United States v. Mulkern ( 2022 )

United States Court of Appeals
For the First Circuit
No. 21-1475
UNITED STATES,
Appellee,
v.
SEAN MULKERN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Jon D. Levy, U.S. District Judge]
Before
Barron, Chief Judge,
Selya and Kayatta, Circuit Judges.
John W. VanLonkhuyzen and Verrill Dana LLP on brief for
appellant.
Darcie N. McElwee, United States Attorney, and Noah Falk,
Assistant United States Attorney, on brief for appellee.
September 27, 2022
KAYATTA, Circuit Judge. This case arises from a parking-
lot confrontation following a road-rage incident between the
driver of a white Corvette and several men in a landscaping truck.
Reports of that confrontation led law enforcement to stop Sean
Mulkern in his white Corvette the next day. The subsequent
searches of Mulkern's vehicle and motor home yielded evidence
supporting drug-trafficking and firearms charges. Mulkern moved
to suppress all of the evidence derived from what he argues were
illegal searches of his person and vehicles. After the district
court denied that motion in relevant part, Mulkern pleaded guilty.
At sentencing, the district court found that Mulkern had three
prior qualifying offenses that rendered him subject to a mandatory
minimum sentence under the Armed Career Criminal Act (ACCA), 18
U.S.C. § 924(e). Mulkern claims on appeal that the district court
erred first in denying his suppression motion and second in finding
him eligible for the ACCA sentence. As we explain below, we see
no error on either score, so we affirm Mulkern's conviction and
sentence.
I.
A.
The facts giving rise to this case unfolded over two
days in May 2017. We recite those facts "in the light most
favorable to the district court's ruling" denying Mulkern's motion
to suppress, though we note Mulkern's "contrary view of the
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testimony presented at the suppression hearing" where relevant.
United States v. Sierra-Ayala, 39 F.4th 1, 6 (1st Cir. 2022)
(quoting United States v. Rodríguez-Pacheco, 948 F.3d 1, 3 (1st
Cir. 2020)).
1.
On May 24, 2017, Officers Warren Day and Jessica Ramsay
of the Buxton, Maine police department responded to a dispatch
call reporting a possible road-rage incident and armed
confrontation. As relayed by the dispatcher, a man driving a white
Corvette with red rims had reportedly pulled a gun on a man at the
Timberline Country Store in Buxton. The dispatcher relayed a Maine
license plate number reported for the Corvette, "2512VW," but noted
that this number was actually registered to a black Lexus, rather
than a white Corvette.
While en route to the Timberline, Officer Day spoke on
the phone with one of the reported victims, Scott Wallingford.
Wallingford, who had by that time left the Timberline and was on
his way to a job site, confirmed that the driver of a white Corvette
had displayed a gun and threatened him and his companions.
When Officers Day and Ramsay arrived at the Timberline,
the Corvette was no longer present. The officers spoke with two
store employees, who showed the officers a security video of the
confrontation. According to Officer Ramsay's testimony at the
suppression hearing, the video depicted a white Corvette and a
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landscaping truck in the store's parking lot. Officer Ramsay
described the Corvette as "very distinct." Three occupants of the
truck got out, approached the Corvette, and argued with its driver.
The driver of the Corvette then "reached into the back of the
Corvette and pulled something out -- it was difficult to tell what
it was at the time," and then held the object against his chest.
The three men on foot then "got elevated in their behavior";
"[t]hey started yelling and pointing" before the Corvette drove
off.
One of the employees, Jaaron Thurlow, had been working
during the incident. He spoke with the officers after they had
reviewed the video. He recounted that he had seen three men in
the parking lot arguing with a fourth man in the driver's seat of
a white Corvette with two red stripes running from the front to
the back. Thurlow said that the Corvette driver was in his 50s
and wore glasses. He reported that the men yelled at each other
before the Corvette drove away and that the group of remaining men
then came into the store to talk to him. As related by Thurlow,
the group told him that the Corvette had sped by them on the road,
that they followed him into the parking lot to confront him about
his dangerous driving, and that the Corvette driver had then pulled
a gun on them.
On the basis of the video and the reports from
Wallingford and Thurlow, Officer Ramsay requested that her station
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issue a "Caution Officer Safety" alert -- also referred to as a
"BOLO" (short for "be on the lookout") -- in a statewide law
enforcement system. The BOLO read in full:
*** CAUTION OFFICER SAFETY ***
ON TODAY'S DATE BUXTON POLICE DEPARTMENT TOOK
A REPORT OF A MALE IN A WHITE CORVETTE WITH
RED RIMS WAS IN A ALTERCATION AT TIMBERLINE
COUNTRY STORE 222 NARRAGANSETT TRAIL. THE
OPERATOR A MALE IN HIS 40'S WHITE SHIRT AND
BALL CAP, PULLED OUT A HAND GUN AND SHOWED IT
TO THE VICTIM. THE VEHICLE WAS LAST SEEN
HEADED TOWARD GORHAM. IF LOCATED STOP AND
IDENTIFY THE DRIVER. THANK YOU FOR ANY
ASSISTANCE.
2.
The next day, May 25, Patrol Sergeant Timothy Morrell of
the nearby Westbrook, Maine police department observed a white
Corvette with red rims, as described in the BOLO that he had seen
come in the previous day. He testified at the suppression hearing
that, based on the distinctive nature of the vehicle, he thought,
"The odds of that being someone else are pretty slim." When the
Corvette stopped and parked, Sergeant Morrell ran its license plate
number -- 2513VW -- and learned that it was registered to the
defendant, Sean Mulkern. He was also able to see that the driver
appeared to be a man in his 40s with a baseball cap, as described
in the BOLO.
He then called Buxton PD to inform them he believed he'd
located the vehicle from their notice. Based on the vehicle
description and plate number, Buxton's police chief confirmed that
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the sergeant had found the vehicle Buxton PD was investigating and
that his department would send officers out to speak with the
driver. Sergeant Morrell acknowledged that, after the call with
Buxton PD, he did not believe that he personally had sufficient
information at that point to arrest Mulkern.
In the meantime, Sergeant Morrell ran a criminal
background check on Mulkern and learned that he had been convicted
of at least one felony and had a history of drug-trafficking
charges. He also identified the driver he observed as Mulkern,
based on the booking photo in the criminal history report.
Sergeant Morrell then called some other local officers to assist
with surveillance while waiting for Buxton PD. However, once
Mulkern got back into the Corvette and began to drive away,
Sergeant Morrell decided to change course and conduct a traffic
stop because he did not want Mulkern to get away. As Mulkern
pulled out of the driveway towards the direction of Sergeant
Morrell, he saw the sergeant and then turned hard in the other
direction. Sergeant Morrell then activated his lights and pulled
Mulkern over.
Sergeant Morrell and another Westbrook officer, Sergeant
Brian Olson, who had arrived to assist, then ordered Mulkern out
of the car and frisked him. Sergeant Morrell started the frisk
but soon stopped so that he could secure the scene, letting
Sergeant Olson conduct the frisk instead. Sergeant Olson felt a
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hypodermic needle in Mulkern's breast pocket and, when Mulkern
reached for the needle and began to attempt to explain that it was
his girlfriend's, the officers handcuffed him. Sergeant Olson
then proceeded with the frisk and discovered a cigarette package
in another pocket. The package's outer cellophane wrapper
contained "white crystal rocks" that the officers believed to be
crack cocaine.
At that point, according to Sergeant Morrell's testimony
at the suppression hearing, the officers believed they had
developed probable cause to search Mulkern's vehicle for evidence
of drug trafficking. In conducting this search, they discovered
a backpack containing drugs, a gun, and over $13,000 in cash.
During the course of the frisk and vehicle search, Mulkern made
several incriminating statements: He told the officers that the
rocks in the cigarette package were his; spontaneously shouted out
during the vehicle search that there was a gun in the car; and,
when officers found the backpack, stated something to the effect
of, "Yeah, you got it, that's it."
Later that day, evidence derived from the traffic stop
and vehicle search, as well as information provided by a
cooperating defendant, was used to obtain a search warrant for
Mulkern's Winnebago mobile home. Law enforcement executed the
warrant that evening and discovered further drugs and guns in the
Winnebago.
