NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-1215
_____________
UNITED STATES OF AMERICA
v.
RAYMOND ZARECK,
Appellant
_____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
District Court No. 2-09-cr-00168-001
District Judge: The Honorable Joy Flowers Conti
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
September 27, 2016
Before: AMBRO, SMITH, and FISHER, Circuit Judges
(Filed: September 29, 2016)
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OPINION
_____________________
SMITH, 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.
A jury convicted Raymond Zareck of being (1) a felon in possession of a
firearm and (2) a drug user or addict in possession of a firearm, in violation of 18
U.S.C. §§ 922(g)(1), (3) and 924(e)(1). After this Court vacated his initial
sentence on a narrow legal error, the District Court conducted a limited
resentencing and sentenced Zareck to 188 months in prison. This was the same
sentence he received initially. Zareck now appeals his sentence for the second
time. We will affirm.
I. BACKGROUND
In April of 2009, police arrested Zareck after he sold drugs to a confidential
informant as part of a controlled buy. During a subsequent search of Zareck’s
home, officers found a shotgun, ammunition, and a number of other incriminating
items. Based on this, a federal grand jury indicted Zareck on one count of being a
felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1),1 and one
count of being a drug user or addict in possession of a firearm, in violation of 18
U.S.C. § 922(g)(3). A jury convicted Zareck on both counts.
At sentencing, because Zareck had three previous convictions for “serious
drug offense[s]” prior to committing the instant offense, the District Court
concluded that he qualified as an armed career criminal under the Armed Career
2
Criminal Act (ACCA), thus triggering the fifteen-year mandatory minimum
sentence under 18 U.S.C. § 924(e)(1). Consistent with § 4B1.4(b)(3)(B) of the
United States Sentencing Guidelines (U.S.S.G.), the District Court therefore set
Zareck’s offense level at 33. It also relied on these previous drug convictions to
calculate Zareck’s criminal history category under U.S.S.G. § 4A1.1, resulting in a
criminal history category of IV and an advisory Guidelines range of 188 to 235
months imprisonment. Based on this range, the Court sentenced Zareck to 188
months in prison on the § 922(g)(1) felon-in-possession count, and a concurrent
188 month sentence on the § 922(g)(3) drug-user-in-possession count.
Zareck then appealed his convictions and sentence to this Court, arguing that
his previous state-court drug convictions did not qualify as “serious drug offenses”
for purposes of his ACCA enhancement and that the District Court erred by
imposing separate sentences for each of the § 922(g) convictions even though
those convictions were based on the same conduct. The government conceded that
it was error for the District Court to impose separate sentences for each of Zareck’s
convictions under § 922(g)(1) and (3). As for the first point, a panel of this Court
summarily rejected Zareck’s argument that his state-court convictions were not
“serious drug offenses,” calling this argument “meritless.” United States v. Zareck,
1
As alleged in the indictment, Zareck was previously convicted of several state-
3
588 F. App’x 100, 100 n.2 (3d Cir. 2014) (Zareck I). The panel vacated his
sentence and remanded to the District Court to determine under which subpart of
§ 922(g) to impose sentence and to resentence Zareck accordingly. Id. at 101.
On remand, the District Court determined that the offense level (and
therefore the Guidelines range) was the same under both counts. And because the
panel in Zareck I had already considered and rejected Zareck’s arguments
regarding the treatment of his state-court convictions as predicate offenses for
purposes of the ACCA enhancement, the District Court concluded that it did not
need to give de novo consideration to these arguments. Instead, the Court on
remand allowed Zareck to try to satisfy the standard for obtaining reconsideration
by showing that relevant law has changed, by presenting previously unavailable
evidence, or by demonstrating that manifest injustice would result absent
reconsideration. Because he failed to meet this burden, it stayed with its original
findings regarding Zareck’s status as a career criminal under ACCA and again
imposed a sentence of 188 months in prison solely on the § 922(g)(1) felon-in-
possession count. Zareck then filed a timely notice of appeal.2
II. ANALYSIS
court crimes punishable by imprisonment for a term exceeding one year.
4
On appeal (for the second time), Zareck raises two principal arguments.
First, he claims it was error for the District Court to limit the scope of the
resentencing to simply selecting the appropriate subpart of § 922(g) to sentence
him under; instead, he argues that the Court should have conducted a de novo
resentencing.3 Second, he claims that the District Court erred by treating his state-
court convictions as predicate offenses under ACCA. We address each argument
in turn.
A. Scope of Mandate for Resentencing
Zareck claims that, because the panel opinion in Zareck I did not specify
whether his resentencing should be de novo or limited to only certain issues, the
District Court should have conducted a de novo resentencing. We disagree.
