United States v. Dorian Dawson

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 20-3338

_____________

UNITED STATES OF AMERICA

v.

DORIAN DAWSON,

Appellant

_____________________________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(District Court No. 2:18-cr-00085-001)

District Judge: Honorable David S. Cercone

_____________________________________

Argued February 10, 2022

(Filed: April 28, 2022)

Before: GREENAWAY, JR., SCIRICA, and RENDELL,

Circuit Judges.

Lisa B. Freeland

Renee Pietropaolo (argued)

Office of Federal Public Defender

1001 Liberty Avenue

Suite 1500

Pittsburgh, PA 15222

Counsel for Appellant

Stephen R. Kaufman

Adam N. Hallowell (argued)

Laura S. Irwin

Office of the United States Attorney

700 Grant Street

Suite 4000

Pittsburgh, PA 15219

Counsel for Appellee

_________

OPINION OF THE COURT

_________

RENDELL, Circuit Judge.

Dorian Dawson appeals his sentence for possession of

fentanyl with intent to distribute. He raises two claims of error.

First, Dawson argues that he should not have been subject to a

career offender enhancement because his state drug trafficking

convictions are not “controlled substance offenses” under the

Sentencing Guidelines. We hold that those convictions are

career offender predicates, as the state offense, 35 Pa. Cons.

Stat. §780-113(a)(30), does not criminalize a broader range of

conduct than the Guidelines. Second, Dawson contends that

his sentence cannot stand because the District Court erred in

failing to rule on a controverted issue of fact at sentencing—to

2

wit, whether Dawson caused one of his fentanyl ‘clients’ to die

from a drug overdose. See Fed. R. Crim. P. 32(i)(3)(B).

However, Dawson failed to preserve this argument for plenary

review, as he did not object when the putative error became

evident. Reviewing for plain error then, we find that Dawson

has not shown his substantial rights were affected.

Accordingly, we will affirm.

I.

On October 17, 2016, Dawson was arrested in

Brentwood, Pennsylvania. He was caught driving a car

containing bags of fentanyl, stamped with the label “Peace of

Mind”. Earlier that day, Police had responded to the overdose

death of one “L.B.”, who was found with empty and full bags

of fentanyl bearing the same “Peace of Mind” label.

Investigation of L.B.’s cell phone revealed that Dawson had

been supplying L.B. with fentanyl; Police then used the

deceased’s phone to set up a drug deal with Dawson,

apprehending him upon his arrival.

Dawson was initially charged in state court with various

drug trafficking offenses, including drug delivery resulting in

death, 18 Pa. Cons. Stat. § 2506, for his alleged role as the

supplier of L.B.’s fatal dose. However, the case was ultimately

adopted by federal authorities in the Western District of

Pennsylvania, who indicted Dawson on one count of

possessing fentanyl with intent to distribute, 21 U.S.C. §§

841(a)(1), (b)(1)(C). Dawson entered an open guilty plea to

this sole count.

3

Dawson was caught with only four grams of fentanyl,

but a lengthy history of drug dealing—he had been convicted

four times of heroin trafficking under 35 Pa. Cons. Stat. § 780-

113(a)(30)—led Probation to classify him as a career offender

and calculate a substantial guidelines range of 188 to 235

months’ imprisonment. Dawson objected to this career

offender designation, yet he conceded that then-controlling

precedent, United States v. Hightower, 25 F.3d 182 (3d Cir.

1994), foreclosed his argument that § 780-113(a)(30) is not

categorically a “controlled substance offense” under the

applicable Guideline, U.S.S.G. § 4B1.2(b) (“The term

‘controlled substance offense’ means an offense under federal

or state law . . . that prohibits the manufacture, import, export,

distribution, or dispensing of a controlled substance . . . .”). As

we discuss at length below, the new life given to this contention

by our overruling of Hightower in United States v. Nasir, 17

F.4th 459 (3d Cir. 2021), grounds the primary issue in this

appeal.

Dawson also objected to the Pre-Sentence Report’s

(“PSR”) mention of L.B.’s death from drug overdose and, in

their pre-sentencing submissions, Dawson and the

Government sparred over whether the death should be

attributed to Dawson at sentencing under 18 U.S.C. § 3553(a).

Prior to sentencing, the District Court tentatively overruled

Dawson’s objection to those portions of the PSR dealing with

the overdose and invited him to make further submissions on

the matter at the upcoming hearing.

On November 5, 2020, the District Court sentenced

Dawson to 142 months’ imprisonment, reflecting a 46-month

downward variance from the bottom end of his Guidelines

range. Although the District Court conclusively overruled his

4

objection to the PSR’s inclusion of L.B.’s overdose, the Court

neither held that Dawson caused the death nor deemed the issue

irrelevant to crafting a sentence under the § 3553(a) factors.

See Fed. R. Crim. P. 32(i)(3)(B). However, as we explain in

detail below, Dawson did not preserve any claim of error

stemming from this purported omission.

Dawson timely appealed.

II.

The District Court had jurisdiction pursuant to 18

U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291

and 18 U.S.C. § 3742(a). The interpretation of the Guidelines

is a legal question, so we exercise plenary review. United

States v. Wilson, 880 F.3d 80, 83 (3d Cir. 2018). We review

unpreserved objections for plain error. United States v. Dahl,

833 F.3d 345, 349 (3d Cir. 2016).

III.

A.

We begin by addressing the career offender

enhancement. The District Court agreed with Probation that

Dawson had at least two qualifying predicate convictions—his

repeated violations of 35 Pa. Cons. Stat. § 780-113(a)(30)—for

“controlled substance offense[s]” under the Guidelines,

making him a career offender. See U.S.S.G. § 4B1.1(a) (“A

defendant is a career offender if . . . [he] has at least two prior

5

felony convictions of . . . a controlled substance offense.”).1

Before us, Dawson disputes this finding, arguing that § 780-

113(a)(30) is not a controlled substance offense.2 His

argument relies on the fact that one element of § 780-

113(a)(30), the “delivery . . . [of] a controlled substance,” can

be satisfied by the “attempted transfer . . . of a controlled

substance.” 35 Pa. Cons. Stat. § 780-102. Dawson insists this

means that Pennsylvania drug “delivery” cannot be a drug

“distribution” offense under U.S.S.G. § 4B1.2(b).

The District Court examined this issue through the lens

of then-applicable precedent, United States v. Hightower, 25

1

The Parties do not dispute that § 4B1.1(a)’s other

requirements are met here: Dawson was at least 18 years old

when he committed the instant offense and that offense—21

U.S.C. § 841(a) and § 841(b)(1)(C)—is a Guidelines

“controlled substance offense.” See, e.g., United States v.

