US v. Mulkern

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Rogeriee Thompson, Appellate Judge and William J. Kayatta, Jr., Appellate Judge. Published. [16-1146]

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Entry ID: 6084076

United States Court of Appeals
For the First Circuit
No. 16-1146
UNITED STATES OF AMERICA,
Appellee,
v.
BRIAN T. MULKERN,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before
Torruella, Thompson, and Kayatta,
Circuit Judges.

Jon A. Haddow, with whom Farrell, Rosenblatt & Russell was on
brief, for appellant.
Margaret D. McGaughey, Assistant United States Attorney, with
whom Thomas E. Delahanty II, United States Attorney, was on brief,
for appellee.

April 14, 2017

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THOMPSON, Circuit Judge.
Stage Setting
Brian

Mulkern

pled

guilty

possessing ammunition as a felon.

to

a

federal

charge

of

See 18 U.S.C. § 922(g)(1).

Normally the max prison sentence for an ammunition-possessing
felon is 10 years.

See 18 U.S.C. § 924(a)(2).

But under the Armed

Career Criminal Act ("ACCA," for short), a felon with three or
more prior convictions for "violent felon[ies]" or "serious drug
offense[s]" carried out "on occasions different from one another"
must get at least 15 years.

See id. § 924(e)(1).

In addition to

two concededly ACCA-qualifying Maine burglary convictions, Mulkern
has

a

2001

Maine

robbery

conviction

trafficking conviction on his record.

and

a

2004

Maine

drug-

So when it came time for

sentencing, the government argued for an ACCA enhancement. Mulkern
argued against it, unsurprisingly. But siding with the government,
the judge sentenced him to the statutory minimum of 15 years in
jail.
Mulkern now appeals.

And having reviewed the matter

afresh,1 we now vacate his sentence and remand for resentencing.

1

See United States v. Whindleton, 797 F.3d 105, 108 (1st Cir.
2015), cert. dismissed, 137 S. Ct. 23 (2016), and cert. denied,
137 S. Ct. 179 (2016).
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We will explain our thinking shortly — right after a quick tutorial
on some ACCA-related rules.
ACCA
As just noted, ACCA requires mandatory sentences for
recidivist criminals with three or more convictions for crimes —
committed on different occasions — that qualify as predicate
offenses.

The

government

bears

the

burden

of

proving

by

a

preponderance of the evidence that a defendant stands convicted of
a particular crime.
672 (1st Cir. 2012).2

See United States v. Murdock, 699 F.3d 665,
And whether that crime is an ACCA-predicate

offense is ultimately a legal question subject to de novo review.
See, e.g., United States v. Hudson, 823 F.3d 11, 14 (1st Cir.
2016), cert. denied, 137 S. Ct. 620 (2017).
One
felony,"

type

relevantly

of

ACCA-qualifying
defined

as

"any

offense
crime

is

a

"violent

punishable

by

imprisonment for a term exceeding one year" that "has as an element
the use, attempted use, or threatened use of physical force against
the person of another."3

18 U.S.C. § 924(e)(2)(B)(i).

The phrase

2

The preponderance standard, of course, "is a more-likelythan-not rule." See, e.g., United States v. Vixamar, 679 F.3d 22,
29 (1st Cir. 2012).
3

This definition is known as the "force clause."
United
States v. Fields, 823 F.3d 20, 33 (1st Cir. 2016).
ACCA also
defines "violent felony" as "any crime punishable by imprisonment
for a term exceeding one year" that "is burglary, arson, or
extortion, involves use of explosives, or otherwise involves
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"physical force" means "force capable of causing physical pain or
injury to another person."

Johnson v. United States ("Johnson

I"), 559 U.S. 133, 140 (2010).
The other type of ACCA-qualifying offense is a "serious
drug offense," pertinently defined as "an offense under State law,
involving manufacturing, distributing, or possessing with intent
to manufacture or distribute, a controlled substance . . . , for
which a maximum term of imprisonment of ten years or more is
prescribed by law."4

18 U.S.C. § 924(e)(2)(A)(ii).

The word

"involving" helps ACCA "capture[] more offenses than just those
that 'are in fact' the manufacture, distribution, or possession
of, with intent to distribute, a controlled substance" — i.e.,
thanks to "involving," the statute captures "'offenses that are
related to or connected with such conduct'" as well.

