United States v. McKenney

United States Court of Appeals
For the First Circuit

No. 05-2137

UNITED STATES OF AMERICA,

Appellee,

v.

SHAH MCKENNEY,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

Before

Torruella, Lynch, and Lipez, Circuit Judges.

Edward C. Roy, Jr., Assistant Federal Public Defender, for
appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Robert Clark Corrente, United States Attorney, and Gerard B.
Sullivan, Assistant United States Attorney, were on brief, for
appellee.

June 8, 2006
 LYNCH, Circuit Judge. Shah McKenney pled guilty to being

a felon in possession of a firearm, in violation of 18 U.S.C.

§ 922(g)(1). He was sentenced under the Armed Career Criminal Act

(ACCA), id. § 924(e), to the minimum sentence of fifteen years.

His sentencing appeal raises two issues. The first is whether a

state conviction for conspiracy to violate a state controlled

substances law by agreeing to possess with intent to deliver

cocaine is a conviction for an "offense under State law, involving

manufacturing, distributing, or possessing with intent to

manufacture or distribute, a controlled substance" and is therefore

a "serious drug offense" within the meaning of the ACCA, id.

§ 924(e)(2)(A)(ii). This question is a novel one in this circuit,

but ultimately not a difficult one, and we answer it in the

affirmative. McKenney's other challenge is based on a

constitutional argument that this court has already rejected. We

affirm.

I.

McKenney was federally indicted in January 2005 under 18

U.S.C. § 922(g)(1) on one count of being a felon in possession of

a firearm. A month later, the government filed an information

under the ACCA alleging that McKenney previously had been convicted

in Rhode Island of three serious drug offenses. The first and

third convictions, one in 1999 and one in 2001, were for the

manufacture and delivery of a controlled substance. The second, in

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1999, was for conspiracy to violate the state controlled substances

act.1 The government alleged that each offense was punishable by

imprisonment for a term exceeding ten years, and that McKenney's

sentence for each had been at least ten years (mostly suspended).

McKenney challenges only the use of the second offense as

a predicate offense under the ACCA.2 We describe that offense

briefly. McKenney was convicted under R.I. Gen. Laws § 21-28-4.08,

which makes it a crime to conspire to violate any provision of the

state controlled substances act. A person who conspires to violate

that act is subject to the same punishment as that prescribed for

the substantive offense he or she conspired to commit. Id. Here,

that substantive offense was "possess[ion] with intent to

manufacture or deliver a controlled substance." Id.

§ 21-28-4.01(a)(1). At the state court plea hearing at which

1
Although the first and second convictions were on the same
date, the underlying offenses occurred on different dates.
2
In the plea agreement and at the hearing during which
McKenney ultimately pled guilty to the felon-in-possession count,
McKenney indicated that he understood that if he were found to be
an armed career criminal under the ACCA, his sentence would be at
least fifteen years and could go as high as life. The Presentence
Investigation Report (PSR) took the position that the ACCA
sentencing range applied. McKenney objected to the PSR, arguing
that the 1999 conspiracy conviction did not qualify as a "serious
drug offense" under the ACCA and that the government was required,
but had failed, to prove all sentence-enhancing elements beyond a
reasonable doubt. At sentencing, the district court found that
McKenney was an armed career criminal. The court further found
that the Guidelines range would have been 168 to 210 months, but
that, in light of the ACCA's mandatory minimum, the range was 180
to 210 months. It imposed a sentence of 180 months (fifteen years)
of imprisonment.

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McKenney pled nolo contendere to, inter alia, the conspiracy

