United States Court of Appeals 

For the First Circuit 

No. 18-1498 

UNITED STATES, 

Appellant, 

v. 

NOOR MOHAMED, 

Defendant, Appellee. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MAINE 

[Hon. Nancy Torresen, U.S. District Judge] 

Before 

Lynch, Stahl, and Barron, 

Circuit Judges. 

Renée M. Bunker, Assistant United States Attorney, Appellate 

Chief, with whom Halsey B. Frank, United States Attorney, was on 

brief, for appellant. 

David Beneman, Federal Defender, for appellee. 

April 3, 2019 
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LYNCH, Circuit Judge. This is a sentencing appeal 

brought by the United States. Noor Mohamed pleaded guilty to one 

count of being a felon in possession of a firearm, in violation of 

18 U.S.C. §§ 922(g)(1) and 924(e). The district court held that, 

as a matter of law, Mohamed's prior Maine drug trafficking 

conviction did not qualify as a "controlled substance offense" 

under United States Sentencing Guidelines § 2K2.1(a), essentially 

adopting the reasoning of another Maine federal judge in another 

case, United States v. Oliveira, 287 F. Supp. 3d 97 (D. Me. 2017). 

Although Mohamed has been released from federal custody 

and is now in state custody on Maine charges, the government tells 

us it is important we address the issues. Because we determine 

that Mohamed's prior Maine conviction properly qualified as a 

"controlled substance offense," we vacate and remand for 

resentencing. 

I. 

Mohamed's commission of the federal offense is not 

contested. This conviction stems from a November 10, 2016, fight 

outside the Old Port Tavern in Portland, Maine. Mohamed drove a 

car -- taken without the owner's permission -- the wrong way down 

a one-way street towards two groups of men who were fighting. 

Mohamed shot two or three times at some of the men on the street, 

with one bullet grazing a man's sweatshirt, before Mohamed drove 

away quickly. A witness saw Mohamed exit the car near a dumpster, 
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and heard a sound consistent with an item being thrown into the 

dumpster. 

Police found a stolen semiautomatic Glock handgun, with 

a fifteen-round magazine, in the same dumpster on the next day. 

Forensic testing revealed that the gun had Mohamed's DNA on it. A 

woman who had been in the car with Mohamed stated that she had 

seen Mohamed with a handgun earlier that evening, and that she had 

seen him "pull[] the gun out to shoot" after he had driven towards 

the groups of men. After his arrest, Mohamed's face and hands 

tested positive for the presence of gunshot residue. 

In December 2016, Mohamed was charged with one count of 

being a felon in possession of a firearm, in violation of 18 U.S.C. 

§§ 922(g)(1) and 924(e). The indictment listed four prior 

convictions punishable by imprisonment exceeding one year: three 

Massachusetts cocaine distribution convictions and one Maine drug 

trafficking conviction. Under a plea agreement, Mohamed pleaded 

guilty on November 21, 2017, to one count of being a felon in 

possession of a firearm. 

The first Presentence Report (PSR), dated January 9, 

2018, calculated a total offense level (TOL) of thirty and a 

criminal history category of VI. This PSR stated that Mohamed had 

nine prior convictions, including three separate 2010 

Massachusetts cocaine distribution convictions, and an April 2014 

Maine drug trafficking conviction that followed his plea to 
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"unlawful trafficking in a scheduled drug." Me. Stat. tit. 17–A, 

§ 1103(1-A)(A). 

The PSR concluded that Mohamed's prior convictions meant 

he was an armed career criminal under the Armed Career Criminal 

Act (ACCA). See 18 U.S.C. § 924(e). The guideline imprisonment 

range was 180 to 210 months' imprisonment. 

Before sentencing, Mohamed's three Massachusetts cocaine 

distribution convictions were vacated due to false or unreliable 

drug testing involving a former chemist in a Massachusetts crime 

lab, Annie Dookhan. A revised PSR was prepared, dated February 6, 

2018, which included two-level and four-level enhancements for a 

stolen firearm and for possession of a firearm in connection with 

another felony offense, respectively. After the Dookhan-infected 

Massachusetts convictions were vacated, Mohamed no longer 

qualified as an armed career criminal under ACCA. He had a TOL of 

twenty-three and a criminal history category of III (which included 

his Maine trafficking conviction). The resulting guideline 

imprisonment range was fifty-seven to seventy-one months. 

Mohamed objected to his Maine trafficking conviction 

being labeled and used as a "controlled substance offense." He 

argued that, in light of United States v. Mulkern, 854 F.3d 87 

(1st Cir. 2017), and the district court decision in Oliveira,1 this 

 1 In Mulkern, this court held, among other things, that 
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conviction should not qualify as a "controlled substance offense" 

under the Guidelines. That was because, he argued, the Maine law 

allowed (but did not mandate) the use of a permissible inference 

of trafficking where a defendant possessed "4 grams or more of 

cocaine in the form of cocaine base." Me. Stat. tit. 17–A, 

§ 1103(3).2 The Probation Office initially disagreed and 

distinguished Mulkern from Mohamed's case, but in its second 

revised PSR, dated March 23, 2018, the Probation Office agreed 

with Mohamed and did not recommend counting the Maine trafficking 

violation as a "controlled substance offense." This second revised 

PSR reduced Mohamed's TOL to seventeen, and the corresponding 

guideline imprisonment range to thirty to thirty-seven months. 

In his sentencing memorandum, Mohamed acknowledged that 

the government had properly focused on the elements of the Maine 

 

the defendant's drug trafficking conviction did not qualify as an 

ACCA predicate "serious drug offense," because intent to 

distribute could not be inferred from the title of the Maine 

trafficking statute nor from possessing two grams or more of 

heroin. 854 F.3d at 96. 

 In Oliveira, one member of the Maine district court said 

he took "one step beyond Mulkern" and determined that "Maine's 

permissive inference instruction for cocaine demands similar 

treatment to its conclusive presumption for heroin and fentanyl 

addressed in Mulkern." 287 F. Supp. 3d at 106. The district court 

then determined that the fourteen-gram threshold for cocaine under 

Maine's permissible inference was "too low to be confident that 

[the defendant] had the requisite intent" for his conviction to be 

a "controlled substance offense under the guidelines." Id. at 

108. 

