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
- 2 - 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).
- 3 - 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
- 4 - 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
- 5 - 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
- 6 - 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.
- 7 - 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
- 8 - (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
- 9 - 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
- 10 - 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
- 11 - 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
- 12 - 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).
- 13 - 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
- 14 - 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.
- 15 - 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],
- 16 - 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
- 17 - 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."
- 18 - 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.
- 19 - 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
- 20 - 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
- 21 - 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
- 22 - 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
- 23 - 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.
- 24 -