United States v. Julio Aviles, Sr.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Case No. 18-2967

UNITED STATES OF AMERICA

v.

JULIO AVILES, SR.,

Appellant

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(District Court No.: 1-15-cr-00181-001)

District Judge: Honorable John E. Jones, III

Argued on July 9, 2019

(Opinion filed: September 12, 2019)

Before: McKEE, ROTH and RENDELL, Circuit Judges

Daryl F. Bloom

Stephen R. Cerutti, II (Argued)

Office of United States Attorney

228 Walnut Street

P. O. Box 11754

220 Federal Building and Courthouse

Harrisburg, PA 17108

Counsel for Appellee

Quin M. Sorenson (Argued)

Office of Federal Public Defender

100 Chestnut Street

Suite 306

Harrisburg, PA 17101

Counsel for Appellant

OPINION

RENDELL, Circuit Judge:

Appellant Julio Aviles, Sr. was charged with various

federal drug trafficking crimes and related offenses based, in

large part, on evidence obtained pursuant to a search warrant.

Aviles moved to suppress evidence obtained in the search or,

alternatively, for a hearing to challenge the validity of the

warrant. The District Court denied his motion, and he was

2

convicted on all counts. At sentencing, the Government sought

a term of mandatory life imprisonment pursuant to the

Controlled Substances Act, 21 U.S.C. § 841(b), arguing that

Aviles’s prior state court convictions qualified as “felony drug

offenses” under the statute. The District Court agreed and

sentenced him accordingly. Aviles appeals the denial of his

motion to suppress evidence obtained pursuant to the warrant

and the District Court’s order sentencing him to life

imprisonment. We will affirm the District Court’s denial of his

motion to suppress, but, because we hold that at least two of

his prior convictions do not qualify as felony drug offenses, we

will vacate the District Court’s sentencing order and remand

for resentencing.

I.

In the course of investigating reports that Aviles was

conducting a drug trafficking operation, the Lebanon County

Drug Task Force applied for a search warrant to search, among

other locations, Aviles’s residence. In the affidavit of probable

cause in the warrant application, Detective Ryan Mong and

Sergeant Brett Hopkins, the affiants, relied upon information

gathered through multiple controlled buys conducted by a

confidential information, “RCI-1.” The affidavit states that

RCI-1 was involved in a total of eight successful controlled

buys and describes the five that involved purchases of narcotics

from Aviles. These descriptions included, among other things,

the dates of the buys and, for four of the five, that RCI-1

exchanged money for narcotics. 1 The affidavit also describes

1

The application is silent on what she exchanged during the

fifth buy.

3

the affiants and their experience on the Lebanon County Drug

Task Force, and offers a general explanation of the execution

of controlled buys, which included a statement that an

informant “is provided recorded Drug Task Force currency to

make the purchase” during a controlled buy.

A magistrate judge issued a warrant, and, in the

resulting searches, law enforcement recovered large quantities

of multiple controlled substances, drug paraphernalia, and

firearms. Aviles and twelve co-defendants were arrested and

charged with various drug trafficking crimes and related

offenses. In the twenty-one-count indictment, Aviles was

charged with conspiracy to distribute heroin, cocaine, and

cocaine base in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(A)(i), and (b)(1)(A)(iii) (Count 1); possession with

intent to distribute heroin in violation of 21 U.S.C. §§ 841(a)(1)

and (b)(1)(B)(i) (Count 2); possession with intent to distribute

cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(B)(iii) (Count 3); possession with intent to distribute

cocaine hydrochloride in violation of 21 U.S.C. §§ 841(a)(1)

and (b)(1)(C) (Count 4); distribution of cocaine hydrochloride

in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) (Count 5);

distribution of cocaine base in violation of 21 U.S.C. §§

841(a)(1) and (b)(1)(C) (Count 6); distribution of heroin in

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) (Counts 11,

14, and 15); possessing a firearm in furtherance of a drug

trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)

(Count 19); unlawful possession of a firearm in violation of 18

U.S.C. § 922(g)(1) (Count 20); and maintaining a drug-

involved premises in violation of 21 U.S.C. § 856(a) (Count

21).

