UNITED STATES OF AMERICA, Appellee, v. MICHAEL ROMAN BURGHARDT, Defendant, Appellant.
No. 18-1767
United States Court of Appeals For the First Circuit
October 3, 2019
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE [Hon. Joseph N. Laplante, U.S. District Judge]
Before Thompson, Kayatta, and Barron, Circuit Judges.
Christine DeMaso, Assistant Federal Public Defender, for appellant.
Seth R. Aframe, Assistant United States Attorney, with whom Scott W. Murray, United States Attorney, was on brief, for appellee.
KAYATTA,
For the following reasons, we affirm Burghardt‘s conviction and sentence. In so doing we explain how plain error review works when a defendant claims that he would not have pled guilty had he been informed at his acceptance-of-plea proceeding that the government need prove that he knew that his prior offense had been punishable by more than a year in prison. We also hold that a conviction for selling a controlled substance under New Hampshire law,
I.
In 2010, Burghardt was convicted under state law of three counts of selling a controlled drug (less than a gram of heroin on two dates and more than five grams of heroin on a third) and one count of possessing a controlled drug with the intent to sell (more than five grams of heroin).1 See
In 2017, Burghardt ran afoul of the law again. During a search of Burghardt incident to arrest, officers found an unloaded pistol under his coat. Because of his felony record, Burghardt was charged with violating the federal felon-in-possession statute. The indictment stated that Burghardt, “having been convicted of a crime punishable by imprisonment for a term exceeding one year, did knowingly possess in and affecting interstate commerce” a .380 caliber pistol, in violation of
Burghardt initially pled not guilty, but eventually changed his plea to guilty. Before
The United States Probation Office recommended that the district court sentence Burghardt under the ACCA. Under the ACCA, “a person who violates [the felon-in-possession statute] and has three previous convictions . . . for a violent felony or a serious drug offense . . . shall be . . . imprisoned not less than fifteen years.”
On appeal, Burghardt raised in his opening brief three challenges to his sentence: (1) selling a controlled substance under New Hampshire law is not a “serious drug offense” and therefore cannot be a predicate act for purposes of triggering the ACCA‘s mandatory minimum sentence; (2) robbery under New Hampshire law is not a “crime of violence” under the Guidelines and therefore should not have increased his base offense level; and (3) imposing the ACCA‘s mandatory minimum sentence violated his Sixth Amendment rights because his prior convictions were not charged in the indictment or proven beyond a reasonable doubt. We do not address Burghardt‘s Sixth Amendment argument, as he acknowledges that it is foreclosed by binding precedent, see Almendarez-Torres v. United States, 523 U.S. 224, 226-27 (1998), and he correctly concedes that he raises the issue solely “to preserve it for possible Supreme Court review.”
A fourth challenge then arose when the Supreme Court decided Rehaif after the government and Burghardt filed their reply briefs. In Rehaif, the Supreme Court held that under
II.
We turn now to the merits of the four challenges Burghardt raises on this appeal, beginning first with his challenge based on Rehaif.
Burghardt contends that the holding in Rehaif exposes a common defect in both the indictment against him and in the acceptance of his plea. We address each in turn.
1.
A guilty plea waives all non-jurisdictional challenges to an indictment. United States v. Urbina-Robles, 817 F.3d 838, 842 (1st Cir. 2016). And “defects in an indictment do not deprive a court of its power to adjudicate a case.” United States v. Cotton, 535 U.S. 625, 630 (2002). Burghardt nevertheless argues that he could not have waived his challenge to the indictment because “waiver is the intentional relinquishment or abandonment of a known right,” United States v. Olano, 507 U.S. 725, 733 (1993) (internal quotation marks and citation omitted), and the Supreme Court did not recognize the scienter-of-status element until after his sentencing.3 But we have not limited waiver doctrine in that way. Indeed, we have characterized as “waived arguments” even those that “become available only as a result of intervening changes in law.” United States v. Sevilla-Oyola, 770 F.3d 1, 14 (1st Cir. 2014). Of course even waived arguments may be reviewed in the event that we choose to “engage[] in the rare exercise of [our] power to excuse waiver.” Igartúa v. United States, 626 F.3d 592, 603 (1st Cir. 2010). But because we do not see -- nor does Burghardt provide -- any compelling reason for so exercising our discretion in this case, we will not entertain Burghardt‘s challenge to the indictment.
