UNITED STATES of America, Appellee, v. Brian T. MULKERN, Defendant, Appellant.
No. 16-1146
United States Court of Appeals, First Circuit.
April 14, 2017
III. Conclusion
The district court did not clearly err by applying the two-level enhancement for the possession of a dangerous weapon under
Affirmed.
Before TORRUELLA, THOMPSON, and KAYATTA, Circuit Judges.
THOMPSON, Circuit Judge.
Stage Setting
Brian Mulkern pled guilty to a federal charge of possessing ammunition as a felon. See
Mulkern now appeals. And having reviewed the matter afresh,1 we now vacate his sentence and remand for resentencing. We will explain our thinking shortly—right after a quick tutorial on some ACCA-related rules.
ACCA
As just noted, ACCA requires mandatory sentences for recidivist criminals with three or more convictions for
One type of ACCA-qualifying offense is a “violent felony,” relevantly defined as “any crime punishable by imprisonment for a term exceeding one year” that “has as an element the use, attempted use, or threatened use of physical force against the person of another.”3
The other type of ACCA-qualifying offense is a “serious drug offense,” pertinently defined as “an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance ..., for which a maximum term of imprisonment of ten years or more is prescribed by law.”4
Our judicial superiors have devised two ways for deciding whether a defendant‘s prior conviction satisfies ACCA—the categorical approach and the modified-categorical approach. Bear with us, because explaining these approaches is no walk in the park.
Under the categorical approach, the court assumes that the state statute of conviction “‘rested upon [nothing] more than the least of th[e] acts’ criminalized.” See Moncrieffe v. Holder, U.S. , 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013) (quoting Johnson I, 559 U.S. at 137, 130 S.Ct. 1265). The court then compares the state statute of conviction‘s elements to ACCA‘s definitions of “violent felony” or “serious drug offense.” Cf. Mathis v. United States, U.S. , 136 S.Ct. 2243, 2248, 195 L.Ed.2d 604 (2016). And if there
This comparison is difficult enough when the state statute lists “a single“—a.k.a., “indivisible“—body “of elements to define a single crime.” See id. But some state statutes—a.k.a., “divisible” statutes—lay out “elements in the alternative, and thereby define multiple crimes,” making the comparison of elements harder still. See id. at 2249. In that situation, courts employ the modified-categorical approach. See id. Under that method, the court looks beyond the statute of conviction to a narrow “class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy)“—known as Shepard documents—“to determine what crime, with what elements, a defendant was convicted of.” Id. (citing Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)). “The court can then compare that crime, as the categorical approach commands,” with the pertinent ACCA definitions to see if the state conviction is ACCA eligible. See id.5
With these principles in place, we turn to whether Mulkern‘s Maine robbery and drug-trafficking convictions trigger the ACCA bump up. FYI: As the combatants correctly agree, Mulkern‘s convictions rest on divisible statutes. So we—as do the parties—apply the modified-categorical approach to this case.
Mulkern‘s 2001 Robbery Conviction
The Maine Statute
At the time Mulkern pled guilty to robbery in 2001, the Maine legislature defined the crime as follows:
1. A person is guilty of robbery if he commits or attempts to commit theft and at the time of his actions:
A. He recklessly inflicts bodily injury on another;
B. He threatens to use force against any person present with the intent
(1) to prevent or overcome resistance to the taking of the property, or to the retention of the property immediately after the taking; or
(2) to compel the person in control of the property to give it up or to engage in other conduct which aids in the taking or carrying away of the property;
C. He uses physical force on another with the intent enumerated in paragraph B, subparagraphs (1) or (2);
D. He intentionally inflicts or attempts to inflict bodily injury on another; or
E. He or an accomplice to his knowledge is armed with a dangerous weapon in the course of a robbery as defined in paragraphs A through D.
The Parties’ Arguments
The parties begin on common ground, agreeing that the relevant count in the
[O]n or about July 04, 2001, in Pownal, Cumberland County, Maine, BRIAN MULKERN did attempt to commit theft by attempting to exercise unauthorized control over the property of the Short Stop store and/or [named victim], namely money, and at the time of his actions he threatened to use force against [named victim] with intent to compel her to give up the money, and he was armed with a dangerous weapon during the course of the robbery.
The indictment‘s cover sheet listed section “651(1)(E)” as the charged offense, recording it as a Class A crime. Someone crossed out the “A” in “Class A crime” and replaced it with a “B,” though this alteration is not signed or dated. Someone also crossed out “and he was armed with a dangerous weapon during the course of the robbery” and section “651(1)(E)” and signed and dated the crossed-out area (the signature is illegible, and the parties do not tell who did this). Without mentioning a subpart, the judgment form has a handwritten note that listed section “651” as the offense of conviction, recording it as a Class B crime—though the state docket sheet lists section 651(1)(A) as the offense of conviction.
