NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 16-3604 _____________

UNITED STATES OF AMERICA

v.

ATIBA WARREN, Appellant _____________

On Appeal from the United States District Court for the Western District of Pennsylvania (W.D. Pa. No. 2-13-cr-00270-001) District Judge: Honorable Mark R. Hornak ______________

Submitted Under Third Circuit L.A.R. 34.1(a) September 14, 2017 ______________

Before: VANASKIE, RENDELL, and FUENTES, Circuit Judges

(Filed: January 24, 2018) ______________

OPINION* ______________

VANASKIE, Circuit Judge.

In this direct criminal appeal, Appellant-Defendant Atiba Warren raises arguments

involving the Fourth Amendment and the Armed Career Criminal Act (“ACCA”)

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. following his conviction for being a felon in possession of a firearm. On the Fourth

Amendment issue, Warren argues that evidence stemming from a warrantless search of

his home should have been suppressed. Upon review, however, we find that the

imminent-danger exception to the warrant requirement justified the search, and thus

suppression was unwarranted. On the ACCA issue, Warren argues that two of his prior

convictions should not have counted as predicate offenses, because they were for

Maryland crimes whose definitions he sees as reaching too broadly to count, but a review

of Maryland precedents indicates that is not true. We will affirm.

I.

On October 23, 2012, Atiba Warren was 32 and living in a Pittsburgh,

Pennsylvania house when Police Officer Steven Sywyj came to the house in response to a

call of a stabbing. Warren was inside when Sywyj arrived to a “chaotic” scene, with the

“bloody” and “barely conscious” victim suffering from a wound and lying on the front

porch. (App. 32.) The victim was being tended to by another man.

Medics and other officers arrived a “few minutes” later, at which point the man

tending to the victim asked Officer Sywyj if he could enter the home to speak with the

victim’s family. Id. Officer Sywyj said yes, accompanied the man to the front door, and

stood at the open door’s “threshold” as several individuals congregated inside. Id. While

standing there, Officer Sywyj saw a third man, later identified as Warren, standing

“behind everybody” in the house and holding a handgun “in his right hand at chest level.”

Id. Drawing his own firearm, Officer Sywyj shouted “gun,” at which point Warren

“disappeared from one doorway and re-emerged a second or two later from a doorway

2 further to the right, sans gun.” Id. at 33. Officer Sywyj then ordered Warren and the

other occupants to “go outside” and, along with Officer Lance Hoyson, who had been

assisting the medics, proceeded to enter the home. Id. Upon entering the home, Officer

Hoyson heard “noises” coming from the second floor, and “[b]elieving people may still

be upstairs,” ordered any remaining individuals “to exit” the home. Id. Officer Hoyson

and a third officer then proceeded upstairs, where they observed that the noises were

originating from a television that had been left on. No other individuals were found in

the home.

While Officer Hoyson was upstairs, downstairs Officer Sywyj observed the gun

that Warren had been holding “protruding from under a magazine on a table.” Id. at 77.

Noticing upon inspection that the gun’s serial number had been obliterated, Officer

Sywyj accordingly placed Warren under arrest. See

(k) (prohibiting the

possession of a firearm that has moved in interstate commerce and has an obliterated

serial number). Officer Hoyson then came back downstairs, exited the home, and advised

Warren of his Miranda rights. Warren thereafter admitted the firearm was his.

Warren—who has prior felony convictions—was indicted on one count of being a

felon in possession of a firearm in violation of

(g)(1). He pleaded not

guilty and moved the District Court to prohibit the admission of any evidence—namely

the gun—that had been procured from the search of Warren’s home. The District Court

denied the motion, and a jury found Warren guilty after trial.

At sentencing, the District Court held that because three of Warren’s prior

convictions were for crimes that met the definitions of “serious drug offense” or “violent

3 felony” in

(e), the typical ten-year mandatory maximum did not apply,

and the ACCA’s mandatory minimum instead required that he be imprisoned for at least

fifteen years. The District Court sentenced him to sixteen years in prison, and Warren

appealed.

II.

