UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 17-cr-45-JL Opinion No. 2018 DNH 150 Michael Roman Burghardt
MEMORANDUM ORDER
This case requires the court to assess the impact, if any,
of the defendant’s prior state-court drug and robbery
convictions on his sentence for illegal firearm possession. See
18 U.S.C. § 922(g). Specifically, the court must determine
whether the defendant’s New Hampshire convictions for selling
heroin1 are “serious drug offenses” within the meaning of the
Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(A).
If they are, the defendant faces a 15-year mandatory minimum
sentence under the ACCA, 18 U.S.C. § 924(e)(1), and related
provisions of the United States Sentencing Guidelines.
In its Presentence Investigation Report (“PSR”), the United
States Probation Office recommended, inter alia, that the court
adjudge the defendant an armed career criminal under the ACCA.2
Applying the appropriate Guidelines, the PSR provided for a
1 See N.H. Rev. Stat. Ann. § 318-B:2. 2 PSR (doc. no. 32) ¶ 12. sentencing range of 180-210 months.3 See U.S.S.G. §§ 4B1.4(a),
(b)(3)(B), and 5G1.1(c)(2). The defendant objects to the
application of the ACCA. He argues that his prior convictions
are not “serious drug offenses” within the meaning of the ACCA.
Having considered the PSR and the parties’ responses, the court
concludes that the defendant’s prior drug convictions fall
within the ambit of the ACCA and that the defendant is therefore
subject to the ACCA’s mandatory minimum sentence.
Applicable legal standard
The ACCA provides that anyone convicted of violating
§ 922(g) who has three prior convictions “for a violent felony
or a serious drug offense” is subject to a 15-year mandatory
minimum sentence. 18 U.S.C. § 924(e)(1). Only the latter, a
serious drug offense, is at issue here. The statute defines a
“serious drug offense” as “an offense under State law, involving
the manufacturing, distributing or possessing with intent to
manufacture a controlled substance.” Id. § 924(e)(2)(A)(ii).
“‘[I]nvolving’ 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.” United States v. McKenney, 450 F.3d 39, 43-
3 Id. ¶ 70.
2 44 (1st Cir. 2006) (quoting United States v. King, 325 F.3d 110,
113 (2d Cir. 2003)). “The government bears the burden of
proving by a preponderance of the evidence that a defendant
stands convicted of a particular [predicate] crime.” United
States v. Mulkern, 854 F.3d 87, 90 (1st Cir. 2017).
Background
A. Guilty plea and sentencing guideline calculation
The defendant pleaded guilty in December 2017 to a one-
count indictment charging him with possession of a firearm by a
prohibited person, in violation of 18 U.S.C. § 922(g)(1).4
Applying U.S.S.G. § 2K2.1(a)(2), the PSR assigned the
defendant a Base Offense Level (BOL) of 24 because “the
defendant committed the instant offense subsequent to sustaining
a conviction for a felony controlled substance offense . . . in
Hillsborough County (NH) . . . and a felony crime of violence
(Robbery).”5 The PSR further noted that the defendant’s
4 Doc. no. 27. 5 PSR (doc. no. 32) ¶ 16. Section 2K2.1(a)(2) assigns an offense level of 24 if the defendant had “at least two [prior] felony convictions of either a crime of violence or a controlled substance offense.” The defendant challenges this calculation, arguing that his prior conviction for robbery does not amount to a “crime of violence” and that none of his prior drug-related offenses amounts to a “controlled substance offense,” such that § 2K2.1(a)(2) does not apply. See Def. Sent. Mem. (doc. no. 31) at 10-11. The court disagrees.
As Judge Barbadoro has explained, a conviction for robbery under New Hampshire law amounts to a “violent felony” under the ACCA.
3 conviction under § 922(g), in combination with multiple state-
court drug convictions, resulted in the defendant’s designation
as an armed career criminal, and the application of a 15-year
minimum sentence.6 See U.S.S.G. § 4B1.4(a) (“[a] defendant who
is subject to an enhanced sentence under the provisions of 18
U.S.C. § 924(e) is an armed career criminal.”). This
designation, in turn, raised Burghardt’s BOL to 33. Id.
