United States v. Thomas Shannon

NOT PRECEDENTIAL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

No. 16-3755
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UNITED STATES OF AMERICA

v.

THOMAS SHANNON, a/k/a CUZZO

Thomas J. Shannon,
Appellant

______________

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.N.J. No. 3-15-cr-00275-001)
District Judge: Honorable Peter G. Sheridan
______________

Submitted Under Third Circuit L.A.R. 34.1(a)
October 26, 2017
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Before: GREENAWAY, JR., COWEN, Circuit Judges, and PADOVA, District Judge.*

(Opinion Filed: November 1, 2017)
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OPINION**
______________

*
The Honorable John R. Padova, United States District Court for the Eastern
District of Pennsylvania, sitting by designation.
**
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
GREENAWAY, JR., Circuit Judge.

Thomas Shannon appeals from the conviction and sentence entered by the United

States District Court for the District of New Jersey. Shannon raises five claims. First, he

argues that his right to a fair trial under the Sixth Amendment to the Constitution of the

United States was violated when the District Court read a bifurcated count of the

Indictment to the jury. Second, he challenges his conviction on the possession of a firearm

in furtherance of a drug trafficking count. Third, he contends that case agent testimony at

trial regarding interpretation of certain intercepted calls and voice identification should

have been excluded. Fourth, Shannon asserts that he was erroneously considered a career

offender for the purposes of sentencing. Fifth, he challenges the application of a sentencing

enhancement for being an organizer or leader. None of these claims is meritorious. We

will affirm.

I. Background

According to the Government, between 2013 and 2014, Shannon participated in a

drug trafficking conspiracy that stretched from California to New Jersey. On multiple

occasions, Shannon ordered heroin and cocaine from California-based suppliers and then

transferred the narcotics to a drug trafficking organization in New Jersey. The Federal

Bureau of Investigation intercepted a drug shipment from California headed for a stash

house in Long Branch, New Jersey on March 20, 2014. Agents conducted a controlled

delivery, with one law enforcement agent posing as a mail carrier who personally delivered
2
the drug package to Shannon at the Long Branch stash house. When Shannon approached

the postal truck, law enforcement agents arrested him and seized both the drug package

and his cell phone.

On the same date, agents executed search warrants at locations including stash

houses in Asbury Park and Long Branch and Shannon’s Jersey City residence. At the

Asbury Park stash house—where visual surveillance had previously placed Shannon—law

enforcement recovered two semi-automatic firearms (one of which had a magazine with

eight rounds) inside a black box stored inside a closet in the bedroom; 898.5 grams of

heroin, 555.4 grams of cocaine, and 24.1 grams of cocaine base stored in the black box;

more than 18,000 individual doses of heroin in plastic bags on a shelf in the same closet;

various drug-related paraphernalia; correspondence addressed to Shannon inside a

cardboard box on the top shelf of the same closet; an invoice addressed to Shannon on the

bedroom floor; sheets of paper with Shannon’s name in the living room; and utility bills,

rent receipts, and a 2012 lease for the premises, all in Shannon’s name. Additional drug

paraphernalia was recovered at the Long Branch stash house.

In the master bedroom of Shannon’s Jersey City residence, meanwhile, agents found

a loaded revolver and a box of ammunition in a nightstand by the bed; a second box of

ammunition above the ceiling tile above the bed; $117,000 in cash in safes under the bed

and in a dresser drawer; $50,000 of deposit slips reflecting cash deposits; and two car titles

and a registration document in Shannon’s name.

A grand jury returned a five-count indictment charging Shannon with conspiracy to
3
distribute and to possess with intent to distribute cocaine and one kilogram or more of

heroin, in violation of 21 U.S.C. § 846; possession with intent to distribute 100 grams or

more of heroin and 500 grams or more of cocaine, in violation of 21 U.S.C § 841(a)(1);

possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1);

possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C.

§ 924(c)(1)(A)(i); and money laundering, in violation of 18 U.S.C. § 1957. The District

Court bifurcated the § 922(g) charge, which would be presented to the jury following its

verdict as to the other counts.

