United States v. Burghardt

United States Court of Appeals
For the First Circuit

No. 18-1767

UNITED STATES OF AMERICA,

Appellee,

v.

MICHAEL ROMAN BURGHARDT,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph N. Laplante, U.S. District Judge]

Before

Thompson, Kayatta, and Barron,
Circuit Judges.

Christine DeMaso, Assistant Federal Public Defender, for
appellant.
Seth R. Aframe, Assistant United States Attorney, with whom
Scott W. Murray, United States Attorney, was on brief, for
appellee.

October 3, 2019
 KAYATTA, Circuit Judge. Michael Roman Burghardt pled

guilty to one count of being a felon in possession of a firearm,

in violation of 18 U.S.C. § 922(g)(1). He was sentenced to fifteen

years' imprisonment, the mandatory minimum under the Armed Career

Criminal Act (ACCA). On appeal, Burghardt claims plain error

because the government did not charge him with, and he did not

plead guilty to, knowing the facts that made him a person

prohibited from possessing a firearm. In the alternative, he

argues that he was ineligible for sentencing under the ACCA and

that the district court miscalculated his base offense level under

the Sentencing Guidelines.

For the following reasons, we affirm Burghardt's

conviction and sentence. In so doing we explain how plain error

review works when a defendant claims that he would not have pled

guilty had he been informed at his acceptance-of-plea proceeding

that the government need prove that he knew that his prior offense

had been punishable by more than a year in prison. We also hold

that a conviction for selling a controlled substance under New

Hampshire law, N.H. Rev. Stat. § 318-B:2(I), is a "serious drug

offense" under the ACCA, 18 U.S.C. § 924(e)(2)(A)(ii).

I.

In 2010, Burghardt was convicted under state law of three

counts of selling a controlled drug (less than a gram of heroin on

two dates and more than five grams of heroin on a third) and one

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count of possessing a controlled drug with the intent to sell (more

than five grams of heroin).1 See N.H. Rev. Stat. § 318-B:2(I).

In 2011, Burghardt was also convicted of robbery under New

Hampshire law.2 See id. § 636:1.

In 2017, Burghardt ran afoul of the law again. During

a search of Burghardt incident to arrest, officers found an

unloaded pistol under his coat. Because of his felony record,

Burghardt was charged with violating the federal felon-in-

possession statute. The indictment stated that Burghardt, "having

been convicted of a crime punishable by imprisonment for a term

exceeding one year, did knowingly possess in and affecting

interstate commerce" a .380 caliber pistol, in violation of 18

U.S.C. § 922(g)(1). The indictment did not assert that Burghardt

knew that he had been convicted of a crime punishable by

imprisonment for a term exceeding one year (the "scienter-of-

status element").

Burghardt initially pled not guilty, but eventually

changed his plea to guilty. Before accepting that guilty plea,

the district court informed Burghardt that a conviction for

1
The maximum term of imprisonment for selling less than one
gram of heroin is seven years. See N.H. Rev. Stat. § 318-
B:26(I)(c)(4). For possession with intent to sell or for selling
more than five grams of heroin, the maximum term of imprisonment
is thirty years. See id. § 318-B:26(I)(a)(3).
2 New Hampshire robbery is a class B felony, carrying a maximum

term of imprisonment of seven years. See N.H. Rev. Stat.
§ 636:1(III); id. § 651:2(II)(b).

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violating § 922(g) required the government to prove four elements:

(1) that Burghardt possessed a firearm; (2) that the possession

was knowing and intentional; (3) that the firearm (or some part of

it) had been transported at some point in interstate commerce; and

(4) that Burghardt's possession of the firearm took place after he

had been convicted of a crime punishable by a term of imprisonment

exceeding one year. With the acquiescence of all counsel, and

without the benefit of the Supreme Court's recent decision in

Rehaif v. United States, 139 S. Ct. 2191 (2019), the district court

did not inform Burghardt that the government would additionally

have to prove the scienter-of-status element in order to sustain

a conviction. Burghardt pled guilty to the single count of

violating § 922(g).