§ 4B1.4(b)(3).7 After subtracting three points for acceptance of
responsibility, U.S.S.G. §§ 3E1.1(a), (b), the PSR arrived at a
Total Offense Level of 30.8
Boulanger v. United States, 2017 DNH 253, 9-18. The same analysis compels the conclusion that a conviction for robbery amounts to a “crime of violence” under § 2K2.1(a)(2). See United States v. Steed, 879 F.3d 440, 446 (1st Cir. 2018) (“precedents . . . that construe the force clause in the definition of a ‘violent felony’ under ACCA are directly relevant to the analysis that we must undertake in construing the force clause of the career offender guideline’s definition of a ‘crime of violence.’”). And, even if the defendant’s convictions for sale of a controlled substance did not amount to “controlled substance offenses,” his prior conviction for possession of a controlled substance with intent to distribute it constitutes a felony under a state law that “prohibits . . . the possession of a controlled substance . . . with intent to distribute” it, as U.S.S.G. § 4B1.2(b) requires.
Ultimately, however, the court need not reach this question, concluding as it does that the defendant’s prior convictions for sale of a controlled substance fall within the ACCA’s definition of a “serious drug offense.” See U.S.S.G. § 4B1.4(b)(3). 6 Id. at ¶ 22. 7 Id. 8 Id. at ¶ 25.
4 This total offense level, combined with Burghardt’s
Criminal History Category VI, yielded a guideline range of 169
to 210 months.9 Under U.S.S.G. § 5G1.1(c)(2), the statutory
minimum of 180 months automatically becomes the minimum
guideline sentence.
B. Prior convictions
Burghardt was convicted in 2011 of three counts of sale of
a controlled drug and one count of possession of a controlled
drug with intent to sell, all in violation of N.H. Rev. Stat.
Ann. § 318-B:2.10 A “sale” under New Hampshire law is defined to
mean “barter, exchange or gift, or offer therefor, and each such
transaction made by any person whether as a principal,
proprietor, agent, servant, or employee.” Id. § 318–B:1, XXX.
See State v. Stone, 114 N.H. 114, 116-17 (1974) (“A ‘sale’ for
the purposes of the controlled drug act involved here includes a
‘gift or offer’.”). The present dispute centers on whether the
three “sale” convictions are ACCA predicates.
9 Id. at ¶ 70. 10 Id. at ¶ 33.
5 Analysis
A. Categorical approach
The court must employ a “categorical approach” to determine
whether a prior conviction qualifies as an ACCA predicate
offense. United States v. Whindleton, 797 F.3d 105, 108 (1st
Cir. 2015). Under the categorical approach, the court
“consider[s] only the offense’s legal definition, forgoing any
inquiry into how the defendant may have committed the offense.”
Id. (quoting United States v. Holloway, 630 F.3d 252, 256 (1st
Cir. 2011)). For a prior offense to qualify as an ACCA
predicate, “every realistically possible way of committing the
offense [must satisfy] the definition of a serious drug
offense.” United States v. Bain, 874 F.3d 1, 29 (1st Cir.
2017). “[A] state crime cannot qualify as an ACCA predicate if
its elements are broader than those” of the statutory
definition. Mathis v. United States, 136 S. Ct. 2243, 2251
(2016). If the “least of the acts criminalized” by the statute
does not fall within the ACCA’s definition of a serious drug
offense, then a conviction under that statute does not
categorically qualify as a serious drug offense. Moncrieffe v.
Holder, 569 U.S. 184, 191 (2013). “[I]f there is a match, the
state conviction is an ACCA predicate.” Mulkern, 854 F.3d at
90-91.
