No Categorical Mismatch for Pre-2015 Pennsylvania Cocaine PWID Convictions Under ACCA; “Different Occasions” Jury Right Reviewed for Plain Error; § 780-113(a)(30) Does Not Sweep in Licensed “Dispensing”

No Categorical Mismatch for Pre-2015 Pennsylvania Cocaine PWID Convictions Under ACCA; “Different Occasions” Jury Right Reviewed for Plain Error; § 780-113(a)(30) Does Not Sweep in Licensed “Dispensing”

Case: United States v. Kareem Murphy, Nos. 18-3608 & 19-1653 (3d Cir. Nov. 4, 2025) (not precedential)

Panel: Porter, Matey, and Phipps, Circuit Judges (opinion by Judge Porter)

Introduction

This consolidated, not-precedential Third Circuit decision affirms (1) the suspension of Kareem Murphy’s supervised release arising from a firearm discharge at a relative’s house and (2) his jury conviction and 276-month sentence for being a felon in possession of a firearm and possessing a firearm in a school zone. The case addresses several recurring issues:

  • What evidentiary and identification showings suffice to support a Grade A supervised-release violation (including reliance on hearsay and the need to identify the predicate offense)?
  • Whether hearsay introduced through a police officer’s radio broadcast at trial warranted reversal.
  • Whether three Pennsylvania convictions for possession with intent to deliver (PWID) cocaine qualify as “serious drug offenses” under the Armed Career Criminal Act (ACCA) after shifts in the federal drug schedules (the ioflupane issue) and under the statute’s conduct-based definition.
  • Under Wooden and Erlinger, whether the Sixth Amendment required a jury, not the judge, to decide that Murphy’s predicate offenses occurred on different occasions—and if so, whether any error is reversible on plain-error review.
  • Whether counsel was ineffective for not seeking a bifurcated trial on the § 922(g)(1) count—an issue the panel leaves for collateral review.

Bottom line: the Third Circuit affirms across the board, clarifying several post-Brown and post-Erlinger applications in the ACCA context and restating the flexible evidentiary regime for supervised-release revocations.

Summary of the Opinion

  • Supervised release revocation: No plain error. The district court could rely on proffers and hearsay with sufficient indicia of reliability. It sufficiently identified the predicate federal offense(s): 18 U.S.C. § 922(g)(1) with ACCA enhancement under § 924(e), satisfying U.S.S.G. § 7B1.1(a)(1)’s disjunctive bases for a Grade A violation.
  • Trial hearsay: Even assuming a hearsay error in admitting a bystander’s identification of Murphy via an officer’s broadcast, the error was harmless in light of overwhelming evidence (ballistics match, gun recovered along Murphy’s path, gunshot residue on his hands and waistband, eyewitness description, arrest near in time and place).
  • ACCA predicates—overbreadth: Pennsylvania’s PWID statute, 35 Pa. Stat. § 780-113(a)(30), does not encompass “dispensing” by licensed professionals; it targets “delivery,” not “dispensing” or “administering,” which are separately regulated. No categorical overbreadth.
  • ACCA predicates—federal/state schedule mismatch (ioflupane): Under the Supreme Court’s Brown, the categorical comparison under ACCA looks to the federal schedules as of the time of the predicate state offense, not the federal offense. Murphy’s 1999, 2000, and 2003 cocaine PWID convictions categorically match and thus qualify.
  • ACCA “different occasions” and the Sixth Amendment: Wooden and Erlinger require a jury finding on whether predicates occurred on different occasions. But Murphy raised the issue late, and on plain-error review he could not show prejudice because his three PWID convictions were months and years apart; a jury would almost certainly have made the same finding.
  • Ineffective assistance: The claim that counsel should have sought bifurcation of the § 922(g)(1) count is dismissed without prejudice to § 2255 because the record is insufficient to resolve Strickland’s deficiency and prejudice prongs on direct appeal.