Now to the key points of contention between the parties:
Insisting that he ultimately pled guilty to
Hold on, says the government: Mulkern actually pled guilty to
Snatching necessarily involves the exercise of some actual force.... [W]e hold that, where, as here, the actual force used is sufficient to produce awareness, although the action may be so swift as to leave the victim momentarily in a dazed
condition, the requisite degree of force is present to make the crime robbery.
Id. at 845. And, says the government, because robbery “requires” actual force, “robbery in violation of Maine law has as an element force and violence sufficient for purposes of Johnson I.”
Our Take
We need not resolve the parties’ dispute over which subpart of the robbery statute Mulkern pled guilty to violating—
Now we must compare
And the government‘s argument about Massachusetts law does not alter this conclusion. Whatever the exact state of Massachusetts law may be—and we express no opinion here on that matter (zero, none, zip)—Raymond, as we said, is the beacon by which we steer our course. And Raymond, as we have been at pains to explain, flat-out held that “any physical force” with the specified intent elevates the crime to robbery, see 467 A.2d at 164—a holding that compels us to hold that Mulkern‘s robbery conviction cannot be an ACCA predicate.
The net result is that Mulkern‘s 2001 conviction cannot provide the third predicate offense necessary to uphold his ACCA sentence.7 So now we must see if his 2004 drug-trafficking conviction can—a task we turn to in the next part of this opinion.
Mulkern‘s 2004 Drug-Trafficking Conviction
The Maine Statute
Everyone agrees that Shepard documents show Mulkern pled guilty in Maine state court to trafficking in “2 grams or more of heroin” in 2004. Under the version of the statute to which he pled guilty—titled “Unlawful trafficking in scheduled drugs“—“a person is guilty of unlawful trafficking in a scheduled drug if the person intentionally or knowingly trafficks in what the person knows or believes to be a scheduled drug, which is in fact a sched-
A. To make, create, manufacture;
B. To grow or cultivate, except for marijuana;
C. To sell, barter, trade, exchange or otherwise furnish for consideration;
D. To possess with the intent to do any act mentioned in paragraph C; or
E. To possess 2 grams or more of heroin or 90 or more individual bags, folds, packages, envelopes or containers of any kind containing heroin.
The Parties’ Arguments
Mulkern‘s argument for why this conviction is not a countable ACCA predicate is straightforward enough. As he sees things, he did not plead guilty to a “serious drug crime“—defined for our purposes (remember) as “involving” possession of a controlled substance “with intent to manufacture or distribute.” And he quickly adds that the pertinent trafficking statute—dealing with the 2 grams or more of her-
Stressing that we must interpret “involving” expansively, see Whindleton, 797 F.3d at 109, the government counters that the statute of conviction need not match up word for word with ACCA‘s definitions to qualify as a “serious drug offense.” So, the government writes, it is of no moment that the state statute here “does not require proof of intent to distribute“—what matters is whether the pled-to offense “involv[es]” (in ACCA lingo) “possess[ion] with intent to ... distribute.”
Building on this foundation, the government then argues that we must conclude that Mulkern‘s trafficking conviction “involv[ed]” an intent to distribute. It offers two reasons why. The first reason turns on the “trafficking” name Maine‘s legislature used for the at-issue statute: “trafficking” is synonymous with distribution, the government suggests, so from the legislature‘s “trafficking” label we can infer that Mulkern‘s crime here “involv[es]” the required distributive intent. The second reason turns on the statute‘s saying that 2 or more grams of heroin can support a drug-trafficking conviction: relying chiefly on Eleventh Circuit case law, the government implies that this drug amount justifies the inference that Mulkern possessed the heroin with intent to distribute, rather than for his personal use. See United States v. James, 430 F.3d 1150, 1155, 1156 (11th Cir. 2005) (inferring intent to distribute from the defendant‘s copping “to trafficking in cocaine by possess[ing] ... between 200 and 400 grams of the drug“), overruled on other grounds by Johnson II, 135 S.Ct. 2551.
Not about to go down without a fight, Mulkern argues that reading “involving” broadly helps the government not a whit because “it would stretch” that word “beyond its breaking point” to hold that “a state conviction for trafficking by possession alone“—i.e., possession without intent to distribute—is a conviction “involving” possession with intent to distribute. And he highlights Fourth Circuit caselaw to support the idea that one cannot infer that he had the requisite intent either from Maine‘s designating the pled-to crime as “trafficking” or from the small amount of heroin in play. See United States v. Brandon, 247 F.3d 186, 196-97 (4th Cir. 2001) (emphasizing that, per Taylor, an ACCA enhancement “appl[ies] to those who have engaged in certain specific conduct, regardless of the label attached to that conduct by state law,” and concluding that “because we cannot say that intent to manufacture or distribute is inherent” in the class of conduct banned “by the statute and alleged in the indictment at issue in this case (possession of between twenty-eight and two hundred grams of cocaine),” the defendant‘s state drug-trafficking conviction was not an ACCA “serious drug offense“).