The District Court had jurisdiction because Warren was charged with an offense

against the laws of the United States.

. We have jurisdiction because

Warren appealed from the final decision of the District Court.

.

III.

Warren contests two aspects of the District Court’s handling of his case: the denial

of his motion to suppress evidence, and the determination that he had the requisite three

prior qualifying convictions to be designated as a “career criminal” and thus subject to a

fifteen-year mandatory minimum prison term under ACCA.

A.

Warren first challenges the denial of his suppression motion. In reviewing a

decision on a suppression motion, we review a district court’s findings of fact for clear

error and its conclusions of law de novo. United States v. Mallory,

(3d

Cir. 2014). As applied specifically to our review of a holding that exigent circumstances

did or did not exist on a particular occasion, our standards require us to review the actual

underlying factual findings for clear error, but we review de novo the question of whether

those facts created an exigency.

4 The Constitution prohibits the government from conducting “unreasonable

searches” of “persons, houses, papers, and effects,” U.S. Const. amend. IV. The search-

and-seizure requirements of the Fourth Amendment also apply against the states,

including Pennsylvania, through the Fourteenth Amendment’s Due Process Clause.

Mapp v. Ohio,

(1961).

Whether a search is “unreasonable” is usually determined by the warrant

requirement: it is “per se unreasonable” for an officer to conduct a search “outside the

judicial process, without prior approval by [a] judge or [a] magistrate judge.” City of Los

Angeles v. Patel,

(2015) (alterations in original) (quoting Arizona

v. Gant,

(2009)). But “a few specifically established and well-

delineated exceptions” to the warrant requirement exist,

one being the exigent-

circumstances exception. Mallory,

. Under this exception, exigent

circumstances may excuse a police officer’s warrantless search, for example, when the

officer “reasonably . . . believe[s] that someone is in imminent danger.”

at 384

(quoting Couden v. Duffy,

(3d Cir. 2006)). The crucial word is

“imminent,” requiring “the existence of a true emergency.”

(quoting United States v.

Simmons,

(2d Cir. 2011)). This imminent-danger, exigent-

circumstances exception is adjudged from an objective standpoint; “the subjective intent

of the officer is irrelevant.”

at 383 (quoting Brigham City, Utah v. Stuart,

(2006)).

Here, at least four aspects of the facts of Warren’s case support the District

Court’s holding that Officer Sywyj could have reasonably believed that he faced an

5 imminent danger––either to himself or to the other individuals present at the scene––

immediately prior to making his warrantless search of the house. First, the context of the

search and the ambiguity of events: what preceded the search was a bloody stabbing, and

Sywyj and the other officers had not yet fully learned the events that led to the stabbing.

See id. at 386 (noting the presence of a violent offense is a factor tending toward an

imminence finding); see also (App. 32) (stating that Officer Sywyj was seeking to

“interview” the man who tended to the victim); (App. 33) (stating that Officer Hoyson

had remained on the scene after the victim had departed in an ambulance “to gather

evidence about the stabbing”). Second, “chaos”: the District Court noted the scene was

“chaos,” reasonably heightening Sywyj’s concern that further violence might occur. See

Mallory,

(listing unsupervised movement of individuals at the scene as a

factor tending toward an imminence finding). Third, the gun: Warren was holding a gun,

a lethal weapon. See

(listing the presence of an easily-obtainable, usable firearm as

tending toward an imminence finding). Fourth, the position in which Warren was

holding the gun: the gun was not lying on a table, or holstered on Warren’s belt, or even

held at Warren’s side—Warren was holding it at “chest” level, a position that reasonably

suggests Warren may have intended to use the weapon. See

(listing the easily-

obtainable-and-usable-firearm factor). Taken together, these facts support a finding that

a reasonable officer could find an imminent danger.

Warren has four fair arguments in his favor, but none command a different result.

First, the timing of Sywyj’s search is not exactly clear from the District Court’s opinion.

See

(highlighting timing as a factor for determining imminence). Except for noting

6 that medics arrived “within a few minutes” of Officer Sywyj’s arrival on the scene (App.