4

After pleading not-guilty, Aviles moved to suppress the

evidence discovered through the searches authorized by the

warrant because, he claimed, the officers who had submitted

the affidavit included false information and omitted other

information, each of which may have affected the magistrate

judge’s decision to issue the warrant. Specifically, he argued

that, while the general description of controlled buys

represented that currency is exchanged for drugs at all

controlled buys, some of Aviles’s buys may have involved

RCI-1’s exchanging prescription drugs instead of currency. He

also claimed that RCI-1 had conducted additional drug-related

transactions with Aviles outside of the controlled buys. In his

motion, Aviles argued that he had made “a substantial

preliminary showing” that the false information and omissions

were made intentionally or recklessly, and the falsity and

omissions undermined the probable cause finding, and,

therefore, he is entitled to an evidentiary hearing pursuant to

Franks v. Delaware, 438 U.S. 154, 155–56 (1978).

Although the District Court determined that Aviles had

not made “a substantial preliminary showing” to warrant a

Franks hearing, the Court conducted an evidentiary hearing to

allow him to further develop his claim and make that showing.

The Court allowed both parties to question Detective Mong

and Sergeant Hopkins regarding their affidavit of probable

cause but refused the defense’s request to question RCI-1

based on concerns regarding her identity. In supplemental

briefing following the hearing, and based on the officers’

testimony, Aviles asserted that at least two of the controlled

buys involved an exchange of personal property for the drugs, 2

2

The District Court did not allow the defense to inquire into

the exact nature of the personal property exchanged because,

5

that Aviles and RCI-1 had a “relationship” independent of the

controlled buys, that RCI-1 was a heroin addict, and that she

had failed to abide by some of the officers’ instructions during

the controlled buys. He asked that the District Court suppress

the evidence discovered through the search pursuant to the

warrant.

The District Court denied Aviles’s motion to suppress,

holding that he had failed to make the requisite threshold

showing under Franks that the inaccuracies and omissions in

the affidavit were made deliberately or recklessly. The Court

also dismissed Aviles’s challenges to RCI-1’s credibility,

reasoning that the affidavit “contained sufficient information

for the judge to evaluate the informant’s reliability.” A. 166

n.2.

A jury convicted Aviles of all counts. Prior to

sentencing, the Government indicated that it would seek

mandatory life imprisonment pursuant to the Controlled

Substances Act, 21 U.S.C. § 841(b). Under the law at the time,

such a sentence could be imposed upon a defendant who had

two or more previous convictions for “felony drug offenses.”

21 U.S.C. § 841(b)(1)(A). The Government averred that

Aviles had three qualifying predicate state convictions: (1)

possession of a controlled dangerous substance with intent to

distribute near a school zone in violation of N.J. Stat. § 2C:35-

7, (2) operation of a controlled substance production facility in

violation of N.J. Stat. § 2C:35-4, and (3) possession of a

dangerous substance with intent to distribute or manufacture in

violation of Md. Crim. Code § 5-602. In support, the

as the Government asserted, doing so may reveal RCI-1’s

identity.

6

Government submitted charging documents and commitment

orders from the New Jersey convictions and a docket report

from the Maryland conviction.

Aviles objected to the application of Section 841(b),

arguing that none of his prior convictions qualified as felony

drug offenses. In order to qualify as a predicate offense, he

claimed that the state crime must criminalize the same

controlled substances as those named in the Controlled

Substances Act, 21 U.S.C. § 802(44), and the state crimes of

which he had been convicted each named at least one

additional substance not listed in § 802(44). He also argued

that the Maryland conviction was not his.

The District Court overruled Aviles’s objections. The

Court first noted that whether Aviles’s prior convictions

qualified as felony drug offenses hinged on the approach used

to compare them to the federal definition. Under one approach,

the categorical approach—described in Taylor v. United

States—a court may only look to the statutory elements of a

defendant’s prior offenses and not to the facts underlying those

convictions. See 495 U.S. 575, 600–01 (1990). Under the

other, the modified categorical approach, a court is permitted

to look at the statutory elements and record documents from

the underlying convictions. Mathis v. United States, 136 S. Ct.

2243, 2249 (2016). The former approach applies to indivisible

statutes, or statutes that set forth only one crime, while the

latter applies to divisible statutes, or statutes that include more

than one crime. See id. at 2248–49. Citing Mathis, the District

Court first determined that the New Jersey statutes under which

Aviles had been convicted were divisible and, therefore,

subject to the modified categorical approach. Because the

indictment clearly established that Aviles’s conviction had

7

included heroin as an element for each of his New Jersey

convictions and because crimes involving heroin are felony

drug offenses, the Court held that his convictions qualified as

such for purposes of 21 U.S.C. § 841(b)(1).