offense, the prosecutor stated with respect to the conspiracy count

that "McKenney, along with [two others] . . . did unlawfully

conspire to violate the Rhode Island Uniform Controlled Substance

Act by agreeing to possess, with intent to deliver, an amount of

cocaine."3 The transcript shows that McKenney admitted that those

facts, as stated by the prosecutor, were true. This offense was

punishable by a maximum term exceeding ten years.4

McKenney's argument is based on the fact that under Rhode

Island law, a defendant may be guilty under § 21-28-4.08 without

having committed an overt act.5 From this, McKenney appears to

3
The prosecutor's version was nearly a verbatim reading of
the information, which had charged that McKenney and two others
"did unlawfully conspire to violate the Rhode Island Uniform
Controlled Substances Act by agreeing to possess with intent to
deliver a controlled substance to wit, Cocaine."
4
Violations involving cocaine, a schedule II substance under
Rhode Island law, see R.I. Gen. Laws § 21-28-2.08, may be punished
by imprisonment for "not more than thirty (30) years," except that
"[a]ny person who is not a drug addicted person . . . may be
imprisoned [for] a term up to life," id. § 21-28-4.01(a)(2),
(a)(4)(i).
5
In State v. Disla, 874 A.2d 190 (R.I. 2005), a case
involving a conspiracy charge under § 21-28-4.08, the Rhode Island
Supreme Court applied the common law rule that "[c]onspiracy is an
agreement by two or more persons to commit an unlawful act or to
perform a lawful act for an unlawful purpose," and that "[o]nce an
agreement has been made, no further action in furtherance of the
conspiracy is necessary to find a defendant guilty of the crime of
conspiracy." Id. at 196-97 (internal quotation marks omitted)
(quoting State v. Lassiter, 836 A.2d 1096, 1104 (R.I. 2003)); see
also State v. Mendoza, 889 A.2d 153, 160 (R.I. 2005)
(section 21-28-4.08 case applying "the common law formulation of
conspiracy"); State v. LaPlume, 375 A.2d 938, 941 (R.I. 1977)

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argue two positions, somewhat at odds with each other. The first

is that unless the drug conspiracy conviction itself requires an

overt act, the ACCA definition is not met. The second is that any

old overt act in furtherance of the conspiracy will not do: it must

be an overt act of "manufacturing, distributing, or possessing with

intent to manufacture or distribute" the drugs. We reject both

arguments as inconsistent with the text and structure of the ACCA

definition of a "serious drug offense," 18 U.S.C.

§ 924(e)(2)(A)(ii).

McKenney argues that his conspiracy conviction does not

constitute a "serious drug offense" under the ACCA, because he did

not admit, and the Rhode Island court did not find, that he

actually possessed cocaine with intent to distribute it; and that

the mere fact that he "agreed" to possess with intent to deliver

cocaine is not enough to make his offense one "involving"

possession with intent to distribute.6 McKenney preserved his

argument, which is a legal one; we review it de novo. United

States v. Moore, 286 F.3d 47, 49 (1st Cir. 2002). We conclude that

(holding that the common law crime of conspiracy is complete upon
the entry into an unlawful agreement, and that there is no
requirement "that any overt acts have been committed in execution
of the unlawful agreement").
6
The government does not argue that McKenney did in fact
possess cocaine with intent to deliver.

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McKenney's interpretation is too narrow. The conspiracy, as

indicted and admitted, was enough under the ACCA.7

II.

A. Drug Conspiracy Conviction as an ACCA Predicate Offense

The ACCA provides that a person who violates 18 U.S.C.

§ 922(g) and has three prior convictions for serious drug offenses

committed on separate occasions "shall be . . . imprisoned not less

than fifteen years." 18 U.S.C. § 924(e)(1). The definition of

"serious drug offense" has two parts -- one for offenses under

federal law, id. § 924(e)(2)(A)(i), and one for offenses under

state law, id. § 924(e)(2)(A)(ii) -- the latter of which is

relevant here: "[T]he term 'serious drug offense' means . . . 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 . . . ." Id.

The starting point is, of course, the text of the

statute. Congress used the term "involving" the manufacture,

distribution, or possession of, with intent to distribute, a

controlled substance. By using "involving," Congress captured more

offenses than just those that "are in fact" the manufacture,

7
This court previously stated in passing, where the defendant
did not argue otherwise, that a state conviction for conspiracy to
distribute a controlled substance was "clearly [an] ACCA offense."
United States v. Craveiro, 907 F.2d 260, 262 (1st Cir. 1990).

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distribution, or possession of, with intent to distribute, a

controlled substance.

McKenney's argument effectively amounts to defining the

statutory term "involv[es]" as meaning "has as an element."8

McKenney's first resort is to the dictionary and to what he says is

the "common meaning" of the word "involve": to "include" or to

"contain as a part." This narrow definition of "involve" is

certainly one found in dictionaries. See, e.g., The American

Heritage Dictionary 921 (4th ed. 2000) (to "contain as a part;

include"); Webster's Third New International Dictionary 1191 (1993)

(to "have within or as part of itself," "contain," or "include").

That is not, however, the only definition. To "involve"

also means "to relate closely," Webster's, supra, at 1191, or to

"connect closely," American Heritage, supra, at 921. This broader

definition is more consistent with the "natural reading of the

text." Dodd v. United States, 125 S. Ct. 2478, 2482 (2005); see

also id. (citing Webster's). McKenney's argument requires, to say

the least, an awkward and unusual construction of the text to mean

that a conspiracy to possess with intent to distribute does not

8
Arguably, McKenney's approach equates "involv[es]" with
"actually entails in the particular case," rather than with "has as
an element in all cases" as a matter of state law. Either way, we
reject a requirement of actual possession with intent to
distribute, which is the primary focus of McKenney's argument. We
also reject a requirement of any overt act (whether or not that act
is actual possession), to the extent McKenney takes that position.
As we explain in the text, the conspiracy standing alone was
sufficient.

