United States v. Mohamed

United States Court of Appeals

For the First Circuit

No. 18-1498

UNITED STATES,

Appellant,

v.

NOOR MOHAMED,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Nancy Torresen, U.S. District Judge]

Before

Lynch, Stahl, and Barron,

Circuit Judges.

Renée M. Bunker, Assistant United States Attorney, Appellate

Chief, with whom Halsey B. Frank, United States Attorney, was on

brief, for appellant.

David Beneman, Federal Defender, for appellee.

April 3, 2019

LYNCH, Circuit Judge. This is a sentencing appeal

brought by the United States. Noor Mohamed pleaded guilty to one

count of being a felon in possession of a firearm, in violation of

18 U.S.C. §§ 922(g)(1) and 924(e). The district court held that,

as a matter of law, Mohamed's prior Maine drug trafficking

conviction did not qualify as a "controlled substance offense"

under United States Sentencing Guidelines § 2K2.1(a), essentially

adopting the reasoning of another Maine federal judge in another

case, United States v. Oliveira, 287 F. Supp. 3d 97 (D. Me. 2017).

Although Mohamed has been released from federal custody

and is now in state custody on Maine charges, the government tells

us it is important we address the issues. Because we determine

that Mohamed's prior Maine conviction properly qualified as a

"controlled substance offense," we vacate and remand for

resentencing.

I.

Mohamed's commission of the federal offense is not

contested. This conviction stems from a November 10, 2016, fight

outside the Old Port Tavern in Portland, Maine. Mohamed drove a

car -- taken without the owner's permission -- the wrong way down

a one-way street towards two groups of men who were fighting.

Mohamed shot two or three times at some of the men on the street,

with one bullet grazing a man's sweatshirt, before Mohamed drove

away quickly. A witness saw Mohamed exit the car near a dumpster,

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and heard a sound consistent with an item being thrown into the

dumpster.

Police found a stolen semiautomatic Glock handgun, with

a fifteen-round magazine, in the same dumpster on the next day.

Forensic testing revealed that the gun had Mohamed's DNA on it. A

woman who had been in the car with Mohamed stated that she had

seen Mohamed with a handgun earlier that evening, and that she had

seen him "pull[] the gun out to shoot" after he had driven towards

the groups of men. After his arrest, Mohamed's face and hands

tested positive for the presence of gunshot residue.

In December 2016, Mohamed was charged with one count of

being a felon in possession of a firearm, in violation of 18 U.S.C.

§§ 922(g)(1) and 924(e). The indictment listed four prior

convictions punishable by imprisonment exceeding one year: three

Massachusetts cocaine distribution convictions and one Maine drug

trafficking conviction. Under a plea agreement, Mohamed pleaded

guilty on November 21, 2017, to one count of being a felon in

possession of a firearm.

The first Presentence Report (PSR), dated January 9,

2018, calculated a total offense level (TOL) of thirty and a

criminal history category of VI. This PSR stated that Mohamed had

nine prior convictions, including three separate 2010

Massachusetts cocaine distribution convictions, and an April 2014

Maine drug trafficking conviction that followed his plea to

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"unlawful trafficking in a scheduled drug." Me. Stat. tit. 17–A,

§ 1103(1-A)(A).

The PSR concluded that Mohamed's prior convictions meant

he was an armed career criminal under the Armed Career Criminal

Act (ACCA). See 18 U.S.C. § 924(e). The guideline imprisonment

range was 180 to 210 months' imprisonment.

Before sentencing, Mohamed's three Massachusetts cocaine

distribution convictions were vacated due to false or unreliable

drug testing involving a former chemist in a Massachusetts crime

lab, Annie Dookhan. A revised PSR was prepared, dated February 6,

2018, which included two-level and four-level enhancements for a

stolen firearm and for possession of a firearm in connection with

another felony offense, respectively. After the Dookhan-infected

Massachusetts convictions were vacated, Mohamed no longer

qualified as an armed career criminal under ACCA. He had a TOL of

twenty-three and a criminal history category of III (which included

his Maine trafficking conviction). The resulting guideline

imprisonment range was fifty-seven to seventy-one months.

Mohamed objected to his Maine trafficking conviction

being labeled and used as a "controlled substance offense." He

argued that, in light of United States v. Mulkern, 854 F.3d 87

(1st Cir. 2017), and the district court decision in Oliveira,1 this

1 In Mulkern, this court held, among other things, that

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conviction should not qualify as a "controlled substance offense"

under the Guidelines. That was because, he argued, the Maine law

allowed (but did not mandate) the use of a permissible inference

of trafficking where a defendant possessed "4 grams or more of

cocaine in the form of cocaine base." Me. Stat. tit. 17–A,

§ 1103(3).2 The Probation Office initially disagreed and

distinguished Mulkern from Mohamed's case, but in its second

revised PSR, dated March 23, 2018, the Probation Office agreed

with Mohamed and did not recommend counting the Maine trafficking

violation as a "controlled substance offense." This second revised

PSR reduced Mohamed's TOL to seventeen, and the corresponding

guideline imprisonment range to thirty to thirty-seven months.

In his sentencing memorandum, Mohamed acknowledged that

the government had properly focused on the elements of the Maine

the defendant's drug trafficking conviction did not qualify as an

ACCA predicate "serious drug offense," because intent to

distribute could not be inferred from the title of the Maine

trafficking statute nor from possessing two grams or more of

heroin. 854 F.3d at 96.

In Oliveira, one member of the Maine district court said

he took "one step beyond Mulkern" and determined that "Maine's

permissive inference instruction for cocaine demands similar

treatment to its conclusive presumption for heroin and fentanyl

addressed in Mulkern." 287 F. Supp. 3d at 106. The district court

then determined that the fourteen-gram threshold for cocaine under

Maine's permissible inference was "too low to be confident that

[the defendant] had the requisite intent" for his conviction to be

a "controlled substance offense under the guidelines." Id. at

108.