See United

States v. McKenney, 450 F.3d 39, 42, 43-44 (1st Cir. 2006) (quoting
United States v. King, 325 F.3d 110, 113 (2d Cir. 2003)); see also
Whindleton, 797 F.3d at 109.

conduct that presents a serious potential risk of physical injury
to another." 18 U.S.C. § 924(e)(2)(B)(ii). That subsection holds
no sway here because neither robbery nor drug trafficking is a
listed crime and because the Supreme Court invalidated the clause
beginning with "or otherwise involves" — known as the "residual
clause" — as unconstitutionally vague. Johnson v. United States
("Johnson II"), 135 S. Ct. 2551, 2557 (2015).
4

ACCA also defines serious drug offense "through reference
to specific federal crimes," see Small v. United States, 544 U.S.
385, 392 (2005) — a definition irrelevant to this case.
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Our

judicial

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superiors

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have

devised

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two

ways

for

deciding whether a defendant's prior conviction satisfies ACCA —
the categorical approach and the modified-categorical approach.
Bear with us, because explaining these approaches is no walk in
the park.
Under the categorical approach, the court assumes that
the state statute of conviction "'rested upon [nothing] more than
the least of th[e] acts' criminalized."

See Moncrieffe v. Holder,

133 S. Ct. 1678, 1684 (2013) (quoting Johnson I, 559 U.S. at 137).
The court then compares the state statute of conviction's elements
to

ACCA's

offense."
(2016).

definitions

of

"violent

felony"

or

"serious

drug

Cf. Mathis v. United States, 136 S. Ct. 2243, 2248
And if there is a match, the state conviction is an ACCA

predicate.

See id. (citing, among other things, Taylor v. United

States, 495 U.S. 575, 600-01 (1990)).
This

comparison

is

difficult

enough

when

the

state

statute lists "a single" — a.k.a., "'indivisible'" — body "of
elements to define a single crime."

See id.

But some state

statutes — a.k.a., "'divisible'" statutes — lay out "elements in
the alternative, and thereby define multiple crimes," making the
comparison of elements harder still.

See id. at 2249.

In that

situation, courts employ the modified-categorical approach.
id.

See

Under that method, the court looks beyond the statute of
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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, a defendant was convicted of."
United States, 544 U.S. 13, 26 (2005)).

Id. (citing Shepard v.
"The court can then

compare that crime, as the categorical approach commands," with
the pertinent ACCA definitions to see if the state conviction is
ACCA eligible.

See id.5

With these principles in place, we turn to whether
Mulkern's Maine robbery and drug-trafficking convictions trigger
the ACCA bump up.

FYI:

As the combatants correctly agree,

Mulkern's convictions rest on divisible statutes.

So we — as do

the parties — apply the modified-categorical approach to this case.
Mulkern's 2001 Robbery Conviction
The Maine Statute
At the time Mulkern pled guilty to robbery in 2001, the
Maine legislature defined the crime as follows:
1. A person is guilty of robbery if he commits or
attempts to commit theft and at the time of his actions:
A. He recklessly inflicts bodily injury on another;
B. He threatens to use force against any person
present with the intent
5

For a thorough discussion of the categorical and modifiedcategorical approaches, see United States v. Faust, No. 14-2292,
2017 WL 1244844, at *6-9 (1st Cir. Apr. 5, 2017).
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(1) to prevent or overcome resistance to the
taking of the property, or to the retention of
the property immediately after the taking; or
(2) to compel the person in control of the
property to give it up or to engage in other
conduct which aids in the taking or carrying away
of the property;
C.
He uses physical force on another with the
intent enumerated in paragraph B, subparagraphs (1)
or (2);
D.
He intentionally inflicts or
inflict bodily injury on another; or

attempts

to

E. He or an accomplice to his knowledge is armed
with a dangerous weapon in the course of a robbery
as defined in paragraphs A through D.
Me. Stat. tit. 17-A, § 651(1).

