United States Court of Appeals For the First Circuit
No. 23-1842
UNITED STATES,
Appellee,
v.
SHAIQUAN MORAN-STENSON, a/k/a Shaiquan Moran-Stetson, a/k/a Fabio, a/k/a Q,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Gelpí, Thompson, and Montecalvo, Circuit Judges.
David M. Rothstein, with whom Rothstein Law LLC was on brief, for appellant. Brian S. Kleinbord, Assistant United States Attorney, with whom Darcie N. McElwee, United States Attorney, was on brief, for appellee.
August 22, 2024 MONTECALVO, Circuit Judge. For sentencing purposes, the
United States Sentencing Guidelines ("the guidelines") require
imposing an enhanced base offense level where the defendant
unlawfully possessed a firearm or ammunition after "sustaining one
felony conviction of . . . a controlled substance offense." U.S.
Sent'g Guidelines Manual § 2K2.1(a)(4)(A) (U.S. Sent'g Comm'n
2023) [hereinafter § 2K2.1(a)(4)(A)].
In May 2023, defendant-appellant Shaiquan Moran-Stenson
pled guilty to unlawfully possessing ammunition as a person
previously convicted of a felony in violation of 18 U.S.C.
§ 922(g)(1). Over Moran-Stenson's objections, the district court
agreed with the government that Moran-Stenson should be assigned
an enhanced base offense level under § 2K2.1(a)(4)(A) because he
committed a predicate drug trafficking offense under Maine law.
On appeal, Moran-Stenson argues that the district court
erred in applying the modified categorical approach to conclude
that his Maine drug trafficking conviction constituted a
"controlled substance offense" to warrant a sentencing
enhancement. For the reasons explained below, we affirm the
district court's application of the sentencing enhancement.
I. Background
We draw the facts related to Moran-Stenson's sentencing
from the presentence investigation report ("PSR") and the relevant
- 2 - portions of the sentencing record. United States v. Diaz-Serrano,
77 F.4th 41, 44 (1st Cir. 2023).
In 2016, Moran-Stenson was convicted of a felony for
unlawfully trafficking cocaine base in violation of Maine's drug
trafficking statute, Me. Rev. Stat. Ann. tit. 17-A, § 1103(1-A)(A)
("§ 1103"). Section 1103 provides that:
[A] person is guilty of unlawful trafficking in a scheduled drug if the person intentionally or knowingly trafficks in what the person knows or believes to be a scheduled drug, which is in fact a scheduled drug, and the drug is: (A) A schedule W drug.
As is undisputed here, Maine classifies cocaine base as a schedule
W drug (see Me. Rev. Stat. Ann. tit. 17-A, §§ 1101(25)(B)(3),
1102(1)(F)), and cocaine base is a federally criminalized drug
under the Controlled Substances Act (see 21 U.S.C. § 812, Schedule
II, (a)(4)).
On January 5, 2022, Moran-Stenson was arrested for his
involvement in a shooting in Lewiston, Maine. At the time of the
shooting, Moran-Stenson was serving a three-year term of federal
supervised release related to a crime he committed in the Western
District of New York. A grand jury indicted Moran-Stenson for
violating 18 U.S.C. § 922(g)(1), the statute barring persons
convicted of felonies from possessing firearms and ammunition.
And on May 16, 2023, Moran-Stenson pled guilty to the § 922(g)(1)
charge.
- 3 - Prior to sentencing, the U.S. Probation Office
("probation") filed a PSR laying out the guidelines range for
Moran-Stenson's offense. Pursuant to § 2K2.1(a)(4)(A), a
defendant receives an enhanced based offense level for violating
§ 922(g)(1) if they "committed any part of the instant offense
subsequent to sustaining one felony conviction of . . . a
controlled substance offense." As relevant here, the guidelines
define a "controlled substance offense" as a federal or state crime
"punishable by imprisonment for a term exceeding one year, that []
prohibits the manufacture, import, export, distribution, or
dispensing of a controlled substance . . . or the possession of
a controlled substance . . . with intent to manufacture, import,
export, distribute, or dispense." U.S. Sent'g Guidelines Manual
§ 4B1.2(b)(1) (U.S. Sent'g Comm'n 2023).