6 Absent a match between the statute of conviction and the
ACCA definition, the court must employ a “modified” categorical
approach. This requires the court to “separate out those
offenses listed in the statute that align with [the ACCA]
definition from those that do not and to determine which offense
formed the basis of the defendant’s prior conviction.” United
States v. Faust, 853 F.3d. 39, 51 (1st. Cir. 2017) (emphasis in
original). The “modified [categorical] approach merely helps
implement the categorical approach. . . . And it preserves the
categorical approach’s basic method: comparing those elements
with the [ACCA definition].” Id. (quoting Descamps v. United
States, 133 S. Ct. 2243, 2285 (2016)). “The modified
categorical approach thus involves a two-stage process:
determine if the statute contains discrete offenses that can be
separated from each other (termed ‘divisibility’) and determine
under which the defendant was convicted.” Id. (citing Descamps,
133 S. Ct. at 2281). Divisibility, in turn, sometimes depends
on whether the various types of listed offenses are “elements”
or “means.” Id. at 51-52.
B. Elements or means
When a statute lists several methods of committing a crime,
the court must determine whether those alternatives are elements
of the offense or merely alternative means by which the offense
7 can be committed. “Elements are the constituent parts of a
crime’s legal definition, which must be proved beyond a
reasonable doubt to sustain a conviction.” Mathis, 136 S. Ct.
at 2248. The other alternatives are “various factual means of
committing a single element.” Id. at 2249.11
“If [the alternatives] are elements then the court proceeds
to apply the modified categorical approach and determine which
‘of the enumerated alternatives played a part in the defendant’s
prior conviction, and then compare that element (along with all
the others) to those of the [ACCA definition].’” Faust, 853
F.3d at 52 (quoting Mathis, 136 S. Ct. at 2256). “If they are
means, however, then the court’s inquiry is at an end and the
sentencing court may not delve into the facts of the case to
determine which means this particular defendant used to commit
11The Court in Mathis provided a cogent explanation in the context of a hypothetical statute that required use of a “deadly weapon” as an element, and also provided that use of a “knife, gun, bat, or similar weapon” would qualify:
Because that kind of list merely specifies diverse means of satisfying a single element of a single crime – or otherwise said, spells out various factual ways of committing some component of the offense – a jury need not find (or a defendant admit) any particular item: A jury could convict even if some jurors conclude[d] that the defendant used a knife while others conclude[d] he used a gun, so long as all agreed that the defendant used a deadly weapon.
Id. at 2249 (internal quotes omitted).
8 the offense.” Id. And if the “least of the [means]
criminalized” does not fall within the ACCA definition then the
conviction is not an ACCA predicate. Moncrieffe, 569 U.S. at
191. This is an important distinction in this case because the
element “sale” implicates several different means of commission.
The Supreme Court, however, has issued a cautionary note to
sentencing courts attempting to construe arguably ambiguous
state criminal statutes. As Judge Barbadoro observed, “[f]or
good reasons . . . however, the Supreme Court has instructed
courts to refrain from exercising ‘legal imagination’ when
attempting to determine the least serious conduct criminalized
by state statutes.” Boulanger, 2017 DNH 253, 17 (citing
Moncrieffe, 569 U.S. at 191). “[T]here must be ‘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.’” Moncrieffe, 569 U.S. at 191 (quoting
Gonzalez v. Duenas-Alvarez, 549 U.S. 183, 193 (2007))
C. The New Hampshire statute of conviction
The parties agree that the ACCA analysis turns on three of
Burghardt’s four prior convictions for violating N.H. Rev. Stat.
Ann. § 318-B, part of New Hampshire’s Drug Control Act. Section
318-B:2, I, which describes prohibited acts, provides:
It shall be unlawful for any person to manufacture, possess, have under his control, sell, purchase,
9 prescribe, administer, or transport or possess with intent to sell, dispense, or compound any controlled drug, or controlled drug analog, or any preparation containing a controlled drug, except as authorized in this chapter.
Thus, in addition to “selling” controlled substances, a
defendant can violate this statute in several other ways, such
as manufacturing, possessing, or possessing with intent to sell
such substances.