In its preliminary instructions to the jury, the District Court read all five counts of

the Indictment, including Count Three: “unlawful possession of a firearm after having

been convicted of a felony offense, in violation of Title 18 U.S.C., Section 922(g)(1).” A

107-108. Defense counsel objected at the conclusion of the instructions. At a sidebar,

defense counsel asked that a new jury be selected to correct the error, while the Government

contended that a corrective remedy would only draw attention to the bifurcated count. The

District Court concluded the sidebar and told the jury that the instructions had been

misread. It then repeated its recitation of the Indictment, this time omitting the § 922(g)

charge and instructing the jury to “please consider this as the appropriate charge.” A 112-

114. The District Court also instructed the jury that an indictment is “an accusation only”

and “not evidence of anything.” A 114. No other references were made to the bifurcated

count for the remainder of the trial, including in the reading of the final jury instructions.

During trial, the jury heard evidence of phone calls and text messages that were
4
intercepted pursuant to a court-sanctioned wiretap. Special Agent Charles Malos, the case

agent who testified as a government witness, identified the participants on the intercepted

phone calls and interpreted language used in both the calls and text messages. Specifically,

based on his experience listening in on the intercepted phone calls and reviewing text

messages over a period of months, Special Agent Malos testified that: (1) “math” referred

to “a quantity of either drugs or money”; (2) “Christine,” “white girl,” and “bitch” referred

to cocaine; (3) “Street” and “Chinatown” referred to heroin; (4) “she’s coming today”

meant that a package of narcotics would be arriving; and (5) “touchdown” meant that a

package of narcotics had been delivered. In addition, he identified the voice of Shannon

on several calls.

The jury also heard testimony from the following Government witnesses: co-

conspirator Marlon Ramos, agents who executed the search warrants, a firearms expert, a

forensic chemist, and a forensic accountant.

On May 25, 2016, the federal jury convicted Shannon of the four non-bifurcated

counts. Sentencing was held on September 19, 2016. At the hearing, defense counsel

objected to the application of the organizer or leader enhancement under section 3B1.1(a)

of the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”), arguing that

Shannon was instead “at the bottom or second [to] last rung of the conspiratorial ladder.”

A 16. The District Court disagreed, finding that the evidence at trial established that

Shannon maintained stash houses, directed the transportation of drugs from California to

New Jersey, participated in making cash deposits into various accounts, and maintained
5
numerous cell phone communications with co-conspirators. With respect to the criminal

history category calculation, defense counsel asserted that the District Court’s calculation

overstated Shannon’s record. Counsel emphasized that several offenses occurred more

than 15 years from the date of the instant arrest and that Shannon was “substantially

offense-free until the time of this incident.” A 29. The District Court, however, denied the

motion for a departure in light of the time period of prior incarceration and record that

reflected an “ongoing issue with regard to drug trafficking, and possession or use of

handguns.” A 34.

The District Court determined Shannon’s total offense level to be 37 and criminal

history category to be VI. The District Court also found that Shannon was a career offender

under U.S.S.G. § 4B1.1(b). The advisory guidelines range was therefore 420 months to

life. The District Court granted a downward variance based upon his family relationships,

citizenship, and age and imposed a sentence of 300 months in prison to be followed by five

years of supervised release.

II. Jurisdiction

The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. This Court has

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

III. Analysis

1. Fair Trial Claim

Shannon claims that he was denied a fair trial in violation of the Sixth Amendment

because he was irreparably prejudiced when the District Court read the bifurcated § 922(g)
6
count to the jury as part of the preliminary instructions. “We exercise plenary review to

determine whether jury instructions misstated the applicable law, but in the absence of a

misstatement we review for abuse of discretion.” United States v. Moreno, 727 F.3d 255,

261–62 (3d Cir. 2013) (quoting United States v. Hoffecker, 530 F.3d 137, 173–74 (3d Cir.

2008)).

In making his Sixth Amendment argument, Shannon cites to United States v.

Coleman, 552 F.3d 853 (D.C. Cir. 2009). In that decision, the United States Court of

Appeals for the District of Columbia held that the lower court’s reading of a one-count

unredacted indictment to the juror pool that stated that the defendant had been convicted

of “a crime of violence, that is, robbery with a deadly weapon” and “a crime of violence,

that is, escape” was plain error. Id. at 857, 859–60 (emphases omitted). The court

explained that, under circuit precedent:

where proof of the defendant’s prior felon status is required, it is reversible
error for the district court to read to the jury the unredacted indictment
referring to the prior felony offense where the defense has offered to stipulate
felon status and either a defense is compromised or the government’s
evidence of guilt is not “strong.”

