FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE [Hon. Nancy Torresen, U.S. District Judge]
Renée M. Bunker, Assistant United States Attorney,
Appellate Chief, with whom Halsey B. Frank, United States
Attorney, was on brief, for appellant.
Beneman, Federal Defender, for appellee.
Lynch, Stahl, and Barron, Circuit Judges.
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.
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.
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, and heard a sound
consistent with an item being thrown into the dumpster.
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.
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.
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 "unlawful trafficking in a scheduled drug." Me.
Stat. tit. 17-A, § 1103(1-A)(A).
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.
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
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,  this 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). 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
sentencing memorandum, Mohamed acknowledged that the
government had properly focused on the elements of the Maine
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
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' imprisonment. The district court sentenced
Mohamed to thirty-seven months' imprisonment, as well as
thirty-six months' supervised release. The government
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)).
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
U.S.C. § 922(g) and other statutes, the Sentencing
Guidelines establish enhanced Base Offense Levels (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.
had pleaded guilty in 2014 to the following Maine law
[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:
schedule W drug.
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
D. To possess with the intent to do any act mentioned in
Id. § 1101(17). Subsections (A), (B), (C), and
(D) track closely the Guidelines definition of a
"controlled substance offense."
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 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
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 ...