According to the statutes in

effect in 2001, violations of subparts A and B constituted Class
B crimes (punishable by up to 10 years in prison), while violations
of subparts C, D, and E constituted Class A crimes (punishable by
up to 40 years in prison).

See id. §§ 651(2), 1252(A) & (B).

The Parties' Arguments
The parties begin on common ground, agreeing that the
relevant count in the 2001 Maine court indictment alleged the
following:
[O]n or about July 04, 2001, in Pownal, Cumberland
County, Maine, BRIAN MULKERN did attempt to commit theft
by attempting to exercise unauthorized control over the
property of the Short Stop store and/or [named victim],
namely money, and at the time of his actions he
threatened to use force against [named victim] with
intent to compel her to give up the money, and he was
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armed with a dangerous weapon during the course of the
robbery.
The indictment's cover sheet listed section "651(1)(E)" as the
charged offense, recording it as a Class A crime.

Someone crossed

out the "A" in "Class A crime" and replaced it with a "B," though
this alteration is not signed or dated.

Someone also crossed out

"and he was armed with a dangerous weapon during the course of the
robbery" and section "651(1)(E)" and signed and dated the crossedout area (the signature is illegible, and the parties do not tell
who did this).

Without mentioning a subpart, the judgment form

has a handwritten note that listed section "651" as the offense of
conviction, recording it as a Class B crime — though the state
docket sheet lists section 651(1)(A) as the offense of conviction.
Now to the key points of contention between the parties:
Insisting that he ultimately pled guilty to section
651(1)(B)(2), Mulkern principally relies on Raymond v. State, a
Maine case holding that "any physical force" — e.g., pulling a
purse from a person's hand — is "sufficient force to convict of
robbery."

See 467 A.2d 161, 164-65 (Me. 1983) (discussing, among

other things, Commonwealth v. Jones, 283 N.E.2d 840, 845 (Mass.
1972)).

In other words, a "de minimis amount of force," Mulkern

writes, suffices "to raise a crime of theft to one of robbery."
Ergo, his theory concludes, robbery under Maine law is not a
"violent felony" after Johnson I because section 651(1)(B)(2) does
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not require the use of force "capable of causing physical pain or
injury to another."

See 559 U.S. at 140.

Raymond dealt with

robbery under section 651(1)(C), not section 651(1)(B).
A.2d at 162-63.

See 467

But Mulkern's argument appears to be that robbery

under section 651(1)(B) — which requires a threat to use "force"
— must mean a threat to use the same amount of force required for
section 651(1)(C).
Hold on, says the government:

Mulkern actually pled

guilty to section 651(1)(C) — indeed, the government at oral
argument adamantly opposed the notion that he had pled guilty to
anything else.

And as the government sees it, because section

651(1)(C) requires the "use[]" of "physical force" (a quote lifted
from the statute), a violation of that provision "amounts to an
ACCA felony" (a quote lifted from its brief).

The government then

talks up Jones, a Massachusetts case mentioned in Raymond.

Jones

noted that under the commonwealth's "statutes, as at common law,
in order to sustain a charge of robbery, there must be proof of a
larceny (1) 'from . . . (the) person,' and (2) 'by force and
violence, or by assault and putting in fear.'"

283 N.E.2d at 843

(alteration in original) (footnote omitted) (quoting Mass. Gen.
Laws

ch.

277,

§

39).

Looking

to

parry

Mulkern's

purse-

snatching/de-minimis-force argument, the government again quotes
the Massachusetts high court in Jones:
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Snatching necessarily involves the exercise of some
actual force. . . . [W]e hold that, where, as here, the
actual force used is sufficient to produce awareness,
although the action may be so swift as to leave the
victim momentarily in a dazed condition, the requisite
degree of force is present to make the crime robbery.
Id. at 845.