2 Crack cocaine is one form of cocaine base. See, e.g.,

DePierre v. United States, 564 U.S. 70, 74 (2011).

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offense, but argued that the relevant Shepard documents, see

Shepard v. United States, 544 U.S. 13 (2005), did not "show

anything beyond the State's reliance on the [Section 1103

permissible] inference based on the quantity possessed." Mohamed

argued, again using Oliveira (D. Me.) and Mulkern, that his Maine

conviction therefore did not qualify as a "controlled substance

offense" under the Guidelines. The government's sentencing

memorandum argued that Mulkern could be distinguished, that

Oliveira (D. Me.) had been wrongly decided, and that the Shepard

documents showed that Mohamed pleaded guilty to a "controlled

substance offense" under the Guidelines.

After review of the Shepard documents, the district

court stated that the "controlled substance offense" issue was

"very close," and acknowledged that by "go[ing] with [Oliveira

(D.Me.)] . . . I think we could be back here on a resentencing."

The district court then adopted much of the reasoning in Oliveira

(D. Me.), focusing on the "amount that would be deemed under Maine

law to be enough to constitute trafficking" based on the amount

required for the Section 1103 permissible inference. It also said,

and the government vigorously disputes, that four grams of cocaine

base "probably wouldn't be enough" to constitute trafficking or

allow for such an inference under federal law. Accordingly, the

district court accepted the second revised PSR, including the

guideline imprisonment range of thirty to thirty-seven months'

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imprisonment. The district court sentenced Mohamed to thirty-

seven months' imprisonment, as well as thirty-six months'

supervised release. The government timely appealed.3

II.

"Whether a prior conviction qualifies as a predicate

offense under U.S.S.G. § 4B1.1 is a question of law that we review

de novo." United States v. Davis, 873 F.3d 343, 345 (1st Cir.

2017) (quoting United States v. Almenas, 553 F.3d 27, 31 (1st Cir.

2009)).

We first lay out the federal and state statutes at issue,

before briefly explaining the modified categorical approach, which

binds us, as it applies to prior convictions under divisible

statutes. We then turn to Mohamed's conviction, and determine

that it properly qualifies as a "controlled substance offense."

We finally consider federal drug trafficking prosecutions.

For 18 U.S.C. § 922(g) and other statutes, the

Sentencing Guidelines establish enhanced Base Offense Levels

3 Mohamed was released from federal custody on September

14, 2018. This case is not moot, however, as Mohamed could be

resentenced. "When the government is the party appealing the

length of an imposed sentence as improperly short, the defendant's

completion of that sentence does not moot the appeal because the

government still alleges a remediable injury: the trial court's

failure to impose the appropriate sentence pursuant to statute or

the sentencing guidelines." United States v. Meyers, 200 F.3d

715, 721 n.3 (10th Cir. 2000). Indeed, the government has a

statutory interest in the proper interpretation and imposition of

federal sentencing laws. See 18 U.S.C. § 3742(b)(2).

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(BOLs) for particular aggravating factors, including when a

defendant has been convicted of a prior "controlled substance

offense." U.S.S.G. § 2K2.1(a). A "controlled substance offense"

under § 2K2.1(a) "has the meaning given that term in § 4B1.2(b)

and Application Note 1 of the Commentary to § 4B1.2," id. § 2K2.1

cmt. 1:

an offense under federal or state law,

punishable by imprisonment for a term

exceeding one year, that prohibits the

manufacture, import, export, distribution, or

dispensing of a controlled substance . . . or

the possession of a controlled substance . . .

with intent to manufacture, import, export,

distribute, or dispense.

Id. § 4B1.2(b). We have held that the definition of "'controlled

substance offense' requires that the statute under which the

defendant was charged involve[] an intent to distribute or other

indicia of trafficking." United States v. Bryant, 571 F.3d 147,

157 (1st Cir. 2009). The government bears the burden of

demonstrating that a prior conviction properly qualifies as a

predicate offense. United States v. Dávila–Félix, 667 F.3d 47, 55

(1st Cir. 2011).

Mohamed had pleaded guilty in 2014 to the following Maine

law offense:

[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 scheduled drug, and

the drug is:

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A. A schedule W drug.

Me. Stat. tit. 17–A, § 1103(1-A)(A). Under Maine law, cocaine

base is a schedule W drug. Id. § 1102(1)(F). Maine law defines

"traffick" in multiple alternative ways:

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[.]

Id. § 1101(17).4 Subsections (A), (B), (C), and (D) track closely

the Guidelines definition of a "controlled substance offense."

Maine law also allows a permissible inference regarding

trafficking, based on the quantity of particular drugs possessed

by a defendant, including cocaine base:

Proof that the person intentionally or

knowingly possesses any scheduled drug that is

in fact of a quantity, state or concentration

as provided in this subsection, gives rise to

a permissible inference under the Maine Rules

4 The definition of "traffick" has two other provisions

not at issue here:

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; or

F. To possess 2 grams or more of fentanyl

powder or 90 or more individual bags, folds,

packages, envelopes or containers of any kind

containing fentanyl powder.

Me. Stat. tit. 17–A, § 1101(17)(E)-(F).

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of Evidence, Rule 303 that the person is

unlawfully trafficking in scheduled drugs:

. . .

B. . . . 4 grams or more of cocaine in

the form of cocaine base.