The United States Probation Office recommended that the

district court sentence Burghardt under the ACCA. Under the ACCA,

"a person who violates [the felon-in-possession statute] and has

three previous convictions . . . for a violent felony or a serious

drug offense . . . shall be . . . imprisoned not less than fifteen

years." 18 U.S.C. § 924(e)(1). The district court, over

Burghardt's objections, concluded that Burghardt's convictions

under New Hampshire law for selling a controlled substance were

"serious drug offenses" as defined by the ACCA. The district court

also acknowledged Burghardt's challenge to the Probation Office's

base-offense-level calculation but noted that it "need not reach

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this question" in light of the ACCA determination. The district

court sentenced Burghardt to fifteen years' imprisonment, the

ACCA's mandatory minimum.

On appeal, Burghardt raised in his opening brief three

challenges to his sentence: (1) selling a controlled substance

under New Hampshire law is not a "serious drug offense" and

therefore cannot be a predicate act for purposes of triggering the

ACCA's mandatory minimum sentence; (2) robbery under New Hampshire

law is not a "crime of violence" under the Guidelines and therefore

should not have increased his base offense level; and (3) imposing

the ACCA's mandatory minimum sentence violated his Sixth Amendment

rights because his prior convictions were not charged in the

indictment or proven beyond a reasonable doubt. We do not address

Burghardt's Sixth Amendment argument, as he acknowledges that it

is foreclosed by binding precedent, see Almendarez-Torres v.

United States, 523 U.S. 224, 226-27 (1998), and he correctly

concedes that he raises the issue solely "to preserve it for

possible Supreme Court review."

A fourth challenge then arose when the Supreme Court

decided Rehaif after the government and Burghardt filed their reply

briefs. In Rehaif, the Supreme Court held that under § 922(g) the

government "must show that the defendant knew he possessed a

firearm and also that he knew he had the relevant status [as a

prohibited person] when he possessed it." 139 S. Ct. at 2194. We

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granted the parties leave to file supplemental briefing addressing

Rehaif's impact. In his supplemental brief, Burghardt urges that

Rehaif requires us to vacate his plea and conviction and either

dismiss the indictment against him or, alternatively, remand for

further proceedings.

II.

We turn now to the merits of the four challenges

Burghardt raises on this appeal, beginning first with his challenge

based on Rehaif.

A.

Burghardt contends that the holding in Rehaif exposes a

common defect in both the indictment against him and in the

acceptance of his plea. We address each in turn.

1.

A guilty plea waives all non-jurisdictional challenges

to an indictment. United States v. Urbina-Robles, 817 F.3d 838,

842 (1st Cir. 2016). And "defects in an indictment do not deprive

a court of its power to adjudicate a case." United States v.

Cotton, 535 U.S. 625, 630 (2002). Burghardt nevertheless argues

that he could not have waived his challenge to the indictment

because "waiver is the intentional relinquishment or abandonment

of a known right," United States v. Olano, 507 U.S. 725, 733 (1993)

(internal quotation marks and citation omitted), and the Supreme

Court did not recognize the scienter-of-status element until after

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his sentencing.3 But we have not limited waiver doctrine in that

way. Indeed, we have characterized as "waived arguments" even

those that "become available only as a result of intervening

changes in law." United States v. Sevilla-Oyola, 770 F.3d 1, 14

(1st Cir. 2014). Of course even waived arguments may be reviewed

in the event that we choose to "engage[] in the rare exercise of

[our] power to excuse waiver." Igartúa v. United States, 626 F.3d

592, 603 (1st Cir. 2010). But because we do not see -- nor does

Burghardt provide -- any compelling reason for so exercising our

discretion in this case, we will not entertain Burghardt's

challenge to the indictment.

