United States District Court, D. Maine
ORDER ON SENTENCING
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
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
FACTUAL AND LEGAL BACKGROUND
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
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
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.
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.
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
U.S.S.G. § 4B1.1(a).
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”).
Guidelines define a “controlled substance
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
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 PARTIES' POSITIONS
The Government's Memorandum
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). 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)).
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. 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
John Oliveira's Memorandum
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.
The Government's Reply
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.
The Categorical and Modified Categorical Approaches
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.
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 ...