United States v. Mulkern, 854 F.3d 87

Defendant Brian Mulkern pled guilty to possessing ammunition as a felon under 18 U.S.C. § 922(g)(1); sentencing court applied the ACCA mandatory-minimum because it found three prior qualifying convictions.
The government relied on two prior Maine burglary convictions (undisputed) plus a 2001 Maine robbery conviction and a 2004 Maine drug‑trafficking conviction to reach the ACCA threshold.
ACCA requires three prior convictions for either violent felonies (force clause) or serious drug offenses; courts use the categorical or modified‑categorical approaches when statutes are divisible.
The parties agreed Maine statutes at issue are divisible, so the court applied the modified‑categorical (Shepard‑documents) analysis to identify the specific predicate offenses.
The Maine robbery statute (17‑A § 651(1)) allowed conviction based on a variety of subparts; Maine case law (Raymond) holds that “any physical force” suffices for robbery.
The Maine trafficking statute (17‑A § 1103 / § 1101(17)) criminalizes several means of trafficking and separately criminalizes possession of ≥2 grams of heroin; the statute does not require an element of intent to distribute for the quantity‑based provision.

Issue	Plaintiff's Argument (Mulkern)	Defendant's Argument (Government)	Held
Whether Mulkern’s 2001 Maine robbery conviction is an ACCA "violent felony" under the force clause	Raymond shows Maine robbery can be based on de minimis force; thus the Maine offense does not require "force capable of causing physical pain or injury," so it is not an ACCA violent felony	The plea and indictment show conviction under a subpart requiring "use of physical force" (§ 651(1)(C)); that use of force satisfies ACCA's force clause	Held: Not an ACCA predicate. Maine law (Raymond) treats "any physical force" as sufficient; that can be de minimis and therefore falls short of Johnson I's requirement of force capable of causing physical pain/injury.
Whether Mulkern’s 2004 Maine trafficking conviction (possession of ≥2g heroin) is an ACCA "serious drug offense" (i.e., "involving" possession with intent to distribute)	The statute permits conviction based solely on possession of the specified quantity; Shepard docs do not show intent to distribute, so it does not "involve" intent to distribute for ACCA purposes	The statute's label "trafficking" and the 2‑gram threshold permit an inference that the offense involves intent to distribute	Held: Not an ACCA predicate. Taylor bars reliance on state labels; the 2‑gram threshold is too small to permit a reliable inference of intent to distribute, and the government failed to meet its burden.

Johnson v. United States, 559 U.S. 133 (2010) (defining "physical force" in ACCA force clause as force capable of causing physical pain or injury)
Taylor v. United States, 495 U.S. 575 (1990) (categorical approach; state labels cannot determine ACCA applicability)
Shepard v. United States, 544 U.S. 13 (2005) (limited set of documents for modified‑categorical approach)
Mathis v. United States, 136 S. Ct. 2243 (2016) (analysis of divisible statutes and modified‑categorical approach)
Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) (categorical approach principles)
McKenney v. United States, 450 F.3d 39 (1st Cir. 2006) ("involves" is broader than "has as an element")
Raymond v. State, 467 A.2d 161 (Me. 1983) (Maine holds "any physical force" suffices for robbery)
Brandon v. United States, 247 F.3d 186 (4th Cir. 2001) (declining to infer intent to distribute from moderate quantity thresholds)
United States v. James, 430 F.3d 1150 (11th Cir. 2005) (example of inferring intent to distribute from large quantity ranges)