And, says the government, because robbery "requires"

actual force, "robbery in violation of Maine law has as an element
force and violence sufficient for purposes of Johnson I."
Our Take
We need not resolve the parties' dispute over which
subpart of the robbery statute Mulkern pled guilty to violating —
section 651(1)(B)(2) or section 651(1)(C).6

And we take this tack

because, even assuming — as the government urges — that he pled

6

In his robbery analysis, the district judge did not work
through the parties' Shepard submissions to determine which
section 651 subpart formed the basis of Mulkern's robbery
conviction.
Instead, in deciding that Mulkern's "2001 robbery
conviction constitutes a violent felony within the meaning of the
ACCA," the judge simply relied on an order he had penned in a
different case, United States v. Bishop, 350 F. Supp. 2d 127 (D.
Me. 2004).
As relevant to our dispute, Bishop noted that the
robbery charge there (involving section 651(1)(B)) "track[ed]"
ACCA's "'violent felony'" definition — i.e., "'any crime
punishable by imprisonment for a term exceeding one year . . .
that has as an element the . . . threatened use of physical force
against the person of another'" — and concluded that "[i]t is
simply beyond argument that robbery is a crime of violence." Id.
at 130 (quoting 18 U.S.C. § 924(e)(2)(B)). But because the judge
authored Bishop years before Johnson I, Bishop — to state the
obvious — does not deal with Johnson I's holding that the type of
"physical force" that comes within the relevant ACCA provision is
"force capable of causing physical pain or injury to another
person." 559 U.S. at 140 (emphasis added).
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guilty to infracting section 651(1)(C), we believe his robbery
conviction cannot be an ACCA predicate.

Our reasoning is simple.

Section 651(1)(C), to repeat, criminalizes the "'use[]'"
of "'physical force on another' with the intent either to prevent
or overcome resistance to the taking of the property or to compel
the person in control of the property to give it up."

Raymond,

467 A.2d at 162 (quoting Me. Stat. tit. 18-A, § 651(1)(C)); see
generally Johnson I, 559 U.S. at 138 (stressing that, in deciding
whether a state conviction is a "violent felony" under ACCA,
federal

courts

are

"bound

by

the

[state]

Supreme

Court's

interpretation of state law, including its determination of the
elements of" the statute of conviction).

Maine's highest court

recognizes that "any physical force" suffices to satisfy the
"physical force" element in section 651(1)(C).
A.2d at 165.

See Raymond, 467

So, for example, "the mere act of snatching a purse

from the hand of a victim" is thus "a sufficient act of physical
force required for robbery," even if the robber never made "direct
bodily contact" with the victim.

Id. at 164, 165; see also State

v. Rembert, 658 A.2d 656, 657 (Me. 1995).
Now we must compare section 651(1)(C)'s elements to the
definition of "violent felony" in ACCA's force clause, keeping in
mind that for a crime to be an ACCA "violent felony," it must
involve "physical force," which "means violent force — that is,
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force capable of causing physical pain or injury to another
person."

See Johnson I, 559 U.S. at 140.

True, as the government

notes, section 651(1)(C) talks about "physical force."

But again

— and we apologize for the repetition — in defining that element,
Maine's top court proclaimed that "any physical force" with the
required intent is enough "to raise" the "offense to the level of
robbery."

See Raymond, 467 A.2d at 165.

The word "any" is a

powerful beacon to us here, making clear that the crime does not
require a showing of force "capable of causing physical pain or
injury"

—

something

short

of

that

will

do.

Given

Raymond,

Mulkern's robbery conviction is not a "violent felony" for ACCA
purposes.
And the government's argument about Massachusetts law
does not alter this conclusion.

Whatever the exact state of

Massachusetts law may be — and we express no opinion here on that
matter (zero, none, zip) — Raymond, as we said, is the beacon by
which we steer our course.