2 Crack cocaine is one form of cocaine base. See, e.g., 

DePierre v. United States, 564 U.S. 70, 74 (2011). 
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offense, but argued that the relevant Shepard documents, see 

Shepard v. United States, 544 U.S. 13 (2005), did not "show 

anything beyond the State's reliance on the [Section 1103 

permissible] inference based on the quantity possessed." Mohamed 

argued, again using Oliveira (D. Me.) and Mulkern, that his Maine 

conviction therefore did not qualify as a "controlled substance 

offense" under the Guidelines. The government's sentencing 

memorandum argued that Mulkern could be distinguished, that 

Oliveira (D. Me.) had been wrongly decided, and that the Shepard 

documents showed that Mohamed pleaded guilty to a "controlled 

substance offense" under the Guidelines. 

After review of the Shepard documents, the district 

court stated that the "controlled substance offense" issue was 

"very close," and acknowledged that by "go[ing] with [Oliveira 

(D.Me.)] . . . I think we could be back here on a resentencing." 

The district court then adopted much of the reasoning in Oliveira 

(D. Me.), focusing on the "amount that would be deemed under Maine 

law to be enough to constitute trafficking" based on the amount 

required for the Section 1103 permissible inference. It also said, 

and the government vigorously disputes, that four grams of cocaine 

base "probably wouldn't be enough" to constitute trafficking or 

allow for such an inference under federal law. Accordingly, the 

district court accepted the second revised PSR, including the 

guideline imprisonment range of thirty to thirty-seven months' 
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imprisonment. The district court sentenced Mohamed to thirtyseven months' imprisonment, as well as thirty-six months' 

supervised release. The government timely appealed.3

II. 

"Whether a prior conviction qualifies as a predicate 

offense under U.S.S.G. § 4B1.1 is a question of law that we review 

de novo." United States v. Davis, 873 F.3d 343, 345 (1st Cir. 

2017) (quoting United States v. Almenas, 553 F.3d 27, 31 (1st Cir. 

2009)). 

We first lay out the federal and state statutes at issue, 

before briefly explaining the modified categorical approach, which 

binds us, as it applies to prior convictions under divisible 

statutes. We then turn to Mohamed's conviction, and determine 

that it properly qualifies as a "controlled substance offense." 

We finally consider federal drug trafficking prosecutions. 

For 18 U.S.C. § 922(g) and other statutes, the 

Sentencing Guidelines establish enhanced Base Offense Levels 

 3 Mohamed was released from federal custody on September 

14, 2018. This case is not moot, however, as Mohamed could be 

resentenced. "When the government is the party appealing the 

length of an imposed sentence as improperly short, the defendant's 

completion of that sentence does not moot the appeal because the 

government still alleges a remediable injury: the trial court's 

failure to impose the appropriate sentence pursuant to statute or 

the sentencing guidelines." United States v. Meyers, 200 F.3d 

715, 721 n.3 (10th Cir. 2000). Indeed, the government has a 

statutory interest in the proper interpretation and imposition of 

federal sentencing laws. See 18 U.S.C. § 3742(b)(2). 
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(BOLs) for particular aggravating factors, including when a 

defendant has been convicted of a prior "controlled substance 

offense." U.S.S.G. § 2K2.1(a). A "controlled substance offense" 

under § 2K2.1(a) "has the meaning given that term in § 4B1.2(b) 

and Application Note 1 of the Commentary to § 4B1.2," id. § 2K2.1 

cmt. 1: 

an offense under federal or state law, 

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. 

Id. § 4B1.2(b). We have held that the definition of "'controlled 

substance offense' requires that the statute under which the 

defendant was charged involve[] an intent to distribute or other 

indicia of trafficking." United States v. Bryant, 571 F.3d 147, 

157 (1st Cir. 2009). The government bears the burden of 

demonstrating that a prior conviction properly qualifies as a 

predicate offense. United States v. Dávila–Félix, 667 F.3d 47, 55 

(1st Cir. 2011). 

 Mohamed had pleaded guilty in 2014 to the following Maine 

law offense: 

[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: 
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A. A schedule W drug. 

Me. Stat. tit. 17–A, § 1103(1-A)(A). Under Maine law, cocaine 

base is a schedule W drug. Id. § 1102(1)(F). Maine law defines 

"traffick" in multiple alternative ways: 

A. To make, create, manufacture; 

B. To grow or cultivate, except for 

marijuana; 

C. To sell, barter, trade, exchange or 

otherwise furnish for consideration; 

D. To possess with the intent to do any act 

mentioned in paragraph C[.] 

Id. § 1101(17).4 Subsections (A), (B), (C), and (D) track closely 

the Guidelines definition of a "controlled substance offense." 

Maine law also allows a permissible inference regarding 

trafficking, based on the quantity of particular drugs possessed 

by a defendant, including cocaine base: 

Proof that the person intentionally or 

knowingly possesses any scheduled drug that is 

in fact of a quantity, state or concentration 

as provided in this subsection, gives rise to 

a permissible inference under the Maine Rules 

 4 The definition of "traffick" has two other provisions 

not at issue here: 

E. To possess 2 grams or more of heroin or 

90 or more individual bags, folds, packages, 

envelopes or containers of any kind containing 

heroin; or 

F. To possess 2 grams or more of fentanyl 

powder or 90 or more individual bags, folds, 

packages, envelopes or containers of any kind 

containing fentanyl powder. 

Me. Stat. tit. 17–A, § 1101(17)(E)-(F). 
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of Evidence, Rule 303 that the person is 

unlawfully trafficking in scheduled drugs: 

. . . 

B. . . . 4 grams or more of cocaine in 

the form of cocaine base. 

