United States of America v. Maurice Antonio Owen, also known as Maurice Antonio Parham
No. 21-3870
United States Court of Appeals For the Eighth Circuit
October 19, 2022
Re-Submitted: July 29, 2022
Appeal from United States District Court for the District of Minnesota. Submitted: May 13, 2022. [Published]
Before ERICKSON, STRAS, and KOBES, Circuit Judges.
Maurice Owen twice pleaded guilty to selling cocaine in Minnesota. The question for us is whether these convictions count as “serious drug offense[s]” under the Armed Career Criminal Act.
I.
The Armed Career Criminal Act (ACCA) sets a fifteen-year minimum sentence for anyone who possesses a firearm as a felon and has “three previous convictions . . . for a violent felony or a serious drug offense.”
The way to determine whether a state statute “sweeps more broadly” is by examining its text and structure. Id. at 868. Sometimes, a statute lays out a single crime with a single set of elements. See Schneider, 905 F.3d at 1090. In analyzing this type, a so-called “indivisible” statute, we simply check to see if it “criminalizes a broader swath of conduct” than the generic offense or federal definition, whichever happens to apply. Descamps v. United States, 570 U.S. 254, 258 (2013); see also Shular, 140 S. Ct. at 783-84. The task becomes more difficult, however, if a statute is “divisible,” meaning it defines “multiple crimes by listing more than one set of elements.” Schneider, 905 F.3d at 1090.
Divisible statutes call for a modified categorical approach, which involves peeking at certain documents to identify “what crime, with what elements, a defendant was convicted of.” Mathis v. United States, 579 U.S. 500, 505-06 (2016) (listing documents included in this “limited class” — otherwise known as Shepard documents —
The parties agree that Minnesota‘s third-degree drug-sale statute is divisible based on the type of drug.2 See
II.
To count, both convictions must be “serious drug offense[s]“: crimes “involving” the distribution of a drug listed in the federal controlled-substance schedules.
Minnesota, however, uses its own definition of cocaine for its third-degree drug-sale statute. See State v. Richmond, 730 N.W.2d 62, 67 (Minn. Ct. App. 2007) (citing
Minnesota‘s all-inclusive definition covers “coca leaves and any salt, compound, derivative, or preparation of coca leaves, including cocaine and ecgonine, the salts and isomers of cocaine and ecgonine, and the salts of their isomers and any salt, compound, derivative, or preparation thereof that is chemically equivalent or identical with any of those substances.”
Cocaine has multiple isomers. See 1 Gerald F. Uelmen & Alex Kreit, Drug Abuse and the Law Sourcebook § 5:23 (2022). The problem for the government is that federal law criminalizes just two: optical and geometric isomers.
We have already concluded that a drug statute that criminalizes even one additional isomer does not qualify as a “serious drug felony.” United States v. Oliver, 987 F.3d 794, 806-07 (8th Cir. 2021) (holding that an Illinois drug statute was overbroad because it covered “optical, positional, and geometric isomers” of cocaine (emphasis added)). It should come as no surprise that a statute that reaches even more is overbroad too. See United States v. De La Torre, 940 F.3d 938, 951 (7th Cir. 2019) (interpreting a similar Indiana statute the same way). This means that Owen‘s third-degree drug-sale convictions do not count as “serious drug offense[s]” under ACCA. See Oliver, 987 F.3d at 806-07.
III.
Despite the clear and unambiguous language in Minnesota‘s definition, the government claims that there is no “realistic probability” that Minnesota would prosecute the sale of cocaine isomers other than those listed in the federal schedules. At best, it argues, a prosecution for anything other than an optical or geometric isomer is only a “theoretical possibility.” After all, according to the government, other isomers exist only in the lab at this point.
The science notwithstanding, the government‘s argument cannot succeed because the realistic-probability test is about resolving ambiguities. See Gonzalez v. Wilkinson, 990 F.3d 654, 660 (8th Cir. 2021) (explaining that the realistic-probability test applies only when a state statute has an “indeterminate reach” (citation omitted)); see also Br. of Appellant 38 (describing it as a “useful interpretive rule to resolve a state statute‘s ambiguity“). Compare Brown v. United States, 929 F.3d 554, 559 (8th Cir. 2019) (adopting the same rule in an ACCA case), with United States v. Bragg, 44 F.4th 1067, 1076 (8th Cir. 2022) (declining to apply Gonzalez‘s approach in a case involving ACCA‘s force clause). The definition of cocaine, as we explain above, is unambiguously broad: it reaches “the . . . isomers of cocaine” and contains no limiting language. See Gonzalez, 990 F.3d at 658, 660-61 (concluding that it took no “legal imagination” to determine the reach of a Florida statute that prohibited possession of “all parts of any [Cannabis] plant“). The “realistic probability,” in other words, is “evident from the language of the statute itself,” id. at 660, just like in Oliver, 987 F.3d at 806. It is not our job “to rewrite [the] statute to conform” to federal law or “a supposed practical understanding of the drug trade.” United States v. Ruth, 966 F.3d 642, 648 (7th Cir. 2020); see also Oliver, 987 F.3d at 807-08 (relying on Ruth).4
IV.
We accordingly affirm the judgment of the district court.