1. The statute is “divisible”
“The first task for a sentencing court faced with an
alternatively phrased statute is thus to determine whether they
are elements or means.” Mathis, 136 S. Ct. at 2256. The
parties agreed at oral argument that the various acts prohibited
by the statute –- manufacturing, possessing, having under
control, selling, purchasing prescribing, administering,
transporting, and possessing with intent to sell -- all
expressed in the disjunctive through use of the word “or”12 --
are distinct elements, often of different offenses.13 Cases from
the New Hampshire Supreme Court support this conclusion. See
12ANTONIN SCALIA, BRYAN GARNER, READING LAW 116 (2012) (“Under the conjunctive/disjunctive canon, and combines items while or credits alternatives.”)(emphasis in original). 13Def. Sent. Mem. (doc. no. 31) at 3-4. As will be discussed, infra, the government’s sentencing memorandum does not directly address the means/elements question with respect to N.H. Rev. Stat. Ann. § 318:B-2, I. The court declines to skip this important analytical step.
10 Mathis, 136 S. Ct. at 2256 (relying on state court decisions to
determine whether acts are elements or means); compare State v.
Cassidy, No. 2015-0162, 2016 WL 3475716 at *1-2 (N.H. Mar. 18,
2016) (listing elements necessary for conviction for selling a
controlled substance) with State v. Francis, 167 N.H. 598, 604
(2015) (listing elements necessary for conviction for possession
of a controlled substance). Given the different requirements of
“what a jury must find beyond a reasonable doubt,” Mathis, 136
S. Ct. at 2248, the court is persuaded that the listed acts in §
318-B:2, I, are distinct elements and that the statute is
therefore divisible.
2. “Selling” was the element of conviction, and “selling” includes offers to sell
Having found that the statute is divisible, the court turns
to determining “which offense the defendant was actually
convicted of.” Faust, 853 F.3d at 52. To do so, the court
consults so-called “Shepherd documents”: “the statutory
definition, charging document, written plea agreement,
transcript of the plea colloquy, and any explicit factual
finding by the trial judge to which the defendant assented.”
Faust, 853 F.3d at 53 (quoting Shepard v. United States, 544
U.S. 13, 16 (2005)).
Here, the parties agree with the PSR that the defendant was
convicted of “selling” heroin. At first glance, this would seem
11 to resolve the issue, as “selling” drugs neatly fits within the
ACCA definition of a “serious drug offense,” i.e., one
“involving . . . distribut[ing] a controlled substance.” 18
U.S.C. § 924(e)(2)(A)(ii). But a second level of analysis is
necessary.
As previously noted, New Hampshire law defines “sale” as a
“barter, exchange or gift, or offer therefor . . . .” N.H. Rev.
Stat. Ann. § 318-B:1, XXX (emphasis added); State v. Stone, 114
N.H. 114, 116-17 (1974) (observing that a “sale” for purposes of
the New Hampshire Drug Control Act includes a “gift” or “offer”
to sell drugs). Based on this definition, and citing cases from
several Courts of Appeals, the defendant argues that his prior
convictions are not ACCA predicates because an “offer to sell”
drugs does not match the ACCA definition of “serious drug
offense.” But the cases defendant cites do not address the
interaction between state offer-to-sell statutes in relation to
the ACCA; instead, they analyze the laws in question only as
they relate to the Sentencing Guidelines’ Career Offender
provision. See, e.g., United States v. Madkins, 866 F.3d 1136
(10th Cir. 2017); United States v. Hinkle, 832 F.3d 569 (5th
Cir. 2016); United States v. Bryant, 571 F.3d 147 (1st Cir.
2009); United States v. Savage, 542 F.3d 959 (2d Cir. 2008).
The difference is critical, because the ACCA definition of
“serious drug offense,” unlike the Guideline definition of
12 “controlled substance offense,”14 includes the word “involving”
prior to the list of predicate offenses, thus broadening the
ACCA definition. See U.S.S.G. § 4B1.4 cmt. n.1 (noting that
ACCA’s definition of “serious drug offense” is not identical to
Guidelines definition of “controlled substance offense”);
see also United States v. Bynum, 669 F.3d 880, 886 (8th Cir.
