NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________

No. 17-3618 ________________

UNITED STATES OF AMERICA

v.

ROMEL WILSON,

Appellant ________________

Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Criminal Action No. 2-15-cr-00257-001) District Judge: Honorable Donetta W. Ambrose ________________

Submitted under Third Circuit LAR 34.1(a) on July 9, 2019

Before: MCKEE, ROTH and RENDELL, Circuit Judges

(Opinion filed February 3, 2020) ________________

OPINION ________________

ROTH, Circuit Judge

 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Romel Wilson appeals the sentence imposed by the United States District Court

for the Western District of Pennsylvania. For the reasons that follow, we will affirm.

I

In April 2015, Wilson was arrested after selling crack cocaine and a mixture of

heroin and fentanyl to an undercover Pittsburgh police officer, posing as a drug user. A

search of Wilson’s vehicle uncovered two more bags of crack cocaine and $636 in

addition to the buy money. Wilson was originally charged in state court. In connection

with the same conduct, he was later indicted in federal court for possession with intent to

distribute heroin, fentanyl, and crack cocaine in violation of

(a)(1) and

841(b)(1)(C). In December 2015, following his federal indictment and the issuance of a

federal arrest warrant, law enforcement officials decided to serve Wilson’s arrest warrant

during another undercover buy. Wilson was arrested upon arriving at the location of the

undercover buy.1

Wilson pled guilty to possession with intent to distribute heroin, fentanyl, and

cocaine base. At the time he pled guilty, Wilson had four prior drug distribution

convictions for possession with intent to deliver heroin and cocaine under 35 Pa. Stat.

Ann. § 780-113(a)(30). As a result, the Presentence Report (PSR) characterized him as a

“career offender” within the meaning of United States Sentencing Guidelines § 4B1.1.

Based on his total offense level of 31 and his criminal history category of VI, the

Guidelines range was calculated as 188 to 235 months’ imprisonment.

1 The Commonwealth of Pennsylvania nolle prossed all state charges against Wilson once the federal case was initiated. 2 Wilson expressed two main objections to the PSR: the factual descriptions of his

prior convictions and his career-offender classification. Claiming the Guidelines range

was “patently unreasonable,” Wilson moved for a downward departure for the alleged

overstatement of his criminal history, arguing that his previous convictions were both

non-violent and low-level. He also requested a downward variance, asking for a 96-

month sentence while the government sought a sentence within the Guidelines range of

188 to 235 months.

A sentencing hearing was held in November 2017. The District Court overruled

Wilson’s objections to the factual summaries in the PSR criminal history section and his

career-offender designation. The court, however, did grant his requests for a downward

departure, reducing his criminal history category from VI to V, and a downward variance

in his offense level from 31 to 27, based on overstatement of his criminal history. His

resulting Guidelines range was 120 to 150 months. After considering the sentencing

factors set forth in

(a), the District Court imposed a sentence of 120

months, at the bottom of the range.

In imposing the sentence, the District Court discussed Wilson’s history and

characteristics, describing him as a “mixed bag” of bad and good.2 The court also

emphasized deterrence, noting that “it does seem that there isn’t much that deters you

from selling . . .. No amount of supervision, no threat of prosecution hanging over your

head.”3

2

-24. 3

. 3 At the conclusion of the sentencing hearing, Wilson’s counsel objected generally

to the sentence as being “substantively or procedurally unreasonable.”4 Wilson appealed.

II5

The parties disagree about the appropriate standard of appellate review. While

Wilson contends that de novo review applies to his due process argument, the

government maintains he never preserved the issue and thus faces plain error review.

