United States v. Abbott

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Abbott was convicted of possession of a firearm by a convicted felon, 18 U.S.C. 922(g), among other charges. His sentence included a 15-yearmandatory minimum for violating the Armed Career Criminal Act, 18 U.S.C. 924(e). The court found that three of his previous convictions were “serious drug offenses” under the ACCA. Abbott’s attorney did not object. Abbott challenged an unrelated portion of his sentence on direct appeal. The Third Circuit and U.S. Supreme Court affirmed. Abbott filed a petition under 28 U.S.C. 2255, alleging that his attorney at sentencing was ineffective for failing to contest the use of his prior conviction for possession with the intent to distribute, under 35 PA. STAT. 780-113(a)(30), as an ACCA predicate offense. The district court denied the petition without a hearing, finding that the sentencing court properly employed the modified categorical approach. The Third Circuit affirmed, finding that the Pennsylvania statute is “divisible,” so that use of the modified categorical approach was proper. The statute can be violated by the possession of and intent to distribute many different drugs, the types of which can increase the prescribed range of penalties, so the statute includes several alternative elements. View "United States v. Abbott" on Justia Law