2012) (rejecting defendant’s argument that the ACCA definition
should be construed narrowly to conform to Guidelines’
definition); McKenney, 450 F.3d at 42 (1st Cir. 2006) (“By using
‘involving,’ Congress captured more offenses that just those
that ‘are in fact’ the manufacture, distribution, or possession
with intent to distribute, a controlled substance.”).
At oral argument, the defendant conceded the obvious: that
the ACCA’s inclusion of the word “involving” makes it broader
than the Career Offender Guideline. The cases he cites
therefore do not resolve this issue or establish that the “sale”
element of § 318-B:1 is not an ACCA predicate.
3. “Offering” is a means of “selling” under the statute
Given the statutory definition of “sell,” the court must
determine whether an “offer to sell” fits the ACCA definition of
14The Guidelines define a “controlled substance offense” as “an offense . . . that prohibits the . . . distribution . . . of a controlled substance . . . .” U.S.S.G. § 4B1.2(b).
13 “serious drug offense.” The starting point, again, is the
“means or elements” analysis. Here, the parties agree and the
court finds that the various alternatives listed in N.H. Rev.
Stat. Ann. § 318-B:1, XXX are, as defendant argues, “means,”
rather than “elements.” Those alternatives are simply “various
factual means of committing a single element” -– to “sell.”
Mathis, 136 S. Ct. at 2249 (citing Schad v. Arizona, 501 U.S.
624, 636 (1991) (plurality opinion)). Accordingly, the court
must decide, without examining additional record documents,
whether an “offer to sell” under New Hampshire law “involves
manufacturing [or] distributing a controlled substance,” as the
ACCA defines a “serious drug offense.” 18 U.S.C. § 924(e)(2)
(A)(ii).
4. § 318-B:2, I, criminalizing offers to sell controlled substances, is an ACCA predicate
In Whindleton, supra, the First Circuit Court of Appeals
found that a New York statute, which, like New Hampshire’s
statute, criminalized “offers to sell,” qualified as a “serious
drug offense” under the ACCA. 797 F.3d at 111. The Court
concluded that “an offer to sell a controlled substance - like
an attempt to sell or a conspiracy to sell - is necessarily
related to and connected with its ultimate goal, the
distribution of controlled substances.” Id.
14 While such binding authority would appear to end the
matter, Whindleton’s discussion of New York law may add a
wrinkle. The Court of Appeals noted that New York law requires
“evidence of a bona fide offer to sell – i.e., that defendant
had both the intent and the ability to proceed with the sale.”
Id. at 110 (citing People v. Mike, 706 N.E.2d 1189, 1191 (N.Y.
1998)). “A fraudulent offer” to “sell the Brooklyn Bridge”
would fail this test because the offeror “lacks the intent to
consummate the sale.” Id. at 110-111 (internal quotation marks
omitted). “And while there need not be proof that the defendant
already possessed the controlled substance,”15 New York law
requires “proof that he or she had the ability to proceed with
the sale.” Id. at 111.
The defendant argues that the court should not reach the
same conclusion about New Hampshire law because neither the New
Hampshire statute nor any New Hampshire Supreme Court decision
requires proof of “intent” and “ability” as indicia of the bona
fides of the offer, as required under New York law. The
15According to a non-precedential New Hampshire Supreme Court order, New Hampshire’s statute likely shares this characteristic of New York law. See State v. Mars, No. 2014-0811, 2016 WL 3748712 at *1, (N.H. May 13, 2016) (non-precedential order) (affirming trial court’s use of jury instruction defining sale as including an offer “to sell or give control of drugs to another person, but, in fact, no drugs were actually given or sold.”).
15 defendant is correct to the extent that neither party has cited,
and the court is unaware of, any New Hampshire case expressly
requiring such proof.