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B.
A grand jury indicted Mulkern on three counts of drug
trafficking and firearms offenses. Mulkern moved to suppress all
physical evidence and statements obtained from the stop under
several theories, including that the initial stop was an unlawful
seizure, that the subsequent search of his person exceeded the
bounds of a lawful pat-frisk, that the evidence obtained pursuant
to the ensuing search warrant for his Winnebago was tainted by the
earlier infirmities as so-called "fruit of the poisonous tree,"
and, finally, that several of his statements during the traffic
stop were the product of custodial interrogation without the
warnings required by Miranda v. Arizona, 384 U.S. 436 (1966).
The district court agreed with Mulkern as to part of his
Fifth Amendment Miranda claim and suppressed any statements that
were prompted by the officers' questioning, while declining to
suppress statements Mulkern spontaneously offered. No challenge
is pressed on appeal by either party to the district court's
resolution of that claim.1
As to the search and seizure claims, the district court
denied Mulkern's motion. While the court agreed that the search
1 Mulkern does on appeal continue to seek suppression of all
of his statements to law enforcement during the stop, though he
does so on Fourth Amendment grounds, as the fruits of an unlawful
search and seizure, rather than on Miranda grounds. We therefore
consider the statements in our analysis of the Fourth Amendment
challenge.
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of Mulkern's person would have exceeded the lawful bounds of a
pat-frisk if it could only have been justified on that basis, the
court upheld all of the searches on an alternative basis: Law
enforcement officers were justified in searching Mulkern's person
and vehicle as a search incident to arrest because they had
probable cause before the search to arrest Mulkern for being a
felon in possession of a firearm.
Following the suppression ruling, Mulkern pleaded guilty
to counts one and three of the indictment, for, respectively:
(1) possession of cocaine base, cocaine hydrochloride, and heroin
with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(B), and (b)(1)(C); and (2) being a felon in possession of
a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a).2 He
reserved the right to appeal the denial of his motion to suppress.
In its presentence investigation report, U.S. Probation
recommended that Mulkern be sentenced as an armed career criminal
on the basis of a 1994 Maine burglary conviction (as a "violent
felony") and two 2006 Maine drug-trafficking convictions (as
"serious drug offense[s]"). Mulkern disputed his eligibility for
an ACCA sentence in briefing and at the sentencing hearing, but
the district court ultimately agreed with Probation's
2 Count Two, possession of a firearm in furtherance of a drug
trafficking crime, was dismissed pursuant to an informal agreement
with the government.
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recommendation.3 The court varied downward from the sentencing
range provided by the U.S. Sentencing Guidelines and sentenced
Mulkern to ACCA's mandatory-minimum term of fifteen years of
incarceration.
II.
Mulkern challenges the denial of his motion to suppress
and his eligibility for an ACCA mandatory-minimum sentence. We
consider these arguments in turn.
A.
In reviewing a district court's denial of a motion to
suppress, "we review legal conclusions de novo and factual findings
for clear error." United States v. Batista, 31 F.4th 820, 823
(1st Cir. 2022). While Mulkern argued for suppression under
several constitutional theories below, including that his
statements were obtained in violation of the Fifth Amendment's
prohibition against self-incrimination, his arguments on appeal
focus exclusively on purported Fourth Amendment violations, so we
train our attention accordingly.
1.
We begin with background principles governing our
assessment of Mulkern's suppression claim. The Fourth Amendment
3 We reserve further description of the predicate offenses
and the sentencing proceedings for our discussion of Mulkern's
sentencing claim.
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guarantees "[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable
searches and seizures." U.S. Const. amend. IV. Thus, a search or
seizure by police does not offend the Fourth Amendment if that
conduct is "reasonable." United States v. Rasberry, 882 F.3d 241,
246 (1st Cir. 2018). The set of constitutionally permissible
seizures includes "a warrantless arrest by a law officer" when
"there is probable cause to believe that a criminal offense has
been or is being committed." Devenpeck v. Alford, 543 U.S. 146,
152 (2004). And, relatedly, the universe of constitutionally
reasonable searches includes warrantless searches incident to an
arrest, during which law enforcement may conduct "a full search of
the person" of an arrestee. United States v. Robinson, 414 U.S.
218, 235 (1973). Where an arrest follows a traffic stop, officers
may also search the arrestee's vehicle incident to the arrest "if
the arrestee is within reaching distance of the passenger
compartment at the time of the search or it is reasonable to
believe the vehicle contains evidence of the offense of arrest."
Arizona v. Gant, 556 U.S. 332, 351 (2009).
The critical inquiry in many situations therefore trains
on whether police possess probable cause for an arrest, which may
then open the door to an incidental search. Probable cause "is
not a high bar." Kaley v. United States, 571 U.S. 320, 338 (2014).
"It 'requires only the kind of fair probability on which reasonable
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and prudent [people,] not legal technicians, act.'" Rasberry, 882
F.3d at 250 (alteration in original) (quoting Kaley, 571 U.S. at
338).
Police have probable cause to arrest when, "acting upon
apparently trustworthy information," they "reasonably can conclude
that a crime has been . . . committed and that the suspect is
implicated in its commission." Karamanoglu v. Town of Yarmouth,
15 F.4th 82, 87 (1st Cir. 2021) (alteration in original) (quoting
United States v. Flores, 888 F.3d 537, 543 (1st Cir. 2018)). For
example, the "[u]ncorroborated testimony of a victim or other
percipient witness, standing alone, ordinarily can support a
finding of probable cause." Id. at 87–88 (quoting Acosta v. Ames
Dep't Stores, Inc., 386 F.3d 5, 10 (1st Cir. 2004)). Even where
a witness's account is disputed, "police officers do not have an
'unflagging duty' to complete a full investigation before making
a probable cause determination." Id. at 88 (quoting Acosta, 386
F.3d at 11). Nevertheless, facts which otherwise may be sufficient
to establish probable cause can be overborne by contrary material
facts known to law enforcement. Cf. Jordan v. Town of Waldoboro,
943 F.3d 532, 541–43 (1st Cir. 2019) (finding that correcting a
misrepresentation and two material omissions in a warrant
affidavit "would have painted a fundamentally different picture"
which "would fall short of establishing probable cause").
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We review probable-cause determinations objectively,
"asking whether the facts constitute probable cause of a crime,
rather than whether the officer thought they did." United States
v. Monell, 801 F.3d 34, 40 (1st Cir. 2015); see also Devenpeck,
543 U.S. at 153 ("An arresting officer's . . . subjective reason
for making the arrest need not be the criminal offense as to which
the known facts provide probable cause.").
When determining the universe of facts that we may
properly consider as the basis for probable cause, we may look to
"the collective knowledge of several officers." United States v.
Cruz-Rivera, 14 F.4th 32, 44 (1st Cir. 2021). Specifically, we
"look to the collective information known to the law enforcement
officers participating in the investigation rather than
isolat[ing] the information known by the individual arresting
officer." Id. (alteration in original) (quoting United States v.
Azor, 881 F.3d 1, 8 (1st Cir. 2017)).
2.
With these principles in mind, we now take up Mulkern's
contention that the district court erred by failing to suppress
evidence from the traffic stop and ensuing searches. Mulkern
argues that the officers did not have probable cause to arrest him
from the outset of the stop and that the search of his person
revealing the rocks of crack cocaine exceeded the bounds of a
lawful frisk under Terry v. Ohio, 392 U.S. 1 (1968). As a result,
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he says, all evidence obtained from the traffic stop and ensuing
searches, including the statements he made during the searches and
interactions with law enforcement, were obtained unlawfully.
Moreover, because this evidence was used to obtain the search
warrant for the Winnebago, Mulkern argues that that evidence, too,
must be suppressed as so-called "fruit of the poisonous tree."
See, e.g., Sierra-Ayala, 39 F.4th at 16–19 (discussing this
doctrine).
