United States Court of Appeals 

For the First Circuit 

No. 18-1767 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

MICHAEL ROMAN BURGHARDT, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW HAMPSHIRE 

[Hon. Joseph N. Laplante, U.S. District Judge] 

Before 

Thompson, Kayatta, and Barron, 

Circuit Judges. 

Christine DeMaso, Assistant Federal Public Defender, for 

appellant. 

Seth R. Aframe, Assistant United States Attorney, with whom 

Scott W. Murray, United States Attorney, was on brief, for 

appellee. 

October 3, 2019 

	
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KAYATTA, Circuit Judge. Michael Roman Burghardt pled 

guilty to one count of being a felon in possession of a firearm, 

in violation of 18 U.S.C. § 922(g)(1). He was sentenced to fifteen 

years' imprisonment, the mandatory minimum under the Armed Career 

Criminal Act (ACCA). On appeal, Burghardt claims plain error 

because the government did not charge him with, and he did not 

plead guilty to, knowing the facts that made him a person 

prohibited from possessing a firearm. In the alternative, he 

argues that he was ineligible for sentencing under the ACCA and 

that the district court miscalculated his base offense level under 

the Sentencing Guidelines. 

For the following reasons, we affirm Burghardt's 

conviction and sentence. In so doing we explain how plain error 

review works when a defendant claims that he would not have pled 

guilty had he been informed at his acceptance-of-plea proceeding 

that the government need prove that he knew that his prior offense 

had been punishable by more than a year in prison. We also hold 

that a conviction for selling a controlled substance under New 

Hampshire law, N.H. Rev. Stat. § 318-B:2(I), is a "serious drug 

offense" under the ACCA, 18 U.S.C. § 924(e)(2)(A)(ii). 

I. 

In 2010, Burghardt was convicted under state law of three 

counts of selling a controlled drug (less than a gram of heroin on 

two dates and more than five grams of heroin on a third) and one 
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count of possessing a controlled drug with the intent to sell (more 

than five grams of heroin).1 See N.H. Rev. Stat. § 318-B:2(I). 

In 2011, Burghardt was also convicted of robbery under New 

Hampshire law.2 See id. § 636:1. 

In 2017, Burghardt ran afoul of the law again. During 

a search of Burghardt incident to arrest, officers found an 

unloaded pistol under his coat. Because of his felony record, 

Burghardt was charged with violating the federal felon-inpossession statute. The indictment stated that Burghardt, "having 

been convicted of a crime punishable by imprisonment for a term 

exceeding one year, did knowingly possess in and affecting 

interstate commerce" a .380 caliber pistol, in violation of 18 

U.S.C. § 922(g)(1). The indictment did not assert that Burghardt 

knew that he had been convicted of a crime punishable by 

imprisonment for a term exceeding one year (the "scienter-ofstatus element"). 

Burghardt initially pled not guilty, but eventually 

changed his plea to guilty. Before accepting that guilty plea, 

the district court informed Burghardt that a conviction for 

 1 The maximum term of imprisonment for selling less than one 

gram of heroin is seven years. See N.H. Rev. Stat. § 318-

B:26(I)(c)(4). For possession with intent to sell or for selling 

more than five grams of heroin, the maximum term of imprisonment 

is thirty years. See id. § 318-B:26(I)(a)(3). 

2 New Hampshire robbery is a class B felony, carrying a maximum 

term of imprisonment of seven years. See N.H. Rev. Stat. 

§ 636:1(III); id. § 651:2(II)(b). 
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violating § 922(g) required the government to prove four elements: 

(1) that Burghardt possessed a firearm; (2) that the possession 

was knowing and intentional; (3) that the firearm (or some part of 

it) had been transported at some point in interstate commerce; and 

(4) that Burghardt's possession of the firearm took place after he 

had been convicted of a crime punishable by a term of imprisonment 

exceeding one year. With the acquiescence of all counsel, and 

without the benefit of the Supreme Court's recent decision in 

Rehaif v. United States, 139 S. Ct. 2191 (2019), the district court 

did not inform Burghardt that the government would additionally 

have to prove the scienter-of-status element in order to sustain 

a conviction. Burghardt pled guilty to the single count of 

violating § 922(g). 

