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, 

, 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 

, 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, 

, 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 

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 

–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. 

–56; see also United States v.
Yusuf, 

, 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 

. 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, 

, 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.” 

, 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,” 

(quoting 

, 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

(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, 

, 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, 

, 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, 

, 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, 

, 199 (3d Cir.
2011) (quoting United States v. Jacobs, 

, 11 (3d
Cir. 1990)) (internal quotation marks omitted); see also

(“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, 

, 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., 

–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. 

(quoting Descamps
v. United States, 

, 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.” 

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. 

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. 

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, 

, 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).” 

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.” 

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.” 

court looks to “the statute on its face.” 

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

other hand, if the list provides only
“illustrative examples” of how the same crime might be
committed, then they are merely means. 

                               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.” 

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. 

Conversely, reference to
one of the alternatives at the exclusion of the others indicates
that the listed alternatives are elements. 

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.

       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.” 

. Aviles asserts that State v. Kittrell, 

, 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 

(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 

(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, 

, at *7–8 (3d Cir.
2019); see also Harbin v. Sessions, 

, 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, 

, 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 

, 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 

(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. 

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 

, and this Court has
recently “rejected the significance the Government places on
the structure of the model jury instructions.” Hillocks, 

, at *8; see also 

–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”). 

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,

, 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, 

, at *4 (N.D. Ill. April 25, 2019)
(holding the same).




                              25