JOHN A. WOODCOCK, JR., UNITED STATES DISTRICT JUDGE.
A criminal defendant pleaded guilty to distributing fentanyl. Before sentencing, the Court must decide whether the defendant's criminal history makes him subject to an enhanced guideline calculation as a career offender under U.S.S.G. § 4B1.1. The Court determines that the defendant is not a career offender because his prior drug trafficking conviction under Maine law does not qualify as a career offender
On October 13, 2016, a grand jury indicted John Oliveira on two counts of distributing fentanyl in violation of 21 U.S.C. § 841(a)(1). Indictment (ECF No. 1). On April 18, 2017, Mr. Oliveira pleaded guilty to both counts. Min. Entry for Change of Plea Hearing (ECF No. 25). On September 27, 2017, the Court held a presentence conference at which the Court and the parties discussed whether Mr. Oliveira is subject to an enhanced guideline calculation as a career offender pursuant to U.S.S.G. § 4B1.1. Min. Entry for Presentence Conference (ECF No. 32).
On October 17, 2017, the Government filed a sentencing memorandum. Gov't's Mem. in Aid of Sentencing (ECF No. 33) (Gov't's Mem.). On November 8, 2017, the Defendant filed his sentencing memorandum. Mr. Oliveria's Mem. in Aid of Sentencing (ECF No. 35) (Def.'s Mem.). On November 14, 2017, the Government filed a reply memorandum. Gov't's Reply to the Def.'s Mem. in Aid of Sentencing (ECF No. 36) (Gov't's Reply).
Generally, the consequences of applying the career offender guideline are two-fold. First, a career offender's criminal history category is automatically adjusted to Category VI. U.S.S.G. § 4B1.1(b). Additionally, a defendant's offense level is adjusted based on the offense statutory maximum term of imprisonment. Id. These adjustments to the criminal history category and offense level, in turn, affect a defendant's guideline imprisonment range.
If Mr. Oliveira does not qualify as a career offender, his criminal history would be IV, his base offense level would be 24, and his total offense level would be 21, after subtracting three-levels for acceptance of responsibility. Revised Presentence Investigation Report ¶ 18, 27-29, 36 (PSR). He would face a guideline sentence range of 57 to 71 months. Def.'s Mem. at 2. If the career offender enhancement applies, Mr. Oliveira's criminal history increases from Category IV to Category VI. Id. Because the statutory maximum term of imprisonment for a violation of 21 U.S.C. § 841(a)(1) is twenty years, see 21 U.S.C. § 841(b)(1)(C), Mr. Oliveira's base offense level would increase from 24 to 32; meaning that his total offense level would increase from 21 to 29, after taking into account the three-level downward adjustments for acceptance of responsibility. See U.S.S.G. § 4B1.1(b)(3); PSR ¶ 27-28, Def.'s Mem. at 2. In summary, if the career offender enhancement applies, Mr. Oliveira's guideline imprisonment range would increase from 57 to 71 months to 151 to 188 months.
Under the Guidelines, a defendant is a career offender if:
U.S.S.G. § 4B1.1(a).
There is no dispute that Mr. Oliveira's offense of conviction is a felony that is a
The Guidelines define a "controlled substance offense" as:
U.S.S.G. § 4B1.2(b). For purposes of Mr. Oliveira's case, it is critical to this definition that a defendant, who has been convicted of illegal possession of a controlled substance, do so "with intent ... to distribute."
The Government has submitted evidence of three prior convictions that might serve as career offender predicates. On March 22, 2006, a Maine court convicted Mr. Oliveira of robbery under 17-A M.R.S. § 651(1)(E). Sentencing Ex. 5. The same day, the Maine court also convicted Mr. Oliveira of aggravated assault under § 208(1)(B). Sentencing Ex. 7. On June 3, 2008, the Maine court convicted Mr. Oliveira of trafficking in cocaine under § 1103(1-A)(A). Sentencing Ex. 2. The robbery and aggravated assault convictions are not at issue in this order.
