NOT PRECEDENTIAL
`
`UNITED STATES COURT OF APPEALS
`FOR THE THIRD CIRCUIT
`_____________
`
`No. 22-1281
`_____________
`
`UNITED STATES OF AMERICA
`
`v.
`
`DAVEE WARD,
` Appellant
`_____________
`
`
`On Appeal from the United States District Court
`for the Western District of Pennsylvania
`(D.C. No. 2:18-CR-00148-001)
`District Judge: Hon. Cathy Bissoon
`
`_____________
`
`Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
`on September 16, 2024
`
`Before: RESTREPO, PHIPPS, and McKEE, Circuit Judges
`
`(Filed: February 25, 2025)
`_________
`
`OPINION*
`_________
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`
`
`
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`
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`* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not
`constitute binding precedent.
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`

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`RESTREPO, Circuit Judge
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`Appellant Davee Ward pled guilty to possession with intent to distribute heroin in
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`violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). He was sentenced as a career
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`offender to 144 months in prison. Ward appeals his sentence, arguing that the District
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`Court erred in sentencing him as a career offender. He claims the sentence was
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`unreasonable because the District Court improperly applied the career offender
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`enhancement when calculating the Sentencing Guidelines range for his sentence and, in the
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`alternative, failed to consider his policy-based argument against the enhancement. Because
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`the District Court did not err in applying the enhancement and the sentence was
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`procedurally and substantively reasonable, we will affirm.
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`I.
`
`Background1
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`The U.S. Probation Office calculated Ward’s advisory Guideline range using the 2018
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`Guidelines Manual. The Presentence Investigation Report (“PSR”) identified Ward’s 2010
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`state conviction and 2014 federal conviction for controlled substance offenses as predicates
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`for a career offender enhancement.2 The PSR provided that Ward qualified as a career
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`1 Since we write primarily for parties already familiar with this case, we include only
`those facts necessary to reach our conclusion.
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` In 2009, Ward was arrested for selling heroin and charged in state court with four
`counts: Count 1 and Count 2 for possession with intent to deliver a controlled substance
`(“PWID”), Count 3 for possession of a controlled substance and Count 4 for criminal
`conspiracy. Ward ultimately pled guilty to the charges and was sentenced in September
`2010 to two and a half years of probation. That sentence was imposed at Count 1, while
`Counts 2 and 3 were merged for sentencing purposes and Count 4 received no further
`penalty imposed. In 2012, Ward was charged by a federal grand jury with intent to
`distribute and distribution of heroin. In 2013, he pleaded guilty, and in 2014, he was
`sentenced to 37 months’ imprisonment. Out of prison and under supervision for the 2014
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`offender because (1) he was older than 18, (2) his offense of conviction was a controlled
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`substance offense, and (3) he had at least two prior felony convictions for a controlled
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`substance offense. See U.S.S.G. § 4B1.1(a).
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`The Probation Office assigned Ward a base offense level of 34 and a criminal history
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`category of VI. After a 3-level reduction for acceptance of responsibility, his total offense
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`level reached 31. Based on an offense level of 31, the Probation Office calculated a
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`Guidelines range of 188 to 235 months. Without the career offender enhancement, the
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`Guidelines range would have been 10 to 16 months. The District Court adopted the
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`Probation Office’s calculations but varied downward—sentencing Ward to 144 months in
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`prison and six years of supervised release. At the sentencing hearing, the District Court
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`explained its sentence independent of Ward’s status as a career offender. On appeal, Ward
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`challenges his sentence, arguing the District Court wrongly designated him a career
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`offender and failed to consider his policy-based mitigation argument against application of
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`the career offender enhancement to non-violent offenders like him.
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`II.
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`Discussion3
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`A. Ward Qualifies as a Career Offender Under the Guidelines.
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`Interpretation of the Guidelines is a legal question subject to plenary review. United
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`States v. Nasir, 17 F.4th 459, 468 (3d Cir. 2021) (en banc). “Unless the guideline’s text is
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`conviction, Ward was again arrested and charged with possession with intent to distribute
`heroin in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). Ward pled guilty and received
`the sentence at issue here.
