United States v. Gibb, No. 10-4294 (3d Cir. 2011)Annotate this Case
Defendant, arrested for violating probation, was charged with knowing possession of a firearm and ammunition after having been convicted of a felony (18 U.S.C. 922(g)(1) and 924(a)(2)). The government argued that defendant had three prior felonies, meeting the requirements for enhancement under the Armed Career Criminal Act, 18 U.S.C. 924(e). Predicate offenses included a 2003 conviction for aggravated menacing, a 2004 conviction for possession with intent to deliver cocaine, and a 2007 Delaware conviction for wearing body armor while committing a felony. The Delaware statute does not limit the underlying felony to drug-related felonies. The district court ruled that the body armor conviction did not qualify and imposed a sentence of 72 months' imprisonment. The Third Circuit vacated, applying a modified categorical approach. The body armor conviction is an ACCA predicate offense because it involved the possession of cocaine with intent to distribute, "a serious drug offense." It is not vague or unexpected and does not betray fair notice to find that such an offense "involv[es] manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance" under 18 U.S.C. 924(e)(2)(A)(ii).