Post-Brown ACCA Matching to Predicate-Offense Date and Erlinger’s Jury Requirement Applied on Plain-Error Review; Pennsylvania § 780‑113(a)(30) Not Overbroad

Introduction

In United States v. Kareem Murphy, the Third Circuit (non-precedential) affirmed both the revocation of the defendant’s supervised release and his federal firearm convictions, including an Armed Career Criminal Act (ACCA) enhancement. The panel addressed several issues:

What evidentiary showings are sufficient to support a Grade A supervised-release violation, and what specificity must the revoking court provide?
Whether a hearsay-laden identification in a police radio call warranted relief at trial under plain-error review.
Whether Pennsylvania drug-trafficking convictions under 35 Pa. Stat. § 780‑113(a)(30) qualify as ACCA “serious drug offenses,” including challenges premised on the 2015 federal descheduling of [123I]ioflupane and the scope of the term “delivery.”
How the Supreme Court’s decisions in Wooden and Erlinger interact with ACCA’s “different occasions” requirement, and whether error was prejudicial on plain-error review.
Whether ineffective assistance for failing to bifurcate the felon-in-possession count should be resolved on direct appeal or collateral review.

The opinion serves as a practical roadmap on several cutting-edge questions post–Supreme Court decisions in Brown (2024) and Erlinger (2024): (1) the relevant time for ACCA categorical matching is the date of the state predicate offenses, not the date of the federal § 922(g) offense; (2) a jury must decide whether prior offenses occurred on “different occasions,” but where the dates are months or years apart, failure to submit the issue to the jury may be harmless under plain-error review; and (3) Pennsylvania’s § 780‑113(a)(30) “delivery” offense does not sweep in lawful “dispensing,” and thus is not overbroad for ACCA purposes.

Summary of the Opinion

The Third Circuit affirmed both the supervised-release revocation and the subsequent criminal judgment:

Supervised Release Revocation: The district court permissibly considered proffered evidence and hearsay with sufficient indicia of reliability; its finding of a Grade A violation was adequately tethered to identified federal statutes—specifically, § 922(g)(1) as enhanced by § 924(e)—which carry terms exceeding 20 years, satisfying U.S.S.G. § 7B1.1(a)(1)(B).
Trial Hearsay: Even assuming a hearsay error in admitting an unidentified bystander’s naming of Murphy via a police radio transmission, any error was harmless under plain-error review in light of overwhelming evidence (ballistics, gunshot residue, timing, recovery of the weapon along the flight path, and eyewitness context).
ACCA Predicates: Murphy’s prior Pennsylvania cocaine-trafficking convictions are “serious drug offenses.” The court rejected arguments that § 780‑113(a)(30) is overbroad by purportedly covering medical “dispensing,” and applied Brown to hold that categorical matching is evaluated as of the dates of the state convictions (1999, 2000, 2003), all of which matched federal schedules then in force notwithstanding the later 2015 descheduling of [123I]ioflupane.
Different Occasions (Sixth Amendment): Although under Erlinger the jury must find whether ACCA predicates occurred on different occasions, Murphy raised the issue late and could not show prejudice under plain-error review because his predicate offenses were months and years apart.
Ineffective Assistance: The claim based on failure to seek a bifurcated trial is dismissed without prejudice for collateral review under 28 U.S.C. § 2255, consistent with Massaro.