McQuilkin, 97 F.3d 723, 725 n.3 (3d Cir. 1996) (stating that §

841(a) is a “controlled substance offense[]”); United States v.

Ward, 972 F.3d 364, 371 n.8 (4th Cir. 2020). As we discuss in

detail below, however, Dawson’s position commits him to the

untenable conclusion that § 841(a) is not categorically a

controlled substance offense.

2

The Government insists that we settled this very issue in

United States v. Glass, 904 F.3d 319 (3d Cir. 2018). There, we

stated expansively that Ҥ 780-113(a)(30) does not sweep more

broadly than § 4B1.2.” Id. at 324. This broad language cannot

be considered controlling, however, as the Glass Court ruled

only on the question of whether the state statute was overbroad

insofar as it proscribed mere offers to sell drugs. See id. at

322–23.

6

F.3d 182 (3d Cir. 1994), in which we relied on the Sentencing

Commission’s Commentary to hold that § 4B1.2(b) includes

inchoate drug offenses. Under this rule, Dawson’s point went

nowhere: even if § 780-113(a)(30) somehow codifies an

inchoate crime within an otherwise substantive provision, it

would nonetheless be included in the Guideline via the

Commentary. After Dawson had been sentenced, however, we

reversed course in United States v. Nasir, 17 F.4th 459 (3d Cir.

2021), overruling Hightower and holding that “inchoate crimes

are not included in” § 4B1.2(b)’s “controlled substance

offense” definition, id. at 472. Our about-face would revive

Dawson’s argument but for one fact: § 780-113(a)(30) is not

an inchoate drug crime.

Nasir is distinguishable because § 780-113(a)(30) is a

completed offense which, in one definition, uses the word

7

“attempted” in its ordinary sense.3 4 This subtle distinction was

first discerned by Chief Judge Sutton, writing in a Sixth Circuit

case comparable to Nasir. See United States v. Havis, 929 F.3d

317, 319 (6th Cir. 2019) (Sutton, J., concurring in the denial of

en banc reconsideration) (noting that the term “attempted

transfer,” as used to define “delivery” in a drug trafficking

statute, takes its “ordinary,” rather than “legal term-of-art,”

meaning). The Sixth Circuit went on to adopt and apply this

distinction in a case materially identical to Dawson’s. See

United States v. Thomas, 969 F.3d 583, 584-85 (6th Cir. 2020)

(per curiam); see also United States v. Garth, 965 F.3d 493,

497 (6th Cir. 2020).5

3

In Nasir, we considered whether § 4B1.2(b) “include[s]

inchoate crimes.” 17 F.4th at 469 n.10 (citing Offense,

BLACK'S LAW DICTIONARY (11th ed. 2019)) (“An inchoate

offense is ‘[a] step toward the commission of another crime,

the step itself being serious enough to merit punishment.’

Inchoate offenses include, for example, the attempt,

conspiracy, or solicitation to commit a crime.”). Nasir had

been classified as a career offender owing, in part, to a prior

Virginia conviction for “attempting to possess cocaine with

intent to distribute.” Id. at 464. On appeal, he argued that the

plain meaning of § 4B1.2(b) did not sweep in inchoate drug

crimes like his and we should not defer to the Commentary’s

interpretation. We agreed and, accordingly, found that Nasir

was not a career offender.

4

At Oral Argument, Dawson conceded that “Nasir is

distinguishable.” Oral Arg. Tr. at 18.

5

In United States v. Thomas, the appellant argued that his prior

convictions for heroin delivery under Michigan law were not

Guideline career offender predicates because the state statute

could be satisfied by an “attempted transfer” of drugs. 969

8

The Sixth Circuit’s analysis provides a useful paradigm

for our consideration of Pennsylvania’s drug trafficking

statute. Although the Commonwealth’s courts have provided

little guidance on the meaning of “attempted transfer,” careful

analysis of statutory structure and prosecutorial practice reveal

that § 780-113(a)(30) is not an inchoate crime. Instead, drug

“delivery” is a complete offense, whether it is committed via

actual or attempted transfer of drugs.

To start with, Pennsylvania prosecutes legal attempts to

deliver drugs under the Code’s general attempt provision, 18

Pa. Cons. Stat. § 901, rather than by charging a violation of §

780-113(a)(30) and then invoking § 780-102(b)’s “attempted

transfer” definition.6 To interpret “attempted transfer” as an

embedded inchoate offense would mean holding that

F.3d 583, 584–85 (6th Cir. 2020) (per curiam). The Sixth

Circuit disagreed, observing that “the definition of delivery

used under Michigan (and federal) law—again, ‘the actual,

constructive, or attempted transfer of a controlled substance’—

does not include ‘attempted delivery.’ Instead, it includes only

‘attempted transfer.’ And an attempted transfer qualifies as a

completed delivery.” Id. (internal citations omitted).

6

See, e.g., Commonwealth v. Bernard, 2019 PA Super 271,

218 A.3d 935, 938 n.1 (2019) (offense of “attempt to deliver a

controlled substance” charged under 18 Pa. Cons. Stat. § 901);

Commonwealth v. Taylor, No. 796 MDA 2018, 2019 WL

618749, at *1 (Pa. Super. Ct. Feb. 14, 2019) (same);

Commonwealth v. McCullough, No. 1642 MDA 2013, 2014

WL 10752176, at *1 (Pa. Super. Ct. Dec. 9, 2014) (same);

Commonwealth v. Mills, 478 A.2d 30, 31 (1984) (same).

9

Pennsylvania has codified a redundant, vestigial crime—

violating the canon against surplusage. See Marx v. Gen.

Revenue Corp., 568 U.S. 371, 386 (2013) (canon against

surplusage “is strongest when an interpretation would render

superfluous another part of the same statutory scheme”)

(internal citations omitted).

Further, the “attempted transfer” of drugs cannot be an

inchoate offense because drug “transfer” is not a codified

crime. The Commonwealth defines “criminal attempt” as

follows: “A person commits an attempt when, with intent to

commit a specific crime, he does any act which constitutes a

substantial step toward the commission of that crime.” 18 Pa.

Cons. Stat. § 901(a) (emphasis added). To be guilty of a legal

attempt then, one must have the intent to commit some distinct,

“specific crime.” So, one cannot attempt “transfer” in the

technical sense because the Commonwealth criminalizes only

actual transfer, constructive transfer, and attempted transfer—

not mere “transfer.” 35 Pa. Cons. Stat. § 780-102(b); Garth,

965 F.3d at 497 (“Delivery means attempted transfer, not

attempted delivery.”).