Mulkern's arguments hinge on his contention that the
officers lacked probable cause to arrest him for being a felon in
possession of a firearm at the time they initiated the traffic
stop. Cf. Batista, 31 F.4th at 823 (holding that, "if there was
probable cause for law enforcement to believe [the defendant] was
committing a crime when he was pulled over, there was no error in
denying the motion to suppress" evidence obtained from a search
during the traffic stop); Rasberry, 882 F.3d at 249 (affirming the
lawfulness of a search, originally conceived of as a frisk, where
the totality of circumstances gave the officer probable cause to
make an arrest before the search). We conclude that the police
did have such probable cause and that Mulkern's claim accordingly
fails.
The district court ably explained that the basis for
probable cause to believe Mulkern had committed a crime rested on
three factual determinations. First, based on the facts available
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to the police, it would have been reasonable to believe the driver
of the white Corvette on May 24 possessed a gun. Second, it would
have been reasonable to conclude that Mulkern was the driver of
that Corvette on May 24. Third, they could reasonably conclude
that Mulkern was a felon at the time of that possession. Mulkern
has conceded the third point, presumably based on Sergeant
Morrell's criminal-history search revealing Mulkern's felon
status, so we discuss only the first two conclusions.
As to the first, the primary source supporting the
presence of a gun during the Timberline incident was Wallingford,
in his reports to the 911 dispatcher and then to Officer Day in
his initial telephonic interview. The Timberline store clerk,
Thurlow, then also told Buxton police that Wallingford and his
companions had come into the store immediately after the Corvette
left and told him that they had been threatened with a gun. And
while Officer Ramsay could not confirm that what she saw on the
store's surveillance video was in fact a gun, she testified that
she did see the driver pull something from behind him and hold it
against his chest, leading the other men to display "elevated"
behavior towards him.
Mulkern argues that Officer Ramsay did not definitively
identify a gun from the video and that the witnesses may not have
been entirely reliable for various reasons, including that
Wallingford may have himself been the aggressor in the altercation
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and may have been motivated to minimize his own role. But the law
does not require the police to have entirely reliable information
or absolute certainty when making a probable-cause determination
-- only "apparently trustworthy information," Karamanoglu, 15
F.4th at 87, and a "fair probability," Rasberry, 882 F.3d at 250
(quoting Kaley, 571 U.S. at 338). Wallingford's account of a
brandished gun, as relayed to Officer Day over the phone, matched
what he had earlier conveyed to Thurlow and to the 911 operator in
his initial call. These reports were all further corroborated by
the video's confirmation that some object was indeed brandished.
Objectively viewed, this information rendered reasonable a
determination that the driver of the Corvette on May 24 had a gun.
See Karamanoglu, 15 F.4th at 87–88.
The second factual conclusion -- that Mulkern was the
Corvette's driver on May 24 -- strikes us as even more reasonable.
As a threshold matter, the same car clearly was involved on both
days. Wallingford and Thurlow described, and the security footage
depicted, a white Corvette with distinctive features that all
substantially match Mulkern's vehicle. The vehicle Sergeant
Morrell saw the next day was fitted with a license plate number
just one digit off of what had been recorded by the dispatcher the
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prior day.4 Mulkern quibbles with some of the descriptions of the
vehicle provided by witnesses as insufficient to associate his
vehicle with the one at the Timberline, arguing that his rims are
only partially red and that the stripe on his car is black, rather
than the red striping reported by Thurlow. But the officers were
hardly unreasonable in concluding that it was likely the witnesses
misapprehended those small details, rather than that there were
two white Corvettes with red trim and virtually identical non-
vanity plate numbers (and also a black Lexus with a duplicate of
the plate number given on May 24).
Mulkern does not dispute that he was the driver on May 25
or that Sergeant Morrell accurately identified him before pulling
him over. That tees up the question whether Mulkern was also the
driver on May 24. Given that he was the registered owner of the
white Corvette, that he was driving the car in a neighboring town
the next day, and that there was no reason to think that he let
another man his approximate age in a ball cap drive his Corvette
on May 24, the police could reasonably conclude as part of their
probable-cause determination that Mulkern was indeed the driver on
both days. Cf. Kansas v. Glover, 140 S. Ct. 1183, 1188, 1191
4 Buxton Officer Ramsay testified at the suppression hearing
that, based on subsequent interviews with the victim-witnesses
from the Timberline, she believed the witnesses likely reported
the correct number -- 2513VW -- and that the number "g[ot] lost in
translation at some point," causing dispatch to "just change[] one
number of that plate" to 2512VW.
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(2020) (knowledge that a person is the registered owner of a
particular pickup truck, absent other information, gives rise to
"an entirely reasonable inference" that the truck's driver is its
owner, even if the owner's license is revoked).
To tie up a final loose end, it matters not that Sergeant
Morrell did not subjectively believe that he personally had
sufficient information to support probable cause to arrest Mulkern
when the officers initiated the search. As we have explained, our
review of probable cause determinations is an objective inquiry,
unconcerned with the actual beliefs and motivations of the officers
on the scene. See Monell, 801 F.3d at 40; see also United States
v. Guerrero, 19 F.4th 547, 553–59 (1st Cir. 2021) (surveying
Supreme Court and circuit precedent reiterating the objectivity of
Fourth Amendment inquiries).
We therefore agree with the district court that the
Buxton and Westbrook police departments collectively possessed
sufficient information to reasonably conclude: (1) that the driver
of the white Corvette at the Timberline possessed a gun; (2) that
Sean Mulkern was that driver on May 24, 2017; and (3) that Mulkern
was at the time a convicted felon. These conclusions provided
police with probable cause to arrest Mulkern for being a felon in
possession of a firearm, with the result that they could lawfully
search his person incident to an arrest. That search of Mulkern's
person, if incident to an arrest, would also lawfully extend to
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any search of the cigarette package containing the crack cocaine.
See Robinson, 414 U.S. at 235–36 ("Having in the course of a lawful
search come upon the crumpled package of cigarettes, [the officer]
was entitled to inspect it; and when his inspection revealed the
heroin capsules, he was entitled to seize them."). Under the facts
of this case, that search incident to arrest could also permissibly
include a search of his vehicle, as police could search for
evidence of the crime of arrest -- namely, the gun reportedly seen
in the car the day before. See Gant, 556 U.S. at 351. And,
needless to say, if the evidence recovered from the traffic stop
was lawfully obtained, then there was no constitutional infirmity
in using that evidence to obtain the search warrant for the
Winnebago. There was therefore no error in the district court's
decision denying Mulkern's motion to suppress.
B.
We turn next to Mulkern's argument that he was improperly
sentenced under ACCA. As we explain further below, close review
of the sentencing record compels us to find that Mulkern waived
the specific argument he now raises. "[A] party waives a right
when he intentionally relinquishes or abandons it." United States
v. Orsini, 907 F.3d 115, 119 (1st Cir. 2018) (quoting United States
v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002)). It follows that
when a litigant "explicitly affirms a fact in the district court,
that party risks waiving" his right to argue that the fact was
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insufficiently established. Id. (quoting United States v. Bauzó-
Santiago, 867 F.3d 13, 24 (1st Cir. 2017)). "As a general rule,
a waived claim is unreviewable and, thus, cannot be revisited on
appeal." Id.Of the three state convictions supporting the district
court's ACCA finding, Mulkern challenges on appeal only the
classification of his two Maine drug-trafficking convictions. We
therefore begin with some background on our treatment under ACCA
of Maine's trafficking statutes, Me. Rev. Stat. Ann. tit. 17-A,
§§ 1101–1103. Those statutes classify both cocaine and heroin as
"Schedule W" drugs, id. § 1102(1)(F), (I), and treat knowing or
intentional trafficking in Schedule W drugs as unlawful, id.
§ 1103(1-A)(A).
To qualify as ACCA-predicate "serious drug offense[s],"
these state-law trafficking crimes must have required proving at
least "possessi[on] with intent to manufacture or distribute" the
drugs. See 18 U.S.C. § 924(e)(2)(A)(ii). In the case of heroin
and fentanyl, Maine's trafficking regime at the time of Mulkern's
offenses allowed for a conviction in circumstances that do not
necessarily involve such intent.5 See United States v. Mulkern,
5 The provisions treating heroin and fentanyl separately from
other drugs for trafficking purposes (formerly found at Me. Rev.