And Raymond, as we have been at pains

to explain, flat-out held that "any physical force" with the
specified intent elevates the crime to robbery, see 467 A.2d at
164 — a holding that compels us to hold that Mulkern's robbery
conviction cannot be an ACCA predicate.
The net result is that Mulkern's 2001 conviction cannot
provide the third predicate offense necessary to uphold his ACCA
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So now we must see if his 2004 drug-trafficking

conviction can — a task we turn to in the next part of this opinion.
Mulkern's 2004 Drug-Trafficking Conviction
The Maine Statute
Everyone agrees that Shepard documents show Mulkern pled
guilty in Maine state court to trafficking in "2 grams or more of
heroin" in 2004.

Under the version of the statute to which he

pled guilty — titled "Unlawful trafficking in scheduled drugs" —
"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."
added).

See Me. Stat. tit. 17-A, § 1103(1-A) (emphases

The statute defines "traffick" this way:

A.

To make, create, manufacture;

B.

To grow or cultivate, except for marijuana;

7

Mulkern has a few more arguments for the same result. For
example, pointing to the docket sheet, he suggests he might have
been convicted under section 651(1)(A) — the "recklessly
inflict[ing] bodily injury on another" provision. He then says
neither recklessly causing bodily injury nor mere causation of
bodily injury is a violent felony — based on his reading of United
States v. Fish, 758 F.3d 1 (1st Cir. 2014), and Whyte v. Lynch,
807 F.3d 463 (1st Cir. 2015), respectively. Shifting gears, he
also says "there is insufficient evidence in the record to
conclude" that his 2001 robbery conviction "was committed on a
different occasion than his 2001 qualifying burglary conviction"
and that therefore both cannot be used to support the ACCA
enhancement. But given our ruling on the robbery-conviction issue,
we have no need to — and so do not — decide these issues here.
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C.

To sell, barter, trade,
furnish for consideration;

D.

To possess with the intent to do any act mentioned
in paragraph C; or

E.

To possess 2 grams or more of heroin or 90 or more
individual bags, folds, packages, envelopes or
containers of any kind containing heroin.

Id. § 1101(17).
which

heroin,

exchange

or

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otherwise

If the drug trafficked is a "schedule W drug" —
then

statutorily

defined

as

"any

compound,

mixture[,] or preparation containing heroin," unquestionably is —
then a violation of this statute is a "Class B crime."
§§ 1103(1-A)(A), 1102(1)(I).

See id.

And a Class B crime carries a max

penalty of 10 years in jail.

See id. § 1252(2)(B).

The Parties' Arguments
Mulkern's argument for why this conviction is not a
countable ACCA predicate is straightforward enough.

As he sees

things, he did not pled guilty to a "serious drug crime" — defined
for

our

purposes

(remember)

as

"involving"

possession

of

a

controlled substance "with intent to manufacture or distribute."
And he quickly adds that the pertinent trafficking statute —
dealing

with

the

2

grams

or

more

of

heroin

—

criminalizes

possession with no intent to manufacture or distribute.

All that

is required, he says, is that the possessor possessed the requisite
amount of heroin — and nothing in the Shepard documents, he writes,

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shows he pled guilty to intending to manufacture or distribute
heroin either.
Stressing

that

we

must

interpret

"involving"

expansively, see Whindleton, 797 F.3d at 109, the government
counters that the statute of conviction need not match up word for
word

with

ACCA's

offense."

definitions

to

qualify

as

a

"serious

drug

So, the government writes, it is of no moment that the

state statute here "does not require proof of intent to distribute"
— what matters is whether the pled-to offense "involv[es]" (in
ACCA lingo) "possess[ion] with intent to . . . distribute."
Building on this foundation, the government then argues
that

we

must

conclude

that

Mulkern's

"involv[ed]" an intent to distribute.
The

first

reason

turns

on

the

trafficking

conviction

It offers two reasons why.

"trafficking"

legislature used for the at-issue statute:

name

Maine's

"trafficking" is

synonymous with distribution, the government suggests, so from the
legislature's "trafficking" label we can infer that Mulkern's
crime here "involv[es]" the required distributive intent.

