United States Court of Appeals
For the First Circuit
No. 14-1783
UNITED STATES,
Appellee,
v.
JAMES MELVIN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Howard, Chief Judge,
Lynch and Lipez, Circuit Judges.
Richard B. Klibaner, for appellant.
Randall E. Kromm, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.
October 23, 2015
LYNCH, Circuit Judge. In a previous appeal in this case,
we vacated James Melvin's conviction for possession of cocaine
base with intent to distribute. United States v. Melvin, 730 F.3d
29, 40 (1st Cir. 2013). We remanded for a new trial on the basis
of a non-harmless trial error. Id. On retrial, Melvin was again
found guilty of possession of cocaine base with intent to
distribute and sentenced to 168 months of imprisonment and six
years of supervised release. On appeal, he challenges his sentence
on the ground that he was erroneously sentenced as a career
offender pursuant to U.S.S.G. § 4B1.1(a). He brings additional
claims of trial and sentencing error in a supplemental pro se
brief. We affirm his sentence and conviction.
I.
Evidence at Melvin's second trial was sufficient to
satisfy a jury that, on February 19, 2010, he sold approximately
11.5 grams of cocaine base to a government informant. The jury
returned a guilty verdict on March 27, 2014.
The presentence report (PSR) calculated Melvin's base
offense level at 20, based on the quantity of cocaine base.
U.S.S.G. § 2D1.1(a)(5) (2013). Because no adjustments were
applied, the total offense level was also 20. However, because of
his "two prior felony convictions of . . . a controlled substance
offense," the PSR recommended a career offender offense level of
34. U.S.S.G. § 4B1.1(a), (b)(2). Melvin objected to his career
- 2 -
offender status on the basis that he only had one predicate
offense. He conceded that a 2005 conviction in the Southern
District of New York qualified as a predicate controlled substance
offense, but he argued that he had no other qualifying prior
conviction. The probation officer responded that a 1998 New York
state conviction for "Criminal Sale of a Cntr. Subst. 3rd Degree"
was the second predicate offense.1
At the sentencing hearing on July 8, 2014, the district
court overruled Melvin's objection. It found that this court's
decision in United States v. Bryant, 571 F.3d 147 (1st Cir. 2009),
and an unpublished Second Circuit opinion in United States v.
Spells, 267 F. App'x 93 (2d Cir. 2008), foreclosed his argument.
The district court applied an offense level of 34 and a criminal
history category of VI, which yielded a guideline sentencing range
of 262 to 327 months, and imposed a below-guideline sentence of
168 months. This appeal followed.
II.
Melvin challenges the district court's reliance on his
1998 New York state conviction to categorize him as a career
offender for sentencing purposes. Reviewing this question of law
1 Although the PSR did not identify the statute of conviction
by section number, both parties agree that the conviction was under
New York Penal Law § 220.39, which defines the offense as
"knowingly and unlawfully sell[ing] . . . a narcotic drug."
- 3 -
de novo, United States v. Almenas, 553 F.3d 27, 31 (1st Cir. 2009),
we reject this challenge for two independent reasons.2
A. Law of the Circuit Doctrine
Melvin's challenge is foreclosed by our earlier panel
decision in Bryant. There, we held that a New York state
conviction for "attempted criminal sale of a controlled substance"3
was a controlled substance offense for the purpose of determining
career offender status. Bryant, 571 F.3d at 156–58.
Under the law of the circuit doctrine, we are "bound by
a prior panel decision, absent any intervening authority." United
States v. Mouscardy, 722 F.3d 68, 77 (1st Cir. 2013) (quoting
United States v. Grupee, 682 F.3d 143, 149 (1st Cir. 2012)). Even
an argument that an earlier panel "fundamentally misinterpreted"
then-existing precedent does not allow us to overturn prior panel
precedent; rather, "[o]nly the Supreme Court or an en banc court
2 The government also makes a third argument: that the law of
the case doctrine forecloses Melvin's challenge to his career
offender status because he had the opportunity and incentive to
raise the issue in his first appeal but failed to do so. However,
the government did not raise this argument before the district
court. Because our affirmance is supported by two other grounds,
we do not decide whether this argument was waived or whether the
law of the case doctrine forecloses Melvin's appeal.