32), the opinion does not describe in precise terms how much time passed prior to the

warrantless search. Warren argues that we cannot determine imminence without

knowing the timing. But despite the lack of precision, the District Court did arrive at a

factual finding––it found that the sequence of events occurred in a “compressed period of

time.” (App. 32 n.3.) Warren has pointed to no evidence to indicate that this

compressed-period-of-time factual finding is clear error, so we are bound by it.

Second, Warren argues that Officer Sywyj’s mere observation of Warren holding a

gun was not probable cause that a crime had been or would be committed. See Kirk v.

Louisiana,

(2002) (“[P]olice officers need either a warrant or probable

cause plus exigent circumstances in order to make a lawful entry into a home.”). But in

imminent-danger cases involving a gun, the probable-cause determination and the

exigent-circumstances finding often dovetail together, because it is the possible illegal

use of a gun that gives rise to the danger in the first place. That is just what happened

here: Officer Sywyj, upon seeing Warren holding a gun at his chest, could have

reasonably feared that Warren might illegally discharge his weapon at him or at someone

else on the scene. This fear therefore meets both the exigent circumstances and probable

cause prongs.

Third, Warren notes that the District Court’s opinion contains no discussion of the

stabbing assailant, whether he or she had been captured or identified, or whether the

house was suspected to contain accomplices. See Mallory,

(factoring in

whether the suspect has been apprehended and whether the premises has been secured).

7 But total knowledge of an event is unnecessary, and here the District Court had more than

enough evidence from which it could arrive at a finding of imminence: the chaos, bloody

stabbing, compressed period of time, and the chest-level gun all support the finding of

imminence.

Fourth, Warren analogizes his case to United States v. Mallory, where late one

night in Philadelphia, police officers chased a suspect carrying a handgun into a four-

story family home without a warrant. 765 F.3d at 376–77. After ordering the family

outside, the officers methodically searched all four floors of the house, eventually

locating the suspect in a locked bathroom and arresting him.

at 377–78. The gun,

however, remained missing.

. As the police were removing the suspect from

the property, officers remembered a spot in the house they had not searched.

They

doubled-back into the house and found the gun.

On those facts, we held that the gun

must be suppressed, because––although the initial search may have been justified––the

police had gained “control of the situation” by removing the suspect and the family from

the home.

at 386–87. As a result, any exigent circumstances that once existed had

passed.

Here, unlike Mallory, Warren’s gun was discovered prior to officers gaining

control of the situation. In Mallory, the officers’ search had methodically progressed floor

by floor, and the gun was found after both the family and the suspect had been removed

from the house. Here, however, the gun was found while Officers Sywyj and Hoyson

suspected that more individuals remained inside the home. It was not until Officer

8 Hoyson came down from the upstairs, after Sywyj found the gun, that the officers could

reasonably be said to have gained control of the situation and eliminated the exigency.

In sum, the context of the scene and the events, when coupled with Officer

Sywyj’s observation of Warren holding a gun at chest height, supported a reasonable

belief that an imminent danger existed to officers and others, justifying the warrantless

search until the Officers could gain control of the scene, an event that did not occur until

after Hoyson had learned that no one remained in the house. The search was not

unreasonable, and suppression was not appropriate.

B.

Warren also challenges the application of the ACCA fifteen-year mandatory

maximum by arguing that two of his three identified prior convictions cannot serve as

predicate offenses. These are questions of law, and we review them de novo. See United

States v. Dahl,

, 349 n.4 (3d Cir. 2016).

Typically, a person convicted of being a felon in possession of a firearm in

violation of

(g)(1) may be “imprisoned not more than 10 years.”

(a)(2). But under the ACCA, that ten-year mandatory maximum is

transformed into a fifteen-year mandatory minimum if the person “has three previous

convictions by any court . . . for a violent felony or a serious drug offense, or both,

committed on occasions different from one another.”

§ 924(e)(1).

The ACCA goes on to define the two categories of predicate offenses—“violent

felonies” and “serious drug offenses.” A “violent felony” is any felony that either “has as

an element the use, attempted use, or threatened use of physical force against the person

9 of another,” or “is burglary, arson, or extortion, [or] involves the use of explosives.” Id.