The United States Probation Office recommended that the 

district court sentence Burghardt under the ACCA. Under the ACCA, 

"a person who violates [the felon-in-possession statute] and has 

three previous convictions . . . for a violent felony or a serious 

drug offense . . . shall be . . . imprisoned not less than fifteen 

years." 18 U.S.C. § 924(e)(1). The district court, over 

Burghardt's objections, concluded that Burghardt's convictions 

under New Hampshire law for selling a controlled substance were 

"serious drug offenses" as defined by the ACCA. The district court 

also acknowledged Burghardt's challenge to the Probation Office's 

base-offense-level calculation but noted that it "need not reach 
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this question" in light of the ACCA determination. The district 

court sentenced Burghardt to fifteen years' imprisonment, the 

ACCA's mandatory minimum.

On appeal, Burghardt raised in his opening brief three 

challenges to his sentence: (1) selling a controlled substance 

under New Hampshire law is not a "serious drug offense" and 

therefore cannot be a predicate act for purposes of triggering the 

ACCA's mandatory minimum sentence; (2) robbery under New Hampshire 

law is not a "crime of violence" under the Guidelines and therefore 

should not have increased his base offense level; and (3) imposing 

the ACCA's mandatory minimum sentence violated his Sixth Amendment 

rights because his prior convictions were not charged in the 

indictment or proven beyond a reasonable doubt. We do not address 

Burghardt's Sixth Amendment argument, as he acknowledges that it 

is foreclosed by binding precedent, see Almendarez-Torres v. 

United States, 523 U.S. 224, 226-27 (1998), and he correctly 

concedes that he raises the issue solely "to preserve it for 

possible Supreme Court review." 

A fourth challenge then arose when the Supreme Court 

decided Rehaif after the government and Burghardt filed their reply 

briefs. In Rehaif, the Supreme Court held that under § 922(g) the 

government "must show that the defendant knew he possessed a 

firearm and also that he knew he had the relevant status [as a 

prohibited person] when he possessed it." 139 S. Ct. at 2194. We 
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granted the parties leave to file supplemental briefing addressing 

Rehaif's impact. In his supplemental brief, Burghardt urges that 

Rehaif requires us to vacate his plea and conviction and either 

dismiss the indictment against him or, alternatively, remand for 

further proceedings. 

II. 

We turn now to the merits of the four challenges 

Burghardt raises on this appeal, beginning first with his challenge 

based on Rehaif. 

A. 

Burghardt contends that the holding in Rehaif exposes a 

common defect in both the indictment against him and in the 

acceptance of his plea. We address each in turn. 

1. 

A guilty plea waives all non-jurisdictional challenges 

to an indictment. United States v. Urbina-Robles, 817 F.3d 838, 

842 (1st Cir. 2016). And "defects in an indictment do not deprive 

a court of its power to adjudicate a case." United States v. 

Cotton, 535 U.S. 625, 630 (2002). Burghardt nevertheless argues 

that he could not have waived his challenge to the indictment 

because "waiver is the intentional relinquishment or abandonment 

of a known right," United States v. Olano, 507 U.S. 725, 733 (1993) 

(internal quotation marks and citation omitted), and the Supreme 

Court did not recognize the scienter-of-status element until after 
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his sentencing.3 But we have not limited waiver doctrine in that 

way. Indeed, we have characterized as "waived arguments" even 

those that "become available only as a result of intervening 

changes in law." United States v. Sevilla-Oyola, 770 F.3d 1, 14 

(1st Cir. 2014). Of course even waived arguments may be reviewed 

in the event that we choose to "engage[] in the rare exercise of 

[our] power to excuse waiver." Igartúa v. United States, 626 F.3d 

592, 603 (1st Cir. 2010). But because we do not see -- nor does 

Burghardt provide -- any compelling reason for so exercising our 

discretion in this case, we will not entertain Burghardt's 

challenge to the indictment. 

 3 The government correctly agrees that the law in this circuit 

did not previously impose this scienter-of-status element for 

convictions under § 922(g). In United States v. Smith, we held 

that "[u]nder established case law, the government need not prove 

that the defendant knowingly violated [§ 922(g)]; rather, it only 

need prove, which it did here, that the defendant knowingly 

possessed firearms." 940 F.2d 710, 713 (1st Cir. 1991). More 

recently, however, we stated in dicta that "Smith's holding 

actually held it was unnecessary for the government to prove the 

defendant's knowledge of the law itself" and that "[t]he 

principal's knowledge of his felony status was not at issue." 