But the defendant overstates the import and effect of
Whindleton’s reference to “intent and ability.” Whindleton did
not hold that an ACCA predicate statute prohibiting offers to
sell must necessarily require proof of intent and ability to
deliver. The Court of Appeals observed only that, under the
circumstances present in that case, those factors were
sufficient to qualify the defendant’s New York state law
conviction as an ACCA predicate. It did not declare them
necessary to its conclusion. See id. at 111 (“It is sufficient
in this case that the defendant entered ‘the drug marketplace’
with the intent and ability to proceed with the sale of a
controlled substance if his or her offer were accepted.”). The
Court then reiterated the point: “We hold today only that an
offer to sell under New York law—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.” Id. It did not hold that a conviction under a
law not requiring such proof would not so qualify.
In fact, our Court of Appeals’ reliance on two cases from
other federal appellate courts suggests that the Court would
conclude that drug trafficking statutes criminalizing offers to
16 sell constitute ACCA predicates irrespective of any requirement
to prove ability or intent to actually deliver.
Whindleton cited, without limitation or qualification, cases
decided by the Fifth and Eighth Circuit Courts of Appeals that
“concluded that offers to sell controlled substances are
sufficiently ‘related to or connected with’ drug distribution to
qualify as serious drug crimes.” Id. at 110. In United States
v. Vickers, 540 F.3d 356 (5th Cir. 2008), the Court addressed a
Texas law that did not require the defendant to “have any drugs
to sell or even intend ever to obtain the drugs he is purporting
to sell.” Id. at 365 (emphasis added). The Court nevertheless
concluded that the Texas conviction qualified as a “serious drug
offense” under the ACCA. Id. at 366. The Vickers court
explained that “[t]he expansiveness of the word ‘involving’
supports that Congress was bringing into the statute’s reach
those who intentionally enter the highly dangerous drug
distribution world.” Id. at 365.
In Bynum, supra, the Court considered a Minnesota law that
did “not require that the defendant possess any drugs or have
specific intent to complete the sale . . .” 669 F.3d at 887
(emphasis added) (citing Minnesota v. Lorsung, 658 N.W. 2d 215,
218–19 (Minn. Ct. App. 2003)). The Court rejected the
defendant’s assertion that an offer to sell drugs “must be
‘genuine, made in good faith, or be accompanied by an actual
17 intent to distribute a controlled substance’ to ‘involve’ drug
distribution.” Id. at 887. Instead, the Court held that “so
long as that defendant has intentionally made an offer to sell a
controlled substance, he or she has ‘intentionally enter[ed] the
highly dangerous drug . . . marketplace as a seller.’” Id.
(quoting Vickers, 540 F.3d at 365–66).
Whindleton’s unqualified reliance on Vickers and Bynum,
both of which eschewed any state-law requirement of a
defendant’s ability or intent to complete a sale, persuades the
court that defendant’s New Hampshire convictions for selling
heroin “involv[e] . . . distributing . . . a controlled
substance” within the meaning of the ACCA.
Even if Whindleton were read to impose proof of such
ability and intent as requirements for ACCA predicate status,
however, the available authority from New Hampshire, while not
entirely conclusive, strongly suggests that a fake, phony, or
fraudulent offer –- in other words, an offer not supported by
the intent or ability to deliver controlled drugs –- is not
criminalized by N.H. Rev. Stat. Ann. § 318-B:2.
The New Hampshire Supreme Court has not explicitly set
forth the elements of a conviction for selling illegal drugs
under § 318:B-2 in any decision constituting binding precedent.
In a persuasive, non-binding opinion, (see N.H. Sup. Ct. R. 20)
it held that proof of selling (or in this case offering) and a
18 culpable mental state of “knowing” are required to support a
conviction. See State v. Cassidy, No. 2015-0162, 2016 WL
3475716 (N.H. Mar. 18, 2016) (non-precedential order). In
Cassidy, the Court approvingly recited the trial court’s jury
instructions as to the elements of the offense:
First, the Defendant sold a substance to another; And, second, the Defendant knew the substance was heroin; And, third, the amount of the controlled drug was less than one gram, including any adulterants or diluents; And, fourth, the Defendant acted knowingly.
Id. at *2.