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`3 The District Court had jurisdiction under 18 U.S.C. § 3231. This Court has
`jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
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`ambiguous and the comment provides clarity, the text alone controls.” United States v.
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`Chandler, 104 F.4th 445, 450 (3d Cir. 2024). The Supreme Court has instructed that a
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`court “must carefully consider the text, structure, history, and purpose of a regulation, in
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`all the ways it would if it had no agency to fall back on.” Kisor v. Wilkie, 588 U.S. 558,
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`575 (2019) (internal quotation marks omitted).
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`The United States Sentencing Guidelines (U.S.S.G.) provide for a “career offender”
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`enhancement that increases an adult defendant’s base offense level if “the instant offense
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`of conviction is a felony that is either a crime of violence or a controlled substance offense”
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`and “the defendant has at least two prior felony convictions of either a crime of violence
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`or a controlled substance offense.” U.S.S.G. § 4B1.1(a). Ward admits he has two prior
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`felony convictions for controlled substance offenses—a 2010 state conviction and a 2014
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`federal conviction. Yet he contends that his 2010 state conviction should not count as a
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`predicate offense because it did not individually receive criminal history points under
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`U.S.S.G. § 4A1.1(a)-(c). Ward is mistaken—the Guidelines do not require that a prior
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`offense individually receive criminal history points to be treated as a predicate offense for
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`the career offender enhancement.
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`Our analysis begins and ends with the text. The career offender enhancement applies
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`when a defendant has “at least two prior felony convictions of either a crime of violence or
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`a controlled substance offense.” § 4B1.1(a) (emphasis added). Ward bases his argument
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`on the definition provided for “Two Prior Felony Convictions” in U.S.S.G. § 4B1.2(c).
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`That subsection defines “Two Prior Felony Convictions” as two qualifying felony
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`convictions that “are counted separately under the provisions of § 4A1.1(a), (b), or (c).” §
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`4B1.2(c) (emphasis added).
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`Relying on the “counted separately” phrase, Ward argues that his 2010 PWID
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`conviction cannot be considered a qualifying predicate. Section 4A1.1 provides how
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`criminal history points are assigned to determine a defendant’s criminal history category
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`based on prior sentences: (a) three points for a prior sentence of at least one year and one
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`day, (b) two points for a prior sentence of at least sixty days, and (c) one point for any other
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`sentence. Section 4A1.1 is read together with § 4A1.2(a)(2), which provides the “single
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`sentence” rule:
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`If the defendant has multiple prior sentences, determine
`whether those sentences are counted separately or treated as a
`single sentence. Prior sentences always are counted separately
`if the sentences were imposed for offenses that were separated
`by an intervening arrest (i.e., the defendant is arrested for the
`first offense prior to committing the second offense). If there
`is no intervening arrest, prior sentences are counted separately
`unless (A) the sentences resulted from offenses contained in
`the same charging instrument; or (B) the sentences were
`imposed on the same day. Treat any prior sentence covered by
`(A) or (B) as a single sentence. See also § 4A1.1(d).
`
`
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`For purposes of applying § 4A1.1(a), (b), and (c), if prior
`sentences are treated as a single sentence, use the longest
`sentence of imprisonment if concurrent sentences were
`imposed. If consecutive sentences were imposed, use the
`aggregate sentence of imprisonment.
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`§ 4A1.2(a)(2).
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`Ward argues that the “single sentence” rule reduces his 2010 PWID conviction to a
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`non-qualifying offense because he received a single sentence for that conviction and two
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`other non-qualifying convictions. Ward received a single sentence of probation in 2010
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`for the three counts, so he contends there is no “longest sentence of imprisonment” that can
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`receive criminal history points under § 4A1.1(a), (b), and (c) per the “single sentence” rule.