Id. § 1103(3). This permissible inference need not be invoked by

the State. State v. Peakes, 440 A.2d 350, 355 (Me. 1982) ("The

State cannot be required to invoke the presumption of section

1103(3) when the evidence which it presents makes reliance upon

the presumption unnecessary."). Where a case goes to trial and

the permissible inference is invoked, the permissible inference

requires the jury to come to its own conclusion based on the

evidence before it, and respects the State's burden of proof beyond

a reasonable doubt. See Me. Jury Instr. Manual, § 6-13 (2013).5

5 The Maine Jury Instructions Manual contains a section on

"Presumptions--Inferences. Instruction," which provides:

There are certain inferences which you may

use, but you are not required to use, in

evaluating evidence of __________. If you find

beyond a reasonable doubt that __________,

then you may infer that _________.

It is up to you to decide whether to adopt any

inference or not. You are not compelled to

accept any inference established by law. You

may reject an inference if you wish. The

ultimate decision is up to you. But you must

remember that the burden remains on the State

to prove each and every element of the offense

beyond a reasonable doubt.

Me. Jury Instr. Manual, § 6-13 (2013) (emphasis added); see also

State v. Barnard, 828 A.2d 216, 221 (Me. 2003) (holding that a

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In addition, Maine Rule of Evidence 303, referenced

directly by the permissible inference provision, contains two

qualifications. First, "[t]he court may not direct a verdict

against an accused based on a presumption or statutory provisions

that certain facts are prima facie evidence of other facts or of

guilt." Me. R. Evid. 303(b). And second,

[t]he charge must include an instruction that

the jurors may draw reasonable inferences from

facts proved beyond a reasonable doubt and may

convict the accused in reliance upon an

inference of fact if they conclude that such

inference is valid and if the inference

convinces them of guilt beyond a reasonable

doubt and not otherwise.

Id. 303(c). Maine Courts must use the term "inference" rather

than "presumption" when referring to inferences and instructing

the jury. See State v. Liberty, 478 A.2d 1112, 1116-17 (Me. 1984);

State v. King, 379 A.2d 131, 134 (Me. 1977).

A. The Modified Categorical Approach

The Supreme Court has held that a sentencing court should

use a categorical or modified categorical approach when

considering sentencing enhancements based on prior offenses. See,

e.g., Mathis v. United States, 136 S. Ct. 2243, 2249 (2016); Taylor

v. United States 495 U.S. 575, 588 (1990). The categorical or

"jury should . . . be instructed that any inference does not shift

the burden of proof, and that they are not bound to accept any

inference and may reject it").

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modified categorical approach "applies not just to jury verdicts,

but also to plea agreements." Descamps v. United States, 570 U.S.

254, 262-63 (2013). Despite the criticisms and defenses of the

categorical approach, it is binding on us, and thus there is no

reason not to apply it here.

The Maine trafficking statute at issue here is divisible

because there are a number of distinct ways to "traffick." See

Me. Stat. tit. 17–A, §§ 1101(17), 1103. Some, including the one

involved here, explicitly require an intent to distribute as an

element of the crime. For divisible statutes, or those "that

contain several different crimes, each described separately,"

Moncrieffe v. Holder, 569 U.S. 184, 191 (2013), the Supreme Court

has "approved [use of] the 'modified categorical approach.'"

Mathis, 136 S. Ct. at 2249. When taking the modified categorical

approach, "a sentencing court looks to a limited class of documents

. . . to determine what crime, with what elements, a defendant was

convicted of." Id. These are known as Shepard documents, and

include "the indictment, jury instructions, or plea agreement and

colloquy." Id. We conclude from these permissible documents that

Mohamed's Maine conviction falls under a provision requiring

intent to distribute as an element.

This case is not about the wisdom of the categorical

approach, and whether the reasons for it are convincing or not is

simply irrelevant.

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B. Mohamed's Maine Conviction

In August 2013, a Maine grand jury indicted Mohamed on

several charges, including several counts of aggravated

trafficking in scheduled drugs and one count of unlawful

trafficking of scheduled drugs. At the plea colloquy, after the

indictment had been modified, the State judge described to Mohamed

the unlawful trafficking charge as "intentionally and knowingly

traffick[king] in what you knew or believed to be a scheduled drug,

which was, in fact, cocaine [base], a schedule W drug." Mohamed

stated that he understood this charge, and pleaded guilty to an

intent crime.

The intent element in Maine law Sections 1101(17)(C) and

(D) is not stripped away by the existence of the Maine law Section

1103 permissible inference. The government first argues that the

Shepard documents establish that the State relied on those sections

requiring intent as an element, and that ends the matter. It

argues that the district court strayed from the proper modified

categorical approach. It contends that the permissible inference

in any event still means that the prior offense is a controlled

substance offense and does not negate the required finding of the

element of an intent to distribute. The government also

distinguishes this court's decision in Mulkern on a number of

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grounds, and says Oliveira (D. Me.) was both wrongly decided and

did not follow from this court's decision in Mulkern.

Mohamed rests much of his argument on the reasoning of

the district court opinion in Oliveira (D. Me.), and argues that

the permissible inference means that the Maine legislature

intended to proscribe "as trafficking the mere possession of a

tiny amount . . . of a mixture containing cocaine base."6 We

disagree with this purported reading of Maine law. A corollary is

his argument that such an amount is not enough to raise a rational

inference of intent to distribute, as required for a "controlled

substance offense."

Assuming arguendo that the district court correctly

performed the modified categorical approach, we turn to the

underlying legal issue: whether Section 1103's permissible

inference means that a conviction under Section 1103(1-A)(A),

based on the definition of trafficking in Section 1101(17)(C)-(D),

cannot constitute a "controlled substance offense." We determine

6 Mohamed cites to State v. McLaughlin, 189 A.3d 262 (Me.

2018), in support of this point. That case is of limited

relevance, though, because it considered an aggravated trafficking

charge where the government needed to prove, as a statutory

element, that the amount of cocaine base involved was thirty-two

grams or greater. The key question there concerned whether that

quantity needed to be pure cocaine base, or could be cocaine base

mixed or cut with other substances. There is no such direct

quantity element for trafficking in cocaine base, to which Mohamed

pleaded guilty (based on the Shepard documents). Similarly, State

v. Pinkham, 137 A.3d 203 (Me. 2016), which focuses on weight-based

drug convictions, id. at 205, is not instructive here.