Finally, Dawson’s hypothesized inchoate offense would

be inconsistent with Pennsylvania mens rea caselaw. If

“attempted transfer” is an inchoate crime like any other, then

‘intent’ must be the applicable mens rea, as Dawson insists.

But the mens rea applicable to drug “delivery” is merely

knowing. See Commonwealth v. Murphy, 844 A.2d 1228, 1234

(2004). The better reading of state law avoids such anomalies.

In sum, Nasir does not control here because it addressed

only true inchoate offenses, none of which appear in § 780-

113(a)(30). This conclusion does not settle the career offender

10

issue, however, as Dawson argues further that—Nasir aside—

§ 780-113(a)(30) is categorically overbroad under the ordinary

meaning of the term “distribution” in § 4B1.2(b). It is to that

argument which we now turn.

1.

We use the categorical approach to determine if a past

conviction is a career offender predicate, considering only the

elements of the conviction statute, not the facts of the

defendant’s actual misconduct. United States v. Williams, 898

F.3d 323, 333 (3d Cir. 2018) (citing United States v. Chapman,

866 F.3d 129, 133 (3d Cir. 2017)). We compare the elements

of that statute with the relevant Guidelines provision—here, §

4B1.2(b)’s definition of a “controlled substance offense.” If

the statute proscribes a broader range of conduct than the

Guideline, then a conviction for the state offense will not count

as a controlled substance offense. Id. at 334 (citing Mathis v.

United States, 136 S. Ct. 2243 (2016)). But, if the statute

proscribes an identical or narrower range of conduct, then it is

a controlled substance offense. See United States v. Daniels,

915 F.3d 148, 151 (3d Cir. 2019).

Assessing categorical fit here, we look first to the

conduct proscribed by Dawson’s predicate offenses: his

violations of 35 Pa. Cons. Stat. § 780-113(a)(30). This statute

prohibits, inter alia, “the manufacture, delivery, or possession

with intent to manufacture or deliver, a controlled substance . .

. .” § 780-113(a)(30) (emphasis added). As noted above,

Pennsylvania law defines “deliver” and “delivery” as “the

actual, constructive, or attempted transfer from one person to

another of a controlled substance, other drug, device or

11

cosmetic whether or not there is an agency relationship.” 35

Pa. Cons. Stat. § 780-102(a) (emphasis added).

Now to the Guidelines, they define a “controlled

substance offense” as:

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 a counterfeit substance) or the

possession of a controlled substance (or a

counterfeit substance) with intent to

manufacture, import, export, distribute, or

dispense.

U.S.S.G. § 4B1.2(b) (emphasis added).7

The Parties agree that we must analyze the ordinary

meaning of the Guideline text to determine if § 780-113(a)(30)

is overbroad. They differ, however, on what that analysis

reveals and on the relevance of the Guideline’s context. We

will begin by considering the “plain text” of the Guideline,

Nasir, 17 F.4th at 471, and then go on to discuss its broader

context, policy, and history, see United States v. Perez, 5 F.4th

390, 395 (3d Cir. 2021) (citing Kisor v. Wilkie, 139 S. Ct. 2400,

2415 (2019)).

7

There is no dispute that § 780-113(a)(30) is an offense under

state law, punishable by more than one year imprisonment.

12

2.

Starting with the plain text of § 4B1.2(b), we ask if the

ordinary meaning of “an offense . . . that prohibits the . . .

distribution . . . of a controlled substance” includes offenses

that prohibit the “attempted transfer” of a controlled substance.

See, e.g., United States v. Loney, 219 F.3d 281, 294 (3d Cir.

2000). To assess ordinary usage, legal and general dictionaries

are a good place to start, United States v. Geiser, 527 F.3d 288,

294 (3d Cir. 2008), especially dictionaries “from the era” of the

Guideline’s enactment, see, e.g., Sandifer v. U.S. Steel Corp.,

571 U.S. 220, 227 (2014); see also Niz-Chavez v. Garland, 141

S. Ct. 1474, 1480 (2021) (“When called on to resolve a dispute

over a statute’s meaning, this Court normally seeks to afford

the law’s terms their ordinary meaning at the time Congress

adopted them.”). If legal sources provide definitions specific

to the relevant context, then we ought to rely on those, at least

when they are consistent with lay usage. See, e.g., Gresham v.

Meden, 938 F.3d 847, 849–50 (6th Cir. 2019).

“Distribution” means “giving out or division among a

number, sharing or parceling out, allotting, dispensing,

apportioning.” BLACK’S LAW DICTIONARY 475 (6th ed. 1990);

see also OXFORD ENGLISH DICTIONARY (2d ed. 1989) (“The

action of dividing and dealing out or bestowing in portions

among a number of recipients; apportionment, allotment.”).

Significantly, the Black’s Law Dictionary edition closest in

time to the adoption of § 4B1.2(b)’s current form provided

definitions of salient terms particularized to the criminal drug

law context; in that sense, “a person ‘distributes’ a dangerous

drug when he sells, transfers, gives or delivers to another . . . .”

BLACK’S LAW DICTIONARY 475 (6th ed. 1990) (emphasis

added). “In the context of illegal transfer of drugs, ‘deliver’

13

means the actual, constructive, or attempted transfer from one

person to another of a controlled substance.” See BLACK’S

LAW DICTIONARY 429 (6th ed. 1990) (emphasis added); see

also BLACK’S LAW DICTIONARY (5th ed. 1981) (same).

We find the authority of the Black’s Law Dictionary

persuasive here, as it provides definitions of the salient terms

in the precise, relevant context, and “context is everything in

interpretation. One can’t take the broadest (or for that matter

narrowest) lay definition and simply affix it to the statute.”

Gresham, 938 F.3d at 849. As we shall see, those definitions

reflect consistent legal usages at the time of the Guideline’s

adoption, see infra pp. 24–36, and they are consistent with the

OED’s broader lay definitions.

Applying those contextualized dictionary definitions

then, the ordinary meaning of drug “distribution” plainly

includes the “attempted transfer” of drugs, by way of the

meaning of “delivery”. The fact that Pennsylvania drug

trafficking law mirrors these linguistic relationships is a

facially compelling reason to find it comports with the

Guidelines.