Analysis

Precedents Cited and Their Influence

Plain Error Framework: United States v. Dillon; United States v. Olano. The opinion is anchored in plain-error review because Murphy’s challenges were unpreserved. Relief required showing a clear error that affected substantial rights and seriously impacted the fairness, integrity, or public reputation of judicial proceedings.
Revocation Hearings and Evidence:
- United States v. Tucker: Sentencing judges may consider a wide range of information.
- United States v. Leekins: Hearsay may be admissible in revocation when it bears sufficient indicia of reliability.
- United States v. Carter; United States v. Poellnitz: The categorical approach does not apply to revocation; there is no requirement of a conviction or indictment to find a violation. However, Carter requires the revoking court to identify the particular offense relied upon when labeling conduct a “crime of violence.”
Trial Hearsay/Harmlessness: United States v. Casoni; Virgin Islands v. Toto. Even reversible error can be harmless if the remaining evidence is overwhelming; under plain-error review, the burden is especially high.
ACCA Serious Drug Offenses:
- Shular v. United States: ACCA inquiry asks whether state offense elements necessarily entail conduct listed in § 924(e)(2)(A)(ii).
- United States v. Womack: Pennsylvania § 780‑113(a)(30) does not criminalize “administering” by practitioners; the panel extends that logic to “dispensing.”
- United States v. Henderson; Singh v. Attorney General; United States v. Abbott: Under Pennsylvania’s statute, the specific drug is an element, allowing use of the modified categorical approach and Shepard documents where appropriate.
- United States v. Brown (3d Cir. 2022), aff’d on other grounds, 602 U.S. 101 (2024), and Brown (2024) itself: The Supreme Court held the relevant comparison is at the time of the state predicate offense; thus, later federal descheduling events (like [123I]ioflupane in 2015) do not invalidate earlier predicates that matched at the time.
Different Occasions and the Jury:
- Wooden v. United States: The “occasions” inquiry is fact-intensive (timing, location, character/relationship of offenses).
- Erlinger v. United States: The “different occasions” question is for the jury, not the judge.
- United States v. Barbosa; Weaver v. Massachusetts: Apprendi-type errors are not structural in this context; prejudice must be shown under plain-error review.
Ineffective Assistance on Direct Appeal:
- Massaro v. United States: Prefer § 2255 for first-instance IAC claims.
- United States v. Givan; United States v. Thornton: Without a developed record, IAC claims are dismissed without prejudice to collateral review.
- Strickland v. Washington; United States v. Headley: Strickland’s deficiency and prejudice prongs govern; Headley is an example where the record sufficed to find IAC on direct appeal, contrasting with most cases.

Legal Reasoning

1) Supervised Release Revocation: Evidence and Offense Identification

The panel reaffirmed that revocation proceedings are flexible in evidentiary scope. While Murphy criticized reliance on proffer and hearsay, the court emphasized Tucker and Leekins: a sentencing judge may consider a broad range of information so long as it is reliable. Carter confirms that a district court can look to actual conduct rather than categorically matching elements, and that indictment or conviction is unnecessary.

On the requirement to identify the offense, Carter demands specificity when labeling conduct a “crime of violence.” But § 7B1.1(a)(1) is disjunctive: the Grade A label may rest either on a crime of violence controlled-substance offense or on “any other” offense punishable by more than 20 years. Here, the district court anchored the Grade A finding in identified statutes—§ 922(g)(1) and § 924(e)—which, as applied, exceed the 20-year threshold. That sufficed even if the court also referenced “crime of violence” generally.

2) Trial Hearsay: Harmless Under Plain Error

Murphy challenged the admission of a radio call in which an officer repeated the crowd’s identification of “Kareem Murphy.” Assuming arguendo that this was hearsay, the panel held any error was harmless on plain-error review due to the overwhelming independent proof: recovery of the firearm along Murphy’s flight path; ballistics linking the gun to the door shot; gunshot residue on Murphy’s hands and inner waistband; and the very tight timeline from shot to arrest. Under Toto and Casoni, these facts made it “highly probable” the verdict would have been the same.

3) ACCA Predicates Under Pennsylvania § 780‑113(a)(30)

Murphy’s overbreadth argument centered on the notion that § 780‑113(a)(30) criminalizes practitioner “dispensing” and “administering.” The panel rejected this, reading the statute and definitions in § 780‑102(b) alongside § 780‑113(a)(14), which expressly regulates unlawful practitioner dispensing/administration. In context, § 780‑113(a)(30) targets “manufacture, delivery, or possession with intent to manufacture or deliver,” with “delivery” defined broadly as transfer, but “dispense” separately defined as a practitioner’s lawful delivery per order. Womack had already explained why “administering” was outside § 780‑113(a)(30)’s scope; the panel extended that logic to “dispensing,” foreclosing the overbreadth claim.

On the ioflupane issue, Brown controls: the relevant comparison point for ACCA is when the state predicate was committed. Because Murphy’s three cocaine-trafficking predicates (1999, 2000, 2003) occurred when both federal and Pennsylvania schedules matched, the later 2015 federal descheduling of [123I]ioflupane does not knock out these predicates. The panel thus found a categorical match at the relevant times.

4) “Different Occasions” Must Be Found by a Jury — But No Prejudice Here

Post-Erlinger, it is error for the judge to find the “different occasions” fact necessary to trigger ACCA’s enhanced penalties. However, because Murphy did not preserve the issue and because his three convictions were separated by months and years (Dec. 1999; Mar. 2000; 2003), he could not demonstrate a reasonable probability that a jury would find otherwise. Under Olano/Barbosa, this non-structural error did not affect substantial rights on the facts presented.