2.
A guilty plea does not waive all challenges to the plea itself. See, e.g., United States v. Ortiz-Torres, 449 F.3d 61, 68 (1st Cir. 2006) (noting that “a guilty plea does not preclude an attack on the plea‘s voluntariness” (internal quotation marks omitted)). One of the “core concern[s]” of a plea colloquy pursuant to
Showing prejudice requires demonstrating “a reasonable probability that, but for [the error claimed], the result of the proceeding would have been different.” United States v. Turbides-Leonardo, 468 F.3d 34, 39 (1st Cir. 2006) (alteration in original) (quoting United States v. Padilla, 415 F.3d 211, 221 (1st Cir. 2005)). In the context of an appeal challenging an unpreserved error in accepting a guilty plea, the “result of the proceeding” is the entry of the plea. Therefore, a defendant who brings such a challenge must “show a reasonable probability that, but for the purported error, he would not have pled guilty.” United States v. Díaz-Concepción, 860 F.3d 32, 38 (1st Cir. 2017); Urbina-Robles, 817 F.3d at 842. The error in this case is the failure of the district court to inform Burghardt of the scienter-of-status element of the
Burghardt‘s mere assertion, by itself, that he would likely have acted differently but for the Rule 11 error is insufficient to establish the requisite reasonable probability of a different result if the circumstances surrounding the plea render such a change in his behavior improbable. See Díaz-Concepción, 860 F.3d at 38 (“Where . . . it is clear from the uncontested record that the government would have had sufficient evidence to secure a conviction at trial, an appellant‘s bare contention that he might have pled differently if the elements of the charged offense had been expounded upon is not enough to meet that standard.“); Urbina-Robles, 817 F.3d at 844 (holding that a defendant‘s “mere[] assert[ion] that he might not have so pled” but for a Rule 11 error was not enough to satisfy the prejudice prong when “[t]he discovery materials [the defendant] received prior to his guilty plea clearly suggested that, at trial, the government would have little trouble proving the [misstated] element“). So, “informed by the entire record,” Dominguez Benitez, 542 U.S. at 83, we “can fairly ask [Burghardt] what he might ever have thought he could gain by going to trial,” keeping in mind that if the record makes it reasonably probable that he would have done so, “it is no matter that the choice may have been foolish,” id. at 85.
Burghardt can point to nothing in the record suggesting that he would have insisted on going to trial, even if foolishly, if he had been told of the scienter-of-status element. He does advance the reasonable premise that his probability of opting for trial would have increased commensurate with a perception that the government would have had any difficulty in proving the added element. Of course, Burghardt carefully tenders no claim that he would have testified that he did not know that his prior offenses were punishable by more
Our own review of the record nevertheless reveals no reason to think that the government would have had any difficulty at all in offering overwhelming proof that Burghardt knew that he had previously been convicted of offenses punishable by more than a year in prison. Burghardt does not dispute that he has pled guilty to offenses punishable by a term of imprisonment well beyond a year. Nor does he dispute that New Hampshire law requires a judge to make sure that a defendant knows the maximum possible sentence when entering a guilty plea. See State v. Percy, No. 2013-0648, 2014 WL 11485808, at *3 (N.H. Oct. 21, 2014) (holding that a trial court must ascertain that a defendant understands the “potential penalties“); see also State v. Allard, 356 A.2d 671, 672 (N.H. 1976); State v. Farris, 320 A.2d 642, 644 (N.H. 1974) (noting the requirement that “the defendant fully underst[and] the consequences of his plea in terms of the maximum sentence which might be imposed“). So it seems virtually certain that at least one of the two state court judges who accepted Burghardt‘s guilty pleas in his state court cases -- in 2010 for the drug convictions and in 2011 for the robbery conviction -- told Burghardt face-to-face what his maximum sentence could be, an inference bolstered by his lack of appeal of those pleas at the time for failure to comply with New Hampshire law. And we have repeatedly held that if there is overwhelming proof establishing an element of the charged offense, a court‘s failure to describe that element during a Rule 11 plea colloquy does not by itself constitute plain error. See United States v. Gandia-Maysonet, 227 F.3d 1, 5 (1st Cir. 2000); see also Díaz-Concepción, 860 F.3d at 38; Urbina-Robles, 817 F.3d at 844.