3 Although the decision in Bryant did not identify the statute
of offense by section number, the parties agree that it was the
same as the statute at issue here: New York Penal Law § 220.39.
The New York state decision relied on by Bryant also makes clear
that the conviction at issue was under § 220.39. See Bryant, 571
F.3d at 158 (citing People v. Samuels, 780 N.E.2d 513, 515 (N.Y.
2002)).
- 4 -
can overturn prior panel precedent in ordinary circumstances."
United States v. Holloway, 499 F.3d 114, 118 (1st Cir. 2007).
Melvin argues that Bryant does not control because it
found New York Penal Law § 220.39 to be a predicate offense only
under one prong of the definition of a controlled substance
offense, and he is challenging the applicability of the other
prong. That argument is meritless. A controlled substance offense
is defined as:
an offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that
prohibits [1] the manufacture, import, export,
distribution, or dispensing of a controlled substance
(or a counterfeit substance) or [2] 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). Because that definition employs a disjunctive
construction, the government need only show that § 220.39 is a
controlled substance offense under either prong of U.S.S.G.
§ 4B1.2(b). Because Bryant establishes that § 220.39 is a
controlled substance offense under the second prong, the
possession clause, Bryant disposes of this appeal notwithstanding
Melvin's arguments about the inapplicability of the other prong.
Melvin also challenges the reasoning of Bryant.
However, he does not point to any intervening authority that
requires us to reconsider Bryant and instead suggests that Bryant
- 5 -
was incorrect when decided. Because that is not sufficient to
defeat the law of the circuit doctrine, Bryant controls.4
B. Controlled Substance Offense
Even if Melvin could overcome the law of the circuit
doctrine, we still affirm because we conclude, independently of
Bryant, that a conviction under New York Penal Law § 220.39 is a
controlled substance offense for the purpose of determining career
offender status under U.S.S.G. § 4B1.1.
In Bryant, we relied on the second prong of U.S.S.G.
§ 4B1.2(b), the possession clause, to find that a conviction under
§ 220.39 was a controlled substance offense. 571 F.3d at 156–58.
Melvin argues that Bryant's reasoning was in error.
Whatever the merits of Melvin's argument, we leave his
sentence undisturbed because a conviction under § 220.39 is a
controlled substance offense, in any event, under the first prong
of § 4B1.2(b): "distribution . . . of a controlled substance."5
4 Melvin also argues, for the first time in his reply brief,
that Bryant should not apply because his § 220.39 conviction
predates the line of New York state cases on which Bryant relied.
See Bryant, 571 F.3d at 158 (citing Samuels, 99 N.Y.2d at 23–24).
However, we do not consider arguments raised for the first time in
a reply brief. See, e.g., Román-Oliveras v. Puerto Rico Elec.
Power Auth. (PREPA), 797 F.3d 83, 85 n.1 (1st Cir. 2015).
5 We apply the categorical approach, under which the question
is whether § 220.39 encompasses only conduct that qualifies as a
controlled substance offense. See Taylor v. United States, 495
U.S. 575, 600–02 (1990); United States v. Dávila-Félix, 667 F.3d
47, 55–56 (1st Cir. 2011).
- 6 -
Melvin argues that New York defines a sale of a controlled
substance to include a mere "offer" to sell, see N.Y. Penal Law
§ 220.00(1), and a mere offer to sell does not qualify as
distribution. However, under Application Note 1 of U.S.S.G.
§ 4B1.2, a controlled substance offense "include[s] the offense[]
of . . . attempting to commit such offense[]." A defendant is
guilty of attempted distribution if he (1) had the intent to commit
the crime and (2) took a substantial step toward its commission.
