United States v. Mulkern

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
 THOMPSON, Circuit Judge.

Stage Setting

Brian Mulkern pled guilty to a federal charge of

possessing ammunition as a felon. 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 and a 2004 Maine drug-

trafficking conviction on his record. 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. See United States v. Murdock, 699 F.3d 665,

672 (1st Cir. 2012).2 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 type of ACCA-qualifying offense is a "violent

felony," relevantly defined as "any crime 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-likely-
than-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 superiors have devised 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 definitions of "violent felony" or "serious drug

offense." Cf. Mathis v. United States, 136 S. Ct. 2243, 2248

(2016). 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. See

id. 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." Id. (citing Shepard v.

United States, 544 U.S. 13, 26 (2005)). "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 modified-
categorical 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 attempts to
inflict bodily injury on another; or

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 crossed-

out 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). See 467

A.2d at 162-63. 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). See Raymond, 467

A.2d at 165. 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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sentence.7 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." See Me. Stat. tit. 17-A, § 1103(1-A) (emphases

added). 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, exchange or otherwise
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). If the drug trafficked is a "schedule W drug" —

which heroin, then statutorily defined as "any compound,

mixture[,] or preparation containing heroin," unquestionably is —

then a violation of this statute is a "Class B crime." See id.

§§ 1103(1-A)(A), 1102(1)(I). 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 definitions to qualify as a "serious drug

offense." 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 trafficking conviction

"involv[ed]" an intent to distribute. It offers two reasons why.

The first reason turns on the "trafficking" name Maine's

legislature used for the at-issue statute: "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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use. 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." Id.

§ 924(e)(2)(A)(ii) (emphases added). 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 copped-

to 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 the government does no better with its second

argument — that one can infer Mulkern's pled-to drug crime

"involv[es]" possession with intent to distribute from his

possessing 2 grams or more of heroin. We have never "held that a

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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. Brandon, 247

F.3d at 192. That "very reasonable assumption" is probably why

lots of states have trafficking laws "severely punish[ing]

possession of large quantities of drugs without making"

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

by-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" is considered "trafficking in Missouri"). Obviously,

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

with-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. Consider James, a case the government

relies on. 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. But Mulkern's case is worlds

apart from James. 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." See Brandon, 247 F.3d

at 192 (emphasis added). Actually, Mulkern could have been

convicted for possessing less than 2 grams. And that is because

the statute — as it stood at time of 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." See Brandon, 247 F.3d at

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

enhancement.

- 22 -