We also consider the fact that, according to his presentence investigation report (PSR), Burghardt received 2-10 years in state prison for two of the sale convictions, 7.5-15 years in state prison for the third sale conviction and the possession-with-intent-to-sell conviction, and 2-5 years in state prison for the robbery conviction.4 If true, the receipt of such sentences
would certainly have made clear to Burghardt the fact that his offenses were punishable by more than a year in prison. Burghardt correctly states that he had no reason to contest these descriptions of his actual sentences in the PSR in the district court because they related to an element that our circuit had not recognized as an element required to sustain a conviction under
In theory, it is nevertheless possible that the state-court records regarding Burghardt‘s two prior convictions might reveal no mention of the possible prison terms in either case, or that perhaps the state records may be unobtainable or uninformative, in which case Burghardt might arguably have thought that a prosecutor in this case relying only on an instruction concerning normal state-court practice might fall short of securing his conviction, even in the absence of any testimony challenging conformity with that practice in Burghardt‘s prior cases. That seems to be quite a stretch. In any event, though, neither side has chosen to present us with the state records from either state court proceeding or to make any representation as to their unavailability. We are therefore presented with an “unknown variable: the contents of the record of the prior conviction[s].” Turbides-Leonardo, 468 F.3d at 40. In light of this pivotal gap, we must ask: Whose problem is that?
Our case law dealing with an analogous gap in the record relevant to plain error review of sentencing challenges suggests strongly that the absence of more records concerning Burghardt‘s state court proceedings cuts against him in this case. In a series of cases, we confronted the claim that Shepard documents from a state court might show that there was a “reasonable probability that [the defendant] would be better off from a sentencing standpoint had the district court not committed the claimed error.” United States v. Bauzó-Santiago, 867 F.3d 13, 27 (1st Cir. 2017) (second alteration in original). In those cases, we held that the defendant -- bearing the burden of showing that such a reasonable probability existed -- need produce the records or at least identify a reason why the records would have established the premise warranting a different sentence. See id. at 27-28; United States v. Serrano-Mercado, 784 F.3d 838, 848 (1st Cir. 2015); Turbides-Leonardo, 468 F.3d at 40. Here, by analogy, we are reviewing the district court‘s Rule 11 failure under plain error review, where the defendant also bears the burden of showing that a reasonable probability of a different outcome exists.
We also note that, though Burghardt did not have a plea agreement in this case, he did receive a benefit by pleading guilty in the form of a three-level reduction under the Guidelines for his acceptance of responsibility.5 The benefit received by the defendant from pleading is often a factor in our analysis of the likelihood that a defendant might have decided not to plead guilty, further buttressing our conclusion that Burghardt has failed to show a reasonable probability that, but for the Rule 11 error, he would have gone to trial. See, e.g., Díaz-Concepción, 860 F.3d at 39; Urbina-Robles, 817 F.3d at 844; cf. United States v. Caraballo-Rodriguez, 480 F.3d 62, 76 (1st Cir. 2007).
Based on the foregoing, Burghardt has failed to carry his burden of demonstrating that it is reasonably probable that he would not have pled guilty had the district court told him that the government was required to prove beyond a reasonable doubt that he knew when he possessed the gun that he had previously been
convicted of an offense punishable by more than a
B.
We turn next to Burghardt‘s sentencing challenges, beginning with his argument that selling a controlled substance under New Hampshire law,
Under the ACCA, “a person who violates [the felon-in-possession statute] and has three previous convictions . . . for a violent felony or a serious drug offense . . . shall be . . . imprisoned not less than fifteen years.”
Additionally, however, a statute can be “indivisible” if it sets out a single set of elements so as to define a single crime and “divisible” if it lists elements in the alternative, thus defining multiple crimes. These two types of statutes require a slightly different analysis under the categorical approach. Id. at 2249-50. For an indivisible crime, a court simply “lines up that crime‘s elements alongside those of the generic offense and sees if they match,” but for a divisible crime, a court must use a “modified categorical approach” where it “looks to a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of” and then compares only this specific committed offense with the relevant generic offense. Id. at 2248-49. Here, the parties agree that New Hampshire section 318-B:2(I) is divisible. For example, a person may violate the statute if he “manufacture[s]” a controlled substance or if he instead “purchase[s]” a controlled substance. Proving either of the alternative elements is sufficient for a conviction under section 318-B:2(I). It is undisputed that Burghardt was convicted of “sell[ing]” a controlled drug, and as such, this is the specific offense that we must compare to the generic offense. See
Under New Hampshire law, “sale” is defined as “barter, exchange or gift, or offer thereof.”