Simple examples of ordinary usage confirm the raw

dictionary analysis. Consider a drug dealer who apportions his

‘stash’ into labeled packages, drives them to the local Post

Office, and mails them out to buyers. Even if the packages are

soon intercepted by Postal Inspectors, the dealer has already

“distributed” the packages—by mailing them, he has

“attempted transfer” to the buyers. Or, take a mid-level drug

captain who places allotments of drugs at pre-arranged

locations for collection by street-level dealers. He has

“distributed” the drugs, even if the Police discover the parcels

14

before the transferee dealers do—again, a person can engage

in drug “distribution” by attempting to transfer drugs.

Likewise, when Police conduct a “buy-bust” operation in

which a dealer is arrested before the drugs are finally handed

over, the dealer engaged in the “distribution” of those drugs by

attempting to transfer them.8

8

Dawson insists that examples such as these describe only

“actual” rather than “attempted” transfers, as “we don’t focus

on[:][D]id the receiver actually take [the items] into his

possession[?]” in ordinarily evaluating whether such a transfer

was completed or not. Oral Arg. Tr. at 15–16. We disagree.

“Transfer” means “[t]o convey or remove from one place,

person, etc., to another; pass or hand over from one to another;

specifically, to change over the possession or control of . . . .”

BLACK’S LAW DICTIONARY 1497 (6th ed. 1990). Each of these

senses supports the view that our focus remains receiver-

relative in discussing the distribution and transfer of drugs, the

applicable linguistic context. See Gresham v. Meden, 938 F.3d

847, 849 (6th Cir. 2019) (“[C]ontext is everything in

interpretation.”). First, we do not say that the dealer caught in

a buy-bust has “distributed” drugs just because he has

“remove[d]” them to the location of the deal. Rather, we care

about the fact that he has arrived there to “convey” the drugs

to another “person”. If the deal is interrupted, then our use of

“distribution” to describe the situation grasps onto the abortive

inter-personal transfer, that is, the attempt aspect. Second, the

“pass or hand over” and “change over” senses clearly focus our

attention on the attempt aspect as well; if the buy-bust dealer

tries but fails to “hand over” the drugs, then he has “attempted”

to transfer them without completing an “actual” transfer.

Finally, the specific drug trafficking definitions found in

15

Dawson presents counter-hypotheticals showing that

we sometimes use “distribute” in the narrow sense of a

completed transfer. See Appellant’s Reply Br. at 3. But these

miss the point. What he needs to make out is the obverse: that

there are “attempted transfers” which are not instances of

“distribution”. Only then would he show that § 780-113(a)(30)

might reach beyond the scope of the Guideline. This Dawson

fails to do. Indeed, he does not even address the fact that

“distribution” and “delivery” have specific meanings when

used in the drug trafficking context, meanings inconsistent

with Dawson’s narrow reading of the Guideline text.9

Black’s Law Dictionary flatly refute Dawson’s position that

“distribution” refers only to “actual transfer”.

9

Because we conclude that the “attempted transfer” of

controlled substances criminalized by § 780-113(a)(30) does

not “authorize the state government to [prosecute] broader

conduct” than is included in the federal definition, we need not

inquire whether there is a “realistic probability” that the

Commonwealth would prosecute such conduct. See Salmoran

v. Att'y Gen. United States, 909 F.3d 73, 82 (3d Cir. 2018);

Hylton v. Sessions, 897 F.3d 57, 63 (2d Cir. 2018) (“The

requirement that a defendant show a realistic probability that

the State would apply its statute to conduct that falls outside

the generic definition of a crime operates as a backstop when a

statute has indeterminate reach, and where minimum conduct

analysis invites improbable hypotheticals.” (internal quotation

marks omitted)).

16

3.

The Government also urges that the Controlled

Substances Act (“CSA”), 21 U.S.C. § 801 et seq., provides

significant guidance for interpreting the meaning of

“distribution”. Cf. Boumediene v. Bush, 553 U.S. 723, 776

(2008) (“When interpreting a statute, we examine related

provisions in other parts of the U.S. Code.”). We agree.

The relevant definitions in the CSA track those in

Black’s Law Dictionary and map directly onto § 4B1.2(b) and

§ 780-113(a)(30). The CSA defines “distribute” as “to deliver

(other than by administering or dispensing) a controlled

substance or a listed chemical.” 21 U.S.C. § 802(11). It

defines “deliver” and “delivery” as “the actual, constructive, or

attempted transfer of a controlled substance or a listed

chemical, whether or not there exists an agency relationship.”

21 U.S.C. § 802(8). Reading § 4B1.2(b)’s use of “distribution”

in light of these definitions, our ordinary language analysis

would appear to be confirmed. Although § 4B1.2(b) does not

incorporate the CSA’s conduct definitions by direct reference,

there are several reasons why they nonetheless should inform

our reading of the Guideline text.10

The CSA has defined “distribute” to include

“attempted transfer” (by way of “delivery”) since the time of

its enactment in 1970; it did so when the term “distribution”

was added to § 4B1.2(b) in 1989. See U.S.S.G. App. C, Vol.

I, at C. 138 (1989). Generally, when similar language is used

10

We take no position regarding the relationship between the

term “controlled substance” in § 4B1.2(b) and the controlled

substance schedules contained in the CSA.

17

in related statutes in functionally equivalent ways, we presume

the same meaning applies. See M.R. v. Ridley Sch. Dist., 868

F.3d 218, 224 (3d Cir. 2017) (citing Gomez-Perez v. Potter,

553 U.S. 474, 481 (2008); see also Azar v. Allina Health Servs.,

139 S. Ct. 1804, 1812 (2019) (“This Court does not lightly

assume that Congress silently attaches different meanings to

the same term in the same or related statutes.”). The noun and

verb forms “distribution”/“distribute”—neither Party contends

the formal difference matters—are used in functionally

equivalent ways in the CSA and § 4B1.2(b): in the former, as

a conduct prohibition; in the latter, to refer to convictions for

violating that species of prohibition. See 21 U.S.C. § 841(a)(1)

(making it unlawful to “distribute” a controlled substance).

Accordingly, our default assumption must be that the

Commission—and, by implication, Congress—intended

“distribution” to take the meaning long familiar from the

CSA.11

11

This assumption is bolstered when we consider that the

Uniform Controlled Substances Act of 1970’s identical

definitions of “distribute” and “delivery” had been adopted in

many states by 1989. See, e.g., Cal. Health & Safety Code §§

11012, 11009; Del. Code Ann. tit. 16, §§ 4701(9), (13); N.J.