United States v. Ford, 821 F.3d 63, 71 n.4 (1st Cir. 2016). 

Nonetheless, we recognize that since Smith we have omitted a 

scienter-of-status element from our recitation of the elements 

needed to sustain a § 922(g) conviction. See, e.g., United States 

v. Scott, 564 F.3d 34, 39 (1st Cir. 2009) ("A felon-in-possession 

conviction requires proof that the defendant had a prior felony 

conviction for an offense punishable by imprisonment for a term 

exceeding one year and had knowing possession of a firearm in or 

affecting interstate commerce."). Rehaif clearly imposes upon the 

government that additional requirement. 
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2. 

A guilty plea does not waive all challenges to the plea 

itself. See, e.g., United States v. Ortiz-Torres, 449 F.3d 61, 68 

(1st Cir. 2006) (noting that "a guilty plea does not preclude an 

attack on the plea's voluntariness" (internal quotation marks 

omitted)). One of the "core concern[s]" of a plea colloquy 

pursuant to Federal Rule of Criminal Procedure 11 is "ensuring 

that the defendant understands the elements of the charges that 

the prosecution would have to prove at trial." United States v. 

Gandia-Maysonet, 227 F.3d 1, 3 (1st Cir. 2000); Fed. R. Cr. 

P. 11(b)(1)(G) ("[T]he court must inform the defendant of, and 

determine that the defendant understands, . . . the nature of each 

charge to which the defendant is pleading."). Burghardt protests 

the district court's undisputed (but understandable) failure 

during the plea colloquy to inform him of the scienter-of-status 

element. Because Burghardt did not offer to the district court 

the Rule 11 objection he now raises on appeal, we review his 

argument for plain error. See United States v. Dominguez Benitez, 

542 U.S. 74, 80 (2004); United States v. Hernàndez-Maldanado, 793 

F.3d 223, 226 (1st Cir. 2015). Under this standard, a defendant 

must show "(1) an error, (2) that is clear or obvious, (3) which 

affects his substantial rights . . . , and which (4) seriously 

impugns the fairness, integrity or public reputation of the 

proceeding." United States v. Correa-Osorio, 784 F.3d 11, 17–18 
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(1st Cir. 2015). The parties agree that the first two prongs of 

this analysis have been met, in light of Rehaif. For that reason, 

we turn to the prejudice prong by considering whether the error 

affected his substantial rights. 

Showing prejudice requires demonstrating "a reasonable 

probability that, but for [the error claimed], the result of the 

proceeding would have been different." United States v. TurbidesLeonardo, 468 F.3d 34, 39 (1st Cir. 2006) (alteration in original) 

(quoting United States v. Padilla, 415 F.3d 211, 221 (1st Cir. 

2005)). In the context of an appeal challenging an unpreserved 

error in accepting a guilty plea, the "result of the proceeding" 

is the entry of the plea. Therefore, a defendant who brings such 

a challenge must "show a reasonable probability that, but for the 

purported error, he would not have pled guilty." United States v. 

Díaz-Concepción, 860 F.3d 32, 38 (1st Cir. 2017); Urbina-Robles, 

817 F.3d at 842. The error in this case is the failure of the 

district court to inform Burghardt of the scienter-of-status 

element of the § 922(g) charge. See Fed. R. Crim. P. 11(b)(1)(G). 

Burghardt argues that, had he been informed about this additional 

burden imposed on the government, there is a reasonable probability 

he would have gone to trial. 

Burghardt's mere assertion, by itself, that he would 

likely have acted differently but for the Rule 11 error is 

insufficient to establish the requisite reasonable probability of 
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a different result if the circumstances surrounding the plea render 

such a change in his behavior improbable. See Díaz-Concepción, 

860 F.3d at 38 ("Where . . . it is clear from the uncontested 

record that the government would have had sufficient evidence to 

secure a conviction at trial, an appellant's bare contention that 

he might have pled differently if the elements of the charged 

offense had been expounded upon is not enough to meet that 

standard."); Urbina-Robles, 817 F.3d at 844 (holding that a 

defendant's "mere[] assert[ion] that he might not have so pled" 

but for a Rule 11 error was not enough to satisfy the prejudice 

prong when "[t]he discovery materials [the defendant] received 

prior to his guilty plea clearly suggested that, at trial, the 

government would have little trouble proving the [misstated] 

element"). So, "informed by the entire record," Dominguez Benitez, 

542 U.S. at 83, we "can fairly ask [Burghardt] what he might ever 

have thought he could gain by going to trial," keeping in mind 

that if the record makes it reasonably probable that he would have 

done so, "it is no matter that the choice may have been foolish," 

id. at 85. 