3
The government correctly agrees that the law in this circuit
did not previously impose this scienter-of-status element for
convictions under § 922(g). In United States v. Smith, we held
that "[u]nder established case law, the government need not prove
that the defendant knowingly violated [§ 922(g)]; rather, it only
need prove, which it did here, that the defendant knowingly
possessed firearms." 940 F.2d 710, 713 (1st Cir. 1991). More
recently, however, we stated in dicta that "Smith's holding
actually held it was unnecessary for the government to prove the
defendant's knowledge of the law itself" and that "[t]he
principal's knowledge of his felony status was not at issue."
United States v. Ford, 821 F.3d 63, 71 n.4 (1st Cir. 2016).
Nonetheless, we recognize that since Smith we have omitted a
scienter-of-status element from our recitation of the elements
needed to sustain a § 922(g) conviction. See, e.g., United States
v. Scott, 564 F.3d 34, 39 (1st Cir. 2009) ("A felon-in-possession
conviction requires proof that the defendant had a prior felony
conviction for an offense punishable by imprisonment for a term
exceeding one year and had knowing possession of a firearm in or
affecting interstate commerce."). Rehaif clearly imposes upon the
government that additional requirement.

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 2.

A guilty plea does not waive all challenges to the plea

itself. See, e.g., United States v. Ortiz-Torres, 449 F.3d 61, 68

(1st Cir. 2006) (noting that "a guilty plea does not preclude an

attack on the plea's voluntariness" (internal quotation marks

omitted)). One of the "core concern[s]" of a plea colloquy

pursuant to Federal Rule of Criminal Procedure 11 is "ensuring

that the defendant understands the elements of the charges that

the prosecution would have to prove at trial." United States v.

Gandia-Maysonet, 227 F.3d 1, 3 (1st Cir. 2000); Fed. R. Cr.

P. 11(b)(1)(G) ("[T]he court must inform the defendant of, and

determine that the defendant understands, . . . the nature of each

charge to which the defendant is pleading."). Burghardt protests

the district court's undisputed (but understandable) failure

during the plea colloquy to inform him of the scienter-of-status

element. Because Burghardt did not offer to the district court

the Rule 11 objection he now raises on appeal, we review his

argument for plain error. See United States v. Dominguez Benitez,

542 U.S. 74, 80 (2004); United States v. Hernàndez-Maldanado, 793

F.3d 223, 226 (1st Cir. 2015). Under this standard, a defendant

must show "(1) an error, (2) that is clear or obvious, (3) which

affects his substantial rights . . . , and which (4) seriously

impugns the fairness, integrity or public reputation of the

proceeding." United States v. Correa-Osorio, 784 F.3d 11, 17–18

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(1st Cir. 2015). The parties agree that the first two prongs of

this analysis have been met, in light of Rehaif. For that reason,

we turn to the prejudice prong by considering whether the error

affected his substantial rights.

Showing prejudice requires demonstrating "a reasonable

probability that, but for [the error claimed], the result of the

proceeding would have been different." United States v. Turbides-

Leonardo, 468 F.3d 34, 39 (1st Cir. 2006) (alteration in original)

(quoting United States v. Padilla, 415 F.3d 211, 221 (1st Cir.

2005)). In the context of an appeal challenging an unpreserved

error in accepting a guilty plea, the "result of the proceeding"

is the entry of the plea. Therefore, a defendant who brings such

a challenge must "show a reasonable probability that, but for the

purported error, he would not have pled guilty." United States v.

Díaz-Concepción, 860 F.3d 32, 38 (1st Cir. 2017); Urbina-Robles,

817 F.3d at 842. The error in this case is the failure of the

district court to inform Burghardt of the scienter-of-status

element of the § 922(g) charge. See Fed. R. Crim. P. 11(b)(1)(G).

Burghardt argues that, had he been informed about this additional

burden imposed on the government, there is a reasonable probability

he would have gone to trial.