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"involve" possession with intent to distribute. Conspiracies

"involve" their objects, as that term is used in common parlance.

The government argues that the ACCA's structure reflects

Congress' intent that, in 18 U.S.C. § 924(e)(2)(A)(ii),

"involv[es]" mean something other than -- broader than -- "is" or

"has as an element." In particular, the government observes,

Congress defined the "violent felony" category of ACCA predicate

offenses using language that distinguishes between "involves" and

"is" or "has as an element." See id. § 924(e)(1) (a "violent

felony" is a predicate offense); id. § 924(e)(2)(B) (defining

"violent felony" as any crime carrying certain penalties which "has

as an element the use, attempted use, or threatened use of physical

force against the person of another" or "is burglary, arson, or

extortion, involves use of explosives, or otherwise involves

conduct that presents a serious potential risk of physical injury

to another") (emphases added); see also Taylor v. United States,

495 U.S. 575, 600 (1990) (distinguishing between a crime "that 'has

as an element'" a given characteristic and one "that, in a

particular case, involves" that characteristic). The government

argues that this indicates that Congress likewise intended the word

"involv[es]" in the "serious drug offense" category, which is

codified in the very same statutory subsection, to mean something

broader than "is" or "has as an element." See Bennett v. City of

Holyoke, 362 F.3d 1, 10 (1st Cir. 2004) (reading statute as a whole

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and noting that subsection's "overall structure indicates the

drafters' intent"). Indeed, the Fourth Circuit in United States v.

Brandon, 247 F.3d 186 (4th Cir. 2001), declined to interpret

"involving" in the "serious drug offense" provision as meaning "has

as an element," and instead noted that the statutory "subsection

should be read expansively." Id. at 190. We agree.

Three of our sister circuits have reached, in the closely

analogous context of the inchoate crime of attempt, the same

conclusion as we do. In each case, the circuit court held that

attempted possession with intent to distribute does "involve"

possession with intent to distribute and therefore qualifies as a

"serious drug offense" under the ACCA. See United States v.

Winbush, 407 F.3d 703, 708 (5th Cir. 2005); United States v.

Alexander, 331 F.3d 116, 131 (D.C. Cir. 2003); United States v.

King, 325 F.3d 110, 114-15 (2d Cir. 2003).

We agree with the Second Circuit's analysis that "[t]he

word 'involving' has expansive connotations, and . . . it must be

construed as extending the focus of § 924(e) beyond the precise

offenses of distributing, manufacturing, or possessing, and as

encompassing as well offenses that are related to or connected with

such conduct." King, 325 F.3d at 113. Also instructive is the

D.C. Circuit's criticism of the narrow construction of "involving"

proposed by a defendant convicted of an inchoate crime. That court

observed that if it were to adopt the narrow proposed reading, "the

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term 'involving' would be rendered meaningless -- distribution

alone would qualify as a crime 'involving' distribution and

possession with intent to distribute alone would qualify as a crime

'involving' possession with intent to distribute." Alexander, 331

F.3d at 131 (some internal quotation marks omitted) (quoting United

States v. Contreras, 895 F.2d 1241, 1244 (9th Cir. 1990)).

We add, in response to McKenney's argument that an overt

act in the state predicate conviction is necessary under the ACCA,

that exempting McKenney from application of the ACCA simply because

his state conspiracy offense may not necessarily entail an overt

act would produce an anomaly: Under federal drug conspiracy law,

an overt act is not required, see United States v. Fornia-Castillo,

408 F.3d 52, 69 (1st Cir. 2005), but even so, a person "who

attempts or conspires to commit" a federal controlled substance

offense "shall be subject to the same penalties as those prescribed

for the offense, the commission of which was the object of the

attempt or conspiracy," 21 U.S.C. § 846. The ACCA, in turn, treats

as a "serious drug offense" any "offense under the Controlled

Substances Act (21 U.S.C. 801 et seq.) . . . for which a maximum

term of imprisonment of ten years or more is prescribed by law."

18 U.S.C. § 924(e)(2)(A)(i). Congress considers the inchoate

offenses of attempt and conspiracy, even conspiracy without an

overt act, to be just as serious as the federal substantive drug

offenses which they contemplate. We doubt that Congress, which

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used the broad word "involving," intended different treatment for

drug conspiracies prosecuted under state law. See King, 325 F.3d

at 115 (noting that "any attempt to commit a substantive federal

offense falling within § 924(e)'s definition of 'serious drug

offense' is likewise a serious drug offense" and that Congress

likely intended the same result as to attempts under state law).