Burghardt can point to nothing in the record suggesting 

that he would have insisted on going to trial, even if foolishly, 

if he had been told of the scienter-of-status element. He does 

advance the reasonable premise that his probability of opting for 

trial would have increased commensurate with a perception that the 
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government would have had any difficulty in proving the added 

element. Of course, Burghardt carefully tenders no claim that he 

would have testified that he did not know that his prior offenses 

were punishable by more than a year in prison. But a defendant 

can instead base a decision to risk a trial on his perception of 

the government's ability to carry its burden even as he remains 

mute. 

Our own review of the record nevertheless reveals no 

reason to think that the government would have had any difficulty 

at all in offering overwhelming proof that Burghardt knew that he 

had previously been convicted of offenses punishable by more than 

a year in prison. Burghardt does not dispute that he has pled 

guilty to offenses punishable by a term of imprisonment well beyond 

a year. Nor does he dispute that New Hampshire law requires a 

judge to make sure that a defendant knows the maximum possible 

sentence when entering a guilty plea. See State v. Percy, 

No. 2013-0648, 2014 WL 11485808, at *3 (N.H. Oct. 21, 2014) 

(holding that a trial court must ascertain that a defendant 

understands the "potential penalties"); see also State v. Allard, 

356 A.2d 671, 672 (N.H. 1976); State v. Farris, 320 A.2d 642, 644 

(N.H. 1974) (noting the requirement that "the defendant fully 

underst[and] the consequences of his plea in terms of the maximum 

sentence which might be imposed"). So it seems virtually certain 

that at least one of the two state court judges who accepted 
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Burghardt's guilty pleas in his state court cases -- in 2010 for 

the drug convictions and in 2011 for the robbery conviction -- 

told Burghardt face-to-face what his maximum sentence could be, an 

inference bolstered by his lack of appeal of those pleas at the 

time for failure to comply with New Hampshire law. And we have 

repeatedly held that if there is overwhelming proof establishing 

an element of the charged offense, a court's failure to describe 

that element during a Rule 11 plea colloquy does not by itself 

constitute plain error. See United States v. Gandia-Maysonet, 227 

F.3d 1, 5 (1st Cir. 2000); see also Díaz-Concepción, 860 F.3d at 

38; Urbina-Robles, 817 F.3d at 844. 

We also consider the fact that, according to his 

presentence investigation report (PSR), Burghardt received 2-10 

years in state prison for two of the sale convictions, 7.5-15 years 

in state prison for the third sale conviction and the possessionwith-intent-to-sell conviction, and 2-5 years in state prison for 

the robbery conviction.4 If true, the receipt of such sentences 

 4 The PSR suggests that Burghardt was paroled after serving 

two years of his sentences for his convictions on the four drug 

charges -- which could have impacted his knowledge as to the length 

of time he was serving for any single conviction -- and does not 

clearly state the length of time he served solely for the robbery 

charge beyond 163 days. But evidence that he served over a year 

for a single charge is not necessary to support our conclusion, 

because, as discussed, the government has ample other evidence 

that it could have introduced to show Burghardt's knowledge of his 

status. For example, along with these sentences, the defendant 

received other sentences for potentially over one year that were 

together sufficient to place him into criminal history 
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would certainly have made clear to Burghardt the fact that his 

offenses were punishable by more than a year in prison. Burghardt 

correctly states that he had no reason to contest these 

descriptions of his actual sentences in the PSR in the district 

court because they related to an element that our circuit had not 

recognized as an element required to sustain a conviction under 

§ 922(g). But for that same reason those descriptions are unlikely 

to have been fabricated, because Burghardt's actual imposed 

sentences would not have affected his conviction or sentence prior 

to Rehaif, eliminating any possible incentive for the government 

to exaggerate their length. At a minimum, this raises yet another 

strong inference that any state records would likely doom any 

remaining chance of claiming insufficient scienter. 