The District Court also briefly addressed Aviles’s

Maryland conviction, overruling his objection because “a

history report generated by the Defendant’s fingerprints is

sufficient to prove that the prior conviction is properly

attributed to the Defendant.” A. 618–19. However, the Court

noted that a conclusive ruling on the nature of this conviction

was not necessary in order to impose a mandatory life sentence,

since it concluded that he had been convicted of the requisite

two felony drug offenses. The Court held that its determination

that Aviles’s New Jersey convictions qualify as such is

sufficient and, accordingly, sentenced him to a term of life

imprisonment. This appeal followed.

After the District Court entered its sentencing order but

while Aviles’s appeal was pending, Congress amended the

Controlled Substances Act with the First Step Act of 2018,

Pub. L. No. 115-391, § 401. The First Step Act replaced the

mandatory term of life imprisonment with a mandatory term of

25 years. § 401(a)(2)(A)(ii) (amending 21 U.S.C. § 841(b)). It

also replaced the term “felony drug conviction” with “serious

drug felony” and limited the offenses that qualified for that

mandatory sentence. § 401(a)(1) (amending 21 U.S.C. § 802).

The First Step Act provides that the amendments made by it

“shall apply to any offense that was committed before the date

of enactment of this Act, if a sentence for the offense has not

been imposed as of such date of enactment.” § 401(c).

8

II.

The District Court had jurisdiction pursuant to 18

U.S.C. § 3231. We have jurisdiction under 28 U.S.C. §§ 1291

and 3742(e).

III.

On appeal, Aviles urges that we should vacate his

conviction because the District Court erred by denying his

motion to suppress or, alternatively, by denying him a Franks

hearing. He also seeks resentencing, arguing that a term of life

imprisonment should not have been imposed under either the

First Step Act or the prior version of the Controlled Substances

Act.

A.

In challenging his conviction, Aviles claims that the

affidavit submitted in support of the warrant application

contained two factual errors and omitted several important

pieces of information. Specifically, he urges that the affidavit

incorrectly stated that RCI-1 paid for the drugs with police

currency at every buy and that RCI-1 exchanged cash for drugs

on April 15. He also argues that the affidavit omitted that

personal property was traded for drugs on March 30, that RCI-

1 scheduled controlled buys without police instruction, that

RCI-1 was a heroin addict, any information with which a judge

could assess RCI-1’s reliability, that RCI-1 had an

“independent relationship” with Aviles, and that the personal

property was illicit. Br. for Appellant at 17 (internal quotation

marks omitted). Aviles urges that these errors and omissions

were, at the very least, made recklessly and affected the

9

magistrate judge’s probable cause determination. Thus, he

claims that we cannot say with certainty that the warrant would

have issued had these errors and omissions been corrected, and

the District Court should have granted his motion to suppress,

or, alternatively, granted him an opportunity to support his

motion in a Franks hearing. On this basis, he asks that we

vacate his conviction.

The Fourth Amendment provides that “no Warrants

shall issue but upon probable cause, supported by Oath or

affirmation.” U.S. Const. amend. IV. In Franks, the Supreme

Court held that a defendant has a right to challenge the veracity

of statements made in an affidavit of probable cause that

supported the issuance of a warrant. See Franks, 438 U.S. at

167–71. In order to obtain a hearing to do so, the defendant

must first make “a substantial preliminary showing” that the

affidavit contained a false statement or omission that (1) was

made knowingly and intentionally, or with reckless disregard

for the truth, and (2) was material to the finding of probable

cause. Franks, 438 U.S. at 155–56; see also United States v.