The Government argues that Mr. Oliveira's conviction for trafficking in cocaine qualifies as a controlled substance offense. Gov't's Mem. at 3-6. The Government contends that, because Mr. Oliveira's conduct did not involve heroin or fentanyl, he could only have been convicted under the definitions of "traffick" in 17-A M.R.S. § 1101(17)(A)-(D).
The Government seeks to distinguish United States v. Mulkern, 854 F.3d 87 (1st Cir. 2017), in which the First Circuit Court of Appeals "held that the defendant's drug trafficking conviction under 17-A M.R.S.A. § 1103 was not a `serious drug offense' under the Armed Career Criminal Act" (ACCA) because that Maine law does not require the State to prove an intent to distribute when a defendant possesses two grams or more of heroin.
Mr. Oliveira responds that Mulkern "instructs the sentencing Court to look carefully at the dividing line between possession and trafficking" when a case depends on the presence of "distributive intent." Def.'s Mem. at 15 (quoting this Court's decision in United States v. Childers, No. 1:16-CR-00079-JAW, 2017 WL 2559858, at *1 n.1, 2017 U.S. Dist. LEXIS 90334, at *1 n.1 (D. Me. June 13, 2017)). Mr. Oliveira argues that possession with intent to do the acts in 17-A M.R.S. § 1101 (C), including "selling, bartering, trading, etc." do not necessarily involve "distributive intent" as Mulkern, requires. Def.'s Mem. at 16. Mr. Oliveira also argues that Maine law "criminalizes possession with no intent to manufacture or distribute" because 17-A M.R.S. § 1103(3)(B) creates an inference or presumption that an individual is trafficking based on possession of fourteen grams or more of cocaine. Id. at 15-16. Mr. Oliveira contends that Mulkern's citation
First, the Government replies that all of the acts in § 1101(17)(C) involve distribution and, therefore, a violation of § 1101(17)(C) must be a controlled substance offense under the guidelines. Gov't's Reply at 4. Second, the Government submits that "[t]he modified categorical approach focuses on the elements of the crime," which means that inferences under the Maine Rules of Evidence do not change the inquiry. Id. at 4-5 (citing Mathis v. United States, ___ U.S. ___, 136 S.Ct. 2243, 2251, 195 L.Ed.2d 604 (2016); United States v. Huggins, 465 Fed. Appx. 800, 804 (10th Cir. 2012) (unpublished); Descamps v. United States, 570 U.S. 254, 133 S.Ct. 2276, 2285, 186 L.Ed.2d 438 (2013)). The Government asserts that it does not matter that the Shepard documents do not establish the quantity of drugs involved because "the only ways of committing trafficking under 17-A M.R.S.A. §§ 1101(17)(A)-(D) involve[] the intent to distribute." Id. at 5.
When determining whether a prior conviction under state law qualifies as a career offender predicate under U.S.S.G. § 4B1.1, courts have developed two approaches: the categorical approach and the modified categorical approach. See Mulkern, 854 F.3d at 90.
When the state statute is indivisible, meaning there is only one way to commit the crime, the court uses the categorical approach, which assumes the state statute of conviction "rested upon [nothing] more than th[e] least of the acts criminalized." Id. (citing Moncrieffe v. Holder, 569 U.S. 184, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013)) (internal quotations omitted). The court then compares the state statute of conviction's elements to the pertinent definitions under the federal law. Id. If there is a match, the state conviction is a predicate. Id.
However, when the state statute is divisible, meaning that it lays out elements in the alternative and thereby defines multiple crimes, courts employ the modified categorical approach. Id. (citing Mathis v. United States, ___ U.S. ___, 136 S.Ct. 2243, 2248, 195 L.Ed.2d 604 (2016)). Under that method, "the court looks beyond the statute of conviction to a narrow `class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy)' — known as Shepard documents — `to determine what crime, with what elements, the defendant was convicted of.'" Id. (citing Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)). The court can then compare that version of the crime, as the categorical approach commands, with the pertinent definition under federal law, to see if the state conviction is eligible. Id.
In Mulkern, the First Circuit addressed whether a conviction under 17-A M.R.S. § 1103(1-A) for unlawful trafficking in heroin qualified as a predicate offense under the ACCA. 854 F.3d at 89-90, 94. The Mulkern Court observed that the statute to which he pleaded guilty, defined "traffick" to mean "[t]o possess 2 grams or more of heroin." Id. at 94 (citing 17-A M.R.S. § 1101(17)).