§ 924(e)(2)(B).1 A “serious drug offense” is any crime that is either one of several

categories of federal drug offenses, or a state drug offense “involving manufacturing,

distributing, or possessing with intent to manufacture or distribute, a controlled

substance.” Id. § 924(e)(2)(A).

To see whether a particular offense fits one of these definitions, courts typically

apply the “categorical approach”: they “focus solely on whether the elements of the

crime [that underlie the prior offense] sufficiently match the” ACCA definition for either

violent felony or serious drug offense, “while ignoring the particular facts of the case.”

Mathis v. United States,

(2016) (internal citation omitted). “The

key . . . is elements, not facts.” Descamps v. United States,

(2013).

If even one of the prior-offense crime’s elements reaches “more broadly” than the ACCA

definition, then “no conviction under that law could count as an ACCA predicate . . . .”

Mathis,

-49. If the prior offense crime contains alternative elements,

some that meet ACCA definitions and some that do not, then a court may examine a

limited universe of trial-court documents to determine which alternative element served

as the basis for the defendant’s conviction.

; see also Shepard v. United States,

(2005) (listing a few of the documents that may be reviewed). Criminal

1

(e)(2)(B) also includes a third residual definition for “violent felony”—any felony that “involves conduct that presents a serious potential risk of physical injury to another”—but the residual clause is void for vagueness and may not be constitutionally enforced. Johnson v. United States,

(2015). 10 statutes containing alternative elements are referred to as “divisible” statutes. Descamps,

.

1. Maryland Robbery

Here, two Maryland prior offenses are at issue. The first is Warren’s conviction

for robbery, which the District Court found to be divisible and a “violent felony.”

Warren argues robbery is an indivisible crime in Maryland and cannot be a “violent

felony.”

Three relevant sections of the Maryland Criminal Code define Maryland’s robbery

law. Section 3-401 defines robbery as retaining its “judicially determined” common law

“meaning” and prescribes a few exceptions. Md. Code Ann. Crim. Law § 3-401.

Section 3-402 prohibits robbery and sets forth a mandatory maximum of fifteen years’

imprisonment. Id. § 3-402. And § 3-403 builds on § 3-402 to prohibit “robbery under

§ 3-402” if it is committed “with a dangerous weapon,” in which case the mandatory

maximum prison term is increased from fifteen to twenty years. Id. § 3-403.2

From this statutory landscape, the parties’ arguments frame three undisputed

points: First, the United States mounts no argument that a conviction for simple robbery,

without § 3-403’s armed component, is a “violent felony” in the eyes of the ACCA. The

United States instead bases its entire argument on the notion that Maryland’s robbery

statute is divisible, and that Warren’s conviction falls under the armed-robbery portion in

2 The language found in § 3-401 to § 3-403 is an updated and reorganized version of the law that governed Warren’s case, but the parties agree that today’s language is substantively the same as when Warren was convicted.

11 § 3-403.3 Second, Warren concedes that, if Maryland’s law is in fact divisible as the

United States maintains, then it is clear from the available Shepard documents that his

robbery conviction was for armed robbery under § 3-403, not simple robbery. Third, if

Maryland law is, alternatively, as Warren suggests, just one indivisible offense, then the

United States does not dispute that a Maryland robbery conviction—even if it is

committed by the means of using a dangerous weapon—cannot serve as an ACCA

violent-felony predicate. Given these shared premises, the main dispute between the

parties is whether the Maryland robbery statute is divisible. The United States says yes,

the dangerous-weapon portion is an alternative element, and Warren says no, the

dangerous-weapon portion merely describes an alternative means of committing a

robbery and is a factor for sentencing.

We must first separate a crime’s legal elements from the means by which the

crime is committed. As the Supreme Court has explained, the former are the

“‘constituent parts’ of a crime’s legal definition—the things the ‘prosecution must prove

to sustain a conviction.’” Mathis,

(quoting Black’s Law Dictionary

634 (10th ed. 2014)). “At a trial, they are what the jury must find beyond a reasonable

doubt to convict the defendant . . . .”