Burghardt's mere assertion, by itself, that he would

likely have acted differently but for the Rule 11 error is

insufficient to establish the requisite reasonable probability of

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a different result if the circumstances surrounding the plea render

such a change in his behavior improbable. See Díaz-Concepción,

860 F.3d at 38 ("Where . . . it is clear from the uncontested

record that the government would have had sufficient evidence to

secure a conviction at trial, an appellant's bare contention that

he might have pled differently if the elements of the charged

offense had been expounded upon is not enough to meet that

standard."); Urbina-Robles, 817 F.3d at 844 (holding that a

defendant's "mere[] assert[ion] that he might not have so pled"

but for a Rule 11 error was not enough to satisfy the prejudice

prong when "[t]he discovery materials [the defendant] received

prior to his guilty plea clearly suggested that, at trial, the

government would have little trouble proving the [misstated]

element"). So, "informed by the entire record," Dominguez Benitez,

542 U.S. at 83, we "can fairly ask [Burghardt] what he might ever

have thought he could gain by going to trial," keeping in mind

that if the record makes it reasonably probable that he would have

done so, "it is no matter that the choice may have been foolish,"

id. at 85.

Burghardt can point to nothing in the record suggesting

that he would have insisted on going to trial, even if foolishly,

if he had been told of the scienter-of-status element. He does

advance the reasonable premise that his probability of opting for

trial would have increased commensurate with a perception that the

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government would have had any difficulty in proving the added

element. Of course, Burghardt carefully tenders no claim that he

would have testified that he did not know that his prior offenses

were punishable by more than a year in prison. But a defendant

can instead base a decision to risk a trial on his perception of

the government's ability to carry its burden even as he remains

mute.

Our own review of the record nevertheless reveals no

reason to think that the government would have had any difficulty

at all in offering overwhelming proof that Burghardt knew that he

had previously been convicted of offenses punishable by more than

a year in prison. Burghardt does not dispute that he has pled

guilty to offenses punishable by a term of imprisonment well beyond

a year. Nor does he dispute that New Hampshire law requires a

judge to make sure that a defendant knows the maximum possible

sentence when entering a guilty plea. See State v. Percy,

No. 2013-0648, 2014 WL 11485808, at *3 (N.H. Oct. 21, 2014)

(holding that a trial court must ascertain that a defendant

understands the "potential penalties"); see also State v. Allard,

356 A.2d 671, 672 (N.H. 1976); State v. Farris, 320 A.2d 642, 644

(N.H. 1974) (noting the requirement that "the defendant fully

underst[and] the consequences of his plea in terms of the maximum

sentence which might be imposed"). So it seems virtually certain

that at least one of the two state court judges who accepted

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Burghardt's guilty pleas in his state court cases -- in 2010 for

the drug convictions and in 2011 for the robbery conviction --

told Burghardt face-to-face what his maximum sentence could be, an

inference bolstered by his lack of appeal of those pleas at the

time for failure to comply with New Hampshire law. And we have

repeatedly held that if there is overwhelming proof establishing

an element of the charged offense, a court's failure to describe

that element during a Rule 11 plea colloquy does not by itself

constitute plain error. See United States v. Gandia-Maysonet, 227

F.3d 1, 5 (1st Cir. 2000); see also Díaz-Concepción, 860 F.3d at

38; Urbina-Robles, 817 F.3d at 844.

We also consider the fact that, according to his

presentence investigation report (PSR), Burghardt received 2-10

years in state prison for two of the sale convictions, 7.5-15 years

in state prison for the third sale conviction and the possession-

with-intent-to-sell conviction, and 2-5 years in state prison for

the robbery conviction.4 If true, the receipt of such sentences

4 The PSR suggests that Burghardt was paroled after serving
two years of his sentences for his convictions on the four drug
charges -- which could have impacted his knowledge as to the length
of time he was serving for any single conviction -- and does not
clearly state the length of time he served solely for the robbery
charge beyond 163 days. But evidence that he served over a year
for a single charge is not necessary to support our conclusion,
because, as discussed, the government has ample other evidence
that it could have introduced to show Burghardt's knowledge of his
status. For example, along with these sentences, the defendant
received other sentences for potentially over one year that were
together sufficient to place him into criminal history