In the PSR, probation found that Moran-Stenson's Maine
drug trafficking conviction constituted a "controlled substance
offense" and assigned him an enhanced base offense level of twenty
under § 2K2.1(a)(4)(A). Moran-Stenson objected to the application
of the enhancement, but probation retained its recommendation that
he receive a base offense level of twenty. With an undisputed
criminal history category of VI, Moran-Stenson's sentencing
guidelines range was ultimately calculated to be seventy-seven to
ninety-six months (based on a total offense level of twenty-one,
which included an enhancement for possessing the firearm in
- 4 - connection with a felony offense and a reduction for acceptance of
responsibility).
The district court held a sentencing hearing on October
11, 2023. At the hearing, Moran-Stenson's counsel reiterated his
objection to the PSR's base offense level determination, insisting
that Moran-Stenson's Maine drug trafficking conviction did not
constitute a predicate controlled substance offense triggering the
§ 2K2.1(a)(4)(A) enhancement. Moran-Stenson's counsel explained
that under the categorical approach, because some schedule W drugs
criminalized under Maine law are not prohibited by the federal
Controlled Substances Act, Moran-Stenson's Maine drug trafficking
conviction was not a proper categorical "match" to enhance his
base offense level. Accordingly, Moran-Stenson urged the district
court to apply the categorical approach and made clear that,
because Maine's drug law is broader than federal law, his prior
conviction could not be a predicate "controlled substance
offense."
In response, and as we will explain in greater detail
below, the government argued that the "scheduled drugs" element of
the Maine drug trafficking statute is "divisible." As such, the
government insisted that the divisible nature of the statute
allowed the district court to use the modified categorical approach
to evaluate the specific type of drug that Moran-Stenson
trafficked. And if the court applied the modified categorical
- 5 - approach, it could look to the underlying Maine indictment to
confirm that Moran-Stenson was convicted of trafficking cocaine
base -- a drug criminalized under both Maine and federal law.
Therefore, Moran-Stenson's § 1103 conviction would constitute a
proper match to trigger the sentencing enhancement.
The government acknowledged, however, that this
circuit's prior decisions on § 1103's divisibility focused solely
on the "trafficking" element of that statute. Nonetheless, the
government maintained that both the "trafficking" and "scheduled
drugs" components of § 1103 are divisible. And it stressed that
the specific type of drug being trafficked is a necessary,
independent element of a drug trafficking offense under Maine law.
The district court agreed with the government and
probation that Moran-Stenson's § 1103 conviction was a predicate
"controlled substance offense." The court overruled
Moran-Stenson's objection to the PSR's application of
§ 2K2.1(a)(4)(A) and adopted the PSR's enhanced base offense level
of twenty. After hearing the parties' sentencing arguments, the
court sentenced Moran-Stenson to seventy-seven months'
imprisonment for the § 922(g)(1) offense -- the bottom of the
applicable guidelines range -- followed by three years of
supervised release.1 Moran-Stenson then filed this timely appeal.
1 Moran-Stenson was also sentenced to eighteen months' imprisonment for violating his federal supervised release by
- 6 - II. Discussion
"The Government bears the burden of establishing that a
prior conviction qualifies as a predicate offense for sentencing
enhancement purposes." United States v. Dávila-Félix, 667 F.3d
47, 55 (1st Cir. 2011). And we review the issue of whether a prior
conviction falls under the guidelines' enhancements de novo.
United States v. Abdulaziz, 998 F.3d 519, 523 (1st Cir. 2021).