5) Ineffective Assistance: Reserved for § 2255

The panel adhered to Massaro’s preference for adjudicating IAC claims on collateral review, declining to resolve on an undeveloped record whether counsel was ineffective for not seeking a bifurcated trial on the § 922(g)(1) count. The claim was dismissed without prejudice to a § 2255 motion.

Impact

Revocation Practice: The opinion underscores that revocation courts may rely on proffers and hearsay so long as reliability is sufficient, and that courts must identify the specific statutory offense supporting a Grade A violation. Defense counsel should be prepared to challenge reliability directly, rather than merely objecting to hearsay per se.
ACCA in Pennsylvania: The decision reinforces that convictions under § 780‑113(a)(30) for cocaine distribution remain ACCA predicates and that the statute’s “delivery” element does not make the offense overbroad by sweeping in lawful medical “dispensing.” Challenges premised on the 2015 ioflupane descheduling will generally fail where the predicate offenses predate 2015.
Erlinger Compliance: District courts must submit the “different occasions” question to the jury. Defendants should preserve this issue at trial; otherwise, relief on appeal will require a concrete showing of prejudice—often difficult when dates are widely separated.
Hearsay at Trial: Identification hearsay objections must be timely. Even if error exists, appellate relief will be rare where the remaining evidence is overwhelming.
IAC Claims Strategy: Counsel contemplating bifurcation of § 922(g)(1) counts should build a record of strategic deliberation. Appellate courts will typically reserve IAC for § 2255 proceedings unless deficiency and prejudice are clear on the face of the record.

Complex Concepts Simplified

Plain Error Review: On appeal, if an issue wasn’t raised below, a defendant must show (1) error, (2) that is “plain,” (3) that affected substantial rights (usually outcome-determinative), and (4) that seriously affects the fairness or integrity of proceedings.
Grade A Violation (U.S.S.G. § 7B1.1): A supervised-release violation is “Grade A” if the conduct constitutes certain serious offenses, including crimes of violence or controlled substance offenses punishable by more than one year, or any other offense punishable by more than 20 years. The district court must identify the actual offense relied on, but need not require a conviction or indictment.
Hearsay in Revocation vs. Trial: Revocation proceedings are more flexible; hearsay can be considered if reliable. At trial, hearsay is generally excluded unless an exception applies. But even trial hearsay errors may be harmless.
ACCA “Serious Drug Offense”: A state drug offense counts if it (1) carries a 10-year max and (2) necessarily involves manufacturing, distributing, or possessing with intent to distribute a federally scheduled drug. Under Shular and Brown, courts compare elements and schedules as of the time of the state offense.
“Delivery” vs. “Dispensing” (Pennsylvania): “Delivery” means transfer of a controlled substance; “dispensing” is a practitioner’s lawful provision pursuant to a medical order. Section 780‑113(a)(30) targets delivery/manufacture/possession-with-intent, not lawful practitioner dispensing, which is separately regulated in § 780‑113(a)(14).
“Different Occasions” (ACCA): After Wooden and Erlinger, whether prior offenses occurred on different occasions is a jury question, guided by timing, location, and the relationship between offenses.
Ineffective Assistance (Strickland): A defendant must show deficient performance and prejudice (a reasonable probability of a different outcome). Most IAC claims are best pursued in § 2255 motions to develop a factual record.

Conclusion

The Third Circuit’s decision in United States v. Murphy crystallizes several important post–Supreme Court doctrinal clarifications while applying them to common criminal practice issues:

The court reaffirmed the flexible evidentiary rules at revocation, while requiring sufficient identification of the statutory offense supporting a Grade A violation—here, § 922(g)(1) as enhanced by § 924(e).
It underscored the high bar for plain-error relief from alleged trial hearsay when independent evidence is overwhelming.
It confirmed that Pennsylvania cocaine-trafficking convictions under § 780‑113(a)(30) qualify as ACCA “serious drug offenses,” rejecting a “dispensing”-based overbreadth attack and applying Brown to measure categorical matching at the time of the state predicate offenses.
It acknowledged Erlinger’s jury requirement for ACCA’s “different occasions,” but found no prejudice where the dates were plainly separated by months and years.
It adhered to Massaro’s directive that IAC claims typically proceed on collateral review, preserving Murphy’s bifurcation claim for § 2255.

Though non-precedential, Murphy is a comprehensive application of contemporary Supreme Court doctrine in the ACCA and supervised-release arenas. Practitioners should treat it as a detailed blueprint for litigating (and preserving) issues involving revocation evidentiary standards, ACCA categorical matching post-Brown, and the procedural requisites for “different occasions” findings after Erlinger.