Yusuf, 461 F.3d 374, 383 (3d Cir. 2006). A motion to suppress

is granted if, at the hearing, the defendant establishes the same

elements by a preponderance of the evidence. See Franks, 438

U.S. at 156. Thus, if Aviles cannot show that he is entitled to

a Franks hearing, he necessarily cannot show that his motion

to suppress should have been granted. Accordingly, we will

first consider his argument that the District Court erred in

denying him a Franks hearing. 3

3

We have not yet determined the standard of review that

applies to a district court’s denial of a Franks hearing, see

United States v. Pavulak, 700 F.3d 651, 665 (3d Cir. 2012), but

because our conclusion is the same under any standard,

10

In this case, regardless of whether the alleged omissions

and misstatements were made knowingly or recklessly, Aviles

has failed to substantially show that probable cause would have

been lacking if they had not been made. The following facts,

among others, were supported by the affidavit and would have

been unaffected by the deletion of the misstatements and the

inclusion of the omissions:

• the affiants have extensive experience with the Lebanon

County Drug Task Force;

• RCI-1 assisted the affiants in a total of eight police-

supervised controlled buys, six of which involved the

exchange of cash for drugs and two of which involved

personal property; 4

• the affiants conducted “a complete strip search” of RCI-

1 immediately before each buy, A. 60;

• the affiants witnessed RCI-1 enter the locations of the

controlled buys without heroin and saw her reappear

with it afterwards;

including plenary review, this case does not require us to adopt

one.

4

Aviles contends that drugs were exchanged for drugs, but he

does not provide sufficient evidence to support his claim.

Instead, the record shows that the affiants conducted a

thorough search of RCI-1 and her belongings before every

controlled buy, and that the personal property exchanged at the

controlled buys was legal and photographically documented.

11

• the affiants witnessed one of the deals, which occurred

inside Aviles’s car;

• the affiants conducted a search of RCI-1’s person and

belongings after each buy;

• the affiants witnessed “short term vehicle traffic . . .

consistent with drug trafficking” coming and going at

Aviles’s residence, A. 59; and

• the affiants conducted a background check on Aviles,

which revealed multiple prior felony drug convictions.

These facts, on their own, provided probable cause to support

the issuance of the warrant. Moreover, they are dependent

upon police observation and, thus, would not be affected by a

judge’s questioning of RCI-1’s credibility. Because Aviles has

not made a substantial showing that the alleged omissions and

misstatements would have been material to the magistrate

judge’s probable cause determination, we conclude that the

District Court did not err in denying his request for a Franks

hearing. Accordingly, because he failed to meet his burden to

support a Franks hearing, he necessarily cannot show that his

motion to suppress should have been granted. We will affirm

the District Court’s denial of that motion.

B.

Aviles’s challenge to the District Court’s sentencing

order is twofold: First, he urges that the First Step Act, which

was enacted while this case was pending on appeal, applies.

Because that legislation replaced the mandatory life sentence

with a mandatory term of 25 years’ imprisonment and limited

12

the predicate offenses that would qualify a defendant for a

mandatory sentence, Aviles argues that his life sentence should

be vacated. Even if we determine that the First Step Act does

not apply, he argues that his prior state convictions do not

qualify as felony drug offenses under the former version of the

Controlled Substances Act.

1.

Aviles’s first argument, that the First Step Act applies

to him, is based on the language provided in Section 401(c) of

that Act: Amendments made by it “shall apply to any offense

that was committed before the date of enactment of this Act, if

a sentence for the offense has not been imposed as of such date

of enactment.” Pub. L. No. 115-391, § 401(c). The crux of

Aviles’s argument is that a sentence is not “imposed” until

entry of final judgment by the highest court authorized to

review it.

Although we have not yet had occasion to determine the

applicability of the First Step Act to cases pending on appeal

at the time of its enactment, the Seventh Circuit recently

addressed the issue in United States v. Pierson and held that

the defendant’s “[s]entence was ‘imposed’ here within the

meaning of [the First Step Act] when the district court

sentenced the defendant.” 925 F.3d 913, 927–28 (7th Cir.

2019). The court rejected reasoning from United States v.

Clark, which suggested that “[a] case is not yet final when it is

pending on appeal,” id. at 928 (quoting 110 F.3d 15, 17 (6th

Cir. 1997)), because “no other circuits have applied Clark’s

definition of ‘imposed’” and because the word more

commonly applies to the activity of district courts. Id.; see also

id. at 927 (citing federal statutes and rules that indicate that a

sentence is imposed by a district court).

13

We agree. “Imposing” sentences is the business of

district courts, while courts of appeals are tasked with

reviewing them by either affirming or vacating them. See, e.g.,

United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (“In

other words, if the district court’s sentence is procedurally

sound, we will affirm it unless no reasonable sentencing court

would have imposed the same sentence on that particular

defendant for the reasons the district court provided.”

