United States v. Burghardt
939 F.3d 397
| 1st Cir. | 2019Background
- Burghardt had prior New Hampshire convictions: three drug-sale counts and one possession-with-intent-to-sell (2010) and a robbery conviction (2011).
- In 2017 he was arrested and found in possession of an unloaded pistol; indicted under 18 U.S.C. § 922(g)(1) as a felon in possession. The indictment did not allege that he knew his prior convictions were punishable by >1 year.
- At the Rule 11 plea colloquy the district court listed the elements of § 922(g) but—before Rehaif—did not inform Burghardt that the government must prove he knew his prohibited status. Burghardt pled guilty.
- The Probation Office and district court treated Burghardt as an Armed Career Criminal (ACCA) based on three prior violent-felony/serious-drug-offense convictions, triggering the ACCA 15-year mandatory minimum.
- On appeal Burghardt challenged (a) the plea acceptance under Rehaif/plain-error, (b) whether the New Hampshire sale statute (N.H. Rev. Stat. § 318-B:2(I)) qualifies as an ACCA "serious drug offense," (c) a Guidelines base-level calculation for robbery, and (d) the constitutionality/charging of prior convictions (foreclosed by Almendarez-Torres). The First Circuit affirmed.
Issues
| Issue | Plaintiff's Argument (Gov't) | Defendant's Argument (Burghardt) | Held |
|---|---|---|---|
| 1) Rule 11/Rehaif plain-error: Did failing to inform defendant that gov't must prove he knew his felon status prejudice the plea? | Plea waiver bars the challenge and, on the merits, the record shows overwhelming proof he knew his status, so no reasonable probability he would have gone to trial. | Rehaif requires scienter-of-status; because plea colloquy omitted it, his plea is vulnerable and must be vacated or remanded. | No plain error. Defendant failed to show a reasonable probability he would have pleaded differently given strong evidence he knew his prior sentences. |
| 2) ACCA predicate: Does N.H. § 318-B:2(I) "sale" (which includes "offer") qualify as a "serious drug offense" under ACCA? | The statute is divisible; sale/offers include bona fide offers and the state law context and practice show offers require intent/ability—so the statute fits ACCA. | The "offer" means include "mere" offers (no intent/ability), making the statute broader than ACCA's generic distribution offense. | Held that § 318-B:2(I) is a "serious drug offense." The record and statutory context do not show a realistic probability NH would criminalize mere, insincere offers. |
| 3) Guidelines base-offense level for robbery: Was the district court's base-level calculation erroneous? | N/A (Gov't relied on ACCA result; district court did not need to reach this question). | The robbery conviction should not have increased the Guidelines base level as a crime of violence. | Court did not decide because ACCA mandatory minimum controlled; claim not reached. |
| 4) Sixth Amendment/charging priors (Apprendi/Almendarez-Torres): Must prior convictions that trigger ACCA be charged in the indictment and proven to a jury? | Prior-conviction exception (Almendarez-Torres) is binding precedent allowing sentencing on prior convictions without being charged to jury. | Imposition of ACCA mandatory minimum without jury finding violates Sixth Amendment. | Foreclosed by Almendarez-Torres; claim rejected. |
Key Cases Cited
- Rehaif v. United States, 139 S. Ct. 2191 (2019) (holding gov't must prove defendant knew he had prohibited status under § 922(g))
- Mathis v. United States, 136 S. Ct. 2243 (2016) (categorical/modified categorical approach to prior-offense predicates)
- Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) (requirement of a realistic probability, not mere legal imagination, to show a state statute covers nongeneric conduct)
- United States v. Whindleton, 797 F.3d 105 (1st Cir. 2015) (ACCA predicate analysis; bona fide offer can qualify as distribution)
- Swaby v. Yates, 847 F.3d 62 (1st Cir. 2017) (caution against treating ambiguous state statutes as narrower than their plain terms)
- Almendarez-Torres v. United States, 523 U.S. 224 (1998) (prior-conviction exception permitting sentencing enhancements based on prior convictions without jury findings)