Stat. Ann. § 2C:35-2; N.Y. Pub. Health Law §§ 3302(7), (10);

Va. Code Ann. § 54.1-3401; see also Scott W. Parker, Note,

An Argument for Preserving the Agency Defense As Applied to

Prosecutions for Unlawful Sale, Delivery, and Possession of

Drugs, 66 FORDHAM L. REV. 2649, 2691 (1998) (observing

that not every state adopted the Uniform Act’s criminalization

of drug “delivery” but those that did generally followed the

Act’s definition). Thus, the CSA’s definitions would have

been doubly ready-to-hand for the Guideline drafters, given

their ubiquity in state criminal codes.

18

The history of § 4B1.2(b) also reveals that the

Commissioners had the CSA in mind in defining the universe

of crimes that would trigger the career offender enhancement.

The Guideline’s original version defined “controlled substance

offense” as “an offense identified in 21 U.S.C. §§ 841 . . . of

the Controlled Substance Act . . . and similar offenses.”

U.S.S.G. § 4B1.2(2) (1987). Then as now, 21 U.S.C. § 841

makes it illegal to “distribute” under § 802’s definition of that

term. Although the Commission revised § 4B1.2(b) in 1989 to

replace specific statutory references with the current list of

generic offense categories, this was not a sub silentio

narrowing of the Guideline’s scope. Rather, the Commission

believed the new form provided “comparable but clearer

definitions.” See Sentencing Guidelines for United States

Courts, 54 Fed. Reg. 9122, 9162 (Mar. 3, 1989). There is no

reason to think that Congress had a different understanding of

the 1989 amendment when it later took effect.

Congress’s instructions in the Sentencing Reform Act

of 1984 (“SRA”), Pub. L. 98-473, Title II, § 217(a), 98 Stat.

1837, 2021 (eff. Oct. 12, 1984), also support the view that the

meaning of “distribution” in § 4B1.2(b) must be at least as

broad as under the CSA. In the SRA, Congress ordered the

Commission to design a career offender provision for the

Guidelines as follows:

(h) The Commission shall assure that the

guidelines specify a sentence to a term of

imprisonment at or near the maximum term

authorized for categories of defendants in which

the defendant is eighteen years old or older

and—

19

(1) has been convicted of a felony that is-

[. . .]

(B) an offense described in section

401 of the Controlled Substances Act

(21 U.S.C. [§] 841) . . .

and

(2) has previously been convicted of two

or more prior felonies, each of which is—

[. . .]

(B) an offense described in section

401 of the Controlled Substances Act

(21 U.S.C. [§] 841)[.]

28 U.S.C. § 994(h)(2)(B) (emphasis added). We have stated

that the career offender Guideline “implements 28 U.S.C. §

994(h)[.]” See United States v. Whyte, 892 F.2d 1170, 1174 (3d

Cir. 1989). And, as we explained above, § 841 proscribes

distributing drugs via “attempted transfer”. See 21 U.S.C. §§

802(8) and (11); United States v. Rowe, 919 F.3d 752, 759 (3d

Cir. 2019) (21 U.S.C. § 802 provides relevant definitions for

terms in 21 U.S.C. § 841). Consequently, to hold that the

Guideline excludes “attempted transfer” offenses would be

inconsistent with our holding in Whyte that “predicate drug

offenses” include those which “could have been prosecuted

under 21 U.S.C. § 841,” as “attempted transfer” can be so

prosecuted. 892 F.2d at 1174; see also United States v. Tobin,

20

676 F.3d 1264, 1289 (11th Cir. 2012) (affirming conviction as

instance of “attempted transfer”).

Worse, it would mean embracing the absurd proposition

that § 841—marked out by Congress as the paradigmatic

controlled substance statute—is not categorically a controlled

substance offense under the Guidelines. See United States v.

Booker, 994 F.3d 591, 596 (6th Cir. 2021) (“It would be

remarkable if [appellant] were right that § 841(a)(1) did not

describe a ‘controlled substance offense’ under U.S.S.G. §

4B1.2(b)). In directing the Sentencing Commission to enact

the career-offender Guidelines, Congress specifically

instructed that ‘offense[s] described in . . . 21 U.S.C. [§] 841’

be covered.”); Garth, 965 F.3d at 497 (“By this logic, federal

distribution encompasses attempted distribution, so all 21

U.S.C. § 841(a) convictions for distribution and possession

with intent to distribute (that is, most federal drug convictions)

would fall outside the guidelines’ definition of a controlled-

substance offense. That can’t be what the guidelines’ drafters

had in mind.”); United States v. Havis, 929 F.3d 317, 320 (6th

Cir. 2019) (Sutton, J., concurring in the denial of en banc

reconsideration) (“I agree that it would be bizarre if violating

the primary provision of the Controlled Substances Act turned

out not to be a controlled substance offense.”). That result

would be contrary to Dawson’s own implicit assumption

before us that § 841 convictions can function as the instant

offense, § 4B1.1(a)(2), triggering the career offender

Guideline, see Appellant’s Br. at 14–34 (arguing for reversal

based only on § 4B1.1(a)(3)). Dawson’s argument that

“attempted transfer” crimes cannot serve as Guideline

predicate offenses would prove too much, as the same

definition of “controlled substance offense” applies to both §

4B1.1(a)(2) and § 4B1.1(a)(3). He thus argues for a rule that

21

would fly in the face of long-established, universal Circuit

Court practice assuming the contrary.12 Our law does not

command such a bizarre result. See Quarles v. United States,

139 S. Ct. 1872, 1879 (2019) (“We should not lightly conclude

that Congress enacted a self-defeating statute.”).

The caselaw of our sister Circuits is also instructive in a

more direct way, as three of them have held that “distribution”

in § 4B1.2(b) has the same meaning as under the CSA. See

Thomas, 969 F.3d at 584–85; United States v. Madkins, 866

12

See, e.g., United States v. Murphy, 998 F.3d 549, 555 (3d

Cir. 2021); United States v. Winter, 22 F.3d 15, 17 (1st Cir.

1994); United States v. Richardson, 958 F.3d 151, 153 (2d Cir.

2020); United States v. Womack, 610 F.3d 427, 430 (7th Cir.

2010); United States v. Brown, 1 F.4th 617, 619 (8th Cir.

2021). Although § 841’s role in the career offender calculus is

usually as the triggering offense under § 4B1.1(a)(2), rather

than as a predicate offense under § 4B1.1(a)(3), these

categories are plainly identical. See, e.g., Powerex Corp. v.

Reliant Energy Servs., Inc., 551 U.S. 224, 232 (2007)

(“[I]dentical words and phrases within the same statute should

normally be given the same meaning[.]”); United States v.