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first that Mohamed's conviction was under a section requiring

intent (and did not, in any event, rest on the permissible

inference). We determine second that the permissible inference

does not mean that a conviction under Section 1103 based on the

definition of trafficking in Section 1101(17)(C)-(D) is not a

"controlled substance offense."

1. The Permissible Inference and Mohamed's Maine Conviction

First, there is no evidence from the Shepard documents

that Mohamed's Maine conviction rested on anything other than his

intentional distribution plea. Also, the State prosecution is

under no burden to rely upon or use the permissible inference.

See Peakes, 440 A.2d at 355. Even assuming to Mohamed's benefit

that the permissible inference impacted, in some unspoken way, his

decision to plead guilty to the Maine charge -- although nothing

in the record suggests this -- the State was prepared to offer and

rely on evidence of intentional trafficking (other than the

inference), which it would have sought to prove at trial.

Aware of the circumscribed scope of the modified

categorical approach, we look to the plea colloquy here not to

determine "the facts presented or admitted to by the defendant,"

United States v. Kennedy, 881 F.3d 14, 22 (1st Cir. 2018), but to

discern on which portion of the divisible statute the State charged

and proceeded. It is undisputed that the "brute facts" of the

crime, id. at 21 (quoting Mathis, 136 S. Ct. at 2251), are not

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relevant to this case. In discerning which portion of a divisible

statute is involved, the facts that the government said it would

have sought to prove at trial demonstrate the portion of the

divisible statute under which the State proceeded.7

Here, State prosecutors made clear the plea was to

intentional trafficking. Indeed, they never mentioned the

permissible inference during the plea colloquy. Instead, during

the recitation of facts that the government would have sought to

prove at trial, the State prosecutor explained the amount of

cocaine base involved: 5.7 gross grams found in a glassine bag

near Mohamed. The prosecutor did not connect this amount to the

permissible inference regarding trafficking. The prosecutor

instead told the court that "we would show that the $582 [found on

Mohamed] was or could be proved to be part of drug proceeds,"

"based on the interview with [a man walking with Mohamed at the

7 Considering whether or not the permissible inference is

invoked helps us in doing the required divisibility analysis under

the modified categorical approach. If the permissible inference

is invoked by the State, that immediately rules out two forms of

"traffick[ing]" under Maine law: the provisions statutorily

defining trafficking based only on the amount of heroin or fentanyl

powder possessed. See Me. Stat. tit. 17–A, § 1101(17)(E)-(F).

Evaluating whether the permissible inference was invoked

in a plea colloquy, then, is part of properly using the modified

categorical approach as a "tool to identify the elements of the

crime of conviction when a statute's disjunctive phrasing renders

one (or more) of them opaque," Mathis, 136 S. Ct. at 2253, and

helps to "assess whether the plea was to the version of the crime

. . . corresponding to the generic offense," Descamps, 570 U.S. at

262 (citing Shepard, 544 U.S. at 25-26).

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time of arrest], as well as . . . [a] previous investigation that

took place on May 6 and interviews done with people that had come

into contact with Mr. Mohamed." In addition, the prosecutor stated

the drugs were packaged for distribution:

I should also point out that we would . . .

show trafficking because of the way the baggie

[containing cocaine base] was packed; it had

individual baggies within it; to show that

there was an intent to distribute it, rather

than just for personal use. That's

essentially the State's case.

The State prosecutor also laid out other evidence with which the

State would have sought to prove intentional drug distribution,

including defendant's possession of a bag with several firearms.

We look to the plea colloquy to determine whether the portion of

the statute involved distributive intent, which, as a matter of

Maine law, it does.

In this same hearing, the State judge had explained to

Mohamed that:

On the trafficking charge, the state is

required to prove that . . . you acted

intentionally, that it was your conscious act

to do so or knowingly, you were aware . . .

[and] certain that your actions would cause

this result in trafficking, and to traffic[k]

is to sell, buy, to trade, exchange, or

otherwise furnish to another, and to furnish

is to . . . give, dispense, deliver, or

otherwise transfer to another what you knew or

believed to be a scheduled drug, which was in

fact a scheduled drug, which was, in fact,

cocaine-base[], a Schedule[] W drug.

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Mohamed pled to that offense. The judge made no mention of the

Section 1103 permissible inference.

A statutory presumption -- where a "statute by its terms

applies to those who do not intend to distribute as long as they

possess the requisite quantity," United States v. Brandon, 247

F.3d 186, 195 (4th Cir. 2001) -- is qualitatively different from

the permissible inference under Section 1103, where the final

inquiry remains whether a defendant intended to distribute the

drug at issue (considering all of the evidence).8 As the Maine

Supreme Judicial Court held in Peakes, the possession of an amount

of a drug (there, marijuana) that would allow the permissible

inference under Section 1103(3) "is not a necessary element of the

crime of trafficking; it is a means by which the crime may be

proved." 440 A.2d at 354. The permissible inference does not

negate the distributive intent element of the crime. See Me. Stat.

tit. 17–A, § 1101(17)(C)-(D).9 Thus, as a matter of Maine law, a

8 The district court in Oliveira is wrong that "it makes

little difference as a practical matter for the accused person

whether the state labels [the] threshold determination as a

permissive evidentiary inference or as a conclusive presumption as

part of the definition of the offense." 287 F. Supp. 3d at 107.