Here, Moran-Stenson argues that the district court erred
in applying the modified categorical approach to conclude that his
drug trafficking conviction under Maine law was a predicate
"controlled substance offense" under § 2K2.1(a)(4)(A). First,
Moran-Stenson emphasizes that § 1103 is not a categorical match to
the federal Controlled Substances Act; therefore, under the
categorical approach, the district court could not have applied
the sentencing enhancement. Second, Moran-Stenson contends that
the "scheduled drugs" component of § 1103 is not a divisible
element. And because the modified categorical approach can only
be deployed where a statutory component is an element of an offense
(and thus divisible), the district court should not have reviewed
his state court indictment to determine the means by which he
committed the offense -- specifically, by trafficking cocaine
base.
committing the § 922(g)(1) offense, but he has not challenged any other aspects of his new-offense or revocation sentencing.
- 7 - We begin by outlining the categorical and modified
categorical approach frameworks, with particular focus on the
appropriate order of operations in the modified categorical
approach analysis.
A. The Categorical Approach
At the outset, before looking "beyond the mere fact of
[the state court] conviction," a court must use the categorical
approach to determine "whether all of the conduct covered by the
[state] statute categorically" matches the elements of the federal
offense to serve as a predicate act. United States v. Faust, 853
F.3d 39, 51 (1st Cir. 2017) (quoting Taylor v. United States, 495
U.S. 575, 602 (1990)). For a prior conviction to qualify as a
predicate act, the categorical approach mandates that the elements
of a defendant's state law conviction align with the "generic
version[]" of the crime under federal law. Mathis v. United
States, 579 U.S. 500, 503 (2016). Under the categorical approach,
"[s]entencing courts may 'look only to the statutory
definitions' -- i.e., the elements -- of a defendant's prior
offenses, and not 'to the particular facts underlying those
convictions.'" Descamps v. United States, 570 U.S. 254, 261 (2013)
(quoting Taylor, 495 U.S. at 600). "In other words, without regard
to the specific facts of each defendant's offense, we compare the
elements of the crime for which the defendant was previously
convicted with Congress's definition of the type of crime that may
- 8 - serve as a predicate offense." United States v. Fish, 758 F.3d 1,
5 (1st Cir. 2014).
Where the state statute covers the same or an even
narrower class of conduct than the generic offense, the state
conviction "will always count as a predicate" for federal
sentencing purposes. Faust, 853 F.3d at 51; accord Mathis, 579
U.S. at 519. But when the state law "sweeps more broadly than the
generic crime, a conviction under that law cannot count as" a
categorical match for a predicate offense. Descamps, 570 U.S. at
261.
B. The Modified Categorical Approach
Next, if the state statute is not a categorical match,
the court may evaluate whether the modified categorical approach
can be deployed. The modified categorical approach permits a
sentencing court to "look[] 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." Mathis, 579 U.S. at 505-06. But "the modified
[categorical] approach serves -- and serves solely -- as a tool to
identify the elements of the crime of conviction when a statute's
disjunctive phrasing renders one (or more) of them opaque." Id.
at 513 (emphasis added). Importantly, the modified categorical
approach can never "be repurposed as a technique for discovering
whether a defendant's prior conviction, even though for a too-broad
- 9 - crime, rested on facts (or otherwise said, involved means) that
also could have satisfied the elements of a generic offense." Id.
at 513–14 (emphasis added).
The distinction between elements and means is essential
to evaluating the propriety of applying the modified categorical
approach. "The first task for a sentencing court faced with an
alternatively phrased statute is thus to determine whether its
listed items are elements or means." Id. at 517.
The elements of a crime "are the 'constituent parts' of
a crime's legal definition -- the things the 'prosecution must
prove to sustain a conviction.'" Id. at 504 (quoting Black's Law
Dictionary 634 (10th ed. 2014)). For example, "a burglary statute
(otherwise conforming to the generic crime) that prohibits 'entry
of an automobile as well as a building'" constitutes a statute
listing "alternative elements." Descamps, 570 U.S. at 261.