Our Take
As we said many pages ago, ACCA pertinently defines “violent felony” as a felony that “has as an element the use, attempted use, or threatened use of physical force.” See
The question then is whether the government met its burden of satisfying this “serious drug offense” definition. The government says it has, arguing (as we noted above) that we can infer that the crime here “involv[es]” distributive intent both from the statute‘s calling the offense “trafficking” and from Mulkern‘s possessing 2 or more grams of heroin. But like Mulkern, we think neither argument does the trick.
Take the government‘s first claim (which it really stressed at oral argument)—that one can infer Mulkern‘s pled-to drug crime “involv[es]” possession with intent to distribute from the simple fact that the Maine legislature designates the copped-to crime as “trafficking,” a descriptor, the theory continues, that denotes buying and selling. What devastates this argument is that the Supreme Court has already rejected a similar contention: as Taylor explains, the meaning of ACCA‘s terms do not “depend on the definition adopted by the State of conviction,” because to hold otherwise would mean (for instance) that persons “convicted of unlawful possession of a firearm” might or might not get ACCA enhancements “depending on [how] the State of [the] prior conviction” labeled the crime—a result that would clash with Congress‘s desire to avoid inconsistencies in punishment. See 495 U.S. at 590-91, 110 S.Ct. 2143; see also Brandon, 247 F.3d at 196 (reading Taylor essentially the same way).
And the government does no better with its second argument—that one can infer Mulkern‘s pled-to drug crime “involv[es]” possession with intent to distribute from his possessing 2 grams or more of heroin. We have never “held that a conviction for trafficking based on the possession of a certain quantity of drugs” is an ACCA “serious drug offense.” United States v. White, 837 F.3d 1225, 1233-34 (11th Cir. 2016) (noting the absence of First Circuit precedent on this issue). But even assuming without deciding “that a statute classifying possession of a certain quantity of drugs [is] sufficient to indicate an intent to distribute,” see id. at 1234, we think the government‘s argument still falls short. Here is why.
Drug distribution poses “a greater threat to society” than mere drug use—“though both constitute great dangers,” and it is perfectly sensible “to assume” that persons possessing “very large” drug quantities “intend to distribute” them. Brandon, 247 F.3d at 192. That “very reasonable assumption” is probably why lots of states have trafficking laws “severely punish[ing] possession of large quantities of drugs without making” distributive intent “an element of the crime.” Id. The difficult question is what is the right amount of drugs a person must possess “before this presumption of an intent to distribute is appropriate“—that this is so is “evidenced by the widely varying quantities that states have established as the threshold for a trafficking-by-possession conviction.” Id. (noting, for example, that “possession of five grams of cocaine is considered trafficking in Delaware,” while “possession of more than one hundred and fifty grams” is considered “trafficking in Missouri“). Obviously, “society‘s comfort level in equating possession to possession-with-intent increases as the quantity of drugs possessed increases, and it decreas-
Moving from the general to the specific, even assuming arguendo that the government is correct about inferring distributive intent from drug-quantity levels, we think that the crime for which Mulkern stands convicted would not come close to raising this inference. Consider James, a case the government relies on. There, a sibling circuit concluded that a statute of conviction classifying possession of between 200 and 400 grams of cocaine as trafficking gave rise to an inference of distributive intent. See 430 F.3d at 1152-56. But Mulkern‘s case is worlds apart from James. Here, unlike there, the quantity at the lower end of the statute of conviction—2 grams of heroin—is “not so large that the only reasonable inference is that one who possesses that amount must intend to distribute it.” See Brandon, 247 F.3d at 192 (emphasis added). Actually, Mulkern could have been convicted for possessing less than 2 grams. And that is because the statute—as it stood at time of his 2004 trafficking conviction—“define[d] the crime as prohibiting trafficking in two grams or more of any mixture containing heroin.” See State v. Pinkham, 137 A.3d 203, 208 (Me. 2016) (emphasis added). So—still assuming without granting that the government‘s right about deducing distributive intent from drug-quantity amounts—given the range of drug quantities covered by this law, we simply cannot rule “that the typical conduct reached by that statute inherently involves an intent to ... distribute.” See Brandon, 247 F.3d at 193. And we are doubly persuaded that this is right since—despite having the burden of proving what he stands convicted of—the government offers no authority or persuasive argument suggesting that the 2-gram threshold justifies an inference of intent to distribute.
The bottom line is that Mulkern‘s drug-trafficking conviction does not qualify as an ACCA-predicate “serious drug offense.” And that is that.
Wrap Up
Because neither the 2001 robbery conviction nor the 2004 trafficking conviction qualifies as an ACCA predicate, we vacate Mulkern‘s sentence and remand for resentencing without the ACCA enhancement.