACCA predicate offense. As the Federal Public Defender recognizes, this Court is required to follow the holding in Abbott. Applying the modified-categorical approach, Carswell's two prior convictions for possession with the intent to deliver cocaine qualify as ACCA predicate offenses.
Accordingly, the MOTION TO CORRECT SENTENCE UNDER 28 U.S.C. § 2255 (ECF No. 78) is DENIED. Civil Action No. 14-786 shall be marked closed. Defendant shall have the right to appeal this ruling.
SO ORDERED.