Because "[o]ne of those alternatives (a building) corresponds to
an element in generic burglary, whereas the other (an automobile)
does not[,] . . . a later sentencing court cannot tell, without
reviewing something more, if the defendant's conviction was for
the generic (building) or non-generic (automobile) form of
burglary." Id. at 261-62.
Means, on the other hand, identify the possible ways "by
which the offense may be committed." Swaby v. Yates, 847 F.3d 62,
67–68 (1st Cir. 2017). If, hypothetically, a statute includes
- 10 - "use of a 'deadly weapon' as an element of a crime and further
provides that the use of a 'knife, gun, bat, or similar weapon'
would all qualify[,] . . . that kind of list merely specifies
diverse means of satisfying a single element of a single crime."
Mathis, 579 U.S. at 506.
When a statute lists alternative elements, the statute
is divisible; the court can then proceed to use the modified
categorical approach to "determine which offense the defendant"
actually committed. Faust, 853 F.3d at 52. Meanwhile, if a
statute merely lists alternative means, the court cannot use the
modified categorical approach and must reject application of the
sentencing enhancement because the state statute does not
constitute a categorical match. Id.; Mathis, 579 U.S. at 513,
519.
1. Step 1: Assessing Whether a Statute Lists Elements or Means
In Mathis v. United States, 579 U.S. 500 (2016), the
Supreme Court laid out several ways in which a court can determine
whether a statute lists elements or means. First, and most
straightforwardly, where "a state court decision definitively
answers the question," the sentencing court must adopt that state's
approach. 579 U.S. at 517. Second, "the statute on its face may
resolve the issue." Id. at 518. In particular, where "statutory
alternatives carry different punishments, . . . they must be
elements." Id. On the other hand, "if a statutory list is drafted
- 11 - to offer 'illustrative examples,' then it includes only a crime's
means of commission." Id. (quoting United States v. Howard, 742
F.3d 1334, 1348 (11th Cir. 2014)). Third, "if state law fails to
provide clear answers, federal judges have another place to look:
the record of a prior conviction itself." Id. Accordingly, the
court may consult record documents like the "indictment and jury
instructions" to assess whether "the statute contains a list of
elements" based on how the crime was charged and tried. Id. at
2. Step 2: Applying the Modified Categorical Approach to a Divisible Statute
If the statute is divisible, meaning that "it sets forth
one or more elements of a particular offense in the alternative,"
the court may apply the modified categorical approach to determine
whether the defendant's prior conviction constitutes a predicate
offense. Fish, 758 F.3d at 6.
"[T]he modified categorical approach permits sentencing
courts to consult a limited class of documents, such as indictments
and jury instructions, to determine which alternative formed the
basis of the defendant's prior conviction." Descamps, 570 U.S. at
257. These documents are often referred to as "Shepard documents,"
named for the Supreme Court's decision in Shepard v. United States,
544 U.S. 13 (2005), in which it identified the limited record
- 12 - documents a court can evaluate under the modified categorical
approach.
But again, the "modified categorical approach merely
assists the sentencing court in identifying the defendant's crime
of conviction," and does not "authorize[] the court to try to
discern what a trial showed, or a plea proceeding revealed, about
the defendant's underlying conduct." Descamps, 570 U.S. at 269.
C. Whether the "Scheduled Drugs" Component of § 1103 Is Divisible
The government does not refute Moran-Stenson's
contention that § 1103 is not a categorical match for a "controlled
substance offense" under § 2K2.1(a)(4)(A) because § 1103
proscribes trafficking of certain drugs not criminalized by the
federal Controlled Substances Act. See Abdulaziz, 998 F.3d at
522, 531 (concluding that a Massachusetts law criminalizing
trafficking of "marihuana," which included "hemp," was not a
categorical match because the federal Controlled Substances Act
did not criminalize hemp at the time the defendant was sentenced).