In United States v. Ciavarella, 716 F.3d 705 (3d Cir. 2013), we explained
that “[d]istrict courts should resentence de novo when an interdependent count of
an aggregate sentence is vacated.” Id. at 734 (citing United States v. Davis, 112
F.3d 118, 123 (3d Cir. 1997)). Counts are interdependent when they “result in an
aggregate sentence, not sentences which may be treated discretely.” United States
2
The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231.
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a).
5
v. Miller, 594 F.3d 172, 180 (3d Cir. 2010). But when vacating a count of
conviction does not “affect [the defendant’s] total offense level, Guideline range,
or sentence, . . . resentencing de novo is not required.” Ciavarella, 716 F.3d at
735.
Zareck explicitly acknowledges that his initial sentence did not involve
interdependent counts.4 Nevertheless, he argues that vacating one of the two
3
Whether the District Court erred by conducting a limited resentencing presents a
legal question subject to plenary review. See United States v. Diaz, 639 F.3d 616,
619 (3d Cir. 2011).
4
Miller and Davis provide examples of aggregate sentences involving
interdependent counts. In Miller, the defendant was convicted of (among other
crimes) one count of receiving child pornography and one count of possessing
child pornography. 594 F.3d at 175-76. At sentencing, the district court grouped
the two child pornography offenses together and used the count with the highest
offense level (the receipt count) to determine the group’s offense level in order to
calculate the defendant’s Guidelines range. Id. at 180-81. After we ordered the
district court to vacate one of the defendant’s child pornography counts on double
jeopardy grounds, the district court vacated the receipt count and resentenced the
defendant. Id. at 176. Because the counts were grouped at the initial sentencing,
we concluded that the defendant’s sentence was an aggregate sentence requiring de
novo resentencing. Id. at 181.
Similarly, in Davis, the defendant was convicted of various drug offenses and of
using a firearm in connection with a drug trafficking offense. 112 F.3d at 119.
The drug counts and the firearm count were grouped at sentencing. After we
vacated the defendant’s firearm count and remanded for resentencing, the district
court applied a sentencing enhancement (for possessing a firearm during a drug
trafficking offense, see U.S.S.G. § 2D1.1(b)(1)) that the court previously was
unable to apply because of the presence of the firearm count. We upheld the
court’s application of this enhancement after concluding that the defendant’s initial
sentence was an aggregate sentence involving interdependent counts. Thus, de
novo resentencing was required. Id. at 121.
6
§ 922(g) counts “materially changed the picture before the [District] Court on
resentencing.” Appellant Br. 16. Besides this bare assertion, however, Zareck
fails to explain how the “picture” looked any different upon resentencing – either
in terms of the § 3553(a) factors or with reference to any other relevant metric –
such that de novo resentencing was required. And, based on our own analysis,
neither can we perceive any material change.
Zareck’s reliance on the Supreme Court’s decision in Pepper v. United
States, 562 U.S. 476 (2011), is similarly unavailing. In Pepper, the Court held that
a sentencing court must be permitted to consider evidence of post-sentencing
rehabilitation when resentencing a defendant whose initial sentence has been
overturned on appeal. Id. at 490. But Zareck did not attempt to present to the
District Court any evidence that he has been rehabilitated since his initial
sentencing. Nor does he claim on appeal that he would have presented such
evidence had the District Court conducted a de novo resentencing.
We conclude, therefore, that the District Court did not err by limiting the
scope of Zareck’s resentencing to the issues for which this Court in Zareck I
remanded for resentencing.
B. State-court Convictions as Predicates under ACCA
7
Because we conclude that the District Court correctly limited the scope of
Zareck’s resentencing, and because Zareck I already considered and rejected
Zareck’s arguments regarding his eligibility for the ACCA enhancement based on
his previous state-court drug convictions, see Zareck I, 588 F. App’x at 100 n.2, we
review his ACCA arguments only to ensure that the prior determination was not so
clearly erroneous as to result in manifest injustice. In re City of Phila. Litig., 158
F.3d 711, 718 (3d Cir. 1998) (“[T]he [law of the case] doctrine does not preclude
our reconsideration of previously decided issues in extraordinary circumstances
such as where: (1) new evidence is available; (2) a supervening new law has been
announced; or (3) the earlier decision was clearly erroneous and would create
manifest injustice.”).5
The first of Zareck’s ACCA predicate convictions involved a pair of
prescription drug sales to the same confidential informant that took place about a
week apart back in 1988. Based on these, Zareck was charged with, and entered a
plea of nolo contendere to, two counts of violating 35 Pa. Cons. Stat. § 780-
113(a)(30), which prohibits “the manufacture, delivery, or possession with intent to
5
Zareck does not claim that he has found previously unavailable evidence to
support his arguments, nor that there has been any intervening change in the law
since the Court in Zareck I rejected his career criminal arguments. Indeed, he
explicitly relies solely on the “manifest injustice” exception to the law of the case
doctrine.