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would certainly have made clear to Burghardt the fact that his

offenses were punishable by more than a year in prison. Burghardt

correctly states that he had no reason to contest these

descriptions of his actual sentences in the PSR in the district

court because they related to an element that our circuit had not

recognized as an element required to sustain a conviction under

§ 922(g). But for that same reason those descriptions are unlikely

to have been fabricated, because Burghardt's actual imposed

sentences would not have affected his conviction or sentence prior

to Rehaif, eliminating any possible incentive for the government

to exaggerate their length. At a minimum, this raises yet another

strong inference that any state records would likely doom any

remaining chance of claiming insufficient scienter.

In theory, it is nevertheless possible that the state-

court records regarding Burghardt's two prior convictions might

reveal no mention of the possible prison terms in either case, or

that perhaps the state records may be unobtainable or

uninformative, in which case Burghardt might arguably have thought

that a prosecutor in this case relying only on an instruction

concerning normal state-court practice might fall short of

securing his conviction, even in the absence of any testimony

category VI, negating the inference that he has never been informed
that he faced a sentence that would qualify under § 922(g).

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challenging conformity with that practice in Burghardt's prior

cases. That seems to be quite a stretch. In any event, though,

neither side has chosen to present us with the state records from

either state court proceeding or to make any representation as to

their unavailability. We are therefore presented with an "unknown

variable: the contents of the record of the prior conviction[s]."

Turbides-Leonardo, 468 F.3d at 40. In light of this pivotal gap,

we must ask: Whose problem is that?

Our case law dealing with an analogous gap in the record

relevant to plain error review of sentencing challenges suggests

strongly that the absence of more records concerning Burghardt's

state court proceedings cuts against him in this case. In a series

of cases, we confronted the claim that Shepard documents from a

state court might show that there was a "reasonable probability

that [the defendant] would be better off from a sentencing

standpoint had the district court not committed the claimed . . .

error." United States v. Bauzó-Santiago, 867 F.3d 13, 27 (1st

Cir. 2017) (second alteration in original). In those cases, we

held that the defendant -- bearing the burden of showing that such

a reasonable probability existed -- need produce the records or at

least identify a reason why the records would have established the

premise warranting a different sentence. See id. at 27-28; United

States v. Serrano-Mercado, 784 F.3d 838, 848 (1st Cir. 2015);

Turbides-Leonardo, 468 F.3d at 40. Here, by analogy, we are

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reviewing the district court's Rule 11 failure under plain error

review, where the defendant also bears the burden of showing that

a reasonable probability of a different outcome exists.

We also note that, though Burghardt did not have a plea

agreement in this case, he did receive a benefit by pleading guilty

in the form of a three-level reduction under the Guidelines for

his acceptance of responsibility.5 The benefit received by the

defendant from pleading is often a factor in our analysis of the

likelihood that a defendant might have decided not to plead guilty,

further buttressing our conclusion that Burghardt has failed to

show a reasonable probability that, but for the Rule 11 error, he

would have gone to trial. See, e.g., Díaz-Concepción, 860 F.3d at

39; Urbina-Robles, 817 F.3d at 844; cf. United States v. Caraballo-

Rodriguez, 480 F.3d 62, 76 (1st Cir. 2007).

Based on the foregoing, Burghardt has failed to carry

his burden of demonstrating that it is reasonably probable that he

would not have pled guilty had the district court told him that

the government was required to prove beyond a reasonable doubt

that he knew when he possessed the gun that he had previously been

5 Although Burghardt was sentenced to the ACCA's mandatory
minimum, he argued at sentencing that the ACCA was inapplicable
and that he should be sentenced under the Guidelines range instead.
Therefore, the fact that he did not ultimately realize the three-
level reduction benefit is of no matter -- Burghardt certainly
envisioned and advocated for a scenario where he would have
benefited from that reduction.

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convicted of an offense punishable by more than a year in prison.