Stat. Ann. tit. 17-A, § 1101(17)(E) and (F)) were repealed in 2021,
though that does not affect Mulkern's appeal. See 2021 Me. Laws
ch. 396, § 1.
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854 F.3d 87, 95–96 (1st Cir. 2017).6 For that reason, a conviction
under that Maine law for trafficking heroin or fentanyl does not
categorically qualify as a "serious drug offense" under ACCA. Id.
at 97. Conversely, in the case of cocaine (and most other
controlled substances), Maine's statutory regime does require the
jury to find distributive intent. See United States v. Mohamed,
920 F.3d 94, 104 (1st Cir. 2019). Hence, a conviction under Maine
law for trafficking cocaine categorically qualifies as a serious
drug offense under ACCA. Id.The record is clear that both parties and the court were
well familiar with the foregoing differential treatment under ACCA
between a conviction under Maine law for trafficking
heroin/fentanyl and, as most relevant here, a conviction for
trafficking cocaine. So, if defense counsel thought that the
government could not prove by proper evidence that the prior
convictions were for trafficking in cocaine, the apt argument was
readily apparent: Such a failure would have required the court to
assume that the convictions did not involve an intent to distribute
and thus could not support an ACCA sentence.
Instead of pursuing the cocaine/heroin dichotomy, the
defendant's sentencing memorandum started with the premise that
both of his Maine trafficking convictions "primarily involve
6The 2017 Mulkern case is unrelated to this proceeding,
despite the common surname.
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cocaine." He specifically identified as the "pertinent
trafficking statute" the one that "deal[s] with the 14 grams or
more of cocaine." That statute allows for a "permissible
inference" of intent to distribute based on the quantity of cocaine
possessed, Me. Rev. Stat. Ann. tit. 17-A, § 1103(3)(B), a
mechanism which we held in Mohamed does not equate to taking the
question of intent away from the jury, contrary to the Maine regime
for heroin at the time. See 920 F.3d at 104–05; see also Francis
v. Franklin, 471 U.S. 307, 314 (1985) ("A permissive inference
does not relieve the State of its burden of persuasion because it
still requires the State to convince the jury that the suggested
conclusion should be inferred based on the predicate facts
proved."). Mulkern then argued that his conviction under that
statute did not qualify as an ACCA offense because, in his view,
"[a]ll that is required [under that statute], is that the possessor
possessed the requisite amount of cocaine, and nothing in the
available documents shows the Defendant in this case pled guilty
to intending to manufacture or distribute cocaine either." In
short, he first conceded that he was convicted of trafficking
cocaine, and he contended only that our decision in Mohamed
construing that offense as requiring a finding of distributive
intent was wrong.
Defense counsel at sentencing continued to argue for
narrowing or rejecting Mohamed's holding that trafficking in
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cocaine under Maine law was an ACCA-qualifying serious drug
offense. Counsel noted that the district courts in Mohamed and
Mulkern, even with the benefit of so-called "Shepard proceedings,"7
ruled against the government. In the course of that argument,
counsel stated that the particular Shepard documents filed at that
point in this case by the government "don't really give us much
information at all, other than confirming that Mr. Mulkern was
convicted of a drug trafficking offense under [Maine law]." Alert,
if not paranoid, government counsel promptly sought clarification.
[GOVERNMENT COUNSEL]: . . . [B]ased upon the
-- the sentencing memorandum filed by the
defendant and the arguments presented in those
filings, it was the Government's understanding
that there's no dispute that the prior
convictions involved cocaine, and so I wanted
to confirm that that is not a disputed issue
before I not offer any more exhibits.
THE COURT: [Defense Counsel], is there any
dispute on that question?
[DEFENSE COUNSEL]: No, Your Honor.
THE COURT: All right. So that is established,
that they did involve cocaine.
The government then went on to explain why it sought
this clarification, emphasizing that "it makes a difference what
drug we're dealing with" and that "[t]he drug matters," for the
7 Shepard v. United States, 544 U.S. 13, 26 (2005), established
that a court considering an ACCA sentence may consult certain limited
documents relating to a divisible prior offense to determine whether
the defendant was convicted of a form of that offense that qualifies
as an ACCA predicate.
- 23 -
reasons outlined above. In the course of this explanation, the
government explicitly relied on its perfectly reasonable
understanding of Mulkern's concession, that the disputed offenses
"did involve cocaine" and "didn't involve heroin or fentanyl."
The court summarized the government's argument as
essentially saying that "because the crime was cocaine, intent had
to be proven," before inviting defense counsel to respond to that
summary. In doing so, defense counsel did not once mention heroin
or fentanyl, or in any way suggest that either prior conviction
was or could have been for trafficking heroin or fentanyl.
Instead, he argued that Mohamed was wrong to hold that cocaine
trafficking under Maine law qualified as an ACCA serious drug
offense and urged the court to adopt the dissenting position in
that case.
Having heard the foregoing, the district court noted
that it had to follow Mohamed since "this case involves cocaine,
a different drug" than the heroin involved in our 2017 Mulkern
decision. The court then asked defense counsel "is there any
aspect of these legal issues I have not addressed that needs to be
addressed?" "No," replied defense counsel.
On appeal, Mulkern now points out that the Shepard
documents that the government did file in reliance on his
concessions do not -- at least for one offense -- make clear
- 24 -
whether the conviction was for trafficking cocaine or heroin. As
to his apparent waiver of this argument, he advances two theories.
First, he contends that defense counsel did argue in the
district court that the Shepard documents (introduced by the
government) were insufficient to determine under which prong of
Maine's drug trafficking statute Mulkern was convicted. But
setting aside whether this form of the argument was ever actually
sufficiently articulated, the mere suggestion that defense counsel
may have been raising this very argument prompted the government's
request for clarification as to whether Mulkern was back-tracking
on his concession in his sentencing memorandum that the "pertinent
trafficking statute" was the one that "deal[s] with the 14 grams
or more of cocaine." If so, the government reserved the right to
offer additional Shepard documents. Quite plainly, defense
counsel then assured the government and the court that the
convictions involved cocaine. Hence, no additional documents were
offered.
Were there any doubt about the scope of the stipulation,
the government and the court made patently clear that they
understood the defendant to be conceding that "both of these
convictions involve cocaine, trafficking cocaine, not trafficking
- 25 -
heroin or fentanyl." That natural reading of the concession,
understandably, prompted no protest from Mulkern's counsel.
Picking at bits and pieces of what was said in the
district court, Mulkern quotes a partial sentence from his
sentencing memorandum stating, "[N]othing in the available
documents shows the Defendant in this case pled guilty to intending
to manufacture or distribute cocaine either." He contends that
this shows his argument below was broader than what we have
described. But as we noted above, the full quoted sentence reads:
"All that is required, is that the possessor possessed the
requisite amount of cocaine, and nothing in the available documents
shows the Defendant in this case pled guilty to intending to
manufacture or distribute cocaine either." In other words, counsel
was arguing that there was no support for a finding of intent to
distribute the cocaine, not that cocaine was not the object of the
charge.
Mulkern next argues that although both convictions
"involved" cocaine, one also may have in fact involved some heroin.
Therefore, he reasons, the admission that the case involved cocaine
did not necessarily mean that the actual charge on which he was
convicted was for trafficking cocaine. This argument, too, fails
in context. As we have explained, it is clear from the full
backdrop of the district court's question to counsel that the court
was not concerned with the nature of the conduct in fact, but
- 26 -
rather the nature of the offense charged. In that context, defense
counsel at sentencing unequivocally assured the court that Mulkern
had been convicted of trafficking cocaine, and he then acquiesced
in repeated characterizations that the convictions did not involve
heroin or fentanyl.
Citing United States v. Kennedy, Mulkern next points out
that "trial testimony" cannot fill a hole in the Shepard documents,
so his lawyer's admission of the "brute facts" of his prior offense
should not either. See 881 F.3d 14, 23 (1st Cir. 2018). But
Kennedy refers to testimony given in connection with the
adjudication of the prior conviction, not a concession later made
concerning the nature of that prior conviction.
