Whether a court of appeals may disregard an unpublished but considered judgment of Pennsylvania's intermediate appellate court interpreting its own statute when it is the only state decision on the question merely because it believed federal courts had the better interpretation

For certain recidivist guideline enhancements, “[t]he term ‘controlled substance offense’ means 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). Because mere offers to sell drugs fall outside that definition, drug statutes that criminalize offers to sell are categorically overbroa d. 1 Pennsylvania’s appellate Superior Court, the highest Pennsylvania court to have considered the question, has held that 35 Pa. Stat. § 780 -113(a)(30) plausibly criminalizes offers to sell. The Fourth Circuit below, however, would not follow that opinion be cause it believed federal courts had the better interpretation of Pennsylvania’s drug statute. The first question presented is: 1a. Whether a court of appeals may refuse to follow an unpublished but considered judgment of Pennsylvania’s intermediate appellate court, when it is the only state decision on the question , merely because it believed federal courts had the better interpretation ; 1b. Alternatively, Petitioner asks this Court to hold and certify the question of state law —whether § 780 -113(a)(30) includes offers to sell drugs—to Pennsylvania ’s Supreme Court . 1 See, e.g., United States v. Palos, 978 F.3d 373 (6th Cir. 2020); United States v. Cavazos, 950 F.3d 329 (6th Cir. 2020) ; United States v. McKibbon , 878 F.3d 967, 972-76 (10th Cir. 2017) ; United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016) . iii SECOND QUESTION PRESENTED In the Fourth Circuit, when Mr. Suncar committed his instant federal offense,2 § 4B1.2(b)’s textual definition included only substantive drug crimes —here, distribution —while excluding attempted distribution. Accordingly, a conviction for drug distribution qualified as a ‘controlled substance offense’ for the career offender guideline, but a conviction for attempted distribution did not. Most drug statutes, however —including Pennsylvania’s Controlled Substances, Drugs, Device, and Cosmetic Act (“CSDDCA” )—broadly define substantive drug distribution to also criminalize the “attempted transfer” of drugs, § 780-102(b) —a term that is not further defined. Below, the Fourth Circuit effectively held that Pennsylvania “attempted transfer” and “attempted distribu tion” could not be interpreted to criminalize any of the same conduct, because that would violate the canon against surplusage. Suncar, 142 F.4th 259, 266-67 (4th Cir. 2025) . In so doing, the Fourth Circuit effectively read “attempted transfer” out of § 7 80-102(b) where it was duly enacted by the Pennsylvania legislature. The second question presented in this case is: 2. Whether the canon against surplusage requires courts to interpret an “attempted transfer” of drugs as having no conduct in common with an “attempted distribution” of drugs? 2 This issue involve d a circuit split which was later resolved by the Sentencing Commission in the 2023 Amendments to the Guidelines Manual. Because Mr. Suncar’s instant federal offense was committed prior to the relevant amendment, however, Mr. Suncar was sentenced under the previous guideline manual that excluded attempts in order to avoid an ex post facto violation. See Peugh v. United States, 569 U.S. 530, 533 (2013). iv THIRD QUESTION PRESENTED Finally, this case also implicates another circuit split: whether undefined terms in U.S.S.G. § 4B1.2(b) take their ordinary meaning, or their statutory meaning in the federal Controlled Substances Act (“CSA”), 21 U.S.C. § 841(a)(1). The majority of circuits have held that undefined terms in § 4B1.2(b) that do not reference the federal CSA take their ordinary meaning. Those circuits hold that a “controlled substance” is one regulated by state law, even if it is not regulated b