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       

(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,

 (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 

, 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   

(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, 

 (1st Cir. 2011).       And we review the issue of whether a prior

conviction    falls   under    the   guidelines'     enhancements      de    novo.

United States v. Abdulaziz, 

 (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, 

 (1st Cir. 2017) (quoting Taylor v. United States, 

 (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, 

 (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, 

 (2013)

(quoting Taylor, 

). "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, 

 (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, 

; accord Mathis, 

.    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, 

.

                 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, 

.      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."             

 (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."               

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."          

.

            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.'"       

 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,   

.

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."      

.

            Means, on the other hand, identify the possible ways "by

which the offense may be committed."         Swaby v. Yates, 

,

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, 

.

            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, 

.          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, 

.

 1. Step 1: Assessing Whether a Statute Lists Elements or Means

            In Mathis v. United States, 

 (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.    

.   Second, "the statute on its face may

resolve the issue."      

.    In particular, where "statutory

alternatives    carry   different    punishments,     . . .   they    must    be

elements."   

   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."   

 (quoting United States v. Howard, 

 (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."     

   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

519.

   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, 

.

           "[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, 

. These documents are often referred to as "Shepard documents,"

named for the Supreme Court's decision in Shepard v. United States,

 (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, 

.

       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, 

   (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, 

(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 

, 57; Mundell v. Acadia Hosp. Corp.,

, 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, 

 (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 

 n.2, but the language of that
now-repealed statutory subsection is nearly identical to
§ 1103(1-A).


                                       - 16 -
          Likewise, in State v. Sudsbury, 

 (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." 

. 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."   

   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."   

.

          And in State v. Lowden, 

 (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.'"   

 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, 

 (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, 

 (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, 

 (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.'"   

 (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, 

 (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.    

.     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, 

 (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.            

. 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, 

 (emphasis added) (first citing Mathis, 

; and then citing Taylor, 

).      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, 

.   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 -


      (3d     Cir.     2016);    United    States    v.

Martinez-Lopez, 

 (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, 

.

             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


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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,

 (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, 

(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, 

.            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, 

 (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, 

; and then quoting State v. Feng,

 (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, 

.


                                   - 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,

.   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.




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