United States of America v. Alexander Monday Coleman
No. 19-3119
United States Court of Appeals for the Eighth Circuit
October 5, 2020
Submitted: September 21, 2020
Appeal from United States District Court for the Western District of Missouri - Springfield
Submitted: September 21, 2020
Filed: October 5, 2020
Before BENTON, MELLOY, and KOBES, Circuit Judges.
Alexander Monday Coleman pled guilty to being a felon in possession of a firearm in violation of
Coleman argues the ACCA‘s enhancement does not apply because two of his convictions are not “serious drug offenses.” Whether a conviction is a “serious drug offense” is a legal question this court reviews de novo. See United States v. Keith, 638 F.3d 851, 852 (8th Cir. 2011). At sentencing, Coleman objected to the ACCA enhancement, but on differеnt grounds than raised here. He must therefore establish the four elements of plain error: (1) there is an error; (2) the error is plain; (3) the error affects his substantial rights; and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. See United States v. Pirani, 406 F.3d 543, 550 (8th Cir. 2005) (en banc), applying United States v. Olano, 507 U.S. 725, 732-36 (1993).
The ACCA mandates fifteen years in prison for anyone who violates
On appeal, Coleman does not contest he has two ACCA predicate offenses. At issue are two other offenses: (1) delivery or manufacture of an imitatiоn controlled substance in Missouri (2004) and (2) possession of cocaine for resale in Tennessee (2003).
In 2004, Coleman was convicted in Missouri for delivery or manufacture of an imitation controlled substance, a class D felony. See
In 2003, Coleman was convicted for violating
A categorical approach determines whether a previous conviction is an ACCA predicate offense. See Taylor v. United States, 495 U.S. 575, 600 (1990). Under this approach, courts compare the statutory elements of a conviction tо the ACCA‘s description of a predicate offense. See Descamps v. United States, 570 U.S. 254, 261 (2013). The previous conviction is an ACCA predicate offense if the state statute‘s elements are the same or narrower than the ACCA рredicate offense. Id. But if the statute‘s elements are broader than the ACCA‘s predicate offense, the conviction is not an ACCA predicate offense. Id. The categorical approach, as relevant here, requires considering whether the statutory elements “necessarily entail one of the types of conduct identified in § 924(e)(2)(A)(ii).” Shular, 140 S. Ct. at 784 (internal quotation marks omitted).
By listing alternative elements, some statutes create multiple offenses. See United States v. Vanoy, 957 F.3d 865, 867 (8th Cir. 2020). These “divisible” statutes trigger a modified categorical approach, where “certain approved documents” may “determine which statutory phrase was the basis for the conviction.” Id., citing Descamps, 570 U.S. at 263. The modified categorical approach then compares the appropriate statutory phrase to the ACCA‘s description of a predicate offense. See Descamps, 570 U.S. at 263.
The Tennessee statute that Coleman violated states: “It is an offense for a defendant to knowingly: (1) Manufacture a controlled substance; (2) Deliver a controlled substance; (3) Sell a controlled substance; or (4) Possess a controlled substance with intent to manufacture, deliver or sell the controlled substance.”
The Tennessee indictment and judgment show that Coleman was convicted under section 39-17-417(а)(4). See Case No. 242630, Alexander Monday Coleman, in Hamilton Cty. Crim. Ct. Recs., available at http://cjuscriminal.hamiltontn.gov/appfolder/cc_Web_Calendar.aspx (last visited Aug. 10, 2020) (reflecting the charge listed in the indictment and the judgment). The indictment‘s heading reads “Possession of Cocaine for Resale,” a phrase the judgment repeats twice in abbreviated form. The charge in the indictment recites the fourth subsection‘s text: “Alexander Monday Coleman . . . did unlawfully and knowingly possess a controlled substance . . . with intent to sell or deliver” (emphasis added). See Mathis v. United States, 136 S. Ct. 2243, 2249 (2016) (authorizing the use of an indictment in the modified categoricаl approach). Coleman quibbles, highlighting the imprecise term “resale” in both the indictment and the judgment. Regardless,
The issue is whether Tennessee‘s prohibition on “[p]ossess[ing] a controlled substance with intent to manufacture, deliver or sell the controlled substance” necessarily entails “possessing with intent to manufacture or distribute, a controlled substance.” Compare
Coleman argues that because Tennessee‘s “deliver” definition does not еxplicitly exclude “administering” and “dispensing” like the federal definition, the Tennessee statute is broader than a “serious drug offense” and thus not a predicate offense. The Sixth Circuit addressed this argument in United States v. Goldston, 906 F.3d 390. There, the court noted that Tennessee law explicitly permits “practitioners” to “administer” and “dispense” controlled substances. See Goldston, 906 F.3d at 395, citing
According to Coleman, any reliance on Goldston is misplaced because the Supreme Court‘s Shular decision supersedes it. But cf. United States v. McClain, 810 Fed. Appx. 404, 408 (6th Cir. 2020) (following Goldston after the Shular decision). Shular held that when applying the categorical approach, the ACCA‘s state-law “serious drug offense” provision requirеs comparing statutory elements and conduct, not generic offenses. See Shular, 140 S. Ct. at 785. Far from undercutting Goldston, Shular confirms its focus on conduct—possession with intent to distribute.
Coleman also asserts there is a “realistic probability, not a theoretical possibility” that section 39-17-417(a) will extend to conduct the ACCA does not cover. See United States v. Maldonado, 864 F.3d 893, 900 (8th Cir. 2017), cited in Goldston, 906 F.3d at 396. As proof of a realistic probability, Coleman emphasizes three purported prоsecutions of medical professionals under section 39-17-417. One is a prosecution of a pharmacist, but a pharmacist who illicitly provided pain pills outside the pharmacy and without a prescription. See State v. Lindsey, 1991 WL 207934, at *1 (Tenn. Crim. App. 1991). Another is a prosecution, but does not indicate that the defendant was a medical professional.
Coleman also invokes a nearby section of the criminal code describing inferences: “It may be inferred from [certain circumstances] that the cоntrolled substance or substances were possessed with the purpose of selling or otherwise dispensing.”
Finally, section 39-17-417(a)(4) also prohibits the intent to sell. The legislature has not defined “sell,” but the state‘s courts have. “[A] ‘sale’ requires ‘a bargained-for offer and acceptance, and an actual or constructive transfer or delivery of the subject matter property.‘” Davis v. Freeman, 2018 WL 1545739, at *21 (M.D. Tenn. 2018), quoting State v. Holston, 94 S.W.3d 507, 510 (Tenn. Crim. App. 2002). This definition of “sell” necessarily entails the conduct that the ACCA‘s “distribute” describes.
Coleman‘s 2004 Missouri conviction is not a predicate offense under the ACCA, but his 2003 Tennessee conviction is. He therefore has the three previous convictions the ACCA requires.
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The judgment is affirmed.