In theory, it is nevertheless possible that the statecourt records regarding Burghardt's two prior convictions might 

reveal no mention of the possible prison terms in either case, or 

that perhaps the state records may be unobtainable or 

uninformative, in which case Burghardt might arguably have thought 

that a prosecutor in this case relying only on an instruction 

concerning normal state-court practice might fall short of 

securing his conviction, even in the absence of any testimony 

 

category VI, negating the inference that he has never been informed 

that he faced a sentence that would qualify under § 922(g). 
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challenging conformity with that practice in Burghardt's prior 

cases. That seems to be quite a stretch. In any event, though, 

neither side has chosen to present us with the state records from 

either state court proceeding or to make any representation as to 

their unavailability. We are therefore presented with an "unknown 

variable: the contents of the record of the prior conviction[s]." 

Turbides-Leonardo, 468 F.3d at 40. In light of this pivotal gap, 

we must ask: Whose problem is that? 

Our case law dealing with an analogous gap in the record 

relevant to plain error review of sentencing challenges suggests 

strongly that the absence of more records concerning Burghardt's 

state court proceedings cuts against him in this case. In a series 

of cases, we confronted the claim that Shepard documents from a 

state court might show that there was a "reasonable probability 

that [the defendant] would be better off from a sentencing 

standpoint had the district court not committed the claimed . . . 

error." United States v. Bauzó-Santiago, 867 F.3d 13, 27 (1st 

Cir. 2017) (second alteration in original). In those cases, we 

held that the defendant -- bearing the burden of showing that such 

a reasonable probability existed -- need produce the records or at 

least identify a reason why the records would have established the 

premise warranting a different sentence. See id. at 27-28; United 

States v. Serrano-Mercado, 784 F.3d 838, 848 (1st Cir. 2015); 

Turbides-Leonardo, 468 F.3d at 40. Here, by analogy, we are 
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reviewing the district court's Rule 11 failure under plain error 

review, where the defendant also bears the burden of showing that 

a reasonable probability of a different outcome exists. 

We also note that, though Burghardt did not have a plea 

agreement in this case, he did receive a benefit by pleading guilty 

in the form of a three-level reduction under the Guidelines for 

his acceptance of responsibility.5 The benefit received by the 

defendant from pleading is often a factor in our analysis of the 

likelihood that a defendant might have decided not to plead guilty, 

further buttressing our conclusion that Burghardt has failed to 

show a reasonable probability that, but for the Rule 11 error, he 

would have gone to trial. See, e.g., Díaz-Concepción, 860 F.3d at 

39; Urbina-Robles, 817 F.3d at 844; cf. United States v. CaraballoRodriguez, 480 F.3d 62, 76 (1st Cir. 2007). 

Based on the foregoing, Burghardt has failed to carry 

his burden of demonstrating that it is reasonably probable that he 

would not have pled guilty had the district court told him that 

the government was required to prove beyond a reasonable doubt 

that he knew when he possessed the gun that he had previously been 

 5 Although Burghardt was sentenced to the ACCA's mandatory 

minimum, he argued at sentencing that the ACCA was inapplicable 

and that he should be sentenced under the Guidelines range instead. 

Therefore, the fact that he did not ultimately realize the threelevel reduction benefit is of no matter -- Burghardt certainly 

envisioned and advocated for a scenario where he would have 

benefited from that reduction. 
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convicted of an offense punishable by more than a year in prison. 

His challenge to the acceptance of his plea therefore fails on 

plain error review. 

B. 

We turn next to Burghardt's sentencing challenges, 

beginning with his argument that selling a controlled substance 

under New Hampshire law, N.H. Rev. Stat. § 318-B:2(I), is not a 

"serious drug offense" and therefore cannot be a predicate act for 

purposes of triggering the ACCA's mandatory minimum sentence. The 

New Hampshire statute states that "[i]t shall be unlawful for any 

person to manufacture, possess, have under his control, sell, 

purchase, prescribe, administer, or transport or possess with 

intent to sell, dispense, or compound any controlled drug." Id. 