Analysis

Precedents Cited and Their Influence

  • Plain error framework:
    • United States v. Dillon, 725 F.3d 362 (3d Cir. 2013), and United States v. Olano, 507 U.S. 725 (1993) – The court reviews unpreserved claims for plain error: clear error, affecting substantial rights, and seriously affecting the fairness/integrity/public reputation of judicial proceedings. This standard drives affirmance on the revocation, hearsay, and Sixth Amendment “occasions” challenges.
  • Revocation evidentiary standards and identification of offense:
    • United States v. Tucker, 404 U.S. 443 (1972); United States v. Leekins, 493 F.3d 143 (3d Cir. 2007) – A sentencing judge’s inquiry is largely unlimited as to the kinds and sources of information; hearsay is admissible if it bears sufficient indicia of reliability.
    • United States v. Carter, 730 F.3d 187 (3d Cir. 2013); United States v. Poellnitz, 372 F.3d 562 (3d Cir. 2004) – No categorical approach at revocations; courts may consider actual conduct and need not require conviction or indictment. But the revoking court must still identify the specific “crime of violence” or the offense punishable by the requisite term.
  • Trial hearsay harmlessness:
    • United States v. Casoni, 950 F.2d 893 (3d Cir. 1991); Virgin Islands v. Toto, 529 F.2d 278 (3d Cir. 1976) – Even assuming error, affirmance is warranted if it is “highly probable” the error did not contribute to the judgment. This disposes of the bystander-identification hearsay complaint.
  • ACCA “serious drug offense” and the categorical approach:
    • Shular v. United States, 589 U.S. 154 (2020) – ACCA’s serious-drug-offense definition looks to conduct-type elements (manufacturing, distributing, or PWID), not a generic offense label.
    • United States v. Womack, 55 F.4th 219 (3d Cir. 2022) – Pennsylvania § 780-113(a)(30) does not reach “administering” controlled substances; “delivery” under (a)(30) is distinct from regulated “administering/dispensing,” reinforcing that (a)(30) is not overbroad on that score.
    • United States v. Henderson, 841 F.3d 623 (3d Cir. 2016); Singh v. Attorney General, 839 F.3d 273 (3d Cir. 2016); United States v. Abbott, 748 F.3d 154 (3d Cir. 2014) – Under Pennsylvania law, drug type is an element; the modified categorical approach may be used to identify the specific controlled substance.
    • United States v. Brown, 602 U.S. 101 (2024) (affirming in relevant part) – For ACCA’s categorical drug-schedule comparison, the federal schedules as of the predicate state offense date control. Thus, the 2015 removal of ioflupane from the federal schedules does not undermine earlier cocaine PWID predicates.
  • ACCA “different occasions,” jury right, and reversibility:
    • Wooden v. United States, 595 U.S. 360 (2022) – Establishes a fact-intensive, multi-factor test for “occasions” (timing, location, character/relationship of offenses).
    • Erlinger v. United States, 602 U.S. 821 (2024) – The Sixth Amendment requires a jury to decide whether ACCA predicates occurred on different occasions.
    • United States v. Barbosa, 271 F.3d 438 (3d Cir. 2001); Weaver v. Massachusetts, 582 U.S. 286 (2017) – Apprendi-type factfinding errors are not structural in this context; on plain-error review, a showing of prejudice is required. This forecloses relief here because Murphy’s offenses were months/years apart.
  • Ineffective assistance procedure:
    • Massaro v. United States, 538 U.S. 500 (2003) – Ineffective-assistance claims are best brought under § 2255 to develop a full record.
    • United States v. Givan, 320 F.3d 452 (3d Cir. 2003); United States v. Thornton, 327 F.3d 268 (3d Cir. 2003) – Third Circuit practice is to defer IAC claims to collateral review unless the record is adequately developed.
    • United States v. Headley, 923 F.2d 1079 (3d Cir. 1991) – Rare instance where the record alone established deficient performance and prejudice; distinguished here.

Legal Reasoning

1) Revocation: Evidence and Offense Identification

Because Murphy failed to preserve his objections, plain-error review governed. The district court could proceed by proffer and consider hearsay with sufficient indicia of reliability in a revocation proceeding. The panel emphasized that courts are “largely unlimited” in the sources of information they may consider at sentencing and revocation and that no indictment or conviction is required to find a violation. On the identification point, U.S.S.G. § 7B1.1(a)(1) is disjunctive: a Grade A violation may stem from a “crime of violence” or any offense punishable by more than 20 years. The revoking judge explicitly pointed to § 922(g)(1) together with the ACCA enhancement under § 924(e). Because § 924(e) exposes a defendant to more than 20 years, the finding satisfied the Guideline’s “punishable by more than twenty years” prong, even if “crime of violence” was unnecessary to the Grade A designation.