His challenge to the acceptance of his plea therefore fails on

plain error review.

B.

We turn next to Burghardt's sentencing challenges,

beginning with his argument that selling a controlled substance

under New Hampshire law, N.H. Rev. Stat. § 318-B:2(I), is not a

"serious drug offense" and therefore cannot be a predicate act for

purposes of triggering the ACCA's mandatory minimum sentence. The

New Hampshire statute states that "[i]t shall be unlawful for any

person to manufacture, possess, have under his control, sell,

purchase, prescribe, administer, or transport or possess with

intent to sell, dispense, or compound any controlled drug." Id.

We review de novo the legal question of whether a prior conviction

qualifies as an ACCA predicate. United States v. Whindleton, 797

F.3d 105, 108 (1st Cir. 2015).

Under the ACCA, "a person who violates [the felon-in-

possession statute] and has three previous convictions . . . for

a violent felony or a serious drug offense . . . shall be . . .

imprisoned not less than fifteen years." 18 U.S.C. § 924(e)(1).

The ACCA includes in its definition of a "serious drug offense"

"an offense under State law, involving manufacturing,

distributing, or possessing with intent to manufacture or

distribute, a controlled substance [as defined under federal law],

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for which a maximum term of imprisonment of ten years or more is

prescribed by law." Id. § 924(e)(2)(A)(ii). The parties agree

that determining whether a given state crime falls within § 924

requires employing a "categorical approach," under which "a state

crime cannot qualify as an ACCA predicate if its elements are

broader than those of a listed generic offense." Mathis v. United

States, 136 S. Ct. 2243, 2251 (2016). Under this approach, a court

must consider "only the offense's legal definition." Whindleton,

797 F.3d at 108. "How a given defendant actually perpetrated the

crime . . . makes no difference." Mathis, 136 S.Ct. at 2251.

Additionally, however, a statute can be "indivisible" if

it sets out a single set of elements so as to define a single crime

and "divisible" if it lists elements in the alternative, thus

defining multiple crimes. These two types of statutes require a

slightly different analysis under the categorical approach. Id.

at 2249-50. For an indivisible crime, a court simply "lines up

that crime's elements alongside those of the generic offense and

sees if they match," but for a divisible crime, a court must use

a "modified categorical approach" where it " looks to a limited

class of documents (for example, the indictment, jury

instructions, or plea agreement and colloquy) to determine what

crime, with what elements, a defendant was convicted of" and then

compares only this specific committed offense with the relevant

generic offense. Id. at 2248–49. Here, the parties agree that

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New Hampshire section 318-B:2(I) is divisible. For example, a

person may violate the statute if he "manufacture[s]" a controlled

substance or if he instead "purchase[s]" a controlled substance.

Proving either of the alternative elements is sufficient for a

conviction under section 318-B:2(I). It is undisputed that

Burghardt was convicted of "sell[ing]" a controlled drug, and as

such, this is the specific offense that we must compare to the

generic offense. See N.H. Rev. Stat. § 318-B:2(I).

Under New Hampshire law, "sale" is defined as "barter,

exchange or gift, or offer thereof." Id. § 318-B:1(XXX). The

parties agree that this statutory definition is not further

divisible, and that it identifies four alternative means as opposed

to four alternative elements. This distinction is significant.

See Mathis, 136 S.Ct. at 2256 (explaining that when reviewing

statutes listing alternative means, "the court has no call to

decide which of the statutory alternatives was at issue in the

earlier prosecution," and "may ask only whether the elements of

the state crime and generic offense make the requisite match").

Accordingly, because Burghardt was convicted of selling a

controlled substance, we must ask whether any of the alternative

means of committing a sale under New Hampshire law are broader

than the ACCA definition of a "serious drug offense." See id. at

2251. If so, section 318-B:2(I) is categorically not a "serious

drug offense."