We review de novo the legal question of whether a prior conviction 

qualifies as an ACCA predicate. United States v. Whindleton, 797 

F.3d 105, 108 (1st Cir. 2015). 

Under the ACCA, "a person who violates [the felon-inpossession statute] and has three previous convictions . . . for 

a violent felony or a serious drug offense . . . shall be . . . 

imprisoned not less than fifteen years." 18 U.S.C. § 924(e)(1). 

The ACCA includes in its definition of a "serious drug offense" 

"an offense under State law, involving manufacturing, 

distributing, or possessing with intent to manufacture or 

distribute, a controlled substance [as defined under federal law], 
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for which a maximum term of imprisonment of ten years or more is 

prescribed by law." Id. § 924(e)(2)(A)(ii). The parties agree 

that determining whether a given state crime falls within § 924 

requires employing a "categorical approach," under which "a state 

crime cannot qualify as an ACCA predicate if its elements are 

broader than those of a listed generic offense." Mathis v. United 

States, 136 S. Ct. 2243, 2251 (2016). Under this approach, a court 

must consider "only the offense's legal definition." Whindleton, 

797 F.3d at 108. "How a given defendant actually perpetrated the 

crime . . . makes no difference." Mathis, 136 S.Ct. at 2251. 

Additionally, however, a statute can be "indivisible" if 

it sets out a single set of elements so as to define a single crime 

and "divisible" if it lists elements in the alternative, thus 

defining multiple crimes. These two types of statutes require a 

slightly different analysis under the categorical approach. Id. 

at 2249-50. For an indivisible crime, a court simply "lines up 

that crime's elements alongside those of the generic offense and 

sees if they match," but for a divisible crime, a court must use 

a "modified categorical approach" where it " looks to a limited 

class of documents (for example, the indictment, jury 

instructions, or plea agreement and colloquy) to determine what 

crime, with what elements, a defendant was convicted of" and then 

compares only this specific committed offense with the relevant 

generic offense. Id. at 2248–49. Here, the parties agree that 
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New Hampshire section 318-B:2(I) is divisible. For example, a 

person may violate the statute if he "manufacture[s]" a controlled 

substance or if he instead "purchase[s]" a controlled substance. 

Proving either of the alternative elements is sufficient for a 

conviction under section 318-B:2(I). It is undisputed that 

Burghardt was convicted of "sell[ing]" a controlled drug, and as 

such, this is the specific offense that we must compare to the 

generic offense. See N.H. Rev. Stat. § 318-B:2(I). 

Under New Hampshire law, "sale" is defined as "barter, 

exchange or gift, or offer thereof." Id. § 318-B:1(XXX). The 

parties agree that this statutory definition is not further 

divisible, and that it identifies four alternative means as opposed 

to four alternative elements. This distinction is significant. 

See Mathis, 136 S.Ct. at 2256 (explaining that when reviewing 

statutes listing alternative means, "the court has no call to 

decide which of the statutory alternatives was at issue in the 

earlier prosecution," and "may ask only whether the elements of 

the state crime and generic offense make the requisite match"). 

Accordingly, because Burghardt was convicted of selling a 

controlled substance, we must ask whether any of the alternative 

means of committing a sale under New Hampshire law are broader 

than the ACCA definition of a "serious drug offense." See id. at 

2251. If so, section 318-B:2(I) is categorically not a "serious 

drug offense." 
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Burghardt rests his hat on the "offer" means of 

committing a sale. See N.H. Rev. Stat. § 318-B:1(XXX). But we 

have already held that a "bona fide" offer -- one "requiring the 

intent and the ability to proceed with a sale -- sufficiently 

'involv[es]' the distribution of drugs to qualify as a 'serious 

drug offense' under the ACCA." Whindleton, 797 F.3d at 111. So 

Burghardt takes a more refined approach. He argues that New 

Hampshire law criminalizes more than just "bona fide" offers. 

Rather, it goes so far as to also criminalize "mere" offers to 

sell a controlled substance -- meaning those in which the offeror 

does not have the intent or the ability to proceed with the sale. 

And a "mere" offer, Burghardt contends, is not an offense 

"involving manufacturing, distributing, or possessing with intent 

to manufacture or distribute a controlled substance" under the 

ACCA. 18 U.S.C. § 924(e)(2)(A)(ii). 