And if § 1103's alternatively listed drugs (identified in Maine's
drug schedule W, Me. Rev. Stat. Ann. tit. 17-A, § 1102(1)) are
means of committing a drug trafficking offense rather than
elements, the district court wrongly applied the modified
categorical approach, and it should not have enhanced
Moran-Stenson's sentence under § 2K2.1(a)(4)(A). See Faust, 853
- 13 - F.3d at 52. So, we must first assess whether the "scheduled drugs"
component of § 1103 lists elements or means of the offense.
Section 1103, which criminalizes "[u]nlawful trafficking
in scheduled drugs," contains two main components: "trafficking"
and "scheduled drugs." The "trafficking" portion of § 1103
requires demonstrating that the defendant "intentionally or
knowingly traffick[ed] in" a scheduled drug. Me. Rev. Stat. Ann.
tit. 17-A, § 1103(1-A). In United States v. Mohamed, 920 F.3d 94
(1st Cir. 2019), we addressed the divisibility of § 1103's
"trafficking" component in context of the "controlled substance
offense" enhancement under § 2K2.1(a)(4)(A). There, as to the
"trafficking" component, we determined that "[t]he Maine
trafficking statute . . . is divisible because there are a number
of distinct ways to 'traffick.'" Id. at 101.
In particular, a separate statutory provision defines
"traffick" in "multiple alternative ways," and § 1103 itself
"allows a permissible inference regarding trafficking, based on
the quantity of particular drugs possessed by a defendant." Id.
at 99–100 (first citing Me. Rev. Stat. Ann. tit. 17-A, § 1101(17);
and then citing id. § 1103(3)). We held that because § 1103's
"trafficking" component lists alternative elements of the offense,
the modified categorical approach could be used to assess how the
defendant "trafficked" the drugs at issue. Id. at 102-03.
- 14 - But Mohamed did not address the divisibility of § 1103's
"scheduled drugs" component. The "scheduled drugs" component of
§ 1103(1-A)(1) prohibits trafficking "what the person knows or
believes to be a scheduled drug, which is in fact a scheduled drug,
and the drug is: (A) A schedule W drug." In a separate statutory
section, Maine lists specific "scheduled drugs" that are
classified under four different drug schedule categories. See Me.
Rev. Stat. Ann. tit. 17-A, §§ 1101(11), 1102. For example,
alongside cocaine base, drugs like methamphetamine, heroin, and
fentanyl are also classified as schedule W drugs. Id.
§ 1102(1)(A), (F), (I). Here, we engage in the review outlined by
Mathis to determine whether the individual drugs listed in Maine's
drug schedule W constitute alternative elements or means of a Maine
drug trafficking offense. In other words, does § 1103's "scheduled
drugs" component, like the statute's "trafficking" component,
constitute a divisible element of a drug trafficking offense under
Maine law?
1. Maine State Court Decisions on § 1103's "Scheduled Drugs" Component
We begin with the Maine Supreme Judicial Court's ("the
Law Court"2) decisions on the "scheduled drugs" component of
2 When sitting in its capacity as an appellate court, the Maine Supreme Judicial Court is known as the "Law Court." See Me. Rev. Stat. Ann. tit. 4, §§ 51, 57; Mundell v. Acadia Hosp. Corp., 92 F.4th 1, 3 n.2 (1st Cir. 2024).
- 15 - § 1103. As Moran-Stenson emphasizes, the Law Court has not
directly stated that proof of the specific type of drug trafficked
is an element of the offense requiring jury unanimity. Nor has
the Law Court explicitly confronted whether a court can impose
multiple sentences for trafficking different drugs on the same
occasion. In Moran-Stenson's view, the absence of Law Court
precedent on these two issues precludes finding that the "scheduled
drugs" component is a divisible element. We disagree.
The Law Court has repeatedly referenced § 1103's
"scheduled drugs" component as requiring proof of a specific type
of drug to convict a defendant for trafficking in scheduled drugs.