(emphasis added)); Rita v. United States, 551 U.S. 338, 352

(2007) (“A pro-Guidelines ‘presumption of reasonableness’

will increase the likelihood that courts of appeals will affirm

such sentences, thereby increasing the likelihood that

sentencing judges will impose such sentences.” (emphasis

added)). Congress did not refer to “finality,” and imposition

and finality are two different concepts. Congress’s use of the

word “imposed” thus clearly excludes cases in which a

sentencing order has been entered by a district court from the

reach of the amendments made by the First Step Act. 5

Accordingly, we hold that that Act does not apply to Aviles.

5

Many of the cases to which Aviles cites in support of his

argument discuss abatement by repeal, a common law rule

requiring “abate[ment] of all prosecutions which had not

reached a final disposition in the highest court authorized to

review them” when a criminal statute is repealed or reenacted

with different penalties. Bradley v. United States, 410 U.S.

605, 607–08 (1973). But even that rule does not apply where

“there is statutory direction or legislative history to the

contrary.” United States v. Dixon, 648 F.3d 195, 199 (3d Cir.

2011) (quoting United States v. Jacobs, 919 F.2d 10, 11 (3d

Cir. 1990)) (internal quotation marks omitted); see also

Bradley, 410 U.S. at 608 (“To avoid such results, legislatures

frequently indicated an intention not to abate pending

14

2.

We next turn to Aviles’s argument that the District

Court erred in imposing a life sentence under the prior version

of the Controlled Substances Act. Specifically, Aviles urges

that his New Jersey and Maryland convictions do not qualify

as felony drug offenses under that Act. Because his challenge

presents a purely legal question, we exercise plenary review

over the District Court’s sentencing order. United States v.

Henderson, 841 F.3d 623, 626 (3d Cir. 2016).

Pursuant to 21 U.S.C. § 841(b)(1)(A), convicted

defendants were subject to a mandatory term of life

imprisonment if they had previously been convicted of two or

more “felony drug offenses.” “Felony drug offense” is defined

as:

an offense that is punishable by

imprisonment for more than one

year under any law of the United

prosecutions by including in the repealing statute a specific

clause stating that prosecutions of offenses under the repealed

statute were not to be abated.”). Congress provided statutory

direction here with its use of the word “imposed.”

Aviles also argues that our reading of Section 401(c)

should be “precluded by the doctrine of constitutional

avoidance.” Br. for Appellant at 43. However, similar statutes

have been held to not apply retroactively and have not raised

constitutional concerns. See, e.g., Bradley, 410 U.S. at 609–11

(holding that an amendment to a criminal statute did not apply

retroactively to offenses committed prior to the effective date

of the amendment, even though the defendants were sentenced

after that date).

15

States or of a State or foreign

country that prohibits or restricts

conduct relating to narcotic drugs,

marihuana, anabolic steroids, or

depressant or stimulant

substances.

21 U.S.C. § 802(44). Other subsections provide the controlled

dangerous substances that fall under each substance group.

See, e.g., § 802(17) (defining “narcotic drug”).

To determine whether a conviction qualifies as a felony

drug offense, we typically employ the “categorical approach,”

which requires us to “compar[e] the elements of the statute

forming the basis of the defendant’s conviction with the

elements of the generic crime,” i.e., the elements of a felony

drug offense. Henderson, 841 F.3d at 627 (quoting Descamps

v. United States, 570 U.S. 254, 257 (2013)) (internal quotation

marks omitted). A conviction will qualify as a predicate under

this approach “only if the statute’s elements are the same as, or

narrower than, those of the generic offense.” Id. (quoting

Descamps, 570 U.S. at 257) (internal quotation marks omitted)

(emphasis in original). We do not consider the facts underlying

a conviction when applying this approach. Id. Here, that

would require us to compare the elements of the crimes defined

in the New Jersey and Maryland statutes to the definition of

“felony drug offense.” If one of the state statutes is broader, or

covers more conduct than the federal law, then Aviles’s

conviction under that law cannot qualify as a felony drug

offense.