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 Burghardt rests his hat on the "offer" means of

committing a sale. See N.H. Rev. Stat. § 318-B:1(XXX). But we

have already held that a "bona fide" offer -- one "requiring the

intent and the ability to proceed with a sale -- sufficiently

'involv[es]' the distribution of drugs to qualify as a 'serious

drug offense' under the ACCA." Whindleton, 797 F.3d at 111. So

Burghardt takes a more refined approach. He argues that New

Hampshire law criminalizes more than just "bona fide" offers.

Rather, it goes so far as to also criminalize "mere" offers to

sell a controlled substance -- meaning those in which the offeror

does not have the intent or the ability to proceed with the sale.

And a "mere" offer, Burghardt contends, is not an offense

"involving manufacturing, distributing, or possessing with intent

to manufacture or distribute a controlled substance" under the

ACCA. 18 U.S.C. § 924(e)(2)(A)(ii).

For Burghardt to be successful in his more refined

argument, we would have to answer two questions in his favor.

First, does New Hampshire law in fact criminalize "mere" offers?

And second, is a "mere" offer a "serious drug offense"? Because

we find that Burghardt's argument fails at the first question, we

need not address the second.

New Hampshire law does not explicitly limit sale-by-

offer violations of section 318-B:2(I) to "bona fide" offers.

Indeed, it simply uses the word "offer," without more. See N.H.

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Rev. Stat. § 318-B:1(XXX). The parties dispute the breadth of

this word, each claiming that it clearly does or does not encompass

"mere" offers. Based on the text alone, we have trouble accepting

either party's interpretation to the exclusion of the other's.

Certainly it is not unreasonable to read the word "offer" as

including fraudulent or insincere offers. See, e.g., United States

v. Savage, 542 F.3d 959, 965 (2d Cir. 2008) (holding that a statute

defining "sale" as an "offer" "plainly criminalizes, inter alia,

a mere offer to sell a controlled substance. . . . An offer to

sell can be fraudulent, such as when one offers to sell the

Brooklyn Bridge." (citation omitted)). But it is also reasonable

to eschew such arguably overly literal readings of the word. See,

e.g., People v. Mike, 706 N.E.2d 1189, 1191 (N.Y. 1998) (holding

that, under a statute which defined "sell" as an "offer," "there

must be evidence of a bona fide offer to sell -- i.e., that

defendant had both the intent and the ability to proceed with the

sale"). So the text of section 318-B:2(I) is ambiguous.

In light of this ambiguity, we heed the "fundamental

canon of statutory construction that the words of a statute must

be read in their context and with a view to their place in the

overall statutory scheme." Nat'l Ass'n of Home Builders v. Defs.

of Wildlife, 551 U.S. 644, 666 (2007); see also MacPherson v.

Weiner, 959 A.2d 206, 209 (N.H. 2008) ("We . . . review a

particular provision, not in isolation, but together with all

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associated sections."). Here, section 318-B:2(I)'s context

informs our reading of the term "offer." In the very next

paragraph, New Hampshire makes it unlawful for a person to

"sell . . . (1) any substance which he represents to be a

controlled drug or controlled drug analog, or (2) any preparation

containing a substance which he represents to be a controlled drug

or controlled drug analog." N.H. Rev. Stat. § 318-B:2(I-a). As

we explained above, "sell" in this context includes "offer." So,

subsection I-a criminalizes one significant type of offers that

are not bona fide offers to sell a controlled drug -- offers to

sell fake drugs. This subsection would be entirely unnecessary if

section 318-B:2(I) itself (by criminalizing "offers") already

criminalized offers that are not bona fide. Not surprisingly, New

Hampshire law in general disfavors readings of statutory terms

that render a part of the pertinent statute entirely superfluous.

See Garand v. Town of Exeter, 977 A.2d 540, 544 (N.H. 2009)

(presuming that the legislature "does not enact unnecessary and

duplicative provisions"). Of course, one might eliminate any

superfluousness by positing that "offer" in section 318-B:2(I)

includes only some offers that are not bona fide. But this parsing

strikes us as too precious given that it lacks any textual hook

and given no reason to think it odd that New Hampshire might choose

not to criminalize merely making purely insincere offers to sell

controlled drugs. We therefore tend to think that offers under

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section 318-B:2(I) do not include "mere" offers made without the

intent and ability to make good on the offer.