Id. at 859. Coleman had offered to stipulate his felon status, he had filed a Rule 404(b)

motion to exclude evidence of and references to his prior convictions, the robbery with a

deadly weapon offense listed in the indictment was substantially similar to the felon in

possession charge at issue, and the government’s other evidence was not strong. Id. at

859–60. Under these circumstances, the court concluded that the district court’s reading

of the unredacted indictment “incurably compromised appellant’s defense denying gun
7
possession” and constituted plain error. Id. at 860.

Shannon’s reliance on Coleman is misplaced. Significantly, the District Court here

did not reveal the nature of Shannon’s prior conviction, but simply stated in its initial

reading that he was charged with “unlawful possession of a firearm after having been

convicted of a felony offense.” A 107. The District Court, moreover, remedied its

misstatement following its initial recitation by explaining that it had “misread one section”

and the corrected reading should be considered the appropriate charge. A 113. After

rereading the Indictment—and omitting the bifurcated count, which was never presented

to the jury—the District Court also stated that an indictment is merely an accusation and is

not evidence.

This Court “generally presume[s] that juries follow instructions given by the District

Court.” United States v. Hakim, 344 F.3d 324, 326 (3d Cir. 2003); see also United States

v. Newby, 11 F.3d 1143, 1147 (3d Cir. 1993) (“[W]e presume that the jury will follow a

curative instruction unless there is an ‘overwhelming probability’ that the jury will be

unable to follow it and a strong likelihood that the effect of the [incorrectly admitted]

evidence would be ‘devastating’ to the defendant.” (citations omitted) (quoting Greer v.

Miller, 483 U.S. 756, 766 n.8 (1987)). The trial court’s curative instruction followed the

initial misreading in short order, and the § 922(g) charge was not mentioned again.

Accordingly, we find no abuse of discretion. Cf. United States v. Moreland, 703 F.3d 976,

989 (7th Cir. 2012) (finding that the district court’s reading of an unredacted indictment—

which listed the appellant’s felony convictions—after closing arguments was harmless
8
where “the judge [promptly] realized her mistake, collected the instructions, and gave the

jurors new copies containing the redacted indictment,” and there was “overwhelming”

evidence against the defendant); United States v. Dortch, 696 F.3d 1104, 1110–11 (11th

Cir. 2012) (concluding that submission of an unredacted indictment “that referenced

several of [the appellant’s] previously undisclosed felony convictions” was harmless where

the district court instructed the jury that “that the indictment was not evidence of guilt” and

evidence against the defendant was strong).

2. Sufficiency of the Evidence Claim

Shannon next argues that the evidence presented at trial was insufficient to convict

him of possession of a firearm in furtherance of a drug trafficking crime in violation of 18

U.S.C. § 924(c). In reviewing a sufficiency of the evidence claim, “[w]e ‘review the record

in the light most favorable to the prosecution to determine whether any rational trier of fact

could have found proof of guilt[ ] beyond a reasonable doubt.’” United States v.

Caraballo–Rodriguez, 726 F.3d 418, 430 (3d Cir. 2013) (en banc) (second alteration in

original) (quoting United States v. Brodie, 403 F.3d 123, 133 (3d Cir. 2005)). We

“consider[] only the ‘legal’ question [of] ‘whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.’” Musacchio v. United States, 136 S.

Ct. 709, 715 (2016) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

“Under this particularly deferential standard, we ‘must be ever vigilant . . . not to

usurp the role of the jury by weighing credibility and assigning weight to the evidence, or
9
by substituting [our] judgment for that of the jury.’” Caraballo–Rodriguez, 726 F.3d at

430 (alterations in original) (quoting Brodie, 403 F.3d at 133). Moreover, “[w]e must

sustain the jury’s verdict ‘if there is substantial evidence, viewed in the light most favorable

to the government, to uphold the jury’s decision.’” Id. (quoting United States v. Gambone,

314 F.3d 163, 170 (3d Cir. 2003)). We “may set aside the jury’s verdict on the ground of

insufficient evidence only if no rational trier of fact could have agreed with the

jury.” Coleman v. Johnson, 566 U.S. 650, 651 (2012) (quoting Cavazos v. Smith, 565 U.S.