Id. § 1103(3). This permissible inference need not be invoked by 

the State. State v. Peakes, 440 A.2d 350, 355 (Me. 1982) ("The 

State cannot be required to invoke the presumption of section 

1103(3) when the evidence which it presents makes reliance upon 

the presumption unnecessary."). Where a case goes to trial and 

the permissible inference is invoked, the permissible inference 

requires the jury to come to its own conclusion based on the 

evidence before it, and respects the State's burden of proof beyond 

a reasonable doubt. See Me. Jury Instr. Manual, § 6-13 (2013).5 

 

5 The Maine Jury Instructions Manual contains a section on 

"Presumptions--Inferences. Instruction," which provides: 

There are certain inferences which you may 

use, but you are not required to use, in 

evaluating evidence of __________. If you find 

beyond a reasonable doubt that __________, 

then you may infer that _________. 

It is up to you to decide whether to adopt any 

inference or not. You are not compelled to 

accept any inference established by law. You 

may reject an inference if you wish. The 

ultimate decision is up to you. But you must 

remember that the burden remains on the State 

to prove each and every element of the offense 

beyond a reasonable doubt. 

Me. Jury Instr. Manual, § 6-13 (2013) (emphasis added); see also 

State v. Barnard, 828 A.2d 216, 221 (Me. 2003) (holding that a 
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In addition, Maine Rule of Evidence 303, referenced 

directly by the permissible inference provision, contains two 

qualifications. First, "[t]he court may not direct a verdict 

against an accused based on a presumption or statutory provisions 

that certain facts are prima facie evidence of other facts or of 

guilt." Me. R. Evid. 303(b). And second, 

[t]he charge must include an instruction that 

the jurors may draw reasonable inferences from 

facts proved beyond a reasonable doubt and may 

convict the accused in reliance upon an 

inference of fact if they conclude that such 

inference is valid and if the inference 

convinces them of guilt beyond a reasonable 

doubt and not otherwise. 

Id. 303(c). Maine Courts must use the term "inference" rather 

than "presumption" when referring to inferences and instructing 

the jury. See State v. Liberty, 478 A.2d 1112, 1116-17 (Me. 1984); 

State v. King, 379 A.2d 131, 134 (Me. 1977). 

A. The Modified Categorical Approach 

The Supreme Court has held that a sentencing court should 

use a categorical or modified categorical approach when 

considering sentencing enhancements based on prior offenses. See, 

e.g., Mathis v. United States, 136 S. Ct. 2243, 2249 (2016); Taylor 

v. United States 495 U.S. 575, 588 (1990). The categorical or 

 

"jury should . . . be instructed that any inference does not shift 

the burden of proof, and that they are not bound to accept any 

inference and may reject it"). 
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modified categorical approach "applies not just to jury verdicts, 

but also to plea agreements." Descamps v. United States, 570 U.S. 

254, 262-63 (2013). Despite the criticisms and defenses of the 

categorical approach, it is binding on us, and thus there is no 

reason not to apply it here. 

The Maine trafficking statute at issue here is divisible 

because there are a number of distinct ways to "traffick." See 

Me. Stat. tit. 17–A, §§ 1101(17), 1103. Some, including the one 

involved here, explicitly require an intent to distribute as an 

element of the crime. For divisible statutes, or those "that 

contain several different crimes, each described separately," 

Moncrieffe v. Holder, 569 U.S. 184, 191 (2013), the Supreme Court 

has "approved [use of] the 'modified categorical approach.'" 

Mathis, 136 S. Ct. at 2249. When taking the modified categorical 

approach, "a sentencing court looks to a limited class of documents 

. . . to determine what crime, with what elements, a defendant was 

convicted of." Id. These are known as Shepard documents, and 

include "the indictment, jury instructions, or plea agreement and 

colloquy." Id. We conclude from these permissible documents that 

Mohamed's Maine conviction falls under a provision requiring 

intent to distribute as an element. 

This case is not about the wisdom of the categorical 

approach, and whether the reasons for it are convincing or not is 

simply irrelevant. 
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B. Mohamed's Maine Conviction 

 In August 2013, a Maine grand jury indicted Mohamed on 

several charges, including several counts of aggravated 

trafficking in scheduled drugs and one count of unlawful 

trafficking of scheduled drugs. At the plea colloquy, after the 

indictment had been modified, the State judge described to Mohamed 

the unlawful trafficking charge as "intentionally and knowingly 

traffick[king] in what you knew or believed to be a scheduled drug, 

which was, in fact, cocaine [base], a schedule W drug." Mohamed 

stated that he understood this charge, and pleaded guilty to an 

intent crime.

The intent element in Maine law Sections 1101(17)(C) and 

(D) is not stripped away by the existence of the Maine law Section 

1103 permissible inference. The government first argues that the 

Shepard documents establish that the State relied on those sections 

requiring intent as an element, and that ends the matter. It 

argues that the district court strayed from the proper modified 

categorical approach. It contends that the permissible inference 

in any event still means that the prior offense is a controlled 

substance offense and does not negate the required finding of the 

element of an intent to distribute. The government also 

distinguishes this court's decision in Mulkern on a number of 
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grounds, and says Oliveira (D. Me.) was both wrongly decided and 

did not follow from this court's decision in Mulkern. 

Mohamed rests much of his argument on the reasoning of 

the district court opinion in Oliveira (D. Me.), and argues that 

the permissible inference means that the Maine legislature 

intended to proscribe "as trafficking the mere possession of a 

tiny amount . . . of a mixture containing cocaine base."6 We 

disagree with this purported reading of Maine law. A corollary is 

his argument that such an amount is not enough to raise a rational 

inference of intent to distribute, as required for a "controlled 

substance offense."

