United States of America v. RONALD HARMON a/k/a RONALD WHITNEY Ronald Harmon

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 07-2420
__________
UNITED STATES OF AMERICA
v.
RONALD HARMON
a/k/a RONALD WHITNEY
Ronald Harmon,
Appellant
__________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 06-cr-00315)
District Judge: Honorable Jan E. Dubois
__________
Submitted Under Third Circuit LAR 34.1(a)
on June 30, 2008
Before: RENDELL, SMITH, FISHER, Circuit Judges.
(Filed: August 29, 2008)
__________
OPINION OF THE COURT
__________

-- 1 of 4 --

2
RENDELL, Circuit Judge.
Ronald Harmon appeals his sentencing under the Armed Career Criminal Act (the
“ACCA”), urging that his May 1987 conviction was not a “serious drug offense” under
18 U.S.C. § 924(e)(2)(A)(ii). We exercise plenary review over this determination by the
District Court, and will affirm.
In May 1987, Harmon pled guilty to possession with intent to distribute a
controlled substance in violation of 35 P.S. § 780-113(a)(30). Not all violations of this
statute qualify as “serious drug offenses” that trigger the application of the 15-year
mandatory minimum sentence under the ACCA. A “serious drug offense” under the
federal statute requires “an offense under State law, involving manufacturing,
distributing, or possessing with intent to manufacture or distribute, a controlled substance
. . . 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 maximum sentence that may be imposed for violation of the Pennsylvania law
under which Harmon was convicted is determined by the particular drug possessed.
35 P.S. § 780-113(f). Thus, possession with intent to deliver cocaine is punishable by up
to 15 years’ imprisonment and is therefore an ACCA-qualifying offense, while possession
with intent to deliver several other controlled substances has a maximum penalty lower
than ten years’ imprisonment. Id. Therefore, only if the controlled substance was cocaine
can Harmon’s May 1987 conviction qualify as a “serious drug offense” under the ACCA.

-- 2 of 4 --

3
Our analysis is guided by the United States Supreme Court’s opinion in Shepard v.
United States, 544 U.S. 13 (2005), wherein the Court discussed the way in which we are
to determine whether a conviction qualifies as a violent felony under ACCA. There, the
government argued that the description of the offense as set forth in a police report
submitted to a local court as grounds for issuing a complaint constituted sufficient proof
of the nature of the conviction. The Supreme Court disagreed.
The Shepard Court noted that in Taylor v. United States, 495 U.S. 575 (1990), it
had held that “a court sentencing under the ACCA could look to statutory elements,
charging documents, and jury instructions to determine whether an earlier conviction after
trial was for generic burglary.” 544 U.S. at 16. The Court then held that police reports
cannot be relied upon and stated that:
[W]ithout a charging document that narrows the charge to generic limits,
the only certainty of a generic finding lies in jury instructions, or bench-trial
findings and rulings, or (in a pleaded case) in the defendant’s own
admissions or accepted findings of fact confirming the factual basis for a
valid plea. In this particular pleaded case, the record is silent on the generic
element, there being no plea agreement or recorded colloquy in which
Shepard admitted the generic fact.
544 U.S. at 25 (emphasis added).
Here, the government urges that there is a specific charging document that does
“narrow the charge” to cocaine. We agree. The charging document states that Harmon
“feloniously did manufacture, deliver or possess with intent to manufacture or deliver a
controlled substance classified under Schedule I, II, or III. Cocaine.” App. 153. On the

-- 3 of 4 --

4
reverse side of that document, there is the handwritten notation above Harmon’s signature
that states, “I plead guilty to possession with intent to deliver a controlled substance.”
App. 152.
Harmon contends that the fact that he did not write the word “cocaine” after the
indication of his plea means that he was pleading guilty as to a controlled substance, but
not to cocaine. However, because we have the specific charging document and Harmon’s
signed guilty plea on the reverse side, we find it sufficiently clear, under Shepard, that
Harmon pled guilty to the charged offense. This is a commonsense reading of the
document.
Accordingly, we will AFFIRM the Judgment and Conviction Order of the District
Court.
_______________

-- 4 of 4 --