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`Since the PWID conviction is not independently assigned a criminal history point under §
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`4A.1(a), (b), or (c), Ward argues it is not “counted separately” as required by § 4B1.2(c)’s
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`definition of “Two Prior Felony Convictions.”
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`Under Ward’s interpretation, had he only been sentenced for the PWID conviction
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`rather than receiving the single sentence for three criminal convictions, then the career
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`offender enhancement would apply to him. But because he was sentenced for a qualifying
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`predicate and non-qualifying crimes at the same time, then the PWID conviction cannot be
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`treated as a predicate offense. We reject that the Guidelines require this counterintuitive
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`result and find no requirement in §§ 4B1.2 and 4A1.2 that a qualifying predicate must
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`independently receive a criminal history point to apply the career offender enhancement
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`under § 4B1.1.4
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`This straightforward reading aligns with the purpose of § 4B1.1—to implement
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`Congress’s mandate to provide for lengthy periods of imprisonment for defendants
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`convicted of two or more prior felonies, each of which is a crime of violence or a controlled
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`substance violation. See 28 U.S.C. § 994(h); see also S. Rep. No. 98-225, at 175 (1983)
`
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`4 In the alternative, Ward contends there is at least sufficient ambiguity to support
`invoking the “rule of lenity” in his favor, and the Government points to the Commentary
`to § 4B1.2 to support its interpretation. Because the text is unambiguous, we need not
`consider either. See United States v. Haggerty, 107 F.4th 175, 189 (3d Cir. 2024)
`(explaining the rule of lenity applies only when a Guideline “contains a grievous ambiguity
`or uncertainty”) (cleaned up); see also Chandler, 104 F.4th at 450 (“Ambiguity is thus the
`key to permissible reliance on the guideline's commentary.”).
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` 6
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`(“The [Senate Judiciary] Committee believes . . . that substantial prison terms should be
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`imposed on repeat violent offenders and repeat drug traffickers.”). The purpose of the
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`career offender enhancement was to address “the large proportion of crimes committed by
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`a small number of career offenders, and the inadequacy of state prosecutorial resources to
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`address this problem.” Taylor v. United States, 495 U.S. 575, 583–84 (1990). The logical
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`reading of § 4B1.2(c)’s plain text is that the two prior felony convictions must be “counted
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`separately” from each other—that is multiple convictions from a single sentence cannot be
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`treated as separate qualifying predicates.5 This reading matches the statutorily-defined
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`purpose of the career offender Guideline—addressing the problem of a small number of
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`repeat offenders committing a large number of crimes—and it prevents the counterintuitive
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`result that Ward proposes.
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`At any rate, nothing in the text of §§ 4B1.1 or 4B1.2 suggests that a predicate offense
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`must independently receive a criminal history point.6 And so we hold that Ward—who
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`5 Read in context, § 4B1.2’s “counted separately” requirement guards against
`sentencing bootstrapping—a single criminal episode resulting in a single sentence
`technically satisfying the enhancement’s requirement of at least two predicate crimes. See
`United States v. Williams, 753 F.3d 626, 639 (6th Cir. 2014). Section 4B1.2 does not
`address “the scoring of multiple crimes within a single predicate episode.” Id. Also, “all
`§ 4A1.2(a)(2) addresses is the number of points assigned to the grouped sentence. It does
`not say that only one sentence in the group receives the point(s).” Donnell v. United States,
`765 F.3d 817, 820 (8th Cir. 2014).
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` Ward cites to the Eighth Circuit’s decision in King v. United States, 595 F.3d 844
`(8th Cir. 2010), but the King court relied on Eighth Circuit precedent that to qualify as a
`predicate offense for career offender purposes, a felony “must receive criminal history
`points under subsection (a), (b), or (c) of [§] 4A1.1[,]” id. at 848 (quoting United States v.