Assuming arguendo that the district court correctly 

performed the modified categorical approach, we turn to the 

underlying legal issue: whether Section 1103's permissible 

inference means that a conviction under Section 1103(1-A)(A), 

based on the definition of trafficking in Section 1101(17)(C)-(D), 

cannot constitute a "controlled substance offense." We determine 

 6 Mohamed cites to State v. McLaughlin, 189 A.3d 262 (Me. 

2018), in support of this point. That case is of limited 

relevance, though, because it considered an aggravated trafficking 

charge where the government needed to prove, as a statutory 

element, that the amount of cocaine base involved was thirty-two 

grams or greater. The key question there concerned whether that 

quantity needed to be pure cocaine base, or could be cocaine base 

mixed or cut with other substances. There is no such direct 

quantity element for trafficking in cocaine base, to which Mohamed 

pleaded guilty (based on the Shepard documents). Similarly, State 

v. Pinkham, 137 A.3d 203 (Me. 2016), which focuses on weight-based 

drug convictions, id. at 205, is not instructive here. 
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first that Mohamed's conviction was under a section requiring 

intent (and did not, in any event, rest on the permissible 

inference). We determine second that the permissible inference 

does not mean that a conviction under Section 1103 based on the 

definition of trafficking in Section 1101(17)(C)-(D) is not a 

"controlled substance offense." 

1. The Permissible Inference and Mohamed's Maine Conviction 

 First, there is no evidence from the Shepard documents 

that Mohamed's Maine conviction rested on anything other than his 

intentional distribution plea. Also, the State prosecution is 

under no burden to rely upon or use the permissible inference. 

See Peakes, 440 A.2d at 355. Even assuming to Mohamed's benefit 

that the permissible inference impacted, in some unspoken way, his 

decision to plead guilty to the Maine charge -- although nothing 

in the record suggests this -- the State was prepared to offer and 

rely on evidence of intentional trafficking (other than the 

inference), which it would have sought to prove at trial. 

 Aware of the circumscribed scope of the modified 

categorical approach, we look to the plea colloquy here not to 

determine "the facts presented or admitted to by the defendant," 

United States v. Kennedy, 881 F.3d 14, 22 (1st Cir. 2018), but to 

discern on which portion of the divisible statute the State charged 

and proceeded. It is undisputed that the "brute facts" of the 

crime, id. at 21 (quoting Mathis, 136 S. Ct. at 2251), are not 
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relevant to this case. In discerning which portion of a divisible 

statute is involved, the facts that the government said it would 

have sought to prove at trial demonstrate the portion of the 

divisible statute under which the State proceeded.7

Here, State prosecutors made clear the plea was to 

intentional trafficking. Indeed, they never mentioned the 

permissible inference during the plea colloquy. Instead, during 

the recitation of facts that the government would have sought to 

prove at trial, the State prosecutor explained the amount of 

cocaine base involved: 5.7 gross grams found in a glassine bag 

near Mohamed. The prosecutor did not connect this amount to the 

permissible inference regarding trafficking. The prosecutor 

instead told the court that "we would show that the $582 [found on 

Mohamed] was or could be proved to be part of drug proceeds," 

"based on the interview with [a man walking with Mohamed at the 

 7 Considering whether or not the permissible inference is 

invoked helps us in doing the required divisibility analysis under 

the modified categorical approach. If the permissible inference 

is invoked by the State, that immediately rules out two forms of 

"traffick[ing]" under Maine law: the provisions statutorily 

defining trafficking based only on the amount of heroin or fentanyl 

powder possessed. See Me. Stat. tit. 17–A, § 1101(17)(E)-(F). 

Evaluating whether the permissible inference was invoked 

in a plea colloquy, then, is part of properly using the modified 

categorical approach 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," Mathis, 136 S. Ct. at 2253, and 

helps to "assess whether the plea was to the version of the crime 

. . . corresponding to the generic offense," Descamps, 570 U.S. at 

262 (citing Shepard, 544 U.S. at 25-26). 
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time of arrest], as well as . . . [a] previous investigation that 

took place on May 6 and interviews done with people that had come 

into contact with Mr. Mohamed." In addition, the prosecutor stated 

the drugs were packaged for distribution: 

I should also point out that we would . . . 

show trafficking because of the way the baggie 

[containing cocaine base] was packed; it had 

individual baggies within it; to show that 

there was an intent to distribute it, rather 

than just for personal use. That's 

essentially the State's case. 

The State prosecutor also laid out other evidence with which the 

State would have sought to prove intentional drug distribution, 

including defendant's possession of a bag with several firearms. 

We look to the plea colloquy to determine whether the portion of 

the statute involved distributive intent, which, as a matter of 

Maine law, it does. 

In this same hearing, the State judge had explained to 

Mohamed that: 

On the trafficking charge, the state is 

required to prove that . . . you acted 

intentionally, that it was your conscious act 

to do so or knowingly, you were aware . . . 

[and] certain that your actions would cause 

this result in trafficking, and to traffic[k] 

is to sell, buy, to trade, exchange, or 

otherwise furnish to another, and to furnish 

is to . . . give, dispense, deliver, or 

otherwise transfer to another what you knew or 

believed to be a scheduled drug, which was in 

fact a scheduled drug, which was, in fact, 

cocaine-base[], a Schedule[] W drug. 
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Mohamed pled to that offense. The judge made no mention of the 

Section 1103 permissible inference. 

A statutory presumption -- where a "statute by its terms 

applies to those who do not intend to distribute as long as they 

possess the requisite quantity," United States v. Brandon, 247 

F.3d 186, 195 (4th Cir. 2001) -- is qualitatively different from 

the permissible inference under Section 1103, where the final 

inquiry remains whether a defendant intended to distribute the 

drug at issue (considering all of the evidence).8 As the Maine 

Supreme Judicial Court held in Peakes, the possession of an amount 

of a drug (there, marijuana) that would allow the permissible 

inference under Section 1103(3) "is not a necessary element of the 

crime of trafficking; it is a means by which the crime may be 

proved." 440 A.2d at 354. The permissible inference does not 

negate the distributive intent element of the crime. See Me. Stat. 

tit. 17–A, § 1101(17)(C)-(D).9 Thus, as a matter of Maine law, a 

 8 The district court in Oliveira is wrong that "it makes 

little difference as a practical matter for the accused person 

whether the state labels [the] threshold determination as a 

permissive evidentiary inference or as a conclusive presumption as 

part of the definition of the offense." 287 F. Supp. 3d at 107. 