It may indeed make a large practical difference, presuming a jury

has been properly instructed.

9 Mohamed cites United States v. Latham, 874 F.2d 852 (1st

Cir. 1989), to suggest intent to distribute cannot necessarily be

inferred from possession of one ounce of cocaine. But again,

Mohamed's Maine conviction did not stand only on an inference from

possession of a set quantity of cocaine base. In Latham, "there

[was] nothing in the record from which it could be found that [the

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jury must find distributive intent, whether it uses the permissible

inference or not.

Accordingly, Oliveira (D. Me.) is wrong that, for the

purposes of considering a "controlled substance offense" under the

Sentencing Guidelines, "Maine's permissive inference instruction

for cocaine [in subsection (D)] demands similar treatment to its

conclusive presumption for heroin and fentanyl addressed in

Mulkern." 287 F. Supp. 3d at 106. A Maine conviction for

trafficking resting on the definition in Section 1101(17)(D) ("To

possess with the intent to do any act mentioned in paragraph C

[sell, barter, trade, exchange or otherwise furnish for

consideration]") qualifies as a "controlled substance offense."

In summary, the Shepard documents establish that

Mohamed's Maine conviction rested on intentional distribution, to

which he pled. The elements of the statute at issue -- when taking

into account the definitions of "traffick" relevant here, see Me.

Stat. tit. 17–A, § 1101(17)(C)-(D) -- include intent to

distribute. This element is not swept away by the existence of a

permissible inference. Again, the statutory elements here closely

track the "controlled substance offense" definition in the

defendant] possessed (actually or constructively) cocaine which he

intended to distribute." Id. at 862. Here, the State prosecutors

offered evidence they would have sought to prove at trial

supporting intent to distribute, and the crime to which Mohamed

pleaded guilty included an intent element that is not negated by

the existence of a permissible inference.

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Guidelines. Mohamed's Maine conviction is properly a "controlled

substance offense" under the Guidelines.

2. Assuming the Use of the Permissible Inference

Second, even were we not allowed to refer to these

documents and were required to assume that this is a case involving

the permissible inference because it might have impacted Mohamed's

plea, despite all the evidence to the contrary, we would reach the

same result. Importantly, the Supreme Court has held that "[a]

permissive inference does not relieve the State of its burden of

persuasion because it still requires the State to convince the

jury that the suggested conclusion should be inferred based on the

predicate facts proved." Francis v. Franklin, 471 U.S. 307, 314

(1985).10 Maine law is not to the contrary. The relevant jury

instruction in Maine states: "You may reject an inference if you

wish. The ultimate decision is up to you . . . . [Y]ou must

remember that the burden remains on the State to prove each element

of the offense beyond a reasonable doubt." Me. Jury Instr. Manual,

§ 6-13 (2013) (emphasis added). And distributive intent is an

element.

Our decision in Mulkern is clearly distinguishable from

this case. In Mulkern we held, among other things, that the

defendant's Maine drug trafficking conviction did not qualify as

10The government fails to cite Francis in its opening brief

or reply brief, despite its relevance to this case.

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an ACCA predicate "serious drug offense" because intent to

distribute could not be inferred from the title of the Maine

trafficking statute nor from merely possessing two grams or more

of heroin. 854 F.3d at 96. There, the defendant had pleaded

guilty to trafficking in Maine in 2004, based on the provision of

the Maine trafficking statute containing a statutory presumption

of trafficking in subsection (E) based only on the amount, either

in grams or receptacles, of heroin possessed ("To possess 2 grams

or more of heroin or 90 or more individual bags, folds, packages,

envelopes or containers of any kind containing heroin," Me. Stat.

tit. 17–A, § 1101(17)(E)). Mulkern, 854 F.3d at 94. The

trafficking provision at issue in Mulkern does not require that

the government prove any other element of intent, such as the

intent to "sell, barter, trade, exchange or otherwise furnish for

consideration," Me. Stat. tit. 17–A, § 1101(17)(C)-(D); it must

only show mere possession of a set amount of heroin or receptacles

containing heroin.

In Mulkern, then, this court addressed arguments

concerning the inference of trafficking from the title of a

statute, and presumption of illegality from drug quantity or

containers alone, neither of which are presented here. That is,

distributive intent was not a necessary element of the portion of

the crime to which the defendant in Mulkern pleaded guilty. In

contrast, the crime to which Mohamed pleaded guilty did require

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distributive intent, as demonstrated in the plea colloquy, a

permissible Shepard document.

So this case does not raise what the Mulkern court called

the "difficult question" of "what is the right amount of drugs a

person must possess 'before this presumption of an intent to

distribute is appropriate.'" 854 F.3d at 96 (emphasis added)

(quoting Brandon, 247 F.3d at 192). Mohamed's Maine conviction

does not fall into this category of cases involving a statutory

presumption, and the permissible inference does not require courts

or juries to infer distributive intent from amount possessed. See

Me. Jury Instr. Manual, § 6-13 (2013).

C. Drug Weight and Relationship to Drug Trafficking

We asked for, and received, additional filings from the

parties, including data on federal drug trafficking convictions

where the amount of cocaine base was less than or close to four

grams and further discussion on drug quantity as it related to

personal use versus intent to distribute.

The district court stated in the sentencing hearing that

four grams of cocaine base "probably wouldn't be enough" to

constitute trafficking under federal law or allow an inference of

trafficking. This is incorrect. The government has provided data

from the United States Sentencing Commission demonstrating

hundreds of examples of federal drug trafficking convictions

involving less than 2.8 grams of cocaine base (and a corresponding

- 22 -

BOL of twelve),11 including forty-three in district courts of this

circuit between 2013 and 2017. The government also cited several

circuit cases -- albeit mostly unpublished opinions -- affirming

or sustaining federal drug trafficking convictions involving less

than four grams of cocaine base. See, e.g., United States v.