1, 2 (2011)).

The elements of a § 924(c) offense are that: “(1) the defendant committed either the

crime of conspiracy to distribute and possess with intent to distribute a controlled substance

or the crime of possession with intent to distribute; (2) the defendant knowingly possessed

a firearm; and (3) the defendant knowingly possessed the firearm in furtherance of the

crime of conspiracy to distribute or in furtherance of the crime of possession with intent to

distribute.” United States v. Bobb, 471 F.3d 491, 496 (3d Cir. 2006). Although Shannon

challenges the sufficiency of the evidence as to the second and third elements, we agree

with the Government that substantial evidence was presented at trial to establish that

Shannon possessed a firearm and that possession was in furtherance of a drug trafficking

crime.

Possession may be actual or constructive. United States v. Iglesias, 535 F.3d 150,

156 (3d Cir. 2008). Constructive possession, which may be proved by circumstantial

evidence, “requires an individual to have the power and intent to exercise both dominion
10
and control over the object he or she is charged with possessing.” Id. (quoting United

States v. Garth, 188 F.3d 99, 112 (3d Cir. 1999)). The Government presented sufficient

evidence at trial to demonstrate that Shannon exercised dominion and control over the

Asbury Park stash house and Jersey City residence where the firearms were recovered.

Initial visual surveillance had placed Shannon at the stash house. Then, pursuant to the

execution of a search warrant at the Asbury Park location, law enforcement found

correspondence addressed to Shannon in the same closet where the firearms were stored,

an invoice addressed to Shannon on the floor of the same bedroom, sheets of paper with

Shannon’s name in the living room, and utility bills, rent payment receipts, and a lease for

the premises in Shannon’s name in a kitchen drawer.

In the Jersey City location, agents found two car titles and a registration document

for vehicles titled in Shannon’s name in the dresser of the master bedroom where the

firearm was recovered. Following the search incident to Shannon’s arrest, moreover,

agents had found a photograph on Shannon’s cell phone that appears to show him in the

bathroom in the Jersey City residence.

Viewing the record in the light most favorable to the Government, we find that the

evidence at trial was sufficient for a jury to conclude that Shannon exercised dominion and

control over the Asbury Park stash house and Jersey City residence and that he possessed

the three firearms recovered from the locations.

Shannon also asserts that there was insufficient evidence for the jury to find that he

possessed a firearm “to advance or promote criminal activity.” Bobb, 471 F.3d at 496. We
11
have held that the following nonexclusive factors are relevant to determining whether

possession is in furtherance of a drug trafficking crime:

the type of drug activity that is being conducted, accessibility of the firearm,
the type of the weapon, whether the weapon is stolen, the status of the
possession (legitimate or illegal), whether the gun is loaded, proximity to
drugs or drug profits, and the time and circumstances under which the gun is
found.

Id. (quoting United States v. Sparrow, 371 F.3d 851, 853 (3d Cir. 2004)). In this case, the

two semi-automatic firearms found in the Asbury Park stash house—one of which had a

magazine with eight rounds—were between “three to four inches to three feet” from nearly

one kilogram of heroin, half a kilogram of cocaine, and 24 grams of cocaine base, in

addition to plastic bags containing over 18,000 doses of heroin. SA 735; see SA 718-724,

729-730, 814-817. Even though one of the two locks on the black box was secured and

the firearms were not chambered, our precedent does not require immediate accessibility

for a § 924(c) conviction. See United States v. Sparrow, 371 F.3d 851, 853 (3d Cir. 2004).

Nevertheless, Special Agent Ronald Duce testified based upon his personal observation

that he could have accessed the firearms within seconds of accessing the other items.

Scrutinizing the “totality of the evidence, both direct and circumstantial” and making “all

available inferences in favor of the government,” we find that the proximity of the firearms

to the large quantities of narcotics supports the jury’s conclusion that the guns were used

in furtherance of drug trafficking activities. Iglesias, 535 F.3d at 157 (quoting Sparrow,

371 F.3d at 852). Similarly, there is sufficient evidence that Shannon possessed the loaded

firearm found in the Jersey City bedroom in furtherance of criminal activity. Because it
12
was located near two boxes of ammunition and $117,000 in cash, a rational jury could infer

that he kept the firearm in his nightstand to protect his drug proceeds. We therefore affirm

Shannon’s conviction for possession of a firearm in furtherance of a drug trafficking crime.