Piper, 35 F.3d 611, 616 n.3 (1st Cir. 1994). Thus, Courts that

have treated § 841 violations as career offender triggers—

whether sua sponte or by invitation of the parties—have

effectively assumed they must be predicate “controlled

substance offenses” as well. See, e.g., United States v.

Williams, 898 F.3d 323, 333 (3d Cir. 2018); United States v.

Hinkle, 832 F.3d 569, 571 (5th Cir. 2016); Booker, 994 F.3d at

596.

22

F.3d 1136, 1144 (10th Cir. 2017); United States v. McKibbon,

878 F.3d 967, 972 (10th Cir. 2017); United States v. Smith, 921

F.3d 708, 716 (7th Cir. 2019). The Sixth Circuit in particular

has thoroughly analyzed this issue, concluding that the CSA

can be “utilize[d] . . . in defining the relevant conduct covered

by the Guidelines.” United States v. Jackson, 995 F.3d 476,

481 (6th Cir. 2021); see also Havis, 929 F.3d at 319 (en banc)

(Sutton, J., concurring in the denial of en banc reconsideration)

(“Though [the Guidelines] do not define distribution, I see no

reason to give the word . . . a different meaning from the one

in the [CSA].”). The Tenth and Seventh Circuits have also held

that Guidelines “distribution” should be understood according

to the CSA’s definitions. See Madkins, 866 F.3d at 1144;

McKibbon, 878 F.3d at 972; Smith, 921 F.3d at 716.13

In sum, Dawson would have us hold that any statute

criminalizing the “attempted transfer” of drugs will not trigger

the career offender enhancement. Following him would

require us to find that: the Commission has flouted Congress’s

clear command for more than three decades; the universal

assumption of the Circuit Courts has been incorrect; and the

clear holdings of three Circuits are misguided. This we will

not do. All the authority points in the contrary direction: the

Guidelines category of “distribution” offenses includes

prohibitions on the “attempted transfer” of drugs, including §

841(a) and § 780-113(a)(30).

13

The Second Circuit has also appeared to indicate its

agreement, albeit in dicta. See United States v. Savage, 542

F.3d 959, 965 n.5 (2d Cir. 2008) (observing that a mere offer

to sell drugs does not constitute distribution “as Guidelines §

4B1.2(b) and 21 U.S.C. § 802(11) define the term.” (emphasis

added)).

23

Resisting this conclusion, Dawson contends that we

should ignore the CSA’s definitions when interpreting the

meaning of “distribution” in the Guidelines. He cites several

out-of-Circuit cases, none of which is on-point. His citations

to United States v. Ruth, 966 F.3d 642 (7th Cir. 2020) and

United States v. Ward, 972 F.3d 364 (4th Cir. 2020) do him

little good, as those cases addressed a distinct issue: how to

interpret the term “controlled substance” in § 4B1.2(b)—does

it refer only to drugs in the CSA schedules, or does it also reach

state schedules? See Ruth, 966 F.3d at 652–53 (distinguishing

the two issues). Neither side of that debate appears to doubt

that the Guidelines cover at least those substances in the CSA

schedules. See, e.g., id. at 653–54. Here, we come to an

analogous conclusion: the Guidelines cover “distribution”

offenses at least to the extent those are defined under the CSA,

which includes “attempted transfer”.14

14

Nor are we moved by the D.C. Circuit’s analysis in United

States v. Winstead, 890 F.3d 1082 (D.C. Cir. 2018). There, the

D.C. Circuit declined to add “attempted transfer” to the list of

offense categories in § 4B1.2(b). Id. at 1091–92. It reasoned

that the Sentencing Commission could have added such a

category to § 4B1.2(b)—as they did elsewhere in the

Guidelines—but chose not to, and § 4B1.2(b)’s list provides

the exclusive definition of the term “controlled substance

offense” in the Guidelines. Id. This reasoning has little

bearing on the question before us, which concerns how to

define a term—“distribution”—which is already on the list of

§ 4B1.2(b) offense categories and is not itself defined within

the Guidelines. We do not alter the text of the Guideline, which

was, in effect, the proposal facing the Winstead Court.

24

4.

Lastly, we consider the “purpose” behind, and policy of,

the career offender Guidelines, Nasir, 17 F.4th at 471 (citing

Kisor, 139 S. Ct. at 2415), which implement Congress’s desire

to impose “substantial prison terms” on “repeat drug

traffickers,” Whyte, 892 F.2d at 1174. Considering that

objective, we strive to avoid rendering the enhancement

inapplicable to convictions obtained under the drug trafficking

laws of numerous states. See Stokeling v. United States, 139

S. Ct. 544, 552 (2019) (“Where . . . the applicability of a federal

criminal statute requires a state conviction, we have repeatedly

declined to construe the statute in a way that would render it

inapplicable in many States.”). Here, this principle militates

against Dawson’s position. Numerous states have adopted the

CSA’s definitions of “distribution” and “delivery” in codifying

drug trafficking offenses. See supra n.11. Dawson asks us to

hold that a conviction under any of those statutes is not

categorically a “controlled substance offense” for career

offender purposes. Plainly, the Government’s contrary

reasoning, “more so than [Dawson’s], effectuates the purpose”

of the career offender enhancement. Whyte, 892 F.2d at 1174.

We discern no persuasive argument that would force us to

neuter the Guideline.

***

We will not undo the District Court’s decision to

designate Dawson a career offender. Although the

enhancement was based on our now-defunct decision in

Hightower, it was nonetheless correct, as our extensive

analysis of the Guidelines text—without recourse to the

Commentary—and state law has shown. In short, even after

25

Nasir, § 780-113(a)(30) remains a career offender predicate.

Dawson’s convictions under that statute justify his career

offender status.15

B.

We turn now to Dawson’s claim that the District Court

failed to comply with Federal Rule of Criminal Procedure 32.

We hold that Dawson failed to preserve this claim and he

cannot meet his burden under plain error review.

As we explained, the District Court sentenced Dawson

to 142 months’ imprisonment, reflecting a 46-month

downward variance from the bottom end of the Guidelines

range. During a sealed sidebar conference early in the

sentencing hearing, defense counsel reiterated his objection to

the PSR’s inclusion of L.B.’s fatal overdose, asking the Court

to make a ruling if it intended to hold Dawson responsible.