It may indeed make a large practical difference, presuming a jury 

has been properly instructed. 

9 Mohamed cites United States v. Latham, 874 F.2d 852 (1st 

Cir. 1989), to suggest intent to distribute cannot necessarily be 

inferred from possession of one ounce of cocaine. But again, 

Mohamed's Maine conviction did not stand only on an inference from 

possession of a set quantity of cocaine base. In Latham, "there 

[was] nothing in the record from which it could be found that [the 
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jury must find distributive intent, whether it uses the permissible 

inference or not. 

Accordingly, Oliveira (D. Me.) is wrong that, for the 

purposes of considering a "controlled substance offense" under the 

Sentencing Guidelines, "Maine's permissive inference instruction 

for cocaine [in subsection (D)] demands similar treatment to its 

conclusive presumption for heroin and fentanyl addressed in 

Mulkern." 287 F. Supp. 3d at 106. A Maine conviction for 

trafficking resting on the definition in Section 1101(17)(D) ("To 

possess with the intent to do any act mentioned in paragraph C 

[sell, barter, trade, exchange or otherwise furnish for 

consideration]") qualifies as a "controlled substance offense." 

In summary, the Shepard documents establish that 

Mohamed's Maine conviction rested on intentional distribution, to 

which he pled. The elements of the statute at issue -- when taking 

into account the definitions of "traffick" relevant here, see Me. 

Stat. tit. 17–A, § 1101(17)(C)-(D) -- include intent to 

distribute. This element is not swept away by the existence of a 

permissible inference. Again, the statutory elements here closely 

track the "controlled substance offense" definition in the 

 

defendant] possessed (actually or constructively) cocaine which he 

intended to distribute." Id. at 862. Here, the State prosecutors 

offered evidence they would have sought to prove at trial 

supporting intent to distribute, and the crime to which Mohamed 

pleaded guilty included an intent element that is not negated by 

the existence of a permissible inference. 
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Guidelines. Mohamed's Maine conviction is properly a "controlled 

substance offense" under the Guidelines. 

 2. Assuming the Use of the Permissible Inference 

 Second, even were we not allowed to refer to these 

documents and were required to assume that this is a case involving 

the permissible inference because it might have impacted Mohamed's 

plea, despite all the evidence to the contrary, we would reach the 

same result. Importantly, the Supreme Court has held that "[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." Francis v. Franklin, 471 U.S. 307, 314 

(1985).10 Maine law is not to the contrary. The relevant jury 

instruction in Maine states: "You may reject an inference if you 

wish. The ultimate decision is up to you . . . . [Y]ou must 

remember that the burden remains on the State to prove each element 

of the offense beyond a reasonable doubt." Me. Jury Instr. Manual, 

§ 6-13 (2013) (emphasis added). And distributive intent is an 

element. 

Our decision in Mulkern is clearly distinguishable from 

this case. In Mulkern we held, among other things, that the 

defendant's Maine drug trafficking conviction did not qualify as 

 10 The government fails to cite Francis in its opening brief 

or reply brief, despite its relevance to this case. 
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an ACCA predicate "serious drug offense" because intent to 

distribute could not be inferred from the title of the Maine 

trafficking statute nor from merely possessing two grams or more 

of heroin. 854 F.3d at 96. There, the defendant had pleaded 

guilty to trafficking in Maine in 2004, based on the provision of 

the Maine trafficking statute containing a statutory presumption 

of trafficking in subsection (E) based only on the amount, either 

in grams or receptacles, of heroin possessed ("To possess 2 grams 

or more of heroin or 90 or more individual bags, folds, packages, 

envelopes or containers of any kind containing heroin," Me. Stat. 

tit. 17–A, § 1101(17)(E)). Mulkern, 854 F.3d at 94. The 

trafficking provision at issue in Mulkern does not require that 

the government prove any other element of intent, such as the 

intent to "sell, barter, trade, exchange or otherwise furnish for 

consideration," Me. Stat. tit. 17–A, § 1101(17)(C)-(D); it must 

only show mere possession of a set amount of heroin or receptacles 

containing heroin. 

In Mulkern, then, this court addressed arguments 

concerning the inference of trafficking from the title of a 

statute, and presumption of illegality from drug quantity or 

containers alone, neither of which are presented here. That is, 

distributive intent was not a necessary element of the portion of 

the crime to which the defendant in Mulkern pleaded guilty. In 

contrast, the crime to which Mohamed pleaded guilty did require 
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distributive intent, as demonstrated in the plea colloquy, a 

permissible Shepard document. 

So this case does not raise what the Mulkern court called 

the "difficult question" of "what is the right amount of drugs a 

person must possess 'before this presumption of an intent to 

distribute is appropriate.'" 854 F.3d at 96 (emphasis added) 

(quoting Brandon, 247 F.3d at 192). Mohamed's Maine conviction 

does not fall into this category of cases involving a statutory 

presumption, and the permissible inference does not require courts 

or juries to infer distributive intent from amount possessed. See 

Me. Jury Instr. Manual, § 6-13 (2013). 

C. Drug Weight and Relationship to Drug Trafficking 

We asked for, and received, additional filings from the 

parties, including data on federal drug trafficking convictions 

where the amount of cocaine base was less than or close to four 

grams and further discussion on drug quantity as it related to 

personal use versus intent to distribute. 

The district court stated in the sentencing hearing that 

four grams of cocaine base "probably wouldn't be enough" to 

constitute trafficking under federal law or allow an inference of 

trafficking. This is incorrect. The government has provided data 

from the United States Sentencing Commission demonstrating 

hundreds of examples of federal drug trafficking convictions 

involving less than 2.8 grams of cocaine base (and a corresponding 
- 23 - 

BOL of twelve),11 including forty-three in district courts of this 

circuit between 2013 and 2017. The government also cited several 

circuit cases -- albeit mostly unpublished opinions -- affirming 

or sustaining federal drug trafficking convictions involving less 

than four grams of cocaine base. See, e.g., United States v. 