The

second reason turns on the statute's saying that 2 or more grams
of heroin can support a drug-trafficking conviction:

relying

chiefly on Eleventh Circuit case law, the government implies that
this drug amount justifies the inference that Mulkern possessed
the heroin with intent to distribute, rather than for his personal
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See United States v. James, 430 F.3d 1150, 1155, 1156 (11th

Cir. 2005) (inferring intent to distribute from the defendant's
copping "to trafficking in cocaine by possess[ing] . . . between
200 and 400 grams of the drug"), overruled on other grounds by
Johnson II, 135 S. Ct. 2251.
Not about to go down without a fight, Mulkern argues
that reading "involving" broadly helps the government not a whit
because "it would stretch" that word "beyond its breaking point"
to hold that "a state conviction for trafficking by possession
alone" — i.e., possession without intent to distribute — is a
conviction "involving" possession with intent to distribute.

And

he highlights Fourth Circuit caselaw to support the idea that one
cannot infer that he had the requisite intent either from Maine's
designating the pled-to crime as "trafficking" or from the small
amount of heroin in play.

See United States v. Brandon, 247 F.3d

186, 196-97 (4th Cir. 2001) (emphasizing that, per Taylor, an ACCA
enhancement

"appl[ies]

to

those

who

have

engaged

in

certain

specific conduct, regardless of the label attached to that conduct
by state law," and concluding that "because we cannot say that
intent to manufacture or distribute is inherent" in the class of
conduct banned "by the statute and alleged in the indictment at
issue in this case (possession of between twenty-eight and two

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hundred grams of cocaine)," the defendant's state drug-trafficking
conviction was not an ACCA "serious drug offense").
Our Take
As we said many pages ago, ACCA pertinently defines
"violent felony" as a felony that "has as an element the use,
attempted use, or threatened use of physical force." See 18 U.S.C.
§

924(e)(2)(B)(i)

(emphases

added).

Contrastingly,

ACCA

relevantly defines "serious drug offense" as crimes "involving
. . . possess[ion] with intent to . . . distribute."
§ 924(e)(2)(A)(ii) (emphases added).

Id.

The word "'involv[es],'" we

have held, "mean[s] something other than" — indeed, something
"broader than" — "'has as an element.'"

McKenney, 450 F.3d at 43

(emphasizing that, among other things, "[t]o 'involve' . . . means
'to relate closely,' . . . or to 'connect closely'" (citations
omitted)).

And because of the drafter's use of "involv[e]" rather

than "element[s]," a crime that does not have possession with
intent to distribute as a formal element can qualify as a "serious
drug offense" if it involves possession with intent to distribute.
See id. (discussing Brandon, 247 F.3d at 190).
The question then is whether the government met its
burden of satisfying this "serious drug offense" definition.

The

government says it has, arguing (as we noted above) that we can
infer that the crime here "involv[es]" distributive intent both
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from the statute's calling the offense "trafficking" and from
Mulkern's possessing 2 or more grams of heroin.

But like Mulkern,

we think neither argument does the trick.
Take the government's first claim (which it really
stressed at oral argument) — that one can infer Mulkern's pled-to
drug crime "involv[es]" possession with intent to distribute from
the simple fact that the Maine legislature designates the coppedto crime as "trafficking," a descriptor, the theory continues,
that denotes buying and selling.

What devastates this argument is

that the Supreme Court has already rejected a similar contention:
as Taylor explains, the meaning of ACCA's terms do not "depend on
the definition adopted by the State of conviction," because to
hold otherwise would mean (for instance) that persons "convicted
of unlawful possession of a firearm" might or might not get ACCA
enhancements

"depending

on

[how]

the

State

of

[the]

prior

conviction" labeled the crime — a result that would clash with
Congress's desire to avoid inconsistencies in punishment.

