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United States v. Mohamed

United States Court of Appeals, First Circuit

April 3, 2019

NOOR MOHAMED, Defendant, Appellee.


          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.

          Before Lynch, Stahl, and Barron, Circuit Judges.


         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.


         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, 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 "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 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 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' imprisonment. The district court sentenced Mohamed to thirty-seven months' imprisonment, as well as thirty-six months' supervised release. The government timely appealed.[3]


         "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 (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:

         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 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 ...

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