UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 17-cr-45-JL Opinion No.

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

(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”),

(e)(2)(A).

If they are, the defendant faces a 15-year mandatory minimum

sentence under the ACCA,

(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

-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.

(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.”

§ 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,

, 43-

3 Id. ¶ 70.

2 44 (1st Cir. 2006) (quoting United States v. King,

(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,

(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

(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

(e) is an armed career criminal.”). This

designation, in turn, raised Burghardt’s BOL to 33.

§ 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,

. 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,

(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

-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.”

§ 318–B:1, XXX.

See State v. Stone,

(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,

(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.”

(quoting United States v. Holloway,

(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,

(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,

(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,

(2013). “[I]f there is a match, the

state conviction is an ACCA predicate.” Mulkern,

.

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,

(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].”

(quoting Descamps v. United

States,

(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.”

(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,

. The other alternatives are “various factual means of

committing a single element.”

.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,

(quoting Mathis,

). “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.

(internal quotes omitted).

8 the offense.”

And if the “least of the [means]

criminalized” does not fall within the ACCA definition then the

conviction is not an ACCA predicate. Moncrieffe,

. 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,

(citing

Moncrieffe,

). “[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,

(quoting

Gonzalez v. Duenas-Alvarez,

(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

-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,

. 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

:B-2, I. The court declines to skip this important analytical step.

10 Mathis,

(relying on state court decisions to

determine whether acts are elements or means); compare State v.

Cassidy, No. 2015-0162,

at *1-2 (N.H. Mar. 18,

2016) (listing elements necessary for conviction for selling a

controlled substance) with State v. Francis,

(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,

, 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,

. 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,

(quoting Shepard v. United States,

(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.”

(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 . . . .”

-B:1, XXX (emphasis added); State v. Stone,

(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,

(10th Cir. 2017); United States v. Hinkle,

(5th

Cir. 2016); United States v. Bryant,

(1st Cir.

2009); United States v. Savage,

(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,

(8th Cir.

2012) (rejecting defendant’s argument that the ACCA definition

should be construed narrowly to conform to Guidelines’

definition); McKenney,

(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

-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,

(citing Schad v. Arizona,

(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.”

(e)(2)

(A)(ii).

4. § 318-B:2, I, criminalizing offers to sell controlled substances, is an ACCA predicate

In

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.

. 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.”

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.”

at 110 (citing People v. Mike,

(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,

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,

(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.”

(emphasis added). The Court nevertheless

concluded that the Texas conviction qualified as a “serious drug

offense” under the ACCA.

. 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.”

.

In

the Court considered a Minnesota law that

did “not require that the defendant possess any drugs or have

specific intent to complete the sale . . .”

(emphasis added) (citing Minnesota v. Lorsung,

,

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

-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,

(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.”

, 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,

(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,

(1996) (quoting

State v. Ayer,

(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,

. 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,

(quoting Gonzales

). 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,

. Adopting the defendant’s position

would require the court to engage in the type of “legal

imagination” that the Supreme Court has proscribed.

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,”

, 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.

-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,

(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.

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