In State v. Barnard, 772 A.2d 852 (Me. 2001), the Law Court
explained that, to convict a defendant of trafficking under
§ 1103,3 "the State was required to prove that the [trafficked drug
was] in fact a scheduled drug, an essential element of the crime
charged." Id. at 856. And in that particular case, "[t]he State
had the burden to prove to the jury beyond a reasonable doubt that
the tablets were Dilaudid," a specific schedule W drug. Id. at
857. The Barnard court then described that "chemical analysis" or
"other direct and circumstantial evidence can establish beyond a
reasonable doubt the identity of drugs." Id.
3 The subsection of § 1103 at issue in Barnard has since been repealed, see 772 A.2d at 854 n.2, but the language of that now-repealed statutory subsection is nearly identical to § 1103(1-A).
- 16 - Likewise, in State v. Sudsbury, 132 A.3d 863 (Me. 2016)
(per curiam), the Law Court vacated the defendant's conviction for
trafficking in a schedule W drug where the state failed to prove
that the specific drug, Suboxone, was "explicitly named as a
prohibited scheduled drug in any of the schedules established by
the [Maine] Legislature." Id. at 864. The Sudsbury court reasoned
that "the State was . . . required to present evidence that
Suboxone is a drug that falls within one of the listed categories
of schedule W drugs." Id. But "[a]t trial, however, no evidence
was presented to the jury that Suboxone . . . constituted a
narcotic or fell into any other category established in schedule
W." Id. at 864-65.
And in State v. Lowden, 87 A.3d 694 (Me. 2014), the Law
Court made clear that "[u]nlawful trafficking in scheduled drugs
mandates not only that [the] person 'trafficks' in a drug, but
that the drug 'is in fact a scheduled drug.'" Id. at 698 (quoting
Me. Rev. Stat. Ann. tit. 17-A, § 1103(1-A)). The Lowden court
also listed the elements of "unlawful trafficking in schedule W
drugs pursuant to [§ 1103]" as: "the person (1) intentionally or
knowingly (2) trafficks in (3) what the person knows or believes
to be a scheduled drug, which (4) is in fact a scheduled drug[,]
and (5) the drug is a schedule W drug." Id. (emphases added).
In that vein, to satisfy the element of trafficking what
"is in fact a scheduled drug," the Law Court has approved of jury
- 17 - instructions requiring the jury to conclude beyond a reasonable
doubt that the defendant trafficked a specific type of drug. See,
e.g., State v. Barnard, 828 A.2d 216, 221 (Me. 2003) (upholding
use of a jury instruction in a § 1103 case where "[t]aken together,
these statements [from the jury instruction] informed the jurors
that it was up to them to determine from all of the evidence
whether the composition of the pills was proven beyond a reasonable
doubt"); State v. Christianson, 404 A.2d 999, 1004 (Me. 1979)
(approving jury instruction that required the jury to be "satisfied
from all of the evidence in the exhibits that [the drugs] are and
were in fact, Phencyclidine" by proof "beyond a reasonable doubt").
Furthermore, in State v. McLaughlin, 189 A.3d 262 (Me.
2018), the Law Court noted that "[i]n dividing various drugs into
schedules, and then setting out its definitions of the drugs,
including cocaine, within those schedules, the [Maine] Legislature
explained that the definitions were to be used '[f]or the purposes
of defining crimes under this chapter and determining the penalties
therefor.'" Id. at 268 (third alteration in original) (quoting
Me. Rev. Stat. Ann. tit. 17-A, § 1102).
We relied on similarly clear state-court precedent in
Swaby v. Yates, 847 F.3d 62 (1st Cir. 2017), to determine that
"the particular type of controlled substance listed in the state
drug schedules [is] an element of an offense under" Rhode Island's
drug trafficking statute. Id. at 67. To distinguish Swaby,
- 18 - Moran-Stenson insists that the case is "inconsistent" with other
circuit precedent and emphasizes that the modified categorical
approach has no place here. Moran-Stenson seems to argue that our
decision in United States v. Abdulaziz, 998 F.3d 519 (1st Cir.