(internal citation omitted). Under a line of Sixth

Amendment cases beginning with Apprendi, an “element” may also be defined as any

factual finding that would “expose[] the defendant to a greater punishment” than what

would otherwise be “authorized by the jury’s guilty verdict . . . .” Hurst v. Florida, 136

3 Cf. United States. v. Redrick,

(D.C. Cir. 2016) (noting that the United States has taken divergent positions on the Maryland simple-robbery issue in litigation before the Fourth and D.C. Circuits).

, 621 (2016) (quoting Apprendi v. New Jersey,

(2000)). By

contrast, the means by which a crime can be committed relate to the “facts” of a case,

“extraneous to the crime’s legal requirements,” and “need neither be found by a jury nor

admitted by a defendant” before the defendant is found guilty. Mathis,

.

Here, Maryland precedent indicates that the dangerous-weapon portion of the

Maryland robbery statute is an element of the crime. Maryland requires its prosecutors to

put the dangerous-weapon allegation in the indictment, present it to the jury, and prove it

beyond a reasonable doubt. See, e.g., Wadlow v. State of Maryland,

(Md. 1994) (requiring questions involving sentencing enhancements for “circumstances

of the offense” to be charged in the indictment, presented to the jury, and subjected to the

reasonable doubt standard); Battle v. State,

(Md. Ct. Spec. App. 1985)

(quoting jury instructions on the dangerous-weapon issue); Md. State Bar Ass’n,

Maryland Criminal Pattern Jury Instructions 4:28.1 (2017 ed.) (instructing that for

armed robbery, “the State must prove . . . that the Defendant committed the robbery by

using a dangerous weapon”). In United States v. Redrick,

(D.C. Cir.

2016), the D.C. Circuit recently used this same reasoning to conclude that the dangerous-

weapon portion of the Maryland armed robbery statute is an element of the crime under

the ACCA.

The dangerous-weapon portion of the Maryland robbery statute is also an

“element” under Apprendi. The Sixth Amendment provides criminal defendants with the

right to a trial “by an impartial jury.” U.S. Const. amend. VI. This right, in conjunction

13 with the Due Process Clause, requires that juries decide all questions related to whether a

defendant’s conduct meets the elemental definitions of a charged crime. Hurst,

. Thus, the Sixth Amendment, like the ACCA, demands that federal law

differentiate between a crime’s elements and the means by which the crime may be

violated, because any factual finding that goes to an “element” must be found by a jury,

and only non-elemental factual findings may be found by a judge. A line of Sixth

Amendment cases beginning with Apprendi has therefore defined a crime’s “elements” as

encompassing the factual findings that would increase the permissible range of

punishment for the crime. Hurst,

. Under the Maryland statute, a

dangerous-weapon finding increases the available maximum term of imprisonment from

fifteen to twenty years. Under Apprendi, therefore, the dangerous-weapon portion of the

Maryland robbery statute is an element of the crime.

Warren responds with citations to authority that he believes support his view that

Maryland robbery is one indivisible crime. He highlights § 3-403’s language phrasing its

armed-robbery prohibition by reference to § 3-402, instead of laying out a new set of

elements. Md. Code. Ann. Crim. Law § 3-403 (“A person may not commit or attempt to

commit robbery under § 3-402 of this subtitle: (1) with a dangerous weapon”). And he

references several statements from the Maryland Court of Appeals about robbery being a

single offense: “In Maryland, robbery is a single common law offense,” Whack v. State

of Maryland,

(Md. 1980); the State’s statutory sections on robbery “do

not create separate statutory offenses but merely fix the penalties for the one crime of

robbery,” id.; and “[r]obbery with a deadly weapon is not a separate substantive offense,

14 but if the State can prove that a defendant used a deadly weapon during the commission

of the robbery, the defendant is subject to harsher penalties,” Conyers v. State of

Maryland,

(Md. 1997) (internal citation omitted). But all of these

statements, even if taken at their strongest, do not preclude the possibility that Maryland

robbery is a single, yet divisible, offense. Also, Warren ignores countervailing language

in other Maryland decisions. For example, the Maryland Court of Appeals has stated that