2) Trial Hearsay: Harmlessness Amid Overwhelming Evidence

Officer Brennan relayed, via radio, a bystander’s statement naming Murphy; the broadcast occurred virtually contemporaneously with learning that Murphy was detained behind the house. The panel assumed without deciding that the naming was inadmissible hearsay but deemed any error harmless. Given the constellation of evidence—timing and location of arrest, eyewitness observation of a man in a blue shirt, gun recovered on Murphy’s path, a ballistics match, and gunshot residue on Murphy’s hands and waistband—the court found it “highly probable” the hearsay did not contribute to the verdict.

3) ACCA Predicates: Pennsylvania PWID Cocaine Convictions Qualify

Overbreadth (“dispensing/administering”) rejected. Murphy argued that § 780-113(a)(30) is overbroad because it allegedly covers “administering” or “dispensing” by medical professionals, thereby criminalizing conduct outside ACCA’s serious-drug-offense definition. The panel, building on Womack, held that (a)(30) targets “delivery” (actual, constructive, or attempted transfer), not “dispensing” or “administering,” which are separately defined in Pennsylvania law and regulated in a distinct statutory subsection, § 780-113(a)(14). Accordingly, (a)(30) aligns with ACCA’s conduct-based definition and is not overbroad on that theory.

Schedule mismatch (ioflupane) foreclosed by Brown’s timing rule. The Supreme Court’s decision in Brown controls the timing for the categorical comparison: a state drug conviction qualifies if the drug was on the federal schedules when the state offense was committed. Although the federal government descheduled [123I]ioflupane in 2015 (while Pennsylvania’s schedule still included it), Murphy’s predicates (1999, 2000, 2003) predate that change. At those times, cocaine remained on both schedules. Hence, his Pennsylvania cocaine PWID convictions are ACCA predicates.

4) ACCA’s “Different Occasions” and the Sixth Amendment

Wooden made the “occasions” determination fact-intensive; Erlinger requires that a jury (not a judge) decide whether the predicates occurred on different occasions. Murphy’s legal argument is correct, but he failed to preserve it. On plain-error review, and in light of Barbosa and Weaver, the error is not structural; prejudice must be shown. Because Murphy’s three drug convictions were separated by months and years, the panel concluded that a jury would almost certainly have found “different occasions,” defeating any claim of outcome-affecting prejudice.

5) Ineffective Assistance Deferred to § 2255

Murphy contended that counsel should have sought a bifurcated trial on his § 922(g)(1) count to avoid prejudice from the jury learning of his prior felony. The panel applied Massaro and Third Circuit practice (Givan, Thornton), holding that the record is insufficient to adjudicate deficiency and prejudice on direct appeal. The claim is dismissed without prejudice to collateral review.

Impact

  • Revocation practice: District courts retain broad discretion to rely on proffers and hearsay with reliable indicia when adjudicating supervised-release violations. For Grade A classifications, the safer practice remains to expressly identify the specific statutory offense triggering either the “crime of violence” or “punishable by >20 years” prong; citing § 922(g)(1) with § 924(e) suffices for the latter.
  • Trial management and hearsay: Even potentially problematic hearsay will often be harmless when the government’s evidence is robust and independent. Still, practitioners should preserve objections and, where appropriate, seek limiting instructions or exclusion to avoid reliance on unidentified declarants.
  • ACCA predicate stability post-Brown: The decision underscores that the federal schedules used for categorical matching are those in effect on the date of the state predicate offense. Pre-2015 Pennsylvania cocaine PWID convictions remain durable ACCA predicates despite the federal descheduling of ioflupane in 2015.
  • Scope of § 780-113(a)(30): The clarification that (a)(30) does not criminalize “dispensing” or “administering” by licensed professionals (conduct addressed elsewhere in Pennsylvania’s statute) limits overbreadth arguments against using Pennsylvania PWID convictions as ACCA predicates.
  • Sixth Amendment “occasions” litigation: After Erlinger, defendants should timely demand a jury finding on the “different occasions” question. On appeal, unpreserved claims will typically fail without a showing of prejudice—especially when the dates, locations, or characteristics of the offenses are plainly separate.
  • Ineffective assistance posture: Claims involving trial-structure choices (like § 922(g) bifurcation) generally require factual development and are best pursued under § 2255.

