920 F.3d 94
1st Cir.2019Background
- Noor Mohamed pleaded guilty to being a felon in possession of a firearm (18 U.S.C. §§ 922(g)(1), 924(e)); sentencing hinged on whether a 2014 Maine unlawful trafficking conviction counted as a prior "controlled substance offense" under the Guidelines.
- The Maine conviction was for unlawful trafficking in cocaine base under Me. Stat. tit. 17‑A § 1103(1‑A)(A), and trafficking is defined to include possessing with intent to distribute (§ 1101(17)(C)‑(D)). Maine law also creates a permissible inference of trafficking for possession of 4 grams or more of cocaine base (§ 1103(3)).
- The PSR initially treated the Maine conviction as a predicate; after vacatur of unrelated Massachusetts convictions and later disagreement about the Maine conviction, the probation office and district court declined to count it, producing a lower Guidelines range and a 37‑month sentence.
- The government appealed, arguing the Maine conviction qualifies as a "controlled substance offense" because it requires intent to distribute; Mohamed argued (relying on Mulkern and Oliveira) that Maine's permissive inference and statutory structure could sweep in mere possession and thus the conviction should not count.
- The First Circuit applied the modified categorical approach to Shepard documents (plea colloquy, prosecutor's proffer) and concluded Mohamed pleaded to an intent‑to‑distribute variant; it held the permissive inference does not eliminate the intent element and that four grams of cocaine base can rationally relate to distribution under federal practice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Mohamed's Maine trafficking conviction qualifies as a "controlled substance offense" under U.S.S.G. § 2K2.1(a)/§ 4B1.2(b) | Government: Shepard documents show Mohamed pleaded to an intentional‑trafficking offense (intent to distribute), so the conviction matches the Guidelines' definition | Mohamed: Maine's permissive inference (§ 1103(3)) could allow conviction based only on possession/quantity (not intent), so the conviction may not require distributive intent and should not qualify | Held: Conviction qualified. Shepard documents show plea to an intent crime; the permissive inference does not negate the distributive‑intent element, so the prior offense is a controlled substance offense |
| Whether treating a Maine conviction based on the § 1103 permissible inference (4+ grams cocaine base) as a predicate is foreclosed by Mulkern or otherwise inappropriate | Government: Mulkern is distinguishable; federal practice and sentencing data show small quantities (including under 4g) can support inferences of distribution | Mohamed: Mulkern and Oliveira show Maine's quantity‑based inferences/presumptions can sweep too broadly; the categorical approach requires excluding offenses that criminalize mere possession | Held: Mulkern is distinguishable (it involved a quantity‑only statutory presumption); permissive inferences (like Maine's) leave distributive intent as an element and do not preclude finding the conviction a predicate under the categorical/modified approach |
Key Cases Cited
- Shepard v. United States, 544 U.S. 13 ( Supreme Court) (limits documents usable to identify the offense of conviction )
- Taylor v. United States, 495 U.S. 575 ( Supreme Court) (categorical approach for defining generic offenses)
- Descamps v. United States, 570 U.S. 254 ( Supreme Court) (modified categorical approach and plea documents)
- Mathis v. United States, 136 S. Ct. 2243 ( Supreme Court) (divisibility and modified categorical approach)
- United States v. Mulkern, 854 F.3d 87 (1st Cir. 2017) (distinguishable; held a Maine trafficking plea based on quantity presumption did not qualify as ACCA predicate)
- United States v. Oliveira, 907 F.3d 88 (1st Cir. 2018) (district court opinion cited; noted by parties and distinguished)
- United States v. Bryant, 571 F.3d 147 (1st Cir. 2009) (definition of "controlled substance offense" requires indicia of trafficking)
- Francis v. Franklin, 471 U.S. 307 ( Supreme Court) (permissive inference does not relieve State of persuasion burden)