Burghardt rests his hat on the “offer” means of committing a sale. See
For Burghardt to be successful in his more refined argument, we would have to answer two questions in his favor. First, does New Hampshire law in fact criminalize “mere” offers? And second, is a “mere” offer a “serious drug offense“? Because we find that Burghardt‘s argument fails at the first question, we need not address the second.
New Hampshire law does not explicitly limit sale-by-offer violations of section 318-B:2(I) to “bona fide” offers. Indeed, it simply uses the word “offer,” without more. See
In light of this ambiguity, we heed the “fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” Nat‘l Ass‘n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 666 (2007); see also MacPherson v. Weiner, 959 A.2d 206, 209 (N.H. 2008) (“We . . . review a particular provision, not in isolation, but together with all associated sections.“).
So, too, did the district court. But it also wisely and carefully took the added step of offering Burghardt the time and opportunity to see if there is any evidence that New Hampshire has ever prosecuted anyone under section 318-B:2(I) for an offer that was admittedly not bona fide. Burghardt found none. That finding, in turn, calls to mind the Supreme Court‘s “caution against crediting speculative assertions regarding the potentially sweeping scope of ambiguous state law crimes.” Swaby v. Yates, 847 F.3d 62, 66 (1st Cir. 2017); see Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007) (“[T]o find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute‘s language. It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.“); see also Moncrieffe v. Holder, 569 U.S. 184, 191 (2013). Duenas-Alvarez teaches that it is Burghardt‘s burden to show a “realistic probability” that New Hampshire would apply section 318-B:2(I) to “mere” offers to sell drugs. 549 U.S. at 193. With the statutory text read as a whole in context providing only a questionable reed of support for Burghardt‘s preferred reading, he need “at least point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.” Id.
Instead, Burghardt relies on Swaby, a case where we concluded that Duenas-Alvarez‘s legal-imagination doctrine was inapplicable. 847 F.3d at 66. But Swaby is easily distinguishable from the case at hand. There, a noncitizen was convicted for a manufacturing-delivering-or-possessing-a-drug offense under Rhode Island law. Id. at 65. We held that “[t]he state crime at issue clearly does apply more broadly than the federally defined offense” because the Rhode Island drug schedules unambiguously included a drug not listed on the federal drug schedule. Id. at 66 (“Simply put, the plain terms of the Rhode Island
Burghardt‘s reliance on Swaby would be apt if New Hampshire similarly and unambiguously defined a “sale” as “an offer, even if the offeror has neither the intent nor the ability to proceed with the sale.” If that were the case, the panel would follow Swaby‘s teaching to avoid “treat[ing] [the state offense] as if it is narrower than it plainly is.” Id. at 66. But here, the fair and likely most reasonable reading of the statute and New Hampshire law, given the law‘s ambiguity, places on Burghardt the burden of producing authority to suggest that New Hampshire would apply section 318-B:2(I) to “mere” offers. Duenas-Alvarez, 549 U.S. at 193. Because he has not done so, his sentencing challenge is unavailing.
For the foregoing reasons, we hold that section 318-B:2(I) is a “serious drug offense” as defined under the ACCA.
C.
Having determined that the district court properly sentenced Burghardt under the ACCA, we need not address his argument that his Guidelines base offense level was miscalculated. And, as noted above, Burghardt correctly concedes that his challenge to the application of the ACCA‘s mandatory minimum as a violation of his Sixth Amendment rights is foreclosed by binding precedent. See Almendarez-Torres v. United States, 523 U.S. 224, 226-27 (1998); see also United States v. McIvery, 806 F.3d 645, 653 (1st Cir. 2015); United States v. Jiménez-Banegas, 790 F.3d 253, 258-59 (1st Cir. 2015).
III.
For the foregoing reasons, we affirm Burghardt‘s conviction and sentence.