3. Admission of Testimony Claim

Shannon claims that the District Court improperly permitted lay opinion testimony

from Special Agent Malos regarding the intercepted phone calls and text messages. We

review the District Court’s decision to admit lay opinion testimony for abuse of discretion.

Donlin v. Philips Lighting N. Am. Corp., 581 F.3d 73, 80 (3d Cir. 2009). The admission

of lay opinion testimony is governed by Federal Rule of Evidence 701, which permits such

testimony as long as it is “rationally based on the witness’s perception,” “helpful to clearly

understanding the witness’s testimony or to determining a fact in issue,” and “not based on

scientific, technical, or other specialized knowledge within the scope of Rule 702.” Fed.

R. Evid. 701.

First, Shannon argues that Special Agent Malos’s interpretation of “touchdown,”

“she’s coming today,” and “math” were not helpful to the jury. While “interpretation of

code words by a witness is permissible, the interpretation of clear statements is not

permissible.” United States v. Dicker, 853 F.2d 1103, 1109 (3d Cir. 1988) (footnote

omitted). Here, the phrases Shannon identifies may have clear meanings in other contexts,

but Special Agent Malos testified, based on his experience listening to an array of

communications, that they had unique meanings as used by the participants of the drug

trafficking conspiracy. As he explained at trial, he believed that the terms were being used
13
as code words “[b]ecause you would hear those words utilized within a conversation, and

in the context of the conversation those words just did not make any sense if they were

taken at their true meaning.” SA 95. That “touchdown” meant that a package of narcotics

had been delivered, “she’s coming today” meant that a package of narcotics would be

arriving, and “math” referred to a quantity of drugs or money would not have been readily

apparent to jurors who had less familiarity with the conspiracy and less exposure to the

months of communications that Special Agent Malos had monitored. Accordingly, the

District Court here did not abuse its discretion when it determined that the agent’s

testimony as to certain expressions used by participants in wiretapped conversations and

messages would be helpful to the jury. See United States v. De Peri, 778 F.2d 963, 977

(3d Cir. 1985) (finding no abuse of discretion in the admission of lay testimony where,

“[t]o the uninitiated listener, [the participant] speaks as if he were using code”).

Second, Shannon asserts that the District Court prejudiced his case by permitting

Special Agent Malos’s identification of Shannon’s voice on intercepted phone calls. The

agent’s testimony, however, satisfies the Rule 701 standard: his identification was based

on a combination of his listening to numerous calls and hearing Shannon’s voice in person

upon his arrest, it allowed the jury to determine who the participants in certain

conversations were, and it did not require specialized knowledge. See United States v.

Cambindo Valencia, 609 F.2d 603, 640 (2d Cir. 1979) (explaining that the “standard for

the admissibility of an opinion as to the identity of a speaker on tape is merely that the

identifier has heard the voice of the alleged speaker at any time” and “voice identification
14
is not generally considered to be an area where expertise is important”). The District Court

did not commit error in admitting Special Agent Malos’s testimony as to voice

identification.

4. Sentencing Claims

Shannon challenges both the trial court’s career offender determination and its

application of the sentencing enhancement for being a leader or organizer. We address

each in turn.

A. Career Offender Determination

Section 4B1.1(a) of the Guidelines provides that the career offender enhancement

applies if: “(1) the defendant was at least eighteen years old at the time the defendant

committed the instant offense of conviction; (2) the instant offense of conviction is a felony

that is either a crime of violence or a controlled substance offense; and (3) the defendant

has at least two prior felony convictions of either a crime of violence or a controlled

substance offense.” U.S.S.G. Manual § 4B1.1(a) (U.S. Sentencing Comm’n 2015).1

Effective August 1, 2016, the Guidelines define a “crime of violence” as “any offense under

federal or state law, punishable by imprisonment for a term exceeding one year,” and that

“has as an element the use, attempted use, or threatened use of physical force against the

person of another” or “is murder, voluntary manslaughter, kidnapping, aggravated assault,

1
See generally United States v. Diaz, 245 F.3d 294, 300-01 (3d Cir. 2001) (“The general
rule is that a defendant should be sentenced under the guideline in effect at the time of
sentencing.”).
15
a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a

firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. §

841(c).” U.S.S.G. App. C, amend. 798 (Supp. Aug. 1, 2016). A “controlled substance

offense” is:

an offense under federal or state law, punishable by imprisonment for a term
exceeding one year, that prohibits the manufacture, import, export,
distribution, or dispensing of a controlled substance . . . or the possession of
a controlled substance . . . with intent to manufacture, import, export,
distribute, or dispense.