Moore, 481 F.3d 1113, 1115 (8th Cir. 2007). These cases cannot be 

ignored.

Further, for federal drug trafficking crimes under 21 

U.S.C. § 841(a)(1), the Pattern Criminal Jury Instructions for the 

District Courts of the First Circuit allow for a permissible 

inference of drug trafficking that is not linked to any numerical 

drug quantity: "Intent to distribute may . . . be inferred from a 

quantity of drugs larger than that needed for personal 

use . . . . The law does not require you to draw such an 

inference, but you may draw it." Pattern Criminal Jury 

Instructions for the District Courts of the First Circuit 

§ 4.21.841(a)(1)A (2018). 

 By the 2016 Sentencing Guidelines' Drug Equivalency 

Tables in effect at the time of Mohamed's federal sentencing in 

April 2018, four grams of cocaine base was equivalent to 14,284 

 11 Between four and 5.6 grams would lead to a BOL of 

fourteen under the Guidelines. U.S.S.G. § 2D1.1(c). The Maine 

permissible inference only applies to possession of "4 grams or 

more." Me. Stat. tit. 17–A, § 1103(3). 
- 24 - 

grams of marijuana, or about 504 ounces. U.S.S.G. § 2D1.1 cmt. 

8(D) (2016). Turning to our caselaw, in United States v. Oliveira, 

this court affirmed a sentencing enhancement regarding 

distribution where under eight grams of marijuana was found (among 

other evidence reasonably related to drug trafficking, such as 

packaging in small baggies). 907 F.3d 88, 92 (1st Cir. 2018). 

That is, a far smaller amount of marijuana than the marijuana 

equivalency of four grams of cocaine base has sufficed to support 

a sentencing enhancement based on drug distribution. Based on the 

Guidelines and our caselaw, four grams of cocaine base is an amount 

rationally related to drug distribution.12 See United States v. 

Henry, 848 F.3d 1, 14 (1st Cir. 2017) (finding approximately three 

grams of cocaine base "consistent with an intent to distribute"). 

 Finally, to the extent Mohamed evinces concern with a 

small amount of cocaine base being found in a mixture weighing 

over four grams, that neither negates our earlier reasoning nor 

 12 Mohamed argues that four grams "is not evidence of intent 

to distribute," and cites an academic article discussing binge use 

of cocaine base by a particular subset of users (African-American, 

HIV-positive). However, expert witnesses and police officers in 

a number of federal cases have testified that far lower amounts 

than four grams are usually purchased by consumers for personal 

use. See, e.g., United States v. McKissick, 204 F.3d 1282, 1298 

(10th Cir. 2000) (officer testified that "a personal use quantity 

of crack cocaine was usually one 'rock' weighing about 0.2 grams"); 

United States v. Andrade, 94 F.3d 9, 13 (1st Cir. 1996) (expert 

witness testified he "had never seen a mere user with more than" 

about one gram at a time). Based on our review of federal cases, 

the majority view is that four grams is not consistent with mere 

personal use. 
- 25 - 

distinguishes Maine law from federal law. The Sentencing 

Guidelines were, and are, clear on this point: "Unless otherwise 

specified, the weight of a controlled substance set forth in the 

[drug equivalency] table refers to the entire weight of any mixture 

or substance containing a detectable amount of the controlled 

substance." U.S.S.G. § 2D1.1 n.A. Similarly, in considering 

penalties for drug trafficking and manufacturing under 21 U.S.C. 

§ 960, the statute considers amounts "of a mixture or 

substance . . . which contains cocaine base," not of isolated 

cocaine base. Id. §§ 960(b)(1)(C), 960(b)(2)(C). Maine law is 

not contrary to federal law regarding the calculation of the 

quantity of cocaine base involved in an offense. 

III. 

 So long as it is taken into consideration, our result 

-- that Mohamed is eligible for an increased guideline imprisonment 

range based on a prior "controlled substance offense" -- does not 

affect the sentencing judge's discretion as to the sentence imposed 

on remand. See 18 U.S.C. § 3553; United States v. Stone, 575 F.3d 

83, 89 (1st Cir. 2009) (recognizing "district courts['] discretion 

to disagree with many guidelines"). 

We vacate Mohamed's sentence and remand to the district 

court for resentencing consistent with this opinion. 

-Dissenting Opinion Follows-	
- 26 - 

BARRON, Circuit Judge, dissenting. Once again, we 

confront a challenge to the application of a federal sentencing 

enhancement to a defendant's prior state law conviction. Once 

again, we must try to divine whether the conviction triggers the 

enhancement. We have confronted this issue many times in the 

context of crimes of violence. We do so here in the context of a 

drug offense: trafficking cocaine base in violation of Maine law. 

See Me. Stat. tit. 17-A, §§ 1101(17), 1103(1-A). 

The government contends that, because Noor Mohamed was 

convicted of the prong of this offense that requires proof of 

possession of cocaine base with an intent to "sell, barter, trade, 

exchange or otherwise furnish [it] for consideration," see id. 

§ 1101(17)(C)-(D), he is subject to a sentencing enhancement under 

the United States Sentencing Guidelines, U.S.S.G. § 2K2.1(a). 

That enhancement is triggered by a conviction for a "controlled 

substance offense," id., which the Guidelines elsewhere define, in 

relevant part, to be only an offense that prohibits the "possession 

of a controlled substance . . . with intent to manufacture, import, 

export, distribute or dispense," id. § 4B1.2(b). 

Under prevailing precedent, we must use the so-called 

"categorical approach" to determine whether Mohamed's conviction 

for his Maine drug trafficking offense triggers this enhancement. 

See United States v. Dávila-Félix, 667 F.3d 47, 55 (1st Cir. 2011) 

(applying the categorical approach to federal Sentencing 
- 27 - 

Guidelines); Maj. Op. 12. Thus, only if the least of the conduct 

that this Maine offense criminalizes would itself qualify as a 

"controlled substance offense" under § 2K2.1(a) may a court apply 

this federal sentencing enhancement to Mohamed. See Moncrieffe v. 

