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United States v. Oliveira

United States District Court, D. Maine

December 12, 2017

UNITED STATES OF AMERICA
v.
JOHN OLIVEIRA

          ORDER ON SENTENCING

          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 predicate because the conviction is not a “controlled substance offense” as defined by the guidelines.

         I. FACTUAL AND LEGAL BACKGROUND

         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 twofold. 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.[1]

         Under the Guidelines, a defendant is a career offender if:

(1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

U.S.S.G. § 4B1.1(a).

         There is no dispute that Mr. Oliveira's offense of conviction is a felony that is a “controlled substance offense, ” or that he was at least eighteen years old at the time he committed the instant offense. The only issue is whether Mr. Oliveira has at least two prior felony convictions qualifying as either a “crime of violence” or a “controlled substance offense.” See Def.'s Mem. at 2 (objecting “to the use of the robbery or aggravated assault and the unlawful trafficking convictions as predicates for a finding that he is a career offender”).

         The Guidelines define a “controlled substance offense” as:

an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.

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.[2]

         II. THE PARTIES' POSITIONS

         A. The Government's Memorandum

         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).[3] Id. at 4. The Government reasons that the terms in those sections are synonymous with the guideline terms of “manufacture, import, export, distribution, or dispensing” or possession with intent to do any of those actions. Id. at 3-4 (citing United States v. Odom, 671 F.Supp.2d 163, 165 n. 2 (D. Me. 2009); United States v. Bryant, 571 F.3d 147, 157 (1st Cir. 2009)).

         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.[4] Gov't's Mem. at 5. The Government contends that Mulkern does not control here because the definition of trafficking for drugs other than heroin or fentanyl does require intent to distribute when defendants merely possess controlled substances. Id. at 5-6. The Government suggests that § 1103(3)(B) does not change this analysis, even though it “gives rise to a permissible inference under the Maine Rules of Evidence, Rule 303 that the person is unlawfully trafficking in scheduled drugs” if he or she possesses “[f]ourteen grams or more of cocaine or 4 grams or more of cocaine in the form of cocaine base.” Id. The Government urges that the analysis “focuses on the elements of an offense, not on what inferences jurors can make under the rules of evidence.” Id. (citing Magasouba v. Mukasey, 543 F.3d 13, 14 (1st Cir. 2008); Villanueva v. Holder, 784 F.3d 51, 54 (1st Cir. 2015)).

         B. John Oliveira's Memorandum

         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 of United States v. James, 430 F.3d 1150, 1152-56 (11th Cir. 2005) suggests that the quantity at which possession can give rise to an inference of distributive intent for federal purposes is much higher than fourteen grams. Def's Mem. at 16-17.

         C. The Government's Reply

         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 United States v. Mathis, 136 S.Ct. 2243, 2251 (2016); United States v. Huggins, 465 Fed.Appx. 800, 804 (10th Cir. 2012) (unpublished); Descamps v. United States, 133 S.Ct. 2276, 2285 (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.

         III. DISCUSSION

         A. The Categorical and Modified Categorical Approaches

         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, 133 S.Ct. 1678, 1684 (2013)) (internal quotations omitted). The court then compares the state statute of conviction's elements ...


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