U.S.S.G. Manual § 4B1.2(b). Determining whether an offense qualifies as a predicate

conviction for enhancement requires application of the categorical approach, or a

comparison of the elements of the crime of conviction with the elements of the particular

career offender provision. See Descamps v. United States, 133 S. Ct. 2276, 2281 (2013).

The prior offense can be classified as a predicate conviction if its elements are “the same

as” or “narrower than” the Guidelines offense. Id. Where, however, the crime of

conviction “sets out one or more elements of the offense in the alternative,” the court may

apply a modified categorical approach and “consult a limited class of documents . . . to

determine which alternative formed the basis of the defendant’s prior conviction.” Id.

On appeal, Shannon argues for the first time that his aggravated assault conviction

is not a crime of violence and two of his drug convictions were not controlled substances

offenses, and so the third element of § 4B1.1(a) is not satisfied. We review for plain error.

See United States v. Knight, 266 F.3d 203, 206 (3d Cir. 2001) (“[W]here a defendant has

failed to object to a purported error before the sentencing court, our review on appeal is
16
only to ensure that plain error was not committed.”). “Under this standard we must find

that (1) an error was committed, (2) the error was plain, i.e., clear or obvious, and (3) the

error affected the defendant’s substantial rights.” Id. Even if plain error exists, “our

discretionary authority to order correction is to be guided by whether the error seriously

affects the fairness, integrity or public reputation of judicial proceedings.” Id.

The Presentence Report (“PSR”) states that three of Shannon’s prior convictions

constitute felony convictions for a controlled substance offense and that one of his prior

convictions constitutes a felony conviction for a crime of violence offense pursuant to

§ 4B1.1(a). Specifically, the PSR refers to the following as controlled substance offenses:

(1) a multi-count conviction in 2000 for distribution of a controlled dangerous substance

in a school zone, distribution of a controlled dangerous substance, and possession of a

controlled dangerous substance with intent to distribute; (2) a multi-count conviction in

1999 for possession of a controlled dangerous substance with intent to distribute (second

degree) and possession of a controlled dangerous substance with intent to distribute within

1,000 feet of school property; and (3) a multi-count conviction in 2000 for distribution of

a controlled dangerous substance within 500 feet of a public housing facility, distribution

of a controlled dangerous substance, possession of a controlled dangerous substance with

intent to distribute within a school zone, eluding (second degree), and possession of a

controlled dangerous substance with intent to distribute. The PSR refers to Shannon’s 2000

conviction for aggravated assault and possession of a firearm for an unlawful purpose as a

crime of violence offense.
17
 Shannon contests the consideration of two convictions as controlled substance

offenses: the 2000 conviction for distribution of a controlled dangerous substance in a

school zone and the 2000 conviction for distribution of a controlled dangerous substance

within 500 feet of a public housing facility. As to the first, section 2C:35–7(a) of New

Jersey’s statutory code prohibits:

distributing, dispensing or possessing with intent to distribute a controlled
dangerous substance or controlled substance analog while on any school
property used for school purposes which is owned by or leased to any
elementary or secondary school or school board, or within 1,000 feet of such
school property or a school bus, or while on any school bus.

N.J. Stat. Ann. § 2C:35–7(a) (West 2016). He argues that the crime of conviction is broader

than the generic controlled substance offense because distribution of controlled substance

is not sufficient for a conviction under the state statute, which requires that it be within a

school zone.2

Shannon misunderstands the categorical approach. The elements of the state

offense are in fact narrower than the elements of the generic offense because the additional

element concerning the school zone means that the conduct prohibited by section 2C:35–

7(a) is a subset of the conduct covered by the Guidelines provision. See Descamps, 133 S.