United States v. Piesak, 521 F.3d 41, 44 (1st Cir. 2008). A
conviction under § 220.39 under an offer-to-sell theory would
require proof of a bona fide offer to sell with intent to proceed
with the sale and the ability to do so. See Bryant, 571 F.3d at
158 (citing People v. Samuels, 780 N.E.2d 513, 515 (N.Y. 2002)).
A bona fide offer comprises both the intent and substantial step
necessary to constitute an attempted distribution of a controlled
substance.6 Cf. Pascual v. Holder, 723 F.3d 156, 158–59 (2d Cir.
2013) (per curiam) (holding that New York Penal Law § 220.39 is
analogous to the federal crime of attempted distribution and thus
qualifies as an aggravated felony under the Immigration and
Nationality Act); Berroa v. Att'y Gen. of U.S., 523 F. App'x 913,
917–18 (3d Cir. 2013) (per curiam) (same); United States v. Evans,
6In so deciding, we answer a question explicitly left open
in our recent decision in United States v. Whindleton, 797 F.3d
105, 111 n.5 (1st Cir. 2015).
- 7 -
699 F.3d 858, 868 (6th Cir. 2012) (holding, with respect to an
Ohio drug conviction, that "[a]n offer to sell a controlled
substance is an act perpetrated in furtherance of a sale, typically
as part of the negotiation for the price and quantity, and it is
therefore a substantial step in attempting to consummate a sale").
Under the distribution prong of U.S.S.G. § 4B1.2(b), New York Penal
Law § 220.39 is categorically a controlled substance offense that
can trigger career offender status for sentencing purposes.
III.
In his pro se supplemental brief, Melvin claims a number
of trial and sentencing errors.
First, Melvin argues that the district court erred in
denying his motion for a mistrial on the basis that the jury saw
him in handcuffs. The government denied there was any such event.
Even if the event had taken place, "exposure of the jury to a
defendant in shackles does not necessarily require a mistrial."
United States v. Pina, 844 F.2d 1, 8 (1st Cir. 1988). Although
Melvin alleged that he made eye contact with one juror, that juror,
when questioned by the district court, did not substantiate
Melvin's allegation and stated that he recalled nothing out of the
ordinary. These circumstances do not establish "the kind of clear
prejudice that would render the court's denial of his motion for
a mistrial a manifest abuse of discretion." United States v.
- 8 -
Trinidad-Acosta, 773 F.3d 298, 306 (1st Cir. 2014) (quoting United
States v. Dunbar, 553 F.3d 48, 58 (1st Cir. 2009)).
Second, Melvin argues that the district court erred in
allowing evidence of his 2007 drug conviction in cross examination.
A felony conviction can be admitted to attack a criminal
defendant's credibility "if the probative value of the evidence
outweighs its prejudicial effect to that defendant." Fed. R. Evid.
609(a)(1)(B). We find no abuse of discretion in the district
court's decision to admit this evidence.7
Third, Melvin challenges his designation as a career
offender for the purposes of sentencing. These arguments largely
repeat those in his initial brief submitted through counsel and
are addressed above. His argument that the career offender
guideline violates the double jeopardy clause has been previously
rejected. See Witte v. United States, 515 U.S. 389, 400 (1995).
7As a general matter, informing the jury of a past felony
conviction creates a risk of prejudice, and that risk is heightened
where the crime of conviction is similar to the crime with which
the defendant is charged. See United States v. Brito, 427 F.3d
53, 64 (1st Cir. 2005) ("[C]onvictions for dissimilar crimes are
customarily thought to be less prejudicial than convictions for
similar crimes (which may run a risk of implying a propensity to
commit the crime)."). It is well established, however, that prior
convictions for drug distribution bear on character for
truthfulness, see United States v. Barrow, 448 F.3d 37, 44 (1st
Cir. 2006); Brito, 427 F.3d at 64, and the district court did not
abuse its discretion here in determining that the probative value
of that conviction outweighed its prejudicial effect.
- 9 -
IV.
For the reasons stated, we affirm.
- 10 -