`Peters, 215 F.3d 861, 862 (8th Cir. 2000)) (internal quotation marks omitted) (emphasis
`added). Ward’s reliance on King is unavailing. This Court has not adopted a rule requiring
`that a prior felony receive criminal history points under § 4A1.1(a)-(c), and later Eight
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`had two convictions for controlled substance offenses separated by four years—qualified
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`as a career offender under the Guidelines, and the District Court did not err in applying the
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`enhancement when calculating his Guidelines range.
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`B. The District Court’s Sentence Was Procedurally and Substantively
`Reasonable.
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`We review the reasonableness of a sentence—both procedural and substantive—for
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`abuse of discretion. United States v. Pawlowski, 27 F.4th 897, 911 (3d Cir. 2022) (citing
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`United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc)). We will affirm a
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`sentence as procedurally reasonable if the District Court “(1) correctly calculated the
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`defendant’s advisory Guidelines range; (2) appropriately considered any motions for a
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`departure under the Guidelines; and (3) gave meaningful consideration to the sentencing
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`factors set forth in 18 U.S.C. § 3553(a).” United States v. Freeman, 763 F.3d 322, 335 (3d
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`Cir. 2014).
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`The sentence imposed by the District Court was procedurally reasonable. First, the
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`District Court correctly calculated Ward’s Guidelines range. It applied the career offender
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`enhancement and correctly calculated a Guidelines range of 188 to 235 months followed
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`by a supervised release range of six years. Second, the District Court appropriately
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`considered—and granted—a variance from the Guidelines range. Ward’s 144-month
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`sentence was 44 months shorter than the bottom of the Guidelines range. Third, the District
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`Court meaningfully considered the § 3553(a) sentencing factors. It advised that it
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`Circuit panels have rejected the same argument Ward advances despite King’s holding.
`See, e.g., Donnell, 765 F.3d at 819–20 (rejecting argument relying on King); United States
`v. Ellis, 815 F.3d 419, 423 (8th Cir. 2016) (same).
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`“[r]eviewed the entire file” including “[the] parties’ positions with respect to sentencing
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`factors” and all the parties’ related briefing and exhibits. App. 162.
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`Ward argues the District Court procedurally erred by ignoring his policy-based
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`argument that the career offender enhancement—as applied to him, a non-violent offender
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`convicted only of controlled substance offenses—does not promote the purposes of
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`sentencing. Even though the District Court did not give an in-depth analysis of Ward’s
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`policy argument, it was not required to do so. See United States v. Quiles, 618 F.3d 383,
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`397 (3d Cir. 2010) (“A sentencing court need not analyze explicitly every argument that a
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`defendant puts forward.”). The District Court complied with its duties and “adequately
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`explained the chosen sentence.” United States v. Stevenson, 832 F.3d 412, 431 n.12 (3d
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`Cir. 2016).
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`The District Court’s sentence was also substantively reasonable. In our review of
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`substantive reasonableness, we “focus on . . . the totality of the circumstances[,]” and “we
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`cannot presume that a sentence is unreasonable simply because it falls outside the advisory
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`Guidelines range.” Tomko, 562 F.3d at 567 (citing Gall v. United States, 552 U.S. 38, 50–
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`51 (2007)). Reversal is justified only if “no reasonable sentencing court would have
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`imposed the same sentence on that particular defendant for the reasons the district court
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`provided.” Id. at 568.
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`The District Court explained how the § 3553 factors influenced its decision in applying
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`a downward variance from the Guidelines range. It acknowledged Ward’s history of drug
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`offenses, noting that a sentence of less than 144 months in prison “would not serve the
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`interests of justice.” App. 193. It noted that Ward committed the most recent offense while
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`under federal supervised release. And ultimately, the District Court reasoned that Ward’s
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`sentence “balance[d] on the one hand [Ward]’s acceptance of responsibility with, on the
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`other hand, the very serious nature of his offense, his criminal history and the needs for
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`just punishment, deterrence and rehabilitation.” App. 192. We hold the District Court did
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`not abuse its discretion in imposing a sentence that was both procedurally and substantively
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`reasonable.
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`IV. Conclusion
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`We will affirm the District Court’s judgment.
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`10
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