Holder, 569 U.S. 184, 190-91 (2013) ("[W]e must presume that the 

conviction 'rested upon nothing more than the least of the acts' 

criminalized, and then determine whether even those acts are 

encompassed by the generic federal offense." (quoting Johnson v. 

United States, 559 U.S. 133, 137 (2010) (alterations omitted)); 

see also Dávila-Félix, 667 F.3d at 55-56. 

Maine law permits a jury to draw an inference of the 

distributive intent that is required under Me. Stat. tit. 17-A, 

§ 1101(17)(D) based on the mere possession of a relatively small 

amount of a mixture that contains even a speck of cocaine base. 

See id. § 1103(3); id. § 1101(25)(B) (defining "cocaine" to mean 

a "mixture" including "any quantity of" "cocaine" or "cocaine 

base"); State v. McLaughlin, 189 A.3d 262, 268 (Me. 2018) 

(construing "cocaine base" to mean a mixture including "any 

quantity of cocaine base" for purposes of Maine's drug trafficking 

statute, including for various quantitative thresholds in that 

statute). Thus, that minimal possessory conduct is the least of 

the conduct that the Maine offense at issue criminalizes. 

In my view, the federal government has not met its 

burden, Dávila-Félix, 667 F.3d at 55, to show that such minimal 
- 28 - 

possessory conduct manifests the "intent to manufacture, import, 

export, distribute or dispense" that is necessary to trigger the 

application of the Guidelines enhancement for having a prior 

conviction for a "controlled substance offense." U.S.S.G. 

§§ 2K2.1(a), 4B1.2(b). Accordingly, I conclude, like the District 

Court, but unlike my colleagues, that the enhancement does not 

apply here. 

In arguing otherwise, the federal government first 

contends that the Maine trafficking offense for which Mohamed was 

convicted necessarily triggers the federal sentencing enhancement, 

because that Maine offense itself contains a distributive intent 

element. Our precedent makes clear, however, that, under the 

categorical approach, we must inquire into how loosely Maine 

defines that element. Only by doing so can we ensure that the 

offense criminalizes no more conduct than the federal sentencing 

enhancement's triggering offense. See United States v. Mulkern, 

854 F.3d 87, 96 (1st Cir. 2017) (rejecting the government's 

argument that an offense involved possession with intent to 

distribute because the state legislature "designates the coppedto crime as 'trafficking'"). 

The government separately attempts to meet its burden to 

show that the Maine offense does not sweep too broadly to trigger 

the enhancement by reference to materials that show the type of 

evidence that suffices to prove the distributive intent element of 
- 29 - 

21 U.S.C. § 841(a)(1), a federal drug crime. The government 

suggests that these materials are relevant for present purposes 

because the Guidelines' definition of a "controlled substance 

offense" necessarily encompasses conduct that suffices to satisfy 

the distributive intent element of that federal drug crime.13 

The materials to which the government refers do not, 

however, help its cause. They include references to precedents in 

which courts determined that the possession of more than four grams 

of cocaine base did not, on its own, suffice to prove such 

distributive intent. See United States v. Nealy, 221 F. App'x 

329, 333 (5th Cir. 2007) (per curiam) (unpublished) (explaining 

that, under 21 U.S.C. § 841(a)(1), testimony presented by the 

government showed that while 5.01 grams of cocaine base "suggested 

drug dealing," it also "indicated that this quantity is not clearly 

inconsistent with personal use" and thus "additional evidence 

[was] necessary to show intent to distribute" (emphasis added)); 

 13 The government does not argue that the "intent to 

manufacture, import, export, distribute, or dispense" in the 

guidelines, U.S.S.G. § 4B1.2(b), may be defined by reference to 

some "generic" "controlled substance offense." See Taylor v. 

United States, 495 U.S. 575, 598 (1990) (defining burglary under 

the Armed Career Criminal Act by reference to "generic" burglary). 

In any event, the only attempt to compare Maine's statute to other 

states' trafficking laws of which I am aware is unhelpful to the 

government. Specifically, the Oliveira court surveyed the laws of 

several states and found the "dividing line between possession and 

trafficking" under Maine law to be "too low to be confident that 

Mr. Oliveira had the requisite distributive intent" to satisfy the 

Guidelines. United States v. Oliveira, 287 F. Supp. 3d 97, 108 

(D. Me. 2017). 
- 30 - 

United States v. Hunt, 129 F.3d 739, 742 (5th Cir. 1997) (holding 

that, under 21 U.S.C. § 841(a)(1), possession of 7.998 grams of 

cocaine base alone was insufficient to prove intent to distribute 

beyond a reasonable doubt because it was "consistent with personal 

use"). Nor does the government identify a single case that 

indicates that -- as Maine's drug trafficking offense allows -- the 

mere possession of a mixture that contains a speck of cocaine base 

may, on its own, suffice to prove the requisite distributive intent 

under 21 U.S.C. § 841(a)(1). 

The federal government does direct our attention to the 

drug quantity tables that are set forth in the Sentencing 

Guidelines and to sentencing data from each of the circuits that 

shows the "Base Offense Levels for Drug Trafficking in Each Drug 

Type." But, the tables purport only to relate to the calculation 

of the Guidelines sentencing range for a person convicted of a 

federal drug crime. See U.S.S.G. § 2D1.1(c). They thus give no 

insight into the least of the conduct criminalized by those federal 

drug crimes. The sentencing data does identify the conduct of 

defendants convicted of federal drug crimes, but that data, too, 

does not purport to give insight into the key issue that, under 

the categorical approach, we must resolve: whether possession of 

a four-gram substance containing cocaine base in and of itself can 

suffice to establish an "intent to manufacture, import, export, 

distribute or dispense" within the meaning of the Guideline's 
- 31 - 

definition of a "controlled substance offense." See U.S.S.G 

§§ 2K2.1(a), 4B1.2(b). 