Back in open court, the District Court observed that defense

counsel was concerned “about the Court taking into

consideration, when imposing sentence, that the conduct of

your client caused” L.B.’s death. Appx. at 223. The Court

then overruled Dawson’s objection, noting that the PSR did not

claim Dawson caused L.B.’s death. The Court announced that

15

In his Supplemental Brief, Dawson also raises—for the very

first time—a new ground for reversal: that § 780-113(a)(30) is

overbroad because it includes mere “offers to sell” drugs. See

Appellant’s Supp. Br. at 7-9 (citing a nonprecedential Superior

Court decision reviewing for abuse of discretion). As this issue

was raised for the first time in a Supplemental Brief, we decline

to consider it. See, e.g., Alvin v. Suzuki, 227 F.3d 107, 118 (3d

Cir. 2000).

26

it would only decide on the causation issue—insofar as it

transcended the PSR objection—should the Government press

the point at the hearing. Defense counsel did not complain that

the Court’s ruling on the objection failed to dispose of the

broader causation point. Neither did he object to the Court’s

announced intention to address that point only should the

Government raise it.

Later in the hearing, defense counsel argued that the

Court should vary downward because of the disparity between

Dawson’s sentencing exposure in state and federal court,

noting that the case was adopted only after Dawson refused to

plead guilty to the drug death count. The Court concluded,

however, that this dimension of the case was irrelevant. The

Government neither pursued nor withdrew the argument that

Dawson caused L.B.’s death.16 In explaining sentence, the

Court made no reference to the drug death. After the

imposition of sentence, defense counsel did not object to the

District Court’s failure to make a ruling regarding the overdose

causation issue, telling the Court that there was nothing further

that needed to be dealt with.

Federal Rule of Criminal Procedure 32(i)(3)(B)

provides that:

(3) Court Determinations. At sentencing, the

court:

[. . .]

16

The Government did announce that “we stated our position

in our sentencing memorandum. We stand by it.” Appx. 250.

27

(B) must--for any disputed portion of the

presentence report or other controverted

matter--rule on the dispute or determine

that a ruling is unnecessary either because

the matter will not affect sentencing, or

because the court will not consider the

matter in sentencing[.]

The rule is “strictly enforced” and requires the district court to

make express findings on disputed facts or to disclaim reliance

thereon. See United States v. Electrodyne Sys. Corp., 147 F.3d

250, 255 (3d Cir. 1998).

Dawson argues that the District Court disregarded its

duty under Rule 32(i)(3)(B) by failing to rule on the

“controverted” question of whether he caused L.B.’s death.

Dawson maintains this objection was preserved at sentencing

by: (1) Defense counsel’s early requests for a ruling; and (2)

Counsel’s later statement that the overdose death should not be

considered. We disagree.

In United States v. Flores-Mejia, we held that:

a defendant must raise any procedural objection

to his sentence at the time the procedural error is

made, i.e., when sentence is imposed without the

court having given meaningful review to the

objection. Until sentence is imposed, the error

has not been committed. At the time that

sentence is imposed, if the objection is made, the

court has the opportunity to rectify any error by

giving meaningful review to the argument.

28

759 F.3d 253, 256 (3d Cir. 2014) (en banc). This preservation

rule allows for the rapid resolution of procedural errors,

without the need for time-consuming appeals, and prevents

“‘sandbagging’ of the court by a defendant who remains silent

about his objection to the explanation of the sentence, only to

belatedly raise the error on appeal if the case does not conclude

in his favor.” Id. at 257.17

The species of error at issue in Flores-Mejia was a

district court’s failure to rule on a defense request for a

variance, which had been made in both its sentencing

memorandum and was repeated at the sentencing hearing. Id.

at 255. Our preservation analysis in that context is equally

applicable in the Rule 32 context. See United States v. Fishoff,

949 F.3d 157, 163 n.12 (3d Cir. 2020) (applying Flores-Mejia

analysis in Rule 32 context, finding post-imposition objection

preserved claim of error); see also United States v. Wagner-

Dano, 679 F.3d 83, 90 (2d Cir. 2012) (“We review only for

plain error where, as here, an appellant asserts that the district

court neglected to address an objection to the PSR in violation

of Rule 32(i)(3)(B), but that appellant failed to alert the district

17

Of course, the requirement of post-imposition objection does

not apply to every error; we qualified in a footnote that: “A

party may . . . make an objection to a procedural error at an

earlier point as when, for example, a substantive request is

denied and procedurally the defendant has objected to a lack of

meaningful consideration of that request.” Flores-Mejia, 759

F.3d at 255 n.1. However, merely arguing the district court

should rule in your favor on an issue does not, alone, preserve

a procedural objection to the court’s ultimate failure to do so.

Id. at 255 (defense counsel argued for variance but did not

object to court’s failure to rule on the matter).

29

court of this procedural issue after the district court made its

findings or pronounced its sentence.”); United States v.

Warren, 737 F.3d 1278, 1284–85 (10th Cir. 2013) (plain error

review appropriate where defendant does not “speak up and

say the district court . . . violated Rule 32 or failed to properly

resolve disputed facts”).

In overruling Dawson’s PSR objection—which had

sought to excise those paragraphs discussing L.B.’s death—the

Court said it would address the broader matter of causation if

the Government should argue the point at the hearing.

Dawson’s counsel accepted this proposed procedure without

complaint. The Government proceeded to ignore the causation

argument, and the Court did not re-raise it sua sponte.

Crucially, when the District Court made its findings and

imposed sentence without ruling on Dawson’s role in L.B.’s

death, defense counsel remained silent. After sentence had

been imposed, the Court asked if counsel had any outstanding

issues that needed to be addressed, and defense counsel

responded that there were none. Counsel did not alert the

Court to any Rule 32 error; this objection was thus forfeited.

The Second Circuit faced a comparable scenario in

Wagner-Dano, 679 F.3d at 83. There, Wagner-Dano lodged a

variety of written objections to the PSR, which defense counsel

pressed at the sentencing hearing. Id. at 87. The district court

adopted the PSR in full, which effectively resolved some, but

not all, of the objections. Id. at 90. The unresolved

objections—which “did not directly dispute the facts as set

forth in the PSR, but rather attempted to clarify Wagner-

Dano’s motives or provide context for the PSR’s facts”—were

not separately addressed by the Court at any point; defense

counsel did not object to this omission. Id. On appeal,

30

Wagner-Dano argued that the Court had violated Rule

32(i)(3)(B). Id. The Second Circuit held that review would be

for plain error because Wagner-Dano “failed to alert the district

court of this procedural issue after the district court made its

findings or pronounced its sentence.” Id. (emphasis added).

The Circuit explained that substantive argument on a point is

not sufficient to preserve a related procedural objection, at least

where the issue implicated is simple and familiar. Id. at 90–92

(citing United States v. Villafuerte, 502 F.3d 204 (2d Cir.