Ct. at 2283 (explaining that a conviction can serve as a predicate offense “if the statute

defines the crime more narrowly [than the generic offense], because anyone convicted

2
Shannon additionally relies on this Court’s opinion in Chang-Cruz v. Attorney General
United States of America, 659 F. App’x 114 (3d Cir. 2016), in support of his argument.
Not only is Chang-Cruz—an immigration decision—inapposite, but it is also not
precedential and not binding. See I.O.P. 5.7.
18
under that law is ‘necessarily . . . guilty of all the [generic crime’s] elements.’ (first

alteration added) (quoting Taylor v. United States, 495 U.S. 575, 599 (1990)).

Consequently, a violation of section 2C:35–7(a) is properly considered a controlled

substance offense.

The trial court therefore committed no error in determining that Shannon had at least

two predicate offenses for purposes of the career offender enhancement—the 2000

conviction for distribution of a controlled dangerous substance in a school zone and the

1999 conviction for possession of a controlled dangerous substance with intent to

distribute, the classification of which Shannon does not dispute. Accordingly, this Court

need not reach Shannon’s arguments as to the classification of the remaining prior

convictions as either a controlled substance offense or crime of violence.

B. Application of Organizer Enhancement

Shannon’s second argument as to sentencing is that the District Court erred in

applying a four-level enhancement for being an organizer or leader. “We review a district

court’s legal conclusions regarding the Guidelines de novo, its application of the Guidelines

to the facts for abuse of discretion, and its factual findings for clear error.” U.S. v.

Blackmon, 557 F.3d 113, 118 (3d Cir. 2009) (citations omitted).

Section 3B1.1(a) of the Guidelines provides: “If the defendant was an organizer or

leader of a criminal activity that involved five or more participants or was otherwise

extensive, increase by 4 levels.” U.S.S.G. Manual § 3B1.1(a). Application Note 4 adds:

Factors the court should consider include the exercise of decision making
19
 authority, the nature of participation in the commission of the offense, the
recruitment of accomplices, the claimed right to a larger share of the fruits of
the crime, the degree of participation in planning or organizing the offense,
the nature and scope of the illegal activity, and the degree of control and
authority exercised over others. There can, of course, be more than one
person who qualifies as a leader or organizer of a criminal association or
conspiracy.

U.S.S.G. Manual § 3B1.1, cmt. n.4. Moreover, this Court has explained that to be an

organizer or leader, “the defendant must have exercised some degree of control over others

involved in the commission of the offense.” United States v. Helbling, 209 F.3d 226, 243

(3d Cir. 2000) (quoting United States v. Phillips, 959 F.2d 1187, 1191 (3d Cir. 1992)).

Contrary to Shannon’s claim, the District Court here did not clearly err in making

specific factual findings that he was an organizer or leader of the drug trafficking

conspiracy in New Jersey. The Court found that Shannon “maintained and controlled stash

houses where he stored drugs and cash and firearms”; “directed people to send drugs from

California to New Jersey”; “participated in some fashion with depositing of cash into

various accounts”; and “had numerous cellular telephone communications with co-

conspirators over a significant period of time.” A 21. The record evidence reflects that

Shannon communicated with parties in the New Jersey drug trafficking organization about

supplying drugs, directed the shipment of narcotics from California to New Jersey,

instructed a co-conspirator on how to package the narcotics for shipment, participated in

making cash deposits into bank accounts to pay for the narcotics, and coordinated the

delivery of drugs to stash houses that he controlled. We therefore conclude that the District

Court’s findings were proper; evidence that Shannon recruited others, paid for their
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participation, or developed the scheme is not necessary—despite Shannon’s suggestion to

the contrary—in light of a record indicating that he otherwise acted as an organizer.

Shannon next maintains that Alleyne v. United States, 133 S. Ct. 2151 (2013),

mandates that a jury determine whether he was an organizer or leader beyond a reasonable

doubt. Because the finding that Shannon was an organizer is not a fact that “trigger[ed] a

statutory mandatory minimum sentence,” and the District Court sentenced Shannon to a

term of imprisonment and supervised release below the statutory maximum sentence, it did

not need to be submitted to a jury. United States v. Smith, 751 F.3d 107, 117 (3d Cir.

2014). The sentence imposed was proper.

IV. Conclusion

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

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