Moore, 481 F.3d 1113, 1115 (8th Cir. 2007). These cases cannot be

ignored.

Further, for federal drug trafficking crimes under 21

U.S.C. § 841(a)(1), the Pattern Criminal Jury Instructions for the

District Courts of the First Circuit allow for a permissible

inference of drug trafficking that is not linked to any numerical

drug quantity: "Intent to distribute may . . . be inferred from a

quantity of drugs larger than that needed for personal

use . . . . The law does not require you to draw such an

inference, but you may draw it." Pattern Criminal Jury

Instructions for the District Courts of the First Circuit

§ 4.21.841(a)(1)A (2018).

By the 2016 Sentencing Guidelines' Drug Equivalency

Tables in effect at the time of Mohamed's federal sentencing in

April 2018, four grams of cocaine base was equivalent to 14,284

11 Between four and 5.6 grams would lead to a BOL of

fourteen under the Guidelines. U.S.S.G. § 2D1.1(c). The Maine

permissible inference only applies to possession of "4 grams or

more." Me. Stat. tit. 17–A, § 1103(3).

- 23 -

grams of marijuana, or about 504 ounces. U.S.S.G. § 2D1.1 cmt.

8(D) (2016). Turning to our caselaw, in United States v. Oliveira,

this court affirmed a sentencing enhancement regarding

distribution where under eight grams of marijuana was found (among

other evidence reasonably related to drug trafficking, such as

packaging in small baggies). 907 F.3d 88, 92 (1st Cir. 2018).

That is, a far smaller amount of marijuana than the marijuana

equivalency of four grams of cocaine base has sufficed to support

a sentencing enhancement based on drug distribution. Based on the

Guidelines and our caselaw, four grams of cocaine base is an amount

rationally related to drug distribution.12 See United States v.

Henry, 848 F.3d 1, 14 (1st Cir. 2017) (finding approximately three

grams of cocaine base "consistent with an intent to distribute").

Finally, to the extent Mohamed evinces concern with a

small amount of cocaine base being found in a mixture weighing

over four grams, that neither negates our earlier reasoning nor

12 Mohamed argues that four grams "is not evidence of intent

to distribute," and cites an academic article discussing binge use

of cocaine base by a particular subset of users (African-American,

HIV-positive). However, expert witnesses and police officers in

a number of federal cases have testified that far lower amounts

than four grams are usually purchased by consumers for personal

use. See, e.g., United States v. McKissick, 204 F.3d 1282, 1298

(10th Cir. 2000) (officer testified that "a personal use quantity

of crack cocaine was usually one 'rock' weighing about 0.2 grams");

United States v. Andrade, 94 F.3d 9, 13 (1st Cir. 1996) (expert

witness testified he "had never seen a mere user with more than"

about one gram at a time). Based on our review of federal cases,

the majority view is that four grams is not consistent with mere

personal use.

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distinguishes Maine law from federal law. The Sentencing

Guidelines were, and are, clear on this point: "Unless otherwise

specified, the weight of a controlled substance set forth in the

[drug equivalency] table refers to the entire weight of any mixture

or substance containing a detectable amount of the controlled

substance." U.S.S.G. § 2D1.1 n.A. Similarly, in considering

penalties for drug trafficking and manufacturing under 21 U.S.C.

§ 960, the statute considers amounts "of a mixture or

substance . . . which contains cocaine base," not of isolated

cocaine base. Id. §§ 960(b)(1)(C), 960(b)(2)(C). Maine law is

not contrary to federal law regarding the calculation of the

quantity of cocaine base involved in an offense.

III.

So long as it is taken into consideration, our result

-- that Mohamed is eligible for an increased guideline imprisonment

range based on a prior "controlled substance offense" -- does not

affect the sentencing judge's discretion as to the sentence imposed

on remand. See 18 U.S.C. § 3553; United States v. Stone, 575 F.3d

83, 89 (1st Cir. 2009) (recognizing "district courts['] discretion

to disagree with many guidelines").

We vacate Mohamed's sentence and remand to the district

court for resentencing consistent with this opinion.

-Dissenting Opinion Follows-

- 25 -

BARRON, Circuit Judge, dissenting. Once again, we

confront a challenge to the application of a federal sentencing

enhancement to a defendant's prior state law conviction. Once

again, we must try to divine whether the conviction triggers the

enhancement. We have confronted this issue many times in the

context of crimes of violence. We do so here in the context of a

drug offense: trafficking cocaine base in violation of Maine law.

See Me. Stat. tit. 17-A, §§ 1101(17), 1103(1-A).

The government contends that, because Noor Mohamed was

convicted of the prong of this offense that requires proof of

possession of cocaine base with an intent to "sell, barter, trade,

exchange or otherwise furnish [it] for consideration," see id.

§ 1101(17)(C)-(D), he is subject to a sentencing enhancement under

the United States Sentencing Guidelines, U.S.S.G. § 2K2.1(a).

That enhancement is triggered by a conviction for a "controlled

substance offense," id., which the Guidelines elsewhere define, in

relevant part, to be only an offense that prohibits the "possession

of a controlled substance . . . with intent to manufacture, import,

export, distribute or dispense," id. § 4B1.2(b).

Under prevailing precedent, we must use the so-called

"categorical approach" to determine whether Mohamed's conviction

for his Maine drug trafficking offense triggers this enhancement.

See United States v. Dávila-Félix, 667 F.3d 47, 55 (1st Cir. 2011)

(applying the categorical approach to federal Sentencing

- 26 -

Guidelines); Maj. Op. 12. Thus, only if the least of the conduct

that this Maine offense criminalizes would itself qualify as a

"controlled substance offense" under § 2K2.1(a) may a court apply

this federal sentencing enhancement to Mohamed. See Moncrieffe v.