The categorical approach cannot be applied with ease,

however, where a statute of conviction is “divisible,” or

16

contains alternative elements, thereby making it impossible to

determine precisely which crime was committed. Id. When

presented with such a statute, we employ the “modified

categorical approach,” which allows courts to “look[] 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.” Mathis v. United States, 136 S. Ct. 2243, 2249 (2016)

(citation omitted). In this case, we would then compare the

elements of that crime to the definition of “felony drug

offense” to determine whether Aviles’s state conviction

qualifies as such.

Although these two approaches appear straightforward,

difficulty ensues when presented with a statute that contains

alternatives that may not be elements and, instead, may be

“various factual means of committing a single element” that “a

jury need not find (or a defendant admit).” Id. If the listed

alternatives are indeed elements, the modified categorical

approach applies. If, on the other hand, the listed alternatives

are means of committing the crime, so that we are presented

with essentially one crime, the categorical approach applies.

Thus, “[t]he first task for a sentencing court faced with an

alternatively phrased statute is . . . to determine whether its

listed items are elements or means.” Id. at 2256. In Mathis,

the Supreme Court enumerated a three-step process for doing

so: First, a sentencing court should look to see if a state court

decision “definitively answers the question.” Id. Second, the

court looks to “the statute on its face.” Id. “If statutory

alternatives carry different punishments, then . . . they must be

elements.” Id. On the other hand, if the list provides only

“illustrative examples” of how the same crime might be

committed, then they are merely means. Id. (citation and

17

internal quotation marks omitted). If these “authoritative

sources of state law” “fail[] to provide clear answers,” then a

sentencing court may look to “the record of prior conviction

itself.” Id. The Court explained that if an indictment and jury

instructions reiterated the alternatives laid out in the law or

used an umbrella term when charging the defendant, the

alternatives are means. Id. at 2257. Conversely, reference to

one of the alternatives at the exclusion of the others indicates

that the listed alternatives are elements. Id. The Court warned

that:

such record materials will not in

every case speak plainly, and if

they do not, a sentencing judge

will not be able to satisfy “Taylor’s

demand for certainty” when

determining whether a defendant

was convicted of a generic offense.

But between those documents and

state law, that kind of

indeterminacy should prove more

the exception than the rule.

Id. (citation omitted).

The District Court imposed a mandatory life sentence

based on Aviles’s two prior convictions under New Jersey state

law. Because all three state statutes of conviction—both New

Jersey statutes and the Maryland statute—explicitly list, or

incorporate other provision’s lists of, covered controlled

substances, and each criminalize conduct involving at least one

substance not covered by Section 841’s definition of “felony

drug offense,” we need to delve more deeply under Mathis to

determine whether the statute is divisible. If it is divisible

18

because the alternative drug types listed or incorporated by the

state statutes are elements, such that different crimes are

enumerated, we may use the modified categorical approach

and look at the relevant criminal records to determine whether

those state offenses are predicate offenses. On the other hand,

if those substances are merely means, such that there is only

one crime with different ways of committing it, then the state

statute criminalizes conduct broader than that included in the

definition of “felony drug offense,” and Aviles’s convictions

cannot qualify as such. We must consider whether substance

type is an element or a means in each statute of conviction

individually.

We first address Aviles’s conviction under N.J. Stat.

Ann § 2C:35-4 for maintaining or operating a controlled

dangerous substance production facility. That New Jersey law

provides:

Except as authorized by P.L.1970,

c. 226 (C.24:21-1 et seq.), any

person who knowingly maintains

or operates any premises, place or

facility used for the manufacture of

methamphetamine, lysergic acid

diethylamide, phencyclidine,

gamma hydroxybutyrate,

flunitrazepam, marijuana in an

amount greater than five pounds

or ten plants or any substance

listed in Schedule I or II, or the

analog of any such substance, or

any person who knowingly aids,

promotes, finances or otherwise

participates in the maintenance or

19

operations of such premises, place

or facility, is guilty of a crime of

the first degree and shall, except as

provided in N.J.S.2C:35-12, be

sentenced to a term of

imprisonment which shall include

the imposition of a minimum term

which shall be fixed at, or between,

one-third and one-half of the

sentence imposed, during which

the defendant shall be ineligible

for parole. Notwithstanding the

provisions of subsection a. of

N.J.S.2C:43-3, the court may also

impose a fine not to exceed

$750,000.00 or five times the

street value of all controlled

dangerous substances, controlled

substance analogs, gamma

hydroxybutyrate or flunitrazepam

at any time manufactured or stored

at such premises, place or facility,

whichever is greater.