2021), forecloses use of the modified categorical approach when
assessing whether a sentencing enhancement applies under
§ 2K2.1(a)(4)(A). True, in Abdulaziz, we limited our discussion
to whether Massachusetts's drug law was a categorical match to the
federal Controlled Substances Act without any mention of the
modified categorical approach. 998 F.3d at 522. But the critical
issue in Abdulaziz and the government's arguments occasioned our
categorical-approach-only analysis.
At the time of the defendant's state conviction and his
later commission of the § 922(g) offense, the Massachusetts
statute was a categorical match to federal law. Id. at 524.
Specifically, at these earlier junctures, both Massachusetts and
federal law criminalized possession with intent to distribute
hemp. Id. at 522, 524. Before the defendant's sentencing for the
§ 922(g) charge, however, the federal Controlled Substances Act
was amended to remove hemp from the federal drug schedules. Id.
at 524. Consequently, by the time the defendant was sentenced,
the state and federal laws were no longer a categorical match.
Id. at 524, 531.
- 19 - On appeal, the government exclusively focused on arguing
that the state and federal statutes must be a categorical match
either at the time of the state conviction or the commission of
the federal offense, not at sentencing. Id. at 524. We had no
reason to address the modified categorical approach because the
government never argued that the modified categorical approach
could be deployed.
But "[t]he Supreme Court has held that a sentencing court
should use a categorical or modified categorical approach when
considering sentencing enhancements based on prior offenses."
Mohamed, 920 F.3d at 101 (emphasis added) (first citing Mathis, 579
U.S. at 505; and then citing Taylor, 495 U.S. at 588). And we
appropriately applied the modified categorical approach in Mohamed
after concluding that the "trafficking" component of § 1103 was a
divisible element. Id.
In short, we do not see any purported "inconsistency."
The modified categorical approach serves "as a tool" that "merely
helps implement the categorical approach when a defendant was
convicted of violating a divisible statute." Descamps, 570 U.S.
at 262-63. Indeed, our approach in Swaby is on all-fours with
those taken by our sister circuits in carefully parsing whether a
state statute is divisible by drug type before applying the
modified categorical approach. See United States v. Henderson,
- 20 - 841 F.3d 623, 630-32 (3d Cir. 2016); United States v.
Martinez-Lopez, 864 F.3d 1034, 1039-41 (9th Cir. 2017) (en banc).
From our review of Law Court precedent, we find it
significant that the Law Court has consistently described the
particular type of scheduled drug as an element of a § 1103 offense
and noted that the state's various drug schedules correlate to
different punishments.
2. The Text of § 1103
But we need not rely solely on Law Court decisions to
conclude that the "scheduled drugs" component of § 1103 is a
divisible element. In fact, "[o]ur conclusion that this state law
crime is divisible by the type of drug also accords with the face
of the statute." Swaby, 847 F.3d at 68.
Here, § 1103 criminalizes "unlawful trafficking in a
scheduled drug if the person intentionally or knowingly trafficks
in what the person knows or believes to be a scheduled drug, which
is in fact a scheduled drug, and the drug is: (A) A schedule W
drug." Me. Rev. Stat. Ann. tit. 17-A, § 1103(1-A)(A) (emphasis
added). The Law Court has not expressly decided whether a
conviction can be sustained off of meager proof that the defendant
trafficked a non-specified schedule W drug. As far as we can tell,
such a question has never been presented to the Law Court.
But the phrase "is in fact a scheduled drug" strongly
suggests that the state must prove that the defendant trafficked
- 21 - a specific prohibited drug. And we see no way in which the state
could sustain a conviction by simply proffering that the defendant
trafficked a non-specified "schedule W" drug. Cf. State v. Woo,
938 A.2d 13, 16-17 (Me. 2007) (summarizing evidence related to
"manufacturing" -- a form of "trafficking" under § 1103 -- that
allowed "the jury [to] reasonably infer[] that [the defendant]
successfully manufactured methamphetamine," meaning "the jury
could have rationally found beyond a reasonable doubt that [the
defendant] unlawfully trafficked in what was, in fact, a scheduled
drug").