Significantly, in Mulkern, the First Circuit noted a distinction under the ACCA
Next, the First Circuit rejected the Government's argument that the state of Maine's description of an offense as trafficking pursuant to 17-A M.R.S. § 1103(1-A) should control. Id. at 96. The Mulkern Court viewed that argument as contrary to the United States Supreme Court ruling in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Mulkern, 854 F.3d at 96. To allow the multiplicity of state laws to define terms in federal criminal law would lead to "inconsistencies in punishment." Id.
The Mulkern Court turned to the impact of Mr. Mulkern's guilty plea to trafficking in heroin, a crime that under Maine law is established by a two gram threshold. Id. Even though the First Circuit agreed with the concept that "it is perfectly sensible `to assume' that persons possessing `very large' drug quantities `intend to distribute' them, the Mulkern Court observed that "[t]he difficult question is what is the right amount of drugs a person must possess `before this presumption of an intent to distribute is appropriate.'" Id. (quoting United States v. Brandon, 247 F.3d 186, 192 (4th Cir. 2001)). Across the country, the threshold for distinguishing between possession and trafficking varies widely, with the possession of as low as five grams being deemed trafficking in Delaware and as high as one hundred and fifty grams being considered trafficking in Missouri. Id. (citing Brandon, 247 F.3d at 192). Addressing the Maine threshold of two grams, the First Circuit concluded that, assuming that the possession of some level of heroin could properly give rise to an inference of trafficking, "the crime for which Mulkern stands convicted would not come close to raising this inference." Id. at 97. Contrasting the Maine statute with an Eleventh Circuit decision, where the possession of between 200 and 400 grams of cocaine properly gave rise to an inference of distributive intent, the First Circuit described the two gram threshold under Maine law as not "justif[y] an inference of intent to distribute." Id. The First Circuit declined to find that Mr. Mulkern's Maine conviction for trafficking in heroin was a "serious drug offense" under the ACCA. Id.
A prior state conviction can serve as a controlled substance offense if it criminalizes (1) the "manufacture, import, export, distribution, or dispensing" of a scheduled drug or (2) the "possession" of a scheduled drug "with intent" to do any of those actions. U.S.S.G. § 4B1.2(b). Maine criminalizes "trafficking" under 17-A M.R.S. § 1103(1-A), and defines "traffick" in six alternative ways:
17-A M.R.S. § 1101(17). Maine's statute, therefore, is divisible. As a result, the Court may look to the Shepard documents to determine which provision the Maine court used to convict Mr. Oliveira.
The Court concludes that Mr. Oliveira was not convicted under subsection (E), heroin, or (F), fentanyl. The May 26, 2009 indictment establishes that the scheduled drug in Mr. Oliveira's case was cocaine, not heroin or fentanyl.
At first, a conviction under subsections (A)-(D) does not appear to raise the same problem the First Circuit confronted in Mulkern. The verbs in subsections (A)-(C) are nearly identical to or synonymous with the verbs the Sentencing Commission used to define a controlled substance offense. Compare 17-A M.R.S. § 1101(17)(A)-(B) ("make," "create," "manufacture," "grow," "cultivate,") with U.S.S.G. § 4B1.2(b) ("manufacture"); compare 17-A M.R.S. § 1101(17)(C) ("sell," "barter," "trade," "exchange," "furnish for consideration") with U.S.S.G. § 4B1.2(b) ("import," "export," "distribut[e]," "dispens[e]"). Subsection (D), like the second half of guideline § 4B1.2(b), criminalizes the act of possession when coupled with an intent to do one of the listed actions. The least of the conduct criminalized by the relevant state provisions is subsection (D), which requires possession plus intent, but even this conduct closely matches the definition of a controlled substance offense under the guidelines.