McKenney, in reply, suggests there is a circuit conflict,

pointing to Brandon, which he says supports his construction of the

ACCA. In Brandon, the defendant had previously pled guilty to a

charge of possessing between twenty-eight and two hundred grams of

cocaine, and the question was whether that conviction under state

law qualified as a predicate offense under the ACCA. 247 F.3d at

188. The Fourth Circuit determined that it did not. Id. at 196-

97.

McKenney's reliance on Brandon is misplaced. Brandon

simply held that intent to manufacture or distribute, which the

government did not dispute was a requirement for ACCA predicate

offenses based on possession, was missing. The Fourth Circuit held

that where the state predicate offense may have involved only

possession of twenty-eight grams of cocaine, it was not inherent in

that offense that there was an intent to manufacture or distribute,

as required by the ACCA. Id. at 196-97.

By contrast, in McKenney's case, there is no question

that the possession at the heart of the conspiracy was possession

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with intent to distribute. That is the charge to which McKenney

pled. In short, Brandon dealt with whether an undisputed statutory

requirement was adequately proven. McKenney's case turns on the

different statutory issue of whether a conviction for actual

possession with intent to distribute (or perhaps any overt act) is

a statutory ACCA requirement.

McKenney appears to argue that Brandon created an overt

act requirement. He is misreading the decision. Brandon dealt

with a guilty plea to actual possession, id. at 188, and the

question of whether a conspiracy without an overt act qualifies

under the ACCA simply was not raised. The language from Brandon

which McKenney cites is this: "Congress intended the sentencing

enhancements of section 924 to apply to those who have engaged in

certain specific conduct, regardless of the label attached to that

conduct by state law[.]" Id. at 196. The court was simply

discussing the principle of Taylor that "'burglary' in § 924(e)

must have some uniform definition independent of the labels

employed by the various States' criminal codes."9 495 U.S. at 592.

9
McKenney's situation does not raise any concern about a
disparity arising from a state statute's label, the conduct
actually covered by the statute, and the offenses covered by the
ACCA. Cf. Shepard v. United States, 544 U.S. 13, 16, 26 (2005)
(setting limits on what a court may consider in determining whether
a prior offense qualifies as an ACCA predicate offense); Taylor,
495 U.S. at 602 (same). As for what is an "offense under State
law, involving manufacturing, distributing, or possessing with
intent to manufacture or distribute, a controlled substance,"
Shepard and Taylor simply do not define that category or construe
it as having an overt act requirement; they deal with the meaning

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 We add one observation: while the term "involving" under

18 U.S.C. § 924(e)(2)(A)(ii) is not to be too narrowly read, it

also is not to be too broadly read. Not all offenses bearing any

sort of relationship with drug manufacturing, distribution, or

possession with intent to manufacture or distribute will qualify as

predicate offenses under the ACCA. The relationship must not be

too remote or tangential. We need not decide today where the line

is; we hold only that the relationship between the inchoate offense

of conspiracy and its object -- its entire purpose -- is plainly

close enough that a conspiracy to possess with intent to distribute

is, under the ACCA, an offense "involving . . . possessing with

intent to . . . distribute." Cf. United States v. Fiore, 983 F.2d

1, 3-4 & n.4 (1st Cir. 1992) (holding that under the federal

sentencing guidelines, conspiracy offenses can be predicate

offenses, even without overt acts); United States v. Hawkins, 139

F.3d 29, 34 (1st Cir. 1998) (applying Fiore holding to conclude

that conspiracy to commit armed robbery was a "violent felony"

predicate offense under the ACCA).

B. Constitutional Challenge

McKenney's other argument is that the Fifth and Sixth

Amendments were violated because the indictment neither alleged a

violation of 18 U.S.C. § 924(e) nor alleged three prior

convictions, and because he did not admit, and a jury did not find

of "burglary," another type of predicate offense under the ACCA.

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beyond a reasonable doubt, that the ACCA's sentence enhancement

applied. We review the issue de novo.

The challenge, which McKenney forthrightly admits is

foreclosed under current law, merits little discussion. The

Supreme Court has rejected the argument that under the

Constitution, recidivism must be treated as an element of the

offense, included in the indictment, and proved to a jury beyond a

reasonable doubt. Almendarez-Torres v. United States, 523 U.S.

224, 239 (1998). Ever since, we have rejected arguments like

McKenney's. See Moore, 286 F.3d at 51; see also United States v.

Ivery, 427 F.3d 69, 75 (1st Cir. 2005) (post-dating Shepard v.

United States, 544 U.S. 13 (2005), and United States v. Booker, 543

U.S. 220 (2005), and holding that "Almendarez-Torres remains

binding law").

III.

McKenney's sentence is affirmed.

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