In addition, New Hampshire’s Criminal Jury Instructions,
endorsed by the state Supreme Court,16 require proof that:
1. The defendant acted knowingly; and, 2. That he sold an item to another person; and 3. That the item was a controlled drug.
N.H. Criminal Jury Instructions 2.38 (1985). The Model
Instruction goes on to define a sale as including offers to
sell. Id. Under New Hampshire criminal code, “[a] person acts
knowingly with respect to conduct or to a circumstance that is a
material element of an offense when he is aware that his conduct
is of such nature or that such circumstances exists.” N.H. Rev.
Stat. Ann. § 626, II(b).
16The New Hampshire Supreme Court “recommend[s] that trial courts use the New Hampshire Model Jury Instructions when practicable, in order to avoid needless litigation.” State v. Leveille, 160 N.H. 630, 633-34 (2010).
19 As similarly expressed by the New Hampshire Supreme Court,
“[a] person acts knowingly when he is ‘aware that it is
practically certain that his conduct will cause a prohibited
result.’” State v. Bergen, 141 N.H. 61, 63 (1996) (quoting
State v. Ayer, 136 N.H. 191, 194 (1992)) (citing definition of
“knowing,” N.H. Rev. State. Ann. § 626:2, II(b). The “conduct
or circumstance” in this case, the “prohibited result,” is the
sale or offer of illegal drugs.
Whether expressed as set forth in Cassidy or as set forth
in N.H. Model Instruction 2.38, the elements under New Hampshire
law capture the same acts and culpable mental state as the New
York law that the Whindleton Court found “sufficient” under the
ACCA. Unlike an “offer to sell the Brooklyn Bridge,” a knowing
offer to sell a controlled substance evinces, under Whindleton’s
analytic framework, an intent to consummate the sale. Further,
New Hampshire’s requirement that the defendant act knowingly –-
i.e., with the awareness that it is “practically certain of a
prohibited result” -– persuades the court that a jury could only
convict a defendant if it found that the defendant had the
ability and intent to achieve a “prohibited result” –- the sale
of a controlled substance, which the parties agree is the
element itself, as opposed to merely the means of committing it.
While New Hampshire law does not entirely eliminate the
purely linguistic possibility that § 318-B:2 criminalizes a fake
20 or fraudulent offer (an offer that lacks the intent or ability
to deliver, or both), a conviction (or even an indictment) for
such conduct is not a “realistic probability,” as required by
Moncrieffe, 569 U.S. at 191. Simply put, there is no evidence
or reason to believe that the State of New Hampshire has ever or
will ever prosecute an offer to sell unlawful drugs unsupported
by any intention or ability to deliver, or stated in the terms
used in Moncrieffe, that “the State would apply its statute to
conduct” the defendant contemplates here, 569 U.S. at 191
(quoting Gonzales 549 U.S. at 193). The improbability is
demonstrated by: 1) the lack, acknowledged by both parties, of
any reported cases describing fake or fraudulent offers even in
cases decided on other grounds; and 2) the lack, also
acknowledged by both parties, of any recollection or knowledge
of a New Hampshire drug case alleging such conduct on the part
of anyone involved in this criminal case.
In an abundance of caution,17 the court reconvened the
sentencing hearing after initially imposing sentence to address
17The court’s caution is borne of the relative severity of the application of the ACCA in this case, where the court would not necessarily be inclined to impose a 15-year sentence were it not mandated as a minimum sentence. Without application of the ACCA, the Guideline Sentencing Range in this case would be 72-96 months, based on a post-acceptance of responsibility Total Offense Level of 21 with a Criminal History Category of VI. See Presentence Report ¶¶ 12-21, 40-42 (Doc. no. 29). The prosecution’s conditional sentencing recommendation if the ACCA did not apply was eight years (doc. no. 34). Further, the
21 the remote linguistic possibility that such prosecutions under §
318-B:2: I actually take place, or have ever taken place, in New
Hampshire. Defense counsel raised the possibility of his
contacting the state “appellate defender[’s office] because they
. . . see tons of transcripts in which . . . instructions [are]
given.” Although the defendant offered neither applicable
precedent from case law, reported or unreported, nor any
anecdotal accounts of such cases, the court granted leave for
defense counsel to supplement the record with any anecdotal
evidence suggesting that “so-called fake offers cases, offers
unsupported by intent or ability . . . are routinely or even
occasionally brought in [New Hampshire] state court . . . .”