Another provision of the statute, however, 17-A M.R.S. § 1103(3)(B), complicates this picture. Under that subsection, "[p]roof that the person intentionally or knowingly possesses" fourteen grams or more of cocaine or 4 grams or more of cocaine base "gives rise to a permissible inference under the Maine Rules of Evidence, Rule 303 that the person is unlawfully trafficking in scheduled drugs." Id. Rule 303 is entitled "Presumptions in Criminal Cases" and provides:
M. R. EVID. 303.
Unlike the possession of two grams or more of heroin, Maine law does not designate the mere possession of fourteen grams or more of cocaine to be trafficking. Instead, Maine law provides that the intentional or knowing possession of fourteen or more grams of cocaine gives rise to a permissible inference that the possession was for trafficking. As a result, the Court faces a situation both similar and dissimilar to the one in Mulkern. The provisions the First Circuit addressed in Mulkern amount to a conclusive presumption of distributive intent based on a certain level of possession, whereas the provisions here apply a permissive inference.
The first question the Court must answer is whether the difference between a conclusive presumption and a permissive inference instruction demands a different outcome under Mulkern. A key lesson from Mulkern is that the Court should look carefully at the dividing line between possession and trafficking, and examine how a state's trafficking laws treat proof of the element of distributive intent. See Childers, 2017 WL 2559858 at *1 n.1, 2017 U.S. Dist. LEXIS 90334 at *1 n.1. It is "perfectly sensible" to infer that a person "possessing `very large' quantities `intends to distribute' them," but it is more hazardous to infer distributive intent from possession of smaller quantities. Mulkern 854 F.3d at 96 (quoting United States v. Brandon, 247 F.3d 186, 192 (4th Cir. 2001)). "Obviously, some defendants possess very small quantities of drugs for the sole purpose of distributing them and some defendants possess significant quantities simply for personal use." Id. at 97 (internal quotation marks omitted). As noted earlier, the First Circuit advises that "[t]he difficult question is what is the right amount of drugs a person must possess before this presumption of an intent to distribute is appropriate." Id. at 96 (internal quotation marks omitted).
Courts routinely allow juries to make inferences about defendants' mental states based on circumstantial evidence. It is a standard feature of the criminal law for juries to make inferences about a defendant's mens rea because there is often little or no direct evidence of mental states like intentions. In this District, the Court commonly instructs juries that "[Y]ou are not limited solely to what you see and hear as the witnesses testify. You are permitted to draw from facts that you find to have been proven such reasonable inferences as you believe are justified in the light of common sense and personal experience." 3.04 What is Evidence; Inferences, CHIEF DISTRICT JUDGE NANCY TORRESEN'S 2017 REVISIONS TO PATTERN CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT COURTS OF THE FIRST CIRCUIT (March 6, 2017), http://www.med.uscourts.gov/pdf/crpjilinks.pdf.
But the model instruction in Maine for presumptions on criminal matters does more than instruct the jury about a generally permissible inference. Although the language is careful, the state judge expressly instructs the jury on the potential impact of the permissible presumption:
DONALD G. ALEXANDER, MAINE JURY INSTRUCTION MANUAL § 6-13 (4th ed. 2012). In the context of the cocaine charge, if the state judge instructed the jury in accordance with the model instruction, the trial judge would instruct the jury:
Mulkern presents no obstacle to finding a career offender predicate when a state operates like the federal courts and allows juries to infer distributive intent based on evidence that the defendant possessed quantities exceeding personal use levels. But when a state's laws weigh in on the specific quantity at which juries should make that inference, Mulkern suggests the Court should examine whether the quantity the state has chosen falls below the level the Sentencing Commission contemplated.
There is little purpose in a state specifying the quantity at which the jury may infer the intent to traffick from mere possession, other than to suggest to the jury what drug quantity the jury should consider to be an appropriate dividing line between possession and trafficking, something that presumably falls outside the common knowledge of most jurors.
This analysis takes the Court one step beyond Mulkern because, unlike the possession of 2 grams of heroin, the possession of 14 grams of cocaine is not an element of the offense of trafficking cocaine. In distinguishing the ACCA definition of "serious drug offense" from "violent felony," the First Circuit in Mulkern was careful to observe that statutory language for "serious drug offense" used the phrase, "involving ... possess[ion] with the intent to distribute," and did not use the phrase, "as an element." Mulkern, 854 F.3d at 95-96. The guideline definition of "controlled substance offense" does not speak in terms of elements either:
U.S.S.G. § 4B1.2(b). Thus, unlike the ACCA definition of "violent felony," the guideline definition of "controlled substance offense" does not restrict its definition to the elements of the crime.