Considered within the context of the arguments in the
sentencing memorandum and at the hearing, the only plausible
conclusion is that Mulkern "explicitly affirm[ed] . . . in the
district court" that his prior convictions were for trafficking in
cocaine, the very fact whose finding he now questions. Orsini,
907 F.3d at 119. He has therefore "intentionally relinquishe[d]
[and] abandon[ed]" this argument, so we need not consider it on
the merits. Id.
To be sure, there are circumstances -- "hen's-teeth
rare" -- where we may in our discretion excuse a recognized waiver.
- 27 -
Id. at 120. Mulkern suggests in a footnote of his reply brief
that this is such a case. We disagree.
Excusing waiver may be appropriate where "the equities
heavily preponderate in favor of such a step." Nat'l Ass'n of
Soc. Workers v. Harwood, 69 F.3d 622, 627 (1st Cir. 1995). We
also consider "whether the failure to advance an argument was
deliberate or inadvertent." Sindi v. El-Moslimany, 896 F.3d 1, 28
(1st Cir. 2018).
In this instance, Mulkern gives us no reason to think
that the waiver was the product any misunderstanding or error of
law. Mulkern and his counsel very likely knew or could have
determined whether his prior offenses were not for trafficking
cocaine. Nor was the waiver a slip of the tongue -- it was written
in the sentencing memorandum and then repeated and confirmed in
response to direct inquiry by the district court. Indeed, the
argument that Mulkern made below proceeded from the very premise
he now contests.
Notably, Mulkern even now does not assert that his prior
conviction was not on account of his cocaine dealing. His
argument, instead, is that there is insufficient documentation to
prove that fact but for his concession. So this is not a case in
which a waiver might have led the court to sentence under ACCA a
defendant who was not in fact within its scope. In short, he is
in fact precisely the person that Congress wanted to receive an
- 28 -
ACCA sentence, and his waiver waives no contention that he is not
that person. Rather, it waives only the Sixth Amendment hurdle
that might have allowed him to avoid that classification.
Our dissenting colleague misapprehends both our holding
and what happened in the district court. Neither we nor the
district court have relied on any stipulation of law. Nor did the
district court rely on just the Shepard documents before it.
Rather, the district court relied on Mulkern's agreement with the
prosecution concerning a key fact: that the pertinent prior
convictions under Maine's drug distribution laws "did involve
cocaine" and "didn't involve heroin or fentanyl." The entire
discussion in the district court was premised precisely on the
understanding that that fact was pivotal if Mulkern could not
convince the court that it should reject this circuit's holding in
Mohamed.
Nor is there any reason that the district court need
have sought more Shepard documents given Mulkern's agreement that
his conviction was for selling cocaine. F.R. Evid. 801(d)(2); cf.
United States v. Serrano-Mercado, 784 F.3d 838, 847 (1st Cir. 2015
(no error for district court to rely on "unchallenged
characterization" of a purported ACCA predicate); United States v.
Rios-Hernandez, 645 F.3d 456, 463 (1st Cir. 2011) (no clear and
obvious error for district court to rely on defendant's "apparent
acquiescence to the characterization of the prior convictions").
- 29 -
Were that not so, much of criminal practice in our district courts
would have to be revamped. Nor was this, as the dissent argues,
a stipulation of law; it was a stipulation of fact: that he had
been convicted under Maine law of dealing cocaine.
Even were we to excuse that waiver, we would still leave
Mulkern facing the burden of plain error review, which Mulkern
fails even to address in his main brief on appeal. See United
States v. Rodriguez-Monserrate, 22 F.4th 35, 40 (1st Cir. 2021)
(holding that an argument "at best entitled to plain error review"
was waived where the appellant "ma[de] no attempt to satisfy that
standard" in his opening brief).
Excusing that waiver as well, the dissent fashions a
bespoke version of plain error review that fails to account
successfully for our plain error cases. In those cases, counsel
did not go so far as to affirmatively tell the judge that something
is so. Rather, counsel only remained silent when something was
said to be so. Even in that setting, though, we repeatedly placed
the burden on the appellant to at least represent that the missing
documents would support the forfeited position raised on appeal.
See Serrano-Mercado, 784 F.3d at 848; United States v. Davis, 676
F.3d 3, 10 (1st Cir. 2012); United States v. Turbides-Leonardo,
468 F.3d 34, 40 (1st Cir. 2006). Here, where counsel was not
merely silent, but actually assured the court that the prior
conviction involved cocaine, it should follow a fortiori that the
- 30 -
defendant must at least do what we required in our other cases,
assuming that defendant was entitled to plain error review.
The dissent tries to explain its more favorable
treatment of Mulkern by pointing out that in his waiver he did not
expressly say that there were Shepard documents confirming that
the prior conviction was for trafficking cocaine. This strikes us
as an immaterial distinction given that his more categorical waiver
-- in context -- subsumed the underlying facts concerning the state
records. The prosecution's contention was that his conviction was
for dealing cocaine. He challenged that contention only by saying
that even cocaine convictions did not qualify because Mohamed was
wrong. And when asked, he said -- clearly, in context -- that he
was not challenging that it was a conviction for dealing cocaine.
So we do not think that we can say that all he did was neglect to
argue that the Shepard documents put in so far were themselves not
sufficient.
The observation that Mulkern did challenge ACCA
applicability also strikes us as beside the point. His challenge
was not that his prior conviction may have been for trafficking
heroin. In context he clearly was agreeing that there was no need
for the government to do more to show that he had been convicted
of trafficking cocaine. What he argued, instead, was the entirely
separate point that Mohamed was wrongly decided. And that is an
argument that he would have made even if the record contained a
- 31 -
court document unequivocally attesting to his conviction for
trafficking cocaine.
Finally, our dissenting colleague faults the government
for not arguing each prong of the plain error test. But this,
too, overlooks the well-settled assignment of burdens, which do
not impose on the government the obligation to argue against each
prong of a test that the defendant did not even mention in his
opening brief and which would only be available to the defendant
were we to forgive his waiver. See United States v. Rodríguez-
Torres, 939 F.3d 16, 40 & n.14 (1st Cir. 2019) (reiterating that
the party asserting plain error carries the burden of establishing
its elements and that efforts to do so for the first time in a
reply brief "come[] too late" and are waived).
III.
For the foregoing reasons, the decisions of the district
court are affirmed.
- Opinion Concurring in Part and Dissenting in Part Follows -
- 32 -
BARRON, Chief Judge, concurring in part and dissenting
in part. The sentence that Thomas Mulkern received under the Armed
Career Criminal Act ("ACCA") is both mandatory and long. It is
also plainly not supported by the sole evidence that the District
Court relied on to impose it -- namely, the only official documents
from Mulkern's state-court criminal proceedings that the District
Court "received" during the federal sentencing proceedings. For
that reason, it is not a sentence that has been lawfully imposed.
The majority concludes otherwise based on what it
describes as Mulkern's stipulation of fact to the District Court.
But, as I will explain, the stipulation that the majority has in
mind was one of law, rather than fact. Accordingly, I cannot agree
that any stipulation that Mulkern may be deemed to have made below
bars us from considering his legal argument for overturning his
sentence due to a lack of supporting evidence for it. And, because
that legal argument is plainly correct, I would vacate his
sentence, although I agree with the majority that his conviction
must be affirmed.
I.
Mulkern's sentencing challenge on appeal focuses on what
he contends is the evident inability, as a matter of law, of the
so-called Shepard documents on which the District Court relied to
provide the evidentiary basis for the mandatory, 15-year prison
term that is at issue. Shepard v. United States, 544 U.S. 13, 26
- 33 -
(2005) ("We hold that enquiry under the ACCA to determine whether
a plea of guilty to burglary defined by a nongeneric statute
necessarily admitted elements of the generic offense is limited to
the terms of the charging document, the terms of a plea agreement
or transcript of colloquy between judge and defendant in which the
factual basis for the plea was confirmed by the defendant, or to
some comparable judicial record of this information."). Those
documents consist of the official records from the state criminal
proceedings in which Mulkern was convicted of two drug
"trafficking" crimes under Maine law.
The government submitted the Shepard documents at
Mulkern's federal sentencing proceedings to establish that he had
been convicted of three ACCA-qualifying convictions at the time of
his firearms possession, thereby requiring the imposition of the
ACCA's mandatory fifteen-year prison sentence. 18 U.S.C.