Holder, 569 U.S. 184, 190-91 (2013) ("[W]e must presume that the

conviction 'rested upon nothing more than the least of the acts'

criminalized, and then determine whether even those acts are

encompassed by the generic federal offense." (quoting Johnson v.

United States, 559 U.S. 133, 137 (2010) (alterations omitted));

see also Dávila-Félix, 667 F.3d at 55-56.

Maine law permits a jury to draw an inference of the

distributive intent that is required under Me. Stat. tit. 17-A,

§ 1101(17)(D) based on the mere possession of a relatively small

amount of a mixture that contains even a speck of cocaine base.

See id. § 1103(3); id. § 1101(25)(B) (defining "cocaine" to mean

a "mixture" including "any quantity of" "cocaine" or "cocaine

base"); State v. McLaughlin, 189 A.3d 262, 268 (Me. 2018)

(construing "cocaine base" to mean a mixture including "any

quantity of cocaine base" for purposes of Maine's drug trafficking

statute, including for various quantitative thresholds in that

statute). Thus, that minimal possessory conduct is the least of

the conduct that the Maine offense at issue criminalizes.

In my view, the federal government has not met its

burden, Dávila-Félix, 667 F.3d at 55, to show that such minimal

- 27 -

possessory conduct manifests the "intent to manufacture, import,

export, distribute or dispense" that is necessary to trigger the

application of the Guidelines enhancement for having a prior

conviction for a "controlled substance offense." U.S.S.G.

§§ 2K2.1(a), 4B1.2(b). Accordingly, I conclude, like the District

Court, but unlike my colleagues, that the enhancement does not

apply here.

In arguing otherwise, the federal government first

contends that the Maine trafficking offense for which Mohamed was

convicted necessarily triggers the federal sentencing enhancement,

because that Maine offense itself contains a distributive intent

element. Our precedent makes clear, however, that, under the

categorical approach, we must inquire into how loosely Maine

defines that element. Only by doing so can we ensure that the

offense criminalizes no more conduct than the federal sentencing

enhancement's triggering offense. See United States v. Mulkern,

854 F.3d 87, 96 (1st Cir. 2017) (rejecting the government's

argument that an offense involved possession with intent to

distribute because the state legislature "designates the copped-

to crime as 'trafficking'").

The government separately attempts to meet its burden to

show that the Maine offense does not sweep too broadly to trigger

the enhancement by reference to materials that show the type of

evidence that suffices to prove the distributive intent element of

- 28 -

21 U.S.C. § 841(a)(1), a federal drug crime. The government

suggests that these materials are relevant for present purposes

because the Guidelines' definition of a "controlled substance

offense" necessarily encompasses conduct that suffices to satisfy

the distributive intent element of that federal drug crime.13

The materials to which the government refers do not,

however, help its cause. They include references to precedents in

which courts determined that the possession of more than four grams

of cocaine base did not, on its own, suffice to prove such

distributive intent. See United States v. Nealy, 221 F. App'x

329, 333 (5th Cir. 2007) (per curiam) (unpublished) (explaining

that, under 21 U.S.C. § 841(a)(1), testimony presented by the

government showed that while 5.01 grams of cocaine base "suggested

drug dealing," it also "indicated that this quantity is not clearly

inconsistent with personal use" and thus "additional evidence

[was] necessary to show intent to distribute" (emphasis added));

13 The government does not argue that the "intent to

manufacture, import, export, distribute, or dispense" in the

guidelines, U.S.S.G. § 4B1.2(b), may be defined by reference to

some "generic" "controlled substance offense." See Taylor v.

United States, 495 U.S. 575, 598 (1990) (defining burglary under

the Armed Career Criminal Act by reference to "generic" burglary).

In any event, the only attempt to compare Maine's statute to other

states' trafficking laws of which I am aware is unhelpful to the

government. Specifically, the Oliveira court surveyed the laws of

several states and found the "dividing line between possession and

trafficking" under Maine law to be "too low to be confident that

Mr. Oliveira had the requisite distributive intent" to satisfy the

Guidelines. United States v. Oliveira, 287 F. Supp. 3d 97, 108

(D. Me. 2017).

- 29 -

United States v. Hunt, 129 F.3d 739, 742 (5th Cir. 1997) (holding

that, under 21 U.S.C. § 841(a)(1), possession of 7.998 grams of

cocaine base alone was insufficient to prove intent to distribute

beyond a reasonable doubt because it was "consistent with personal

use"). Nor does the government identify a single case that

indicates that -- as Maine's drug trafficking offense allows -- the

mere possession of a mixture that contains a speck of cocaine base

may, on its own, suffice to prove the requisite distributive intent

under 21 U.S.C. § 841(a)(1).

The federal government does direct our attention to the

drug quantity tables that are set forth in the Sentencing

Guidelines and to sentencing data from each of the circuits that

shows the "Base Offense Levels for Drug Trafficking in Each Drug

Type." But, the tables purport only to relate to the calculation

of the Guidelines sentencing range for a person convicted of a

federal drug crime. See U.S.S.G. § 2D1.1(c). They thus give no

insight into the least of the conduct criminalized by those federal

drug crimes. The sentencing data does identify the conduct of

defendants convicted of federal drug crimes, but that data, too,

does not purport to give insight into the key issue that, under

the categorical approach, we must resolve: whether possession of

a four-gram substance containing cocaine base in and of itself can

suffice to establish an "intent to manufacture, import, export,

distribute or dispense" within the meaning of the Guideline's

- 30 -

definition of a "controlled substance offense." See U.S.S.G

§§ 2K2.1(a), 4B1.2(b).