The majority, for its part, points to one of the § 841(a) 

cases on which the government relies -- United States v. Moore, 

481 F.3d 1113 (8th Cir. 2007) -- to contend that the government 

has met its burden to show that the Guidelines enhancement 

encompasses even possessory conduct of the minimal sort that the 

Maine trafficking offense at issue here criminalizes. Maj. Op. 

24. But, that case did not involve a sufficiency challenge -- let 

alone one that directly addresses the type of possessory conduct 

that, in and of itself, might suffice to prove distributive intent 

under 21 U.S.C. § 841(a)(1). Thus, that case cannot demonstrate 

what it must for the government to be able to prevail on its § 841-

based argument under the categorical approach. 

I close by making two additional observations. 

The first concerns how we apply the categorical 

approach. The majority emphasizes -- repeatedly -- that the 

Shepard documents, see Shepard v. United States, 544 U.S. 13 

(2005), reveal that prosecutors did not need to, and in fact did 

not, rely on the permissible inference to secure Mohamed's 

conviction for the trafficking offense. See Maj. Op. 16-20. 

If the majority emphasizes this point merely to shore up 

the uncontested fact that Mohamed was convicted of the portion of 

the Maine trafficking offense to which the permissible inference 
- 32 - 

provision -- rather than the irrebuttable presumption provision at 

issue in Mulkern, 854 F.3d at 96 -- applies, then I have no quarrel. 

Maj. Op. 16 n. 7. But, the majority appears to suggest that the 

Shepard documents are also relevant to our analysis because they 

show that Mohamed was convicted of his trafficking offense based 

on conduct that was more severe than the least of the conduct that 

this offense criminalizes. See Maj. Op. 17-18, 21. If so, it 

seems to me that the majority is engaging in precisely the kind of 

inquiry into the "brute facts" of Mohamed's means of committing 

the offense that the categorical approach makes irrelevant. See 

Mathis v. United States, 136 S. Ct. 2243, 2251 (2016). 

After all, the permissible inference provision does not 

establish an element of the offense for which, all parties agree, 

Mohamed was convicted. See id. at 2248 ("[Elements] are what the 

defendant necessarily admits when he pleads guilty[.]"). The 

permissible inference provision merely sets forth a method for 

proving the conduct that could satisfy an element of that 

offense -- namely, the one that concerns Mohamed's distributive 

intent. See Me. Stat. tit. 17-A, § 1103(3). 

The second observation concerns the sense in applying 

the categorical approach at all. My colleagues agree that, just 

as our precedent instructs, the categorical approach does apply 

here. Maj. Op. 12. That point, therefore, is not at issue in 

this appeal. 
- 33 - 

I am aware, though, that the categorical approach has 

received its fair share of criticism for the counter-intuitive 

results that it often yields. See United States v. Faust, 853 

F.3d 39, 61 (1st Cir. 2017) (Lynch, J., concurring) (collecting 

statements). I am aware, as well, that an outcome like the one 

that I am convinced that we must reach here -- in which we would 

deem a drug "trafficking" offense not to constitute a "controlled 

substance offense" -- might well add to that criticism. I thus 

think it important to explain both that I do not share the oftexpressed concern that the categorical approach is too counterintuitive to have been contemplated by those who drafted these 

enhancements, see id. at 61-66 (Barron, J., concurring), and that 

the outcome that I believe that approach requires in this case 

does not lead me to see new merit to that concern. 

Sentencing enhancements are often written in terms that 

comfortably invite a categorical inquiry, see id. at 62-65, and 

that is certainly true of the one before us, see U.S.S.G. 

§ 4B1.1(b). In my view, when enhancements are written in terms 

that invite such an inquiry, there is no reason to presume that 

their drafters could not have intended for judges to determine the 

scope of such enhancements by inquiring into the least of the 

conduct criminalized by the predicate offense. 

I say that because the decision to restrict (even if not 

to eliminate) a sentencing judge's discretion to determine a 
- 34 - 

sentence on an individualized basis -- as sentencing enhancements 

such as the one before us necessarily do -- is a consequential 

one. I thus see no reason to presume that the drafters of such 

enhancements made that type of decision in a manner that would 

define the class of persons subject to them on the basis of merely 

the name that a state gives to an offense or with no appreciation 

of the difficulty of ensuring, retrospectively, that a defendant 

had engaged in conduct more severe than the least of what the 

offense of his conviction criminalized. Rather, it seems to me 

entirely sensible to presume that, in choosing words that invite 

judges to use the categorical approach to define an enhancement's 

scope, the drafters of the enhancement chose to ensure that it 

would accord with principles of lenity, cf. United States v. 

Santos, 553 U.S. 507, 514 (2008) ("The rule of lenity requires 

ambiguous criminal laws to be interpreted in favor of the 

defendants subjected to them."), just as the categorical approach 

ensures. See Faust, 853 F.3d at 65 (Barron, J., concurring). 

Consistent with these conclusions about the likely 

intent of the drafters of these enhancements, I note that, despite 

the criticism that the categorical approach has engendered, no 

changes have been made to this one by its drafters that would 

require us to use a different approach. That is no doubt in part 

because of the serious problems that inhere in the alternative 

means that have been suggested to define the scope of sentencing 
- 35 - 

enhancements that are predicated on prior state offenses. See id. 

at 61-66. 

Thus, I wish to emphasize that the result that I would 

reach here demonstrates to me the sense that inheres in the 

categorical approach -- insofar as there is any sense in 

establishing such enhancements -- rather than the merit of the 

critiques that have been lodged against it. For, I can see no 

good reason to conclude that the drafters of U.S.S.G. 

§§ 2K2.1(a)(2), 4B1.2(b), in establishing a sentencing enhancement 

for defendants who have been convicted of drug offenses that 

require proof of distributive intent, actually intended for it to 

a apply to a defendant convicted of a drug offense that -- though 

labeled as one for "trafficking" -- requires proof of nothing more 

than possessory conduct of a most minimal sort. 

On this understanding, I respectfully dissent.