§ 924(e)(1). The government contended based on those specific
documents that Mulkern had been convicted not only of a "violent
felony" within the meaning of the ACCA, due to a prior Maine-law
burglary conviction that he had received, but also of two "serious
drug offense[s]" within the meaning of that same statute, due to
the two Maine-law drug "trafficking" convictions that he had
received as well. Id.Mulkern does not dispute on appeal that he was convicted
of a "violent felony" within the meaning of the ACCA based on his
- 34 -
burglary conviction. But, he argues that, as a matter of law, the
Shepard documents regarding the two drug "trafficking" convictions
that the government submitted fail to show that he had been
convicted of two "serious drug offense[s]." Those documents, he
contends, show at most that he had been convicted of one "serious
drug offense," leaving him with only two (rather than the required
three)_convictions that qualify as predicate convictions under the
ACCA.
Mulkern points out that the relevant Shepard documents
consist solely of his two judgments of conviction for violating
Maine's drug "trafficking" statute. See Me. Rev. Stat. Ann. tit.
17–A, § 1103(1-A)(A). He then observes that, at the time of those
convictions, that Maine statute set forth a divisible drug
"trafficking" offense, as that statute set forth two separate drug
"trafficking" crimes -- one cocaine-based and one heroin-based.
See United States v. Mohamed, 920 F.3d 94, 104-105 (1st Cir. 2019).
Mulkern contends that this feature of the Maine statute
is significant because we have held that only one of those two
state-law "trafficking" crimes qualifies as a "serious drug
offense" under the ACCA. 18 U.S.C. § 924(e)(2)(A)(ii).
Specifically, he rightly notes that we have held that the one for
"trafficking" cocaine does qualify, see Mohamed, 920 F.3d at 104-
105, while the one for "trafficking" heroin does not, see United
States v. Mulkern, 854 F.3d 87, 96-97 (1st Cir. 2017).
- 35 -
Thus, Mulkern contends that the Shepard documents that
the government submitted -- namely, the two judgments of conviction
for his Maine drug "trafficking" crimes -- in and of themselves
can suffice to show, legally, that he had been convicted of two
"serious drug offense[s]" only if each judgment of conviction
specifies on its face that it is for the ACCA-qualifying, cocaine-
based "trafficking" offense. For, only then could those documents,
by themselves, show that neither of his drug "trafficking"
convictions is for the non-ACCA-qualifying, heroin-based
"trafficking" offense. Mathis v. United States, 579 U.S. 500, 519
(2016) ("Of course, such record materials will not in every case
speak plainly, and if they do not, a sentencing judge will not be
able to satisfy '[the] demand for certainty' when determining
whether a defendant was convicted of a generic offense." (quoting
Shepard, 544 U.S. at 21)). And, Mulkern goes on to argue, one of
those two judgments of conviction fails to provide the necessary
indication that it was for the cocaine-based "trafficking" crime.
Mulkern does acknowledge that the record before us also
contains a description of the conduct in which he was engaged when
he committed the Maine "trafficking" offenses for which he was
convicted. That description is set forth in the Pre-Sentence
Report ("PSR") that the U.S. Office of Probation prepared in
advance of Mulkern's federal sentencing. Mulkern further
acknowledges that he did not object to that description of his
- 36 -
criminal conduct in his federal sentencing proceedings, and he
does not dispute the accuracy of that description on appeal.
But, Mulkern points out that the description of his past
conduct in the PSR shows only that, as to one of the two
"trafficking" convictions, he was engaged in "[t]rafficking in
[s]cheduled [d]rugs" and that, per the PSR, the conduct underlying
that offense involved both cocaine and heroin. Thus, he contends
that, based on that description of his underlying criminal conduct,
he could have been charged under Maine law either with
"trafficking" cocaine or "trafficking" heroin. Mulkern therefore
contends that, even when the PSR's undisputed description of his
criminal conduct is combined with the relevant judgment of
conviction for drug "trafficking" that is in the record, nothing
shows that that Maine drug "trafficking" conviction is for the
ACCA-qualifying, cocaine-based "trafficking" offense.
In consequence, Mulkern contends that, as a matter of
law, the record fails to establish that he is subject to the
mandatory fifteen-year sentence that the ACCA requires, because
there is simply no document in the record that, as a matter of
law, could establish that he had three ACCA-qualifying
convictions -- rather than, at most, two, based on his prior
burglary conviction and his conviction for one cocaine-based
"trafficking" offense -- at the time of his firearms possession.
Thus, he contends, the record does not permit the ACCA's mandatory,
- 37 -
15-year prison sentence to be imposed on him until the government
augments that record with additional documents from Mulkern's
state court criminal proceedings that the District Court has not
yet seen.
II.
Of course, as the government asserts, and the majority
concludes, Mulkern did not make this potentially winning argument
below. He argued at his federal sentencing proceedings only that
he could not be subjected to the ACCA's mandatory, fifteen-year
prison sentence even if the record sufficed to show that he had
been convicted twice for the cocaine-based variant of the state-
law "trafficking" offense. That was because, he contended in the
District Court, we were wrong, as a matter of law, to have held in
Mohamed that such a cocaine-based "trafficking" crime under Maine
law is itself a "serious drug offense" under the ACCA, 920 F.3d at
104-105, given the reasons that we gave in an earlier case for
holding that the heroin-based variant of that "trafficking"
offense is not, Mulkern, 854 F.3d at 96-97.
I happen to agree with Mulkern that Mohamed was wrongly
decided. See Mohamed, 920 F.3d at 107 (Barron, J., dissenting).
But, this panel, like the District Court, has no power to disregard
a controlling precedent of this Circuit. Thus, we have no choice
but to reject the legal argument that Mulkern made below based on
Mohamed, just as the District Court had no choice but to do so.
- 38 -
The key question for us on appeal therefore reduces to
this: does Mulkern's failure to make a potentially winning argument
to the District Court about the legal deficiency of the record on
which the District Court relied in imposing his sentence bar him
from making that same argument to us on appeal? The majority
concludes that it does, given the way that it understands Mulkern
to have presented his case below. It emphasizes in this regard
that Mulkern's counsel agreed when questioned by the District Court
that -- based on what the Shepard documents that had been given to
the District Court showed -- the drug "trafficking" convictions at
issue were for the cocaine-based rather than the heroin-based
variant of the drug "trafficking" crime.
That said, it is not always easy to distinguish the
knowing abandonment of an argument (waiver) from the failure to
make one (forfeiture). See United States v. Antonakopoulos, 399
F.3d 68, 76 n.7 (1st Cir. 2005); United States v. Campbell, 26
F.4th 860, 871 (11th Cir. 2022) (en banc). And, I am not as
confident as the majority that Mulkern's defense counsel was
knowingly giving up a seemingly strong argument in pressing the
alternative one that he wrongly thought was even better.
Nonetheless, the majority recognizes that a waiver may
be excused in rare cases. United States v. Orsini, 907 F.3d 115,
120–21 (1st Cir. 2018) (explaining that a defendant's waiver can
be excused when the "equities heavily preponderate in favor of
- 39 -
such a step," and that "[i]n deciding whether an exception is
warranted, we may consider factors 'such as whether the
inadequately preserved arguments are purely legal, are amenable to
resolution without additional factfinding, are susceptible to
resolution without causing undue prejudice, are highly convincing,
are capable of repetition, and implicate matters of significant
public concern'" (quoting Nat'l Ass'n of Soc. Workers v. Harwood,
69 F.3d 622, 627 (1st Cir. 1995) then Sindi v. El-Moslimany, 896
F.3d 1, 28 (1st Cir. 2018))). And so, in what follows, I assume
that the majority is right to conclude that we are dealing with a
waiver rather than a forfeiture, because I see no reason not to
excuse the waiver insofar as there was one.
I must emphasize, though, that my disagreement with the
majority is about more than the circumstances in which a waiver
may be excused. It also concerns how to understand what transpired
below.