8
manufacture or deliver, a controlled substance.” His second conviction came after
Zareck engaged in three prescription drug sales over the course of about six weeks
later in 1988. Again, he was charged with multiple counts of violating 35 Pa.
Cons. Stat. § 780-113(a)(30).6 Again, he entered a plea of nolo contendere on all
counts. Then, in 1990, Zareck was caught selling prescription drugs to an
undercover agent. He was again charged with multiple counts of violating 35 Pa.
Cons. Stat. § 780-113(a)(30), as well as several other state-law counts. This time,
a jury convicted him.
Zareck first argues that these three state-court drug convictions cannot serve
as three separate predicate offenses under ACCA because they were all “part of a
larger course of conduct” and thus should have been treated as a single conviction
for purposes of the ACCA enhancement. Appellant’s Br. 22-23. Zareck is wrong.
Per United States v. Schoolcraft, 879 F.2d 64 (3d Cir. 1989), we apply the
“‘separate episodes’ test,” id. at 74 (quoting United States v. Towne, 870 F.2d 880,
889 (2d Cir. 1989)), whereby “individual convictions may be counted for purposes
of [the ACCA] sentencing enhancement so long as the criminal episodes
underlying the convictions were distinct in time,” id. at 73. Each of Zareck’s state-
6
Zareck was also charged with multiple counts of violating 35 Pa. Cons. Stat.
§ 780-113(a)(14), which criminalizes “[t]he administration, dispensing, delivery,
9
court convictions was based on different drug sales to different individuals, with
months, if not years, separating each transaction. Thus, the District Court did not
err – much less clearly so – in concluding that the convictions should be counted
separately for ACCA purposes.
Zareck’s next set of arguments centers on whether his state-court
convictions constitute “serious drug offenses” under ACCA. As an initial matter,
it is clear that a conviction under 35 Pa. Cons. Stat. § 780-113(a)(30) can serve as a
predicate offense under ACCA, so long as the controlled substance at issue
conviction carries with it a maximum sentence of at least ten years. See United
States v. Abbott, 748 F.3d 154, 158-59 (3d Cir. 2014). On appeal, Zareck does not
argue that the controlled substances for which he was convicted under this statute
fail to meet this requirement. Thus, we cannot conclude that the District Court
clearly erred in concluding that Zareck’s convictions constituted “serious drug
offenses” under ACCA.7
Nevertheless, Zareck claims that two of his three state-court convictions
cannot count as ACCA predicates because they resulted from pleas of nolo
gift or prescription of any controlled substance by any practitioner or professional
assistant under the practitioner’s direction and supervision . . . .”
7
According to the government, at least one of the § 780-113(a)(30) counts in each
of Zareck’s convictions was based on a controlled substance the maximum penalty
10
contendere. Unfortunately for Zareck, however, all that matters under ACCA is
whether the defendant has “three previous convictions.” 18 U.S.C. § 924(e)(1)
(emphasis added). Under Pennsylvania law, any “adjudication of guilt” constitutes
a “conviction” for purposes of § 924(e)(1), United States v. Jefferson, 88 F.3d 240,
243 (3d Cir. 1996), and a plea of nolo contendere appears to have the same legal
effect as a guilty plea, see Eisenberg v. Com., Dep’t of Pub. Welfare, 512 Pa. 181,
185 (1986) (“A plea of nolo contendere, when accepted by the court, is, in its
effect upon the case, equivalent to a plea of guilty. . . . The judgment of conviction
follows upon such plea as well as upon a plea of guilty.” (quoting Commonwealth
v. Ferguson, 44 Pa. Super. Ct. 626, 628 (1910))). Thus, Zareck cannot hide behind
his nolo contendere pleas to contest his ACCA status.8
We conclude that the District Court did not clearly err in finding Zareck
eligible for the sentencing enhancement under ACCA.
III. CONCLUSION
for which is fifteen years. We need not confirm the accuracy of this information
since Zareck does not challenge it on appeal.
8
Finally, Zareck appears to argue that his convictions under § 780-113(a)(30) are
invalid because he was a registered pharmacist at the time he committed the
offenses. Whether Zareck is correct is of no moment at this stage; except in the
narrowest of circumstances not applicable here, defendants facing a sentencing
enhancement under ACCA are unable to collaterally attack the validity of their
predicate state-court convictions. Custis v. United States, 511 U.S. 485, 487
(1994).
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We will uphold the District Court’s judgment of conviction and sentence.
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