Moreover, to avoid superfluity, the phrase "is in fact
a scheduled drug" must be distinguished from "and the drug is . . .
[a] schedule W drug." Nonetheless, Moran-Stenson maintains that
§ 1103 requires only "proof that the defendant trafficked 'a
schedule W drug,' rather than a specific drug." To be sure, § 1103
makes abundantly clear that the drug must actually appear on the
schedule W drug list. Problematically though, Moran-Stenson's
interpretation entirely ignores the preceding phrase -- "is in
fact a scheduled drug" -- and improperly collapses the two clauses.
And as noted above, the Law Court has treated "is in fact a
scheduled drug" as an entirely different element than "and
. . . the drug is a schedule W drug." See Lowden, 87 A.3d at 698
(enumerating elements of a § 1103 offense and separating "is in
- 22 - fact a schedule drug" from "and . . . the drug is a schedule W
drug" to list two distinct elements).
Furthermore, in introducing the drug schedules codified
in Me. Rev. Stat. Ann. tit. 17-A, § 1102, the Maine legislature
explained that Maine's drug schedules are "established" for the
express "purposes of defining crimes under [Maine's drug laws] and
of determining the penalties" for state drug crimes. (Emphasis
added.) See McLaughlin, 189 A.3d at 268. Consequently, Maine's
drug schedules cannot be construed as illustrative examples when
they are exhaustive lists that are keyed to punishments for varying
classes of drugs. Id.; Swaby, 847 F.3d at 68 (explaining that
Rhode Island's drug trafficking statute assigns "'different
punishments,' based on the class of a drug, and then
'exhaustive[ly]' lists the individual drugs by type on the state
drug schedules" (alteration in original) (citation omitted) (first
quoting Mathis, 579 U.S. at 518; and then quoting State v. Feng,
421 A.2d 1258, 1271 (R.I. 1980))). As such, the face of the
statute also supports concluding that the specific drug trafficked
is an element of a § 1103 offense.
3. The Record of Conviction
Lastly, "an indictment and jury instructions could
indicate, by referencing one alternative term to the exclusion of
all others, that the statute contains a list of elements, each one
of which goes toward a separate crime." Mathis, 579 U.S. at 519.
- 23 - Here, the grand jury charged Moran-Stenson with unlawful
trafficking of scheduled drugs under § 1103. And the indictment
states that Moran-Stenson "did intentionally or knowingly traffick
in what he knew or believed to be a scheduled drug, which was in
fact cocaine base, a schedule W drug." (Emphasis added.) Because
the indictment refers to one drug (cocaine base) to the exclusion
of all other drugs listed in schedule W, the indictment indicates
that § 1103's "scheduled drugs" component is a divisible element.
D. Applying the Modified Categorical Approach to Moran-Stenson's Conviction
Because the "scheduled drugs" component of § 1103 is an
element of the offense, the district court could properly use the
modified categorical approach to assess whether Moran-Stenson
committed a predicate controlled substance offense. See Descamps,
570 U.S. at 257. As the government emphasizes, Moran-Stenson does
not argue that the district court erred in its actual application
of the modified categorical approach -- for example, by improperly
looking beyond the Shepard documents or misreading the indictment.
Moran-Stenson's state court indictment shows that he was
specifically charged with trafficking cocaine base. Because
cocaine base is a federally criminalized drug, his prior offense
under § 1103 qualifies as a predicate controlled substance offense
under § 2K2.1(a)(4)(A). The district court thus properly applied
the federal sentencing enhancement.
- 24 - III. Conclusion
For the foregoing reasons, we affirm the district
court's judgment.
- 25 -