The majority does not appear to be of the view that
Mulkern waived the legal argument that he now makes to us merely
because he took the opposite legal position below. The majority
instead appears to be of the view that Mulkern waived that legal
argument by stipulating to the District Court (even if only
implicitly) that, as a matter of fact, there were Shepard documents
in existence that, unlike the ones that the government submitted
in the federal sentencing proceedings, would suffice, as a matter
- 40 -
of law, to show that Mulkern was twice convicted of the cocaine-
based, rather than the heroin-based, variant of the drug
"trafficking" crime under Maine law.
But, as I will explain, I cannot agree that Mulkern made
any such factual stipulation. As a result, I cannot see how the
representations that he made below preclude him from successfully
arguing to us that, as a matter of law, at least one of his prior
drug "trafficking" convictions was not for what the ACCA deems to
be a "serious drug offense."
A.
The majority does not dispute that the waiver of an
argument about a "purely legal question," as opposed to the waiver
of a contention about a question of fact, may be excused. Sindi,
896 F.3d at 28. And, in my view, Mulkern did waive only an argument
about a purely legal question.
The only evidence that the District Court identified as
providing support for its determination that the ACCA sentencing
enhancement applied to Mulkern consisted of the Shepard documents
described above -- namely, Mulkern's two judgments of conviction
for drug "trafficking" under Maine law. Indeed, the District
Court was quite clear during Mulkern's sentencing hearing that it
was only the Shepard documents that it had "received" that provided
the evidentiary basis for the determination that Mulkern had the
requisite number of qualifying convictions under the ACCA.
- 41 -
Thus, we need not engage in any fact-finding to determine
whether there is merit to Mulkern's supposedly waived argument
regarding the insufficiency of the evidentiary basis for the
imposition of the ACCA's mandatory 15-year prison sentence. We
need only apply the law to the undisputed facts by examining those
precise Shepard documents in the record on which the District Court
relied and determining whether, as a matter of law, they show what
they must under Mathis. See Mathis, 579 U.S. at 519.
B.
Mulkern's purely legal contention is also "highly
convincing." Orsini, 907 F.3d at 120–21. As I have explained,
the only Shepard documents that pertained to drug offenses that
the District Court "received" show no more than that each of
Mulkern's state-law drug "trafficking" convictions was for an
offense that was set forth in a statute that set forth two separate
crimes, only one of which qualifies under the ACCA as a "serious
drug offense." Moreover, the unobjected-to PSR does not describe
the conduct by Mulkern that underlies one of these two convictions
in a manner that could show what the relevant judgment of
conviction itself plainly does not -- that it was for the cocaine-
based "trafficking" crime rather than for the heroin-based one.
So, under Mathis, the record plainly is not sufficient,
as a matter of law, to show that Mulkern did have three prior ACCA-
qualifying convictions. Instead, the record at most shows that he
- 42 -
had only two such convictions -- the one for a "violent felony"
based on his conviction for burglary and the other for a "serious
drug offense," based on a drug "trafficking" conviction under Maine
law for "trafficking" cocaine. Indeed, I cannot see what possible
argument there could be to the contrary, given that there is no
dispute that a conviction for "trafficking" heroin under Maine law
is not a "serious drug offense" under the ACCA.
I do recognize that in other cases we have held that
defendants could not show plain error in arguing for the first
time on appeal against the application of federal sentencing
enhancements based on their contentions that the government had
failed to submit adequate Shepard documents at their federal
sentencing proceedings. See United States v. Serrano-Mercado, 784
F.3d 838 (1st Cir. 2015); United States v. Davis, 676 F.3d 3 (1st
Cir. 2012); United States v. Turbides-Leonardo, 468 F.3d 34 (1st
Cir. 2006). But, those cases are not like this one.
The defendants in those cases had acquiesced, through
their silence at their federal sentencing proceedings, to the
characterization of the offenses underlying their prior
convictions that had been set forth in the PSRs. On appeal, those
defendants did correctly point out that there were no Shepard
documents in the record sufficient to support the relevant
enhancements to their sentences. Nonetheless, we interpreted
their silence at sentencing to indicate that some Shepard documents
- 43 -
existed that, although not in the record before the sentencing
courts, would support the enhancements in question. We thus
declined to presume on appeal in those cases that, as matter of
fact, those extra-record Shepard documents -- if revealed -- would
show something other than what the defendants seemed to accept
that those documents would show through their failure to challenge
the PSR's characterization of the nature of the offenses underlying
their prior convictions. After all, there was good reason (based
on the defendants' silence in the face of the PSR) to think the
defendants were stipulating, as a matter of fact, that Shepard
documents that would provide the evidentiary basis for their
sentence could be produced. See Serrano-Mercado, 784 F.3d at 848
(noting that there, like Davis, the defendant had not objected to
either the PSR's or the sentencing judge's characterization of the
offense, and as a result, "[t]he District Court thus had no Shepard
documents before it -- nor any request that it obtain and review
such documents -- that might cast doubt on either the pre-sentence
report's assertion that the enhancement applied or on the
defendant's apparent agreement with that assertion").
Here, however, Mulkern did not at any point suggest in
the proceedings below -- through a failure to object to the PSR's
characterization of the statutory offense of conviction -- that
there was in fact some document from his state court proceedings
that had not been entered into the record but that when produced
- 44 -
would reveal what the documents from those state proceedings that
were in the record did not. As we have seen, the PSR did not even
characterize one of Mulkern's two, prior "trafficking" convictions
as being for "trafficking" cocaine. The PSR stated in the relevant
respect only that Mulkern had been convicted of "trafficking" a
"controlled substance" and that that conviction qualified as an
ACCA predicate.
Moreover, the PSR also did not describe Mulkern's
conduct in committing one of the state-law drug "trafficking"
crimes of which he was convicted in a way that would require us to
conclude that the conviction based on that conduct must have been
for the cocaine-based variant of the Maine "trafficking" offense.
As Mulkern convincingly explains, the description of his conduct
in the PSR refers to his having been in possession of both heroin
and cocaine. In other words, he seemingly could have been charged
based on that conduct with either the cocaine- or heroin-based
variant of Maine's drug "trafficking" offense. Thus, while Mulkern
did not dispute that description during the sentencing hearing
below, his failure was not a stipulation to the factual nature of
his conduct that would compel the conclusion that he was convicted
for that conduct of "trafficking" cocaine rather than heroin.
Notably, my understanding of what transpired below is
not just my own. The government does not itself contend (as the
majority necessarily does in relying on the claimed stipulation)
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that Mulkern, at any point, suggested through either what he did
say or what he did not that there were any damning, extra-record
Shepard documents out there that had not been submitted to the
District Court. And, indeed, the District Court also appears to
have understood Mulkern's position at sentencing to have been
merely that, because Mohamed was wrongly decided, the specific
Shepard documents that had been entered into the record as to at
least one his two drug "trafficking" convictions did not suffice,
as a matter of law, to establish that he had been convicted of a
qualifying offense under the ACCA even if the conviction was for
"trafficking" cocaine.
Thus, the District Court did not suggest that there was
any factual stipulation by Mulkern to there being extra-record
Shepard documents that would supply the evidentiary support for a
15-year mandatory prison sentence under the ACCA. The District
Court concluded only that the Shepard documents that it had
"received" supplied that evidentiary basis, given that Mohamed was
a controlling precedent.
So, to the extent that the District Court was misled by
Mulkern due to the argument that he made below about what the
Shepard documents in question sufficed to show about the type of
"trafficking" crime of which he had been convicted, the District
Court was misled solely about a point of law, not a matter of fact.
For, in crediting the notion that the Shepard documents that it
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had "received" in and of themselves sufficed to show that Mulkern
had been convicted twice of "trafficking" cocaine -- and thus that
those documents in and of themselves sufficed to show that Mulkern
was subject to the ACCA's fifteen-year, mandatory minimum prison
sentence -- the District Court was necessarily making a legal
rather than a factual judgment about what those documents
demonstrated.
In other words, I do not take issue with the majority's
suggestion that a defendant (by implication) may be deemed to have
stipulated to a fact and thereby to have obviated the need for the
government to put forth evidence to prove that fact. I merely
conclude that we have no such stipulation of fact here.
Mulkern did stipulate that the specific Shepard
documents that the government submitted to the District Court --
namely, the two judgments of conviction for drug "trafficking" --
showed that he had two prior convictions for "trafficking" cocaine.
