Pennsylvania Drug Offense Fits Within Definition of “Controlled Substance Offense”

US v. Suncar: Suncar pleaded guilty to distribution of fentanyl. The probation officer classified him as a career offender based on two prior convictions from Pennsylvania for delivery of cocaine. Suncar argued that Pennsylvania state law defined delivery to include attempted transfer of drugs, which did not fit the definition of “controlled substance offense.” The district court disagreed and imposed the enhancement, although it ultimately imposed a downward variance sentence of 92 months in prison.

On appeal, the Fourth Circuit affirmed Suncar’s sentence. The court rejected Suncar’s reliance on an unpublished Pennsylvania court decision that suggested that the state offense included attempted transfer, concluding that the state supreme court would “reach a different result under the plain language of the statute.” The court then followed Third Circuit precedent that had held that the offense did qualify as a controlled substance offense as it did not include attempted transfers. The court also concluded that, even if it did, that was a completed offense, not an inchoate one subject to the rule of Campbell.