The government is correct. Our case law makes clear that an objection must be

sufficiently specific to serve notice as to the underlying basis for the objection.6 Defense

counsel’s objection was fatally vague. Where, as here, an objection is not preserved at

sentencing, we review only for plain error.7 Under this standard, Wilson bears the burden

of showing that an error (1) was made, (2) is clear or obvious, and (3) affects his

substantial rights.8 Even if all three conditions are met, we exercise our discretion to

correct the error only if it “seriously affects the fairness, integrity or public reputation of

judicial proceedings.”9

. 5 The District Court had jurisdiction under

. We have appellate jurisdiction pursuant to

. 6 United States v. Russell,

(3d Cir. 1998). 7 Fed. R. Crim. P. 52(b) provides that, in the absence of proper preservation, plain error review applies. The Supreme Court has held that appellate courts can review unpreserved objections for plain error only. United States v. Olano,

, 731- 33 (1993). 8 United States v. Miller,

(3d Cir. 2016); see also Olano,

(“‘Plain’ is synonymous with ‘clear’ or, equivalently, ‘obvious.’”). 9 United States v. Mateo-Medina,

(3d Cir. 2017) (citing United States v. Goodson,

(3d Cir. 2008)). 4 On the other hand, Wilson preserved his challenge to his career-offender

designation. We exercise plenary review over objections to career-offender

enhancements.10

III

A

Under the Due Process Clause, a defendant cannot be deprived of liberty based

upon mere speculation.11 We have applied this principle in numerous cases, including

United States v. Berry,12 upon which Wilson relies to argue that the court erred by

speculating that incarceration deters drug trafficking and that his incapacitation would

protect the community. In Berry, we found plain error where the sentencing court

explicitly relied on unsupported speculation drawn from the defendants’ bare arrest

records.13

Wilson argues that, just as the court in Berry improperly relied on unfounded

speculation, here too, the District Court erred by relying on an inaccurate understanding

of Wilson’s apparent failure to be deterred from drug trafficking. The government

counters by pointing out that the District Court relied on information concerning Wilson

as an individual, not on general statistics regarding drug traffickers. The government also

10 See United States v. Glass,

(3d Cir. 2018). 11 United States v. Ferguson,

(3d Cir. 2017). 12

(3d Cir. 2009). 13

. 5 cited United States v. Ferguson,14 where we clarified the difference between improper

reliance on information and acceptable reference to it.15

To show plain error, Wilson must be able to “bridge the gap between reference

and reliance.”16 He is unable to do so. Although the District Court referred to

deterrence, its sentencing decision was based on Wilson’s personal history of recidivism,

not on general information from empirical studies. Moreover, earlier in the hearing,

when the government speculated about the amount of heroin Wilson may have previously

distributed, the District Court pushed back: “I can really only base my decision on what

he’s here for and his criminal history.”17

Wilson has failed to demonstrate that the District Court relied on speculative

information in violation of his due process rights.

B

Wilson also challenges his sentence on the ground that the District Court

improperly designated him a “career offender” under Section 4B1.1 of the Guidelines

based on his prior controlled substance convictions. Our recent decision in United States

v. Daniels18 forecloses this argument.

Wilson’s status as a career offender is dictated by his criminal record, which

includes four prior felony drug-trafficking convictions in Pennsylvania in violation of §

14

(3d Cir. 2017). 15

. 16

.

. 18

(3d Cir. 2019). 6 780-113(a)(30).19 Wilson contends that those 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. Wilson’s argument

fails.

In United States v. Daniels, we addressed whether a conviction under § 780-

113(a)(30) constituted a predicate “serious drug offense” for purposes of the Armed

Career Criminal Act (ACCA).20 We held that it did—that the ACCA’s definition of a

“serious drug offense” encompasses attempts to manufacture, distribute, or possess with

intent to manufacture or distribute a controlled substance—and affirmed the district

court’s sentence.21 The same result applies here.

Wilson contends Commonwealth v. Donahue, a Pennsylvania Superior Court case,

supports his argument that § 780-113(a)(30) criminalizes a “mere offer to sell drugs,” and

accordingly, that a Pennsylvania conviction for delivery of a controlled substance is

broader than the Guidelines’ definition of a “controlled substance offense.” But this

Court in Daniels rejected that very argument.22 In light of Daniels, we hold that the

District Court correctly designated Wilson a “career offender” under the Guidelines.

IV

For the above reasons, we will affirm the judgment of the District Court.

19 The statute outlaws “the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance . . . or knowingly creating, delivering, or possessing with intent to deliver, a counterfeit controlled substance.” 20

. 21

22

. 7