The majority, for its part, points to one of the § 841(a)

cases on which the government relies -- United States v. Moore,

481 F.3d 1113 (8th Cir. 2007) -- to contend that the government

has met its burden to show that the Guidelines enhancement

encompasses even possessory conduct of the minimal sort that the

Maine trafficking offense at issue here criminalizes. Maj. Op.

24. But, that case did not involve a sufficiency challenge -- let

alone one that directly addresses the type of possessory conduct

that, in and of itself, might suffice to prove distributive intent

under 21 U.S.C. § 841(a)(1). Thus, that case cannot demonstrate

what it must for the government to be able to prevail on its § 841-

based argument under the categorical approach.

I close by making two additional observations.

The first concerns how we apply the categorical

approach. The majority emphasizes -- repeatedly -- that the

Shepard documents, see Shepard v. United States, 544 U.S. 13

(2005), reveal that prosecutors did not need to, and in fact did

not, rely on the permissible inference to secure Mohamed's

conviction for the trafficking offense. See Maj. Op. 16-20.

If the majority emphasizes this point merely to shore up

the uncontested fact that Mohamed was convicted of the portion of

the Maine trafficking offense to which the permissible inference

- 31 -

provision -- rather than the irrebuttable presumption provision at

issue in Mulkern, 854 F.3d at 96 -- applies, then I have no quarrel.

Maj. Op. 16 n. 7. But, the majority appears to suggest that the

Shepard documents are also relevant to our analysis because they

show that Mohamed was convicted of his trafficking offense based

on conduct that was more severe than the least of the conduct that

this offense criminalizes. See Maj. Op. 17-18, 21. If so, it

seems to me that the majority is engaging in precisely the kind of

inquiry into the "brute facts" of Mohamed's means of committing

the offense that the categorical approach makes irrelevant. See

Mathis v. United States, 136 S. Ct. 2243, 2251 (2016).

After all, the permissible inference provision does not

establish an element of the offense for which, all parties agree,

Mohamed was convicted. See id. at 2248 ("[Elements] are what the

defendant necessarily admits when he pleads guilty[.]"). The

permissible inference provision merely sets forth a method for

proving the conduct that could satisfy an element of that

offense -- namely, the one that concerns Mohamed's distributive

intent. See Me. Stat. tit. 17-A, § 1103(3).

The second observation concerns the sense in applying

the categorical approach at all. My colleagues agree that, just

as our precedent instructs, the categorical approach does apply

here. Maj. Op. 12. That point, therefore, is not at issue in

this appeal.

- 32 -

I am aware, though, that the categorical approach has

received its fair share of criticism for the counter-intuitive

results that it often yields. See United States v. Faust, 853

F.3d 39, 61 (1st Cir. 2017) (Lynch, J., concurring) (collecting

statements). I am aware, as well, that an outcome like the one

that I am convinced that we must reach here -- in which we would

deem a drug "trafficking" offense not to constitute a "controlled

substance offense" -- might well add to that criticism. I thus

think it important to explain both that I do not share the oft-

expressed concern that the categorical approach is too counter-

intuitive to have been contemplated by those who drafted these

enhancements, see id. at 61-66 (Barron, J., concurring), and that

the outcome that I believe that approach requires in this case

does not lead me to see new merit to that concern.

Sentencing enhancements are often written in terms that

comfortably invite a categorical inquiry, see id. at 62-65, and

that is certainly true of the one before us, see U.S.S.G.

§ 4B1.1(b). In my view, when enhancements are written in terms

that invite such an inquiry, there is no reason to presume that

their drafters could not have intended for judges to determine the

scope of such enhancements by inquiring into the least of the

conduct criminalized by the predicate offense.

I say that because the decision to restrict (even if not

to eliminate) a sentencing judge's discretion to determine a

- 33 -

sentence on an individualized basis -- as sentencing enhancements

such as the one before us necessarily do -- is a consequential

one. I thus see no reason to presume that the drafters of such

enhancements made that type of decision in a manner that would

define the class of persons subject to them on the basis of merely

the name that a state gives to an offense or with no appreciation

of the difficulty of ensuring, retrospectively, that a defendant

had engaged in conduct more severe than the least of what the

offense of his conviction criminalized. Rather, it seems to me

entirely sensible to presume that, in choosing words that invite

judges to use the categorical approach to define an enhancement's

scope, the drafters of the enhancement chose to ensure that it

would accord with principles of lenity, cf. United States v.

Santos, 553 U.S. 507, 514 (2008) ("The rule of lenity requires

ambiguous criminal laws to be interpreted in favor of the

defendants subjected to them."), just as the categorical approach

ensures. See Faust, 853 F.3d at 65 (Barron, J., concurring).

Consistent with these conclusions about the likely

intent of the drafters of these enhancements, I note that, despite

the criticism that the categorical approach has engendered, no

changes have been made to this one by its drafters that would

require us to use a different approach. That is no doubt in part

because of the serious problems that inhere in the alternative

means that have been suggested to define the scope of sentencing

- 34 -

enhancements that are predicated on prior state offenses. See id.

at 61-66.

Thus, I wish to emphasize that the result that I would

reach here demonstrates to me the sense that inheres in the

categorical approach -- insofar as there is any sense in

establishing such enhancements -- rather than the merit of the

critiques that have been lodged against it. For, I can see no

good reason to conclude that the drafters of U.S.S.G.

§§ 2K2.1(a)(2), 4B1.2(b), in establishing a sentencing enhancement

for defendants who have been convicted of drug offenses that

require proof of distributive intent, actually intended for it to

a apply to a defendant convicted of a drug offense that -- though

labeled as one for "trafficking" -- requires proof of nothing more

than possessory conduct of a most minimal sort.

On this understanding, I respectfully dissent.

- 35 -