Guided by Mulkern, the Court concludes that Maine's permissive inference instruction for cocaine demands similar treatment to its conclusive presumption for heroin and fentanyl addressed in Mulkern. Even with the cautionary language of the Maine Model Jury Instruction on permissible inferences, the trial judge's express instruction to the jury about the significance of
At least one other circuit reached a similar conclusion on the effect of a state presumption. In United States v. Danielson, 199 F.3d 666 (2d Cir. 1999), the Second Circuit addressed the effect of a statutory presumption on the determination of whether a New York conviction qualified as a violent felony predicate under the ACCA. New York criminalized possessing a loaded firearm with intent to use it unlawfully against another. Id. at 671. The Second Circuit said "it might seem clear" that this state law qualified as a violent felony, but found "the analysis is complicated" by another provision that made possession of a weapon "presumptive evidence of intent to use the [firearm] unlawfully against another." Id. at 671-72. Because it appeared that the New York provisions "might reach conduct that qualifies as a violent felony under the ACCA and conduct that does not," the Danielson Court used the jury charge to resolve the ambiguity and concluded that "it does not appear that Danielson was convicted on the basis of `mere' possession." Id. Danielson is consistent with the Court's conclusion that statutory presumptions or inferences do impact the analysis under the career offender guidelines.
Later, in United States v. Lynch, 518 F.3d 164 (2d Cir. 2008), the Second Circuit considered whether it was necessary to conduct the analysis in Danielson when the Defendant pleaded guilty to the crime. The Lynch Court concluded that the guilty plea necessarily admitted both elements of the offense, possession and intent, which meant the defendant's conviction was an ACCA predicate despite the New York statutory presumption regarding the intent element. Id. at 172-173. This conclusion, however, ignores the reality that defendants and their attorneys are faced with the statutory presumption when making plea decisions.
The First Circuit takes a more practical approach before applying the steep penalties of the career offender guideline enhancement. See Mulkern 854 F.3d at 96 ("The difficult question is what is the right amount of drugs a person must possess before this presumption of an intent to distribute is appropriate"). Functionally, it makes little difference how a state determines the quantity where mere possession implies distributive intent. Whether the state sets a lower bar through a statutory inference, presumption, or the definition of
The second question the Court must answer is whether the Maine threshold falls below the level at which federal courts are confident inferring distributive intent from possession. Without further caselaw on point, it is doubtful that the First Circuit would view fourteen grams of cocaine as sufficient to infer distributive intent and thereby constitute a controlled substance offense under the guidelines. See Childers, 2017 WL 2559858 at *1 n.1, 2017 U.S. Dist. LEXIS 90334 at *1 n.1. In Mulkern, the Court concluded that Maine's two gram threshold for heroin and fentanyl would "not come close to raising this inference." Mulkern 854 F.3d at 97.
In Mulkern, the First Circuit cited United States v. Brandon, 247 F.3d 186 (4th Cir. 2001), where the Fourth Circuit wrote:
Mulkern, 854 F.3d at 97 (citing Brandon at 191,). Maine's dividing line between possession and trafficking is now the second lowest
Accordingly, because the Court concludes that Maine's fourteen-gram threshold is too low to be confident that Mr. Oliveira had the requisite distributive intent, his conviction is not a controlled substance offense under the guidelines.
Because the Court concludes that Mr. Oliveira's cocaine trafficking conviction under
SO ORDERED.
17-A M.R.S. § 1101(17).
Also, neither party asserted that the United States Supreme Court's decision in Beckles v. United States, ___ U.S. ___, 137 S.Ct. 886, 197 L.Ed.2d 145 (2017), which distinguished between the ACCA and the career offender guideline for constitutional purposes, has a bearing on the interpretive principle that, to the extent the ACCA and the career offender guideline contain similar language, interpretations of one may be helpful in making interpretations of the other.