N.J. Stat. Ann. § 2C:35-4 (emphasis added).

First, we look to see if a New Jersey state court decision

“definitively answers the question.” Mathis, 136 S. Ct. at

2256. Aviles asserts that State v. Kittrell, 678 A.2d 209, 216

(N.J. 1996), does so by referencing the drugs listed in the

statute as “CDS,” or controlled dangerous substances. But that

case does not address the exact issue before us: whether the

substances listed in or referenced by the statute are means or

20

elements. See Mathis, 136 S. Ct. at 2256 (using an Iowa state

court decision explicitly holding that the Iowa statute’s listed

alternatives are means). We have neither found nor been

alerted to any New Jersey state court decision speaking to this

discrete issue and, thus, must turn to the other two methods

provided by the Supreme Court in Mathis.

The next method requires us to consider the language of

N.J. Stat. Ann. § 2C:35-4. As explained above, if different

punishments are proscribed, then the alternatives are elements.

Id.; see also Henderson, 841 F.3d at 630 (holding that an

alternative list of substances provides separate elements in part

because the statute provides different maximum sentences for

violators). We have also recently noted that the inverse is true:

The statutory provision of the same punishment, regardless of

which alternative was involved in a crime, could indicate that

the alternatives are means. See Hillocks v. Att’y Gen. United

States, No. 17-2384, 2019 WL 3772101, at *7–8 (3d Cir.

2019); see also Harbin v. Sessions, 860 F.3d 58, 65 (2d Cir.

2017) (reasoning that the fact that a statute carries the same

punishment regardless of which controlled substance is used

shows “that each controlled substance is a mere ‘means’ of

violating the statute, not a separate alternative element”). The

New Jersey statute provides that any person found guilty under

it “is guilty of a crime of the first degree,” regardless of the

substance or substances used in the commission of a crime. See

N.J. Stat. Ann. § 2C:35-4. And N.J. Stat. Ann. § 2C:43-6(a)(1)

provides that any person convicted of a crime in the first degree

“may be sentenced to imprisonment . . . for a specific term of

years which shall be fixed by the court and shall be between 10

and 20 years . . . .” Because the punishment does not vary

based on substance type, the statute, on its face, could be said

21

to indicate that its alternative list of substances are merely

means. See Hillocks, 2019 WL 3772101, at *8.

Additionally, the language of N.J. Stat. Ann. § 2C:35-4

does not indicate that a jury must agree on the particular

substance manufactured. Much like the hypothetical statute

described in Mathis, which allowed jurors to disagree over the

exact weapon used as long as all agree that the defendant used

a “deadly weapon,” 136 S. Ct. at 2249, N.J. Stat. Ann. § 2C:35-

4 appears to allow some jurors to conclude that one drug was

being manufactured in a particular instance, while others may

believe that the drug involved was a different one. As long as

they could agree that a defendant maintained or operated a

facility for the production of a controlled substance, the jury

may determine that the defendant is guilty. See Harbin, 860

F.3d at 65 (concluding that a similarly worded New York

statute “does not suggest that a jury must agree on the

particular substance sold”).

The Government supports its argument for the opposite

conclusion by citing to the discretionary fine provided by N.J.

Stat. Ann. § 2C:35-4, whereby the fine may “not to exceed

$750,000.00 or five times the street value of all controlled

dangerous substances, controlled substance analogs, gamma

hydroxybutyrate or flunitrazepam at any time manufactured or

stored at such premises, place or facility, whichever is greater.”

N.J. Stat. Ann. § 2C:35-4 (emphasis added). Because the

amount of that fine depends upon the specific drug type

involved, the Government urges that the punishment, in fact,

varies based on the substance or substances used, and, thus,

drug type must be an element. Id. We disagree. We first note

that the fine is discretionary and may not be imposed in all

cases. Even if the fine was mandatory, however, its provision

22

in the statute does not support the Government’s argument

because, in imposing the fine, the sentencing court must total

the value of all substances involved in a single conviction.