2007)). As compliance with Rule 32 is “neither novel nor

complex,” the parties must bring any such claim of procedural

error to the district court’s attention to avoid forfeiture. Id. at

91–92.18

We find the Second Circuit’s analysis to be relevant and

persuasive. Here too, the District Court appears to have

disposed of Dawson’s argument only in part, overruling the

narrow PSR objection without addressing the broader

causation point lurking behind it. But, if Dawson believed this

to be error, then he had to bring it to the Court’s attention.19

His substantive argument that L.B.’s death should not play a

role and early requests for a ruling “if the Court is going to rely

18

The Second Circuit also echoed our own rationale in Flores-

Mejia, explaining that requiring timely and specific objection

to Rule 32 error facilitates rapid judicial correction of any

problem, avoiding the delay and expense of appeals. See

Wagner-Dano, 679 F.3d at 91.

19

Instead, counsel acceded to the District Court’s decisions to:

(1) construe the PSR objection narrowly; and (2) rule on the

larger causation point only if the Government chose to argue it

at the hearing.

31

on [the death] as a factor in setting sentence” did not preserve

the objection. Appx. 265. As the Second Circuit found,

substantive argument will not preserve a procedural objection

to the manner of the substantive point’s resolution (or lack

thereof). And Dawson’s requests for a ruling were, at a

minimum, too premature to preserve an objection, as no error

had been committed at that time. See Flores-Mejia, 759 F.3d

at 255 n.1 (counsel must object to a procedural error when it

becomes “evident”)20.

In sum, if Dawson wanted to preserve a Rule 32(i)(3)(B)

objection, then he should have spoken up when that error was

allegedly consummated by the District Court’s imposition of

sentence without full resolution of the causation issue. His

20

By contrast, Fishoff, 949 F.3d 157, illustrates proper

preservation practice. There, the appellant argued that the

district court had violated Rule 32(i)(3)(B) by failing to rule on

an affirmative defense put forward in his sentencing

memorandum. Id. at 163. At the sentencing hearing, the Court

asked if the parties had any non-Guidelines objections to the

PSR and, after defense counsel sought clarification as to

whether this included his affirmative defense, the Court

announced that it would hear argument regarding that issue

“separate[ly].” Id. at 161–62. However, the Court proceeded

to calculate and impose sentence without mentioning the issue

again, drawing an objection from defense counsel

“remind[ing] the court that it had not addressed” the

affirmative defense. Id. at 162. We found that this post-

imposition objection preserved the Rule 32 issue. Id. at 163

n.12 (contrasting counsel’s failure in Flores-Mejia to raise

such a post-imposition objection).

32

failure to do so means that our standard of review is for plain

error.

Reviewing for plain error then, we find no cause to

disturb Dawson’s sentence. He “has ‘the burden of

establishing entitlement to relief for plain error.’” Greer v.

United States, 141 S. Ct. 2090, 2097 (2021) (quoting United

States v. Dominguez Benitez, 542 U.S. 74, 82 (2004)). An error

is plain if it is “clear” or “obvious,” “affects substantial rights,”

and “affects the fairness, integrity or public reputation of

judicial proceedings.” United States v. Dragon, 471 F.3d 501,

505 (3d Cir. 2006) (quoting United States v. Olano, 507 U.S.

725, 732–34 (1993)); Fed. R. Crim. P. 52. An error “affects

substantial rights when it is prejudicial,” that is, when it

“affected the outcome of the district court proceedings.” Id.

(quoting Olano, 507 U.S. at 734); see also United States v.

Payano, 930 F.3d 186, 192 (3d Cir. 2019) (defendant must

show “reasonable probability” that result would have been

different but for the claimed error).

Even assuming arguendo that the District Court’s

omission was clear error, Dawson cannot show that it affected

his substantial rights. There is no indication in the record that

the District Court held Dawson responsible for L.B.’s death.

To the contrary, there is ample reason to believe that the

District Court did not take the death into account. The District

Court granted a substantial downward variance, imposing a

sentence 46 months below the bottom end of Dawson’s

Guideline range. That immediately suggests the Court did not

hold Dawson responsible for an uncharged homicide offense—

let alone one that the Court never mentioned in explaining the

basis for the sentence selected. This silence makes perfect

sense in light of the Court’s announced intention to hold

33

Dawson responsible for L.B.’s death only if the Government

were to argue the matter at the hearing and manage to convince

the Court on the point. The best reading of the record is that

the Court was true to its word: the Government did not press

the causation point, so it did not impact sentence.

Moreover, the Court was explicit regarding what factors

did influence the sentence. It explained that Dawson’s case

was no “exception” to its general policy to “factor mercy into

[its] sentences when possible.” Appx. 256–57. And, in

reviewing the § 3553(a) factors, the Court paid special

attention to “protect[ing] society from potential harm, an

inference that can easily be drawn from the defendant’s five

convictions that he does pose some danger to society,

specifically returning to dealing in serious drugs when the

going gets tough, as he has done in the past.” Appx. 259.

There is not even a hint that the District Court believed Dawson

caused L.B.’s death, choosing not to elaborate on the

“seriousness of the defendant’s conduct.” Appx. 259.

Dawson draws our attention to the District Court’s self-

described “struggl[e]” to justify an even greater variance,

Appx. 256, asking us to take this as proof that the Court was

reluctant to vary further only because it was considering L.B.’s

death. Dawson believes that he made very persuasive

arguments below which, absent consideration of the drug

death, would have generated a greater variance. See

Appellant’s Br. at 52–57. To the contrary, the record shows

that the District Court was reluctant to vary precisely because

it rejected the Defense’s arguments:

We’ve been in session almost three hours during

this proceeding, and I’ve heard a lot emanating

34

from the defense, but I’m not really hearing any

very persuasive arguments for a significant

variance from the guidelines.

Appx. 256. The Court was unmoved by the circumstances

which resulted in federal adoption of Dawson’s case, deeming

them irrelevant. It similarly rejected Dawson’s family

circumstances as inadequate to justify a larger variance. The

Court had only its general inclination towards “mercy” to fall

back on. Appx. 256–57.

In sum, Dawson has failed to meet his burden of

showing a realistic probability that his substantial rights were

adversely affected by any Rule 32 omission. The record does

not support a reasonable probability that the District Court

silently held Dawson responsible for L.B.’s death. There is

thus no Rule 32 ground upon which to disturb Dawson’s

sentence.

V.

Because Dawson was properly labeled a ‘career

offender’ under the Guidelines and any Rule 32 error did not

affect his substantial rights, we will affirm the District Court’s

judgment.

35