Complex Concepts Simplified

  • Plain error review: A stringent appellate standard for unpreserved errors. The appellant must show a clear error that affected substantial rights (i.e., likely changed the outcome) and seriously undermined the fairness or integrity of proceedings.
  • Grade A supervised-release violation: Under U.S.S.G. § 7B1.1(a)(1), a Grade A violation can be either (A) an offense punishable by more than a year and that is a crime of violence or a controlled substance offense, or (B) any other offense punishable by more than 20 years. The subsections are disjunctive; satisfying either suffices.
  • Hearsay and revocation vs. trial: Hearsay is more freely admitted in revocation proceedings if reliable. At trial, hearsay is generally inadmissible unless an exception applies—but even if admitted in error, an appellate court may affirm if the error was harmless given other evidence.
  • ACCA “serious drug offense” (18 U.S.C. § 924(e)(2)(A)(ii)): A state offense qualifies if (1) it carries a maximum of 10+ years and (2) its elements necessarily involve manufacturing, distributing, or possessing with intent to manufacture or distribute a federally controlled substance. Courts use a categorical (elements-based) approach, sometimes aided by a “modified categorical” look at narrow records to identify the drug type when state law makes drug type an element.
  • Brown’s timing rule: Whether a state offense matches ACCA’s federal drug schedules is assessed as of the date of the state offense, not the later federal offense date. Thus, later federal descheduling (like ioflupane in 2015) does not unsettle earlier state convictions involving cocaine.
  • “Delivery” vs. “dispensing” under Pennsylvania law: “Delivery” means transfer; “dispensing” refers to a practitioner-issued drug to an ultimate user. PWID under § 780-113(a)(30) concerns delivery, whereas improper “dispensing”/“administering” by professionals is governed by § 780-113(a)(14).
  • “Different occasions” under ACCA: After Wooden, courts consider timing, location, and the relationship/character of offenses to decide if predicates occurred on different occasions. Erlinger assigns that factual question to the jury. On appeal, unpreserved failures to obtain a jury finding require a showing of prejudice.
  • Ineffective assistance posture: Most IAC claims are fact-intensive and require record development (e.g., counsel’s strategy, reasons, and alternatives), which is why courts generally defer them to § 2255 proceedings.

Conclusion

Although not precedential, United States v. Murphy is doctrinally instructive. It reinforces the broad evidentiary latitude in supervised-release revocations, the importance of expressly identifying predicate offenses for Grade A findings, and the limited effect of trial-level hearsay where the evidence is otherwise overwhelming. In the ACCA space, the panel confirms two critical points: (1) Pennsylvania PWID under § 780-113(a)(30) does not sweep in licensed professional “dispensing/administering” and thus aligns with ACCA’s conduct-focused definition; and (2) after the Supreme Court’s Brown, the relevant date for drug-schedule matching is the predicate offense date, preserving older Pennsylvania cocaine PWID convictions as ACCA predicates despite later federal descheduling of ioflupane. Finally, while Erlinger requires a jury finding on the “different occasions” issue, Murphy shows that unpreserved claims will falter absent a showing of prejudice—particularly where the predicate convictions are separated by months or years.

Key takeaway: For practitioners, preserve Sixth Amendment “occasions” objections early, carefully frame ACCA categorical arguments with Brown’s timing rule in mind, and, in revocation proceedings, be prepared for courts to consider reliable hearsay. For district courts, Murphy offers a model for identifying the precise statutory basis that satisfies U.S.S.G. § 7B1.1’s Grade A criteria.

Case Details

Year: 2025
Court: Court of Appeals for the Third Circuit

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