“armed robbery and basic robbery” are, “for some purposes,” properly regarded as

“separate offenses.” Hagans v. State of Maryland,

(Md. 1989). And

the Maryland Court of Special Appeals has described the dangerous-weapon portion of

Maryland’s robbery law as “requir[ing] proof of an additional element.” Bynum v. State

of Maryland,

(Md. Ct. Spec. App. 1976). Furthermore, it is not

Maryland’s labels that are dispositive; our inquiry is whether, as a matter of federal law,

the deadly-weapon portion of the statute is an “element” of the crime under the ACCA.

Redrick,

; see also Johnson v. United States,

(2010)

(stating the “meaning of ‘physical force’ in [the ACCA] is a question of federal law, not

state law”). Maryland’s crime of robbery is a divisible offense, with an alternative

element for robbery with a dangerous weapon. It is clear from the Shephard documents

that Warren was convicted of robbery with a dangerous weapon.

Finally, Warren argues that even if Maryland’s robbery law is divisible, his armed-

robbery conviction still is not a “violent felony” under the ACCA because threats against

property alone are sufficient for Maryland robbery but do not constitute “force” under the

ACCA. See

(e)(2)(B) (referring only to the “use, attempted use, or

15 threatened use of physical force against the person of another”) (emphasis added). His

argument is that he reads the Maryland precedent as including threats that are merely

against property.

For support, Warren relies upon two forty-seven-year-old decisions from

Maryland’s Court of Special Appeals, the State’s intermediate appellate court. First, he

cites Douglas v. State of Maryland,

(Md. Ct. Spec. App. 1970), where

the court stated that robbery does not require a “fear” of “bodily injury at all” and that the

fear may relate “to property, as for example, a threat to burn down a house.” Second,

Warren points to Giles v. State of Maryland,

(Md. Ct. Spec. App.

1970), where the court also noted that robbery could be accomplished by threatening

“injury to the person or to property.” In Warren’s view, these statements are rule

statements that extend the crime of robbery to threats to property, beyond instances of

constructive force against a person wherein a threat of bodily injury might be implied

from a more specific threat to property. But we disagree. The intermediate-appellate

court decisions on which Warren relies are not binding on us, Comm’r v. Estate of Bosch,

(1967), and they are not particularly persuasive given their old age and

the lack of support in more recent decisions from either the State’s intermediate court or

highest court, the Maryland Court of Appeals, see Bryan A. Garner et al., The Law of

Judicial of Judicial Precedent 234 (2016) (“A precedent that has never been cited or

affirmed—or that has not been recently cited—is vulnerable to doubt.”).

Given that Warren highlights no binding state precedent, our task is to “consider

all the data the highest court of the state would use in an effort to determine how the

16 highest court of the state would decide.” Richard H. Fallon, Jr., et al., Hart and

Wechsler’s The Federal Courts and the Federal System 570 (6th ed. 2009); see also U.S.

Underwriters Ins. Co. v. Liberty Mut. Ins. Co.,

(3d Cir. 1996) (“[W]e must

attempt to predict how that tribunal would rule”) (citing Kowalsky v. Long Beach

Township,

(3d Cir. 1995)). Here, we predict that the Maryland Court of

Appeals would refrain from extending its law governing armed robbery crimes to threats

made to property that are not likewise accompanied by an explicit or implied threat to a

person. Maryland’s precedent emphasizes that robbery is, at bottom, based on assault

and battery principles, and assault and battery are crimes carried out against people, not

property. See Snowden v. State of Maryland,

(Md. 1991)

(“Robbery is a compound larceny. It is a larceny from the person accomplished by either

an assault (putting in fear) or a battery (violence).”). “Under Maryland law . . . assault

consists of ‘(1) an attempt to commit a battery or (2) an unlawful intentional act which

places another in reasonable apprehension of receiving an immediate battery.’ . . . A

‘battery,’ in turn, ‘is any unlawful application of force . . . to the body of the victim.’”