Defense counsel’s ensuing supplemental memorandum18 contained no
indication that § 318-B:2 has been employed in that fashion.
Given this dearth of support in the form of decisional law
or even anecdotal accounts, the linguistic possibility of § 318-
B:2 encompassing fake or fraudulent offers is nothing more than
a “theoretical possibility that the State would apply its
lengthiest sentences the defendant had served prior to this offense were far shorter state sentences, often shortened further with significant suspended time. The court therefore explored every avenue, including what appears to be the purely theoretical, merely linguistic possibility the defendant advances, to conclusively determine the ACCA’s certain applicability here. 18 Doc. no. 36.
22 statute to conduct that falls outside” the ACCA definition.
Moncrieffe, 569 U.S. at 191. Adopting the defendant’s position
would require the court to engage in the type of “legal
imagination” that the Supreme Court has proscribed. Id.
On that basis, even if the court reads Whindleton in the
manner the defendant suggests, the court finds that an offer to
sell a controlled substance under New Hampshire law comports
with that standard and therefore meets the ACCA definition of a
“serious drug offense.”19
19While the court’s analysis of Whindleton is sufficient to end the matter, the prosecution offered a slightly different analysis which buttresses the court’s conclusion.
The prosecution focused on Whindleton’s reference to “bona fide offers to sell,” 797 F.3d at 110, rather than its reference to a defendant’s “ability” or “intent” to consummate the sale. It then framed the question as whether New Hampshire criminalizes both bona fide and fraudulent offers to sell drugs within the same offense. It asserts that New Hampshire law does not, and that a defendant convicted of “selling drugs,” like Burghardt, could not have been convicted of making a fraudulent offer.
The prosecution relies on another type of “fraudulent” offer criminalized by New Hampshire’s criminal code. N.H. Rev. Stat. Ann. § 318-B:2,I-a prohibits the sale of “any substance which [the defendant] represents to be a controlled drug . . . .” (emphasis added). Subsection I of § 318-B:2 charges bona fide offers, the argument goes, while subsection I-a charges fraudulent offers. Thus, applying the modified categorical approach and noting that the defendant was convicted of selling a controlled substance under subsection I, rather than something he “represented to be” a controlled substance under subsection I-a, the defendant’s prior convictions must be for selling “real” drugs, i.e., a “bona fide” sale, as described in Whindleton.
23 Having applied the categorical approach to defendant’s New
Hampshire convictions, and in light of the elements of those
convictions and the definition of those elements, the court
finds that a conviction based on an offer to sell contraband
under New Hampshire law fall[s] within the ACCA definition of a
serious drug offense.
IV. Conclusion
Defendant’s New Hampshire convictions for selling heroin
are “serious drug offenses” within the meaning of the ACCA. The
court therefore adopts the finding in the Presentence Report and
sentences him as an armed career criminal.
The court agrees that a convicted defendant’s “offer” to sell “real” drugs (and not, for example, a non-controlled counterfeit substance), is an example of a “non-fraudulent” offer. Cf. Whindleton, 797 F.3d at 110-111 (noting that “one [who] offers to sell the Brooklyn Bridge lacks the intent to consummate the sale.”). And the government’s analysis accurately illustrates that § 318-B:2, I covers such “bona fide” offers to sell “real” controlled substances, since by negative inference, subsection I-a does not. But subsection I-a covers only that: offers where the defendant intends to provide a “fake” substance, not those where the defendant intends to provide nothing, or stated differently, lacks the intent to provide anything. So while the prosecution’s argument supports the court’s conclusion, it is not dispositive.
24 SO ORDERED.
Joseph N. Laplante United States District Judge
Dated: July 26, 2018
cc: Anna Dronzek, AUSA Jonathan R. Saxe, Esq.