Thus, the statute itself contemplates a single criminal

conviction for a violation that could involve more than one

substance. If the Government’s interpretation were correct and

drug type was an element, a defendant would be charged with

separate offenses based on each drug, even if they were being

manufactured at the same place and at the same time. Because

the discretionary fine contemplates the opposite scenario, it

supports our conclusion that the substances listed in the statute

are merely means by which the crime may be committed. 6

Having concluded that Aviles’s conviction under N.J.

Stat. Ann. § 2C:35-4 is not a predicate felony drug offense,

both of his two remaining convictions must qualify as such in

order for us to affirm the District Court’s sentencing order.

Thus, we turn to Aviles’s conviction under Md. Crim. Code §

5-602. 7 As noted above, the Maryland statute covers a broader

6

The Government argues that the New Jersey Pleading and

Practice Form and the New Jersey Model Criminal Jury Charge

for N.J. Stat. Ann. § 2C:35-4 may be considered in our

analysis. But Mathis instructs us only to look at state court

decisions and the language of the statute itself as “authoritative

sources of state law,” 136 S. Ct. at 2256, and this Court has

recently “rejected the significance the Government places on

the structure of the model jury instructions.” Hillocks, 2019

WL 3772101, at *8; see also Harbin, 860 F.3d at 67–68

(rejecting the Government’s reliance on pattern jury

instructions).

7

Aviles’s second New Jersey conviction, under N.J. Stat. Ann.

§ 2C:35-7, presents a thorny issue unaddressed by Mathis. The

23

set of substances than the federal definition of “felony drug

offense.” Thus, if the list of substances incorporated by Md.

Crim. Code § 5-602 are means, the categorical approach would

apply, and Aviles’s conviction could not qualify as a felony

drug offense. On the other hand, if the incorporated substances

are elements, the modified categorical approach would apply,

and we look to the record documents underlying that

conviction to determine of exactly which crime, with which

elements, Aviles was convicted. Even if the modified

categorical approach applies, however, the record documents

from that conviction provide no indication of the substance

involved in Aviles’s conviction. Instead, those documents

merely state that Aviles was charged with and found guilty of

“Poss. of CDS W/I to Dist/Manufacture” and “Poss. of CDS.”

A. 541. Because we would not be able to determine the exact

crime of which Aviles was convicted, we could not rule that

statute provides for two different punishments, depending on

whether “the violation involves less than one ounce of

marijuana.” N.J. Stat. Ann. § 2C:35-7. Thus, it is divisible,

but only into two alternative elements, namely, violations

involving less than one ounce of marijuana, and “all other

cases,” which would include any other “controlled dangerous

substance” or “controlled substance analog” (the “other

controlled substances”). Id. Looking at the definition of the

other controlled substances, the drug type appears to be a mere

means of committing the latter crime. Thus, while the statute

is technically divisible, the drug type, other than the marijuana

exception, does not appear to be an element. Because this type

of “hybrid” statute is not addressed by Mathis and because we

conclude that Aviles’s Maryland conviction clearly cannot

qualify as a federal drug offense, we decline to address whether

his second New Jersey conviction does.

24

that conviction is a predicate felony drug offense using that

approach.

We conclude that two of Aviles’s three prior state

convictions, his convictions under N.J. Stat. Ann. 2C:35-4 and

Md. Crim. Code § 5-602, cannot qualify as felony drug

offenses. Thus, he could not have been subject to a mandatory

term of life imprisonment. See 21 U.S.C. § 841(b)(1)(A)

(providing for a mandatory life sentence where a defendant has

been convicted of at least two felony drug offenses).

Accordingly, we will vacate the District Court’s sentencing

order. 8

IV.

For the foregoing reasons, we will affirm the District

Court’s denial of Aviles’s motion to suppress, and we will

vacate the judgment of sentence and remand for the District

Court to determine the appropriate sentence.

8

We do not address the issue, not raised or briefed before us,

that could arise on remand, namely, whether the First Step Act

will apply on resentencing. See, e.g., United States v. Jackson,

2019 WL 2524786, at *1 (N.D. Ohio June 18, 2019) appeal

pending, No. 19-3711 (6th Cir. July 19, 2019) (holding that the

amendments made through the First Step Act applies to a

defendant on resentencing, even though he was originally

sentenced before the enactment of the Act); United States v.

Uriarte, 2019 WL 1858516, at *4 (N.D. Ill. April 25, 2019)

(holding the same).

25