So, too, did the district court. But it also wisely and

carefully took the added step of offering Burghardt the time and

opportunity to see if there is any evidence that New Hampshire has

ever prosecuted anyone under section 318-B:2(I) for an offer that

was admittedly not bona fide. Burghardt found none. That finding,

in turn, calls to mind the Supreme Court's "caution against

crediting speculative assertions regarding the potentially

sweeping scope of ambiguous state law crimes." Swaby v. Yates,

847 F.3d 62, 66 (1st Cir. 2017); see Gonzales v. Duenas-Alvarez,

549 U.S. 183, 193 (2007) ("[T]o find that a state statute creates

a crime outside the generic definition of a listed crime in a

federal statute requires more than the application of legal

imagination to a state statute's language. It requires a realistic

probability, not a theoretical possibility, that the State would

apply its statute to conduct that falls outside the generic

definition of a crime."); see also Moncrieffe v. Holder, 569 U.S.

184, 191 (2013). Duenas-Alvarez teaches that it is Burghardt's

burden to show a "realistic probability" that New Hampshire would

apply section 318-B:2(I) to "mere" offers to sell drugs. 549 U.S.

at 193. With the statutory text read as a whole in context

providing only a questionable reed of support for Burghardt's

preferred reading, he need "at least point to his own case or other

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cases in which the state courts in fact did apply the statute in

the special (nongeneric) manner for which he argues." Id.

Instead, Burghardt relies on Swaby, a case where we

concluded that Duenas-Alvarez's legal-imagination doctrine was

inapplicable. 847 F.3d at 66. But Swaby is easily distinguishable

from the case at hand. There, a noncitizen was convicted for a

manufacturing-delivering-or-possessing-a-drug offense under Rhode

Island law. Id. at 65. We held that "[t]he state crime at issue

clearly does apply more broadly than the federally defined offense"

because the Rhode Island drug schedules unambiguously included a

drug not listed on the federal drug schedule. Id. at 66 ("Simply

put, the plain terms of the Rhode Island drug schedules make clear

that the Rhode Island offense covers at least one drug not on the

federal schedules. That offense is simply too broad to qualify as

a predicate offense under the categorical approach, whether or not

there is a realistic probability that the state actually will

prosecute offenses involving that particular drug.").

Burghardt's reliance on Swaby would be apt if New

Hampshire similarly and unambiguously defined a "sale" as "an

offer, even if the offeror has neither the intent nor the ability

to proceed with the sale." If that were the case, the panel would

follow Swaby's teaching to avoid "treat[ing] [the state offense]

as if it is narrower than it plainly is." Id. at 66. But here,

the fair and likely most reasonable reading of the statute and New

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Hampshire law, given the law's ambiguity, places on Burghardt the

burden of producing authority to suggest that New Hampshire would

apply section 318-B:2(I) to "mere" offers. Duenas-Alvarez, 549

U.S. at 193. Because he has not done so, his sentencing challenge

is unavailing.

For the foregoing reasons, we hold that section 318-

B:2(I) is a "serious drug offense" as defined under the ACCA.

C.

Having determined that the district court properly

sentenced Burghardt under the ACCA, we need not address his

argument that his Guidelines base offense level was miscalculated.

And, as noted above, Burghardt correctly concedes that his

challenge to the application of the ACCA's mandatory minimum as a

violation of his Sixth Amendment rights is foreclosed by binding

precedent. See Almendarez-Torres v. United States, 523 U.S. 224,

226-27 (1998); see also United States v. McIvery, 806 F.3d 645,

653 (1st Cir. 2015); United States v. Jiménez-Banegas, 790 F.3d

253, 258-59 (1st Cir. 2015).

III.

For the foregoing reasons, we affirm Burghardt's

conviction and sentence.

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