See 495

U.S. at 590-91; see also Brandon, 247 F.3d at 196 (reading Taylor
essentially the same way).
And
argument

—

"involv[es]"

the

that

government
one

can

possession

does

infer

with

no

better

Mulkern's

intent

possessing 2 grams or more of heroin.
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to

with

pled-to
distribute

its

second

drug

crime

from

his

We have never "held that a

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Entry ID: 6084076

conviction for trafficking based on the possession of a certain
quantity of drugs" is an ACCA "serious drug offense."

United

States v. White, 837 F.3d 1225, 1233-34 (11th Cir. 2016) (noting
the absence of First Circuit precedent on this issue).

But even

assuming without deciding "that a statute classifying possession
of a certain quantity of drugs [is] sufficient to indicate an
intent to distribute," see id. at 1234, we think the government's
argument still falls short.

Here is why.

Drug distribution poses "a greater threat to society"
than mere drug use — "though both constitute great dangers," and
it is perfectly sensible "to assume" that persons possessing "very
large" drug quantities "intend to distribute" them.
F.3d at 192.
lots

of

That "very reasonable assumption" is probably why

states

possession

Brandon, 247

of

have
large

trafficking

laws

quantities

of

"severely
drugs

punish[ing]

without

distributive intent "an element of the crime." Id.

making"

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"
— that this is so is "evidenced by the widely varying quantities
that states have established as the threshold for a traffickingby-possession

conviction."

Id.

(noting,

for

example,

that

"possession of five grams of cocaine is considered trafficking in
Delaware," while "possession of more than one hundred and fifty
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grams"

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is

considered

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"trafficking

in

Missouri").

Entry ID: 6084076

Obviously,

"society's comfort level in equating possession to possessionwith-intent

increases

as

the

quantity

of

drugs

possessed

increases, and it decreases as the quantity . . . decreases" —
though

also

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.

So while the amount "of drugs possessed can

serve as an indicator of the purposes for which the drugs were
possessed, at certain levels it is a rough and imprecise indicator
at best."

Id.
Moving from the general to the specific, even assuming

arguendo

that

the

government

is

correct

about

inferring

distributive intent from drug-quantity levels, we think that the
crime for which Mulkern stands convicted would not come close to
raising this inference.
relies on.

Consider James, a case the government

There, a sibling circuit concluded that a statute of

conviction classifying possession of between 200 and 400 grams of
cocaine as trafficking gave rise to an inference of distributive
intent.

See 430 F.3d at 1152-56.

apart from James.

But Mulkern's case is worlds

Here, unlike there, the quantity at the lower

end of the statute of conviction — 2 grams of heroin — is "not so
large that the only reasonable inference is that one who possesses
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that amount must intend to distribute it."
at 192 (emphasis added).

See Brandon, 247 F.3d

Actually, Mulkern could have been

convicted for possessing less than 2 grams.
the

statute

—

as

it

Entry ID: 6084076

stood

at

time

of

And that is because

his

2004

trafficking

conviction — "define[d] the crime as prohibiting trafficking in
two grams or more of any mixture containing heroin."

See State v.

Pinkham, 137 A.3d 203, 208 (Me. 2016) (emphasis added). So — still
assuming

without

granting

that

the

government's

right

about

deducing distributive intent from drug-quantity amounts — given
the range of drug quantities covered by this law, we simply cannot
rule "that the typical conduct reached by that statute inherently
involves an intent to . . . distribute."
193.

See Brandon, 247 F.3d at

And we are doubly persuaded that this is right since —

despite having the burden of proving what he stands convicted of
—

the

government

offers

no

authority

or

persuasive

argument

suggesting that the 2-gram threshold justifies an inference of
intent to distribute.
The

bottom

line

is

that

Mulkern's

drug-trafficking

conviction does not qualify as an ACCA-predicate "serious drug
offense."

And that is that.
Wrap Up
Because neither the 2001 robbery conviction nor the 2004

trafficking conviction qualifies as an ACCA predicate, we vacate
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Entry ID: 6084076

Mulkern's sentence and remand for resentencing without the ACCA
enhancement.

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