But, Mulkern did not thereby make the factual stipulation that he
had been twice convicted of "trafficking" cocaine that the majority
attributes to him. Instead, the record shows that, by agreeing
that the Shepard documents before the court sufficed under Mathis
to show that he had been twice convicted of "trafficking" cocaine,
Mulkern was making only a stipulation of law concerning the legal
sufficiency of those documents to reveal that the underlying
offense was cocaine-based. But, as I have explained, in light of
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Mathis, that legal stipulation was plainly wrong, given the
divisible nature of the statute setting forth that offense and the
facially inconclusive nature of the judgments of convictions that
the government entered into the record below.
I do recognize that the government contends that, even
if we were to excuse Mulkern's waiver below of any challenge to
whether the submitted Shepard documents could establish, as a
matter of law, that he had twice been convicted of "trafficking"
cocaine, we still would confront a waiver on appeal. The
government contends in this regard that Mulkern has waived on
appeal any argument that he can show that the District Court
plainly erred in relying on the Shepard documents that it
"received" to conclude that the government had met its burden to
show that he had been convicted of not just one but two prior
"serious drug offense[s]" within the meaning of the ACCA. See
Serrano-Mercado, 784 F.3d at 845. But, I cannot see how that is
so.
Mulkern argued to us in his opening brief that he raised
the Mathis-based argument below that he advances on appeal.
Understandably, then, he did not in that brief address the plain
error standard, as he was asserting that there had been no
forfeiture at all. Moreover, after the government contended on
appeal that Mulkern did not in fact raise the Mathis-based argument
at his federal sentencing proceedings, he filed a reply brief in
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which he argued both that there was no waiver of that argument and
that there was at most only a forfeiture of it. He then further
argued that, insofar as there was a forfeiture, he could meet the
plain error standard.
So, when confronted with the contention that there was
a forfeiture, Mulkern argued to us how he could overcome it. He
did so by asserting that the District Court made a clear or obvious
error in treating the Shepard documents that it had "received" as
legally sufficient to show that he been twice convicted of
"trafficking" cocaine; that such treatment prejudiced him by
triggering the imposition of a mandatory and lengthy prison
sentence; and that the error would "seriously impair[] the
fairness, integrity, [and] public reputation of judicial
proceedings." United States v. Rivera-Morales, 961 F.3d 1, 12
(1st Cir. 2020).
Moreover, I note that the government does not dispute
that Mulkern has satisfied the prejudice prong of the plain error
test. It contends only that he fails to meet the other prongs of
that test. But, that contention is unpersuasive, given the perfect
clarity of the legal error here and the evident injustice of
permitting a defendant to be subject to a fifteen-year mandatory
prison sentence due to such a clear legal error. I add only that,
in holding the government to its own apparent view that, if there
were a clear or obvious error, Mulkern was prejudiced by it, I am
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hardly innovating. See United States v. Paulino-Guzman, 807 F.3d
447, 450 n.5 (1st Cir. 2015) ("'[W]hen the government fails to
request plain error review,' we may 'review the claim under the
standard of review that is applied when the issue is properly
preserved below.'" (citing United States v. Encarnación–Ruiz, 787
F.3d 581, 586 (1st Cir.2015))).
For these reasons, I cannot agree that our prior
precedents in this realm preclude Mulkern from showing plain error
here. None of them involved, as this one does, a sentencing judge
expressly identifying the specific documents that served as the
evidentiary foundation for the application of the relevant
sentencing enhancement when those documents patently provide no
such foundation. Nor are any of those cases ones in which the
government failed to dispute the defendant's contention that he
was prejudiced by being subjected to a sentencing enhancement on
such a barren record. Accordingly, those cases fail to show that
we should not excuse the waiver that the majority contends occurred
insofar as it means to suggest that the legal argument that Mulkern
now asks us to consider is less than "highly convincing."
C.
I recognize that even when a waived argument concerns a
purely legal contention that is highly convincing, we must take
account of any possible prejudice to the non-waiving party of our
excusing the waiver. But, in asserting that Mulkern is bound by
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the mistaken legal position that he took below, the government
does not suggest that Mulkern gained an edge by keeping additional
evidence of his conduct hidden from the District Court at his
federal sentencing. Nor does the government contend that there
were other Shepard documents that were once available but that
have since been lost to time. The government thus does not contend
that Mulkern's failure to require the government to show its hand
in the federal sentencing proceedings prejudiced its ability to
make a strong showing that his two drug-related, Maine-law
convictions were both for ACCA predicate offenses.
Rather, the government maintains on appeal that there
are other Shepard documents from Mulkern's state court proceedings
that were not entered into the record at his federal sentencing
proceedings in the District Court, that it has those very documents
in hand, and that it is prepared to reveal them now if asked. The
government even notes that it would have shown them to the District
Court if Mulkern had not agreed that the documents that it had
entered into the record sufficed to show that he had been convicted
twice of "trafficking" cocaine. How hard would it be, then, for
the government to make those as-yet-unseen documents part of the
record at this stage of the litigation, whether on appeal or in
the District Court on remand, so that a court could then determine
whether one of Mulkern's drug "trafficking" convictions in fact is
for "trafficking" heroin?
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In sum, the government is best positioned to know whether
it would be prejudiced if we were to excuse the waiver. Yet, it
develops no argument as to how it would be prejudiced if we were
to accept its own offer to have a court look at the mystery Shepard
documents that it contends that it holds. I thus cannot see any
basis for concluding that our obligation to ensure that we treat
the non-waiving party fairly requires that we refuse to consider
Mulkern's meritorious legal contention under Mathis in deciding
whether to affirm his federal sentence.
D.
I come, then, to the final prong of the test for
determining whether to excuse the waiver. That prong, like prong
four of the plan error test, asks us to reflect on the relationship
between a decision as to whether to excuse the waiver and
confidence in the judicial system. But, here, as well, I see more
reason to excuse the waiver than not to do so.
The doctrines of waiver and forfeiture play an important
role in ensuring an orderly process of appellate adjudication.
See Orsini, 907 F.3d at 119. But, they exist to facilitate, not
thwart, the dispensing of justice. See, e.g., United States v.
Torres-Rosario, 658 F.3d 110, 116 (1st Cir. 2011) (excusing a
defendant's waiver of objection to his ACCA sentence enhancement
because the plain error standard was met and there was "no
threat . . . of unfair prejudice to the government").
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The government has no legitimate interest in advocating
for the imposition of a sentence pursuant to the ACCA if there are
no Shepard documents that suffice to support the imposition of
that sentence. And, the government has not explained how it would
be prejudiced if we were to make it do what it has not yet
done -- show a court evidence that could suffice to establish that
Mulkern was convicted of two, rather than just one, "serious drug
offense[s]" within the meaning of the ACCA. Thus, I do not think
that it reflects well on our system of criminal justice to affirm
the mandatory fifteen-year-long prison sentence in this case
without first requiring a court to review the only evidence (if
any there be) that could supply the missing record support for the
imposition of that sentence.
We have been careful in our past cases to ensure that
defendants facing sentencing enhancements based on convictions
arising out of state criminal statutes that set forth divisible
offenses are not incentivized to hold back contentions about
deficiencies in the record to gain strategic advantage. Thus,
when such defendants have led a sentencing judge to believe that
there is extra-record evidence that would cinch the case for
applying the relevant sentencing enhancement, we have been wary of
permitting those defendants to reverse course on appeal by crying
foul that no such evidence had been entered at sentencing.
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Mulkern did not engage, however, in any such strategy.
He staked his challenge to the imposition of the ACCA-based
enhancement below on a mistaken legal contention about certain
specific Shepard documents that had been submitted to the District
Court. He now wishes to press the purely legal, and plainly
correct, contention that he did not make at that time -- namely,
the contention that those documents fail as a matter of law to
show what they must. As that contention is clearly a winning one,
I can see little justice in affirming a sentence that, as the
record presently stands, provides no basis for concluding that it
is a sentence that lawfully may be imposed on him.
III.
For these reasons, I respectfully dissent from the
majority's decision to affirm the sentence below, although I join
fully in the rest of the majority's analysis.
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