Redrick,

(quoting United States v. Coleman,

(4th Cir.

1998) (en banc) (emphasis added)). The “dangerous weapon” requirement makes the

question even easier, because dangerous and deadly weapons “are ‘deadly’ to humans,

not property.”

Thus, Maryland’s definition of force for armed-robbery does not

extend more broadly than the definition of “force” in the ACCA, and Warren’s Maryland

robbery conviction may serve as a predicate offense.

17 2. Maryland Heroin Distribution

The second offense at issue is Warren’s Maryland heroin distribution conviction.

Warren did not raise this argument in an objection before the District Court, and so to

receive relief on appeal, he must not only demonstrate that the District Court committed

an error, he “must also meet the requirements of the plain-error standard by

demonstrating the error is clear, prejudicial, and affects the fairness or reputation of the

judicial proceeding.” Dahl,

n.4 (internal citation omitted).

As mentioned above, to be a “serious drug offense” under the ACCA, the

Maryland drug offense must punish conduct “involving manufacturing, distributing, or

possessing with intent to manufacture or distribute, a controlled substance.”

(e)(2)(A). Here, Warren focuses on attempted distribution: federal law defines the

word “distribute” to mean “to deliver,” with deliver in turn meaning “the actual,

constructive, or attempted transfer of a controlled substance or a listed chemical, whether

or not there exists an agency relationship.”

(8), (11). Warren says

Maryland defines “distribute” more broadly in that Maryland’s definition of

“distribution” not only covers actual and attempted delivery, but also mere offers to

deliver. See United States v. Hinkle,

(5th Cir. 2016) (“The

Government concedes that if Hinkle were convicted of delivering a controlled substance

by ‘offering to sell’ that substance, the crime would not come within the definition of a

‘controlled substance offense.’”).

But Warren does not offer much in the way of showing that Maryland law actually

goes so far to include offers in its definition of deliver. He relies largely on a forty-six-

18 year-old Maryland Court of Special Appeals decision, Rosenberg v. State of Maryland,

where the court found that the word “distribute” includes “offer” because “distribute”

includes “delivery,” “delivery” includes “sale,” and “sale” includes “offer.”

, 710 n.1, 711 (Md. Ct. Spec. App. 1971). We suspect that Rosenberg’s convoluted

and attenuated reasoning reaches the wrong result at least in extending the definition of

“distribute” to include an “offer,” and the source of the confusion appears to be its

interpretation of language in Maryland’s definition of “deliver.” That definition extends

to “actual, constructive, or attempted transfer[s]” regardless of “whether or not

remuneration is paid.” Md. Code Crim. Law Code. § 5-101(i) (“Deliver”). Extending

the definition of delivery to instances where “remuneration” is not paid, however, is not

equivalent to extending the definition to a mere offer; rather, the without-remuneration

language simply means that an attempted transfer is still attempted even if money does

not change hands. An offer is something even less than that, because all it requires is a

manifestation of willingness by one party to enter into a bargain, regardless of whether

the other party wants to join in. See Restatement (Second) of Contracts § 24 (“Offer

Defined”). Attempted transfer implies that a bargain has been reached. We think the

Maryland Court of Appeals would agree.

Warren also points to a jury-instructions treatise, which states that a defendant has

“distributed a controlled dangerous substance if [he or she has] sold the substance,” and

the definition of “sale” “includes exchanging, bartering, or offering [the substance] for

money.” David E. Aaronson, Maryland Criminal Jury Instructions and Commentary

19 § 7.46 (2017 ed.) (emphasis added). But the only source that Professor Aaronson cites

for the “offer” language is Rosenberg, rendering it just as problematic of a source.

Finally, even if we found Warren’s “offer” position to be a correct reading of the

law, the plain error standard of review would still not permit us to award appellate relief,

because the error would be at best founded on murky case law. It would be far from

“plain.” Accordingly, Warren is not entitled to relief with respect to his challenge to his

Maryland heroin conviction as an ACCA predicate offense.

V.

For the foregoing reasons, we will affirm the District Court’s order denying

Warren’s suppression motion and the District Court’s sentencing order.

20