For Burghardt to be successful in his more refined 

argument, we would have to answer two questions in his favor. 

First, does New Hampshire law in fact criminalize "mere" offers? 

And second, is a "mere" offer a "serious drug offense"? Because 

we find that Burghardt's argument fails at the first question, we 

need not address the second. 

New Hampshire law does not explicitly limit sale-byoffer violations of section 318-B:2(I) to "bona fide" offers. 

Indeed, it simply uses the word "offer," without more. See N.H. 
- 20 -

Rev. Stat. § 318-B:1(XXX). The parties dispute the breadth of 

this word, each claiming that it clearly does or does not encompass 

"mere" offers. Based on the text alone, we have trouble accepting 

either party's interpretation to the exclusion of the other's. 

Certainly it is not unreasonable to read the word "offer" as 

including fraudulent or insincere offers. See, e.g., United States 

v. Savage, 542 F.3d 959, 965 (2d Cir. 2008) (holding that a statute 

defining "sale" as an "offer" "plainly criminalizes, inter alia, 

a mere offer to sell a controlled substance. . . . An offer to 

sell can be fraudulent, such as when one offers to sell the 

Brooklyn Bridge." (citation omitted)). But it is also reasonable 

to eschew such arguably overly literal readings of the word. See, 

e.g., People v. Mike, 706 N.E.2d 1189, 1191 (N.Y. 1998) (holding 

that, under a statute which defined "sell" as an "offer," "there 

must be evidence of a bona fide offer to sell -- i.e., that 

defendant had both the intent and the ability to proceed with the 

sale"). So the text of section 318-B:2(I) is ambiguous. 

In light of this ambiguity, we heed the "fundamental 

canon of statutory construction that the words of a statute must 

be read in their context and with a view to their place in the 

overall statutory scheme." Nat'l Ass'n of Home Builders v. Defs. 

of Wildlife, 551 U.S. 644, 666 (2007); see also MacPherson v. 

Weiner, 959 A.2d 206, 209 (N.H. 2008) ("We . . . review a 

particular provision, not in isolation, but together with all 
- 21 -

associated sections."). Here, section 318-B:2(I)'s context 

informs our reading of the term "offer." In the very next 

paragraph, New Hampshire makes it unlawful for a person to 

"sell . . . (1) any substance which he represents to be a 

controlled drug or controlled drug analog, or (2) any preparation 

containing a substance which he represents to be a controlled drug 

or controlled drug analog." N.H. Rev. Stat. § 318-B:2(I-a). As 

we explained above, "sell" in this context includes "offer." So, 

subsection I-a criminalizes one significant type of offers that 

are not bona fide offers to sell a controlled drug -- offers to 

sell fake drugs. This subsection would be entirely unnecessary if 

section 318-B:2(I) itself (by criminalizing "offers") already 

criminalized offers that are not bona fide. Not surprisingly, New 

Hampshire law in general disfavors readings of statutory terms 

that render a part of the pertinent statute entirely superfluous. 

See Garand v. Town of Exeter, 977 A.2d 540, 544 (N.H. 2009) 

(presuming that the legislature "does not enact unnecessary and 

duplicative provisions"). Of course, one might eliminate any 

superfluousness by positing that "offer" in section 318-B:2(I) 

includes only some offers that are not bona fide. But this parsing 

strikes us as too precious given that it lacks any textual hook 

and given no reason to think it odd that New Hampshire might choose 

not to criminalize merely making purely insincere offers to sell 

controlled drugs. We therefore tend to think that offers under 
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section 318-B:2(I) do not include "mere" offers made without the 

intent and ability to make good on the offer. 

So, too, did the district court. But it also wisely and 

carefully took the added step of offering Burghardt the time and 

opportunity to see if there is any evidence that New Hampshire has 

ever prosecuted anyone under section 318-B:2(I) for an offer that 

was admittedly not bona fide. Burghardt found none. That finding, 

in turn, calls to mind the Supreme Court's "caution against 

crediting speculative assertions regarding the potentially 

sweeping scope of ambiguous state law crimes." Swaby v. Yates, 

847 F.3d 62, 66 (1st Cir. 2017); see Gonzales v. Duenas-Alvarez, 

549 U.S. 183, 193 (2007) ("[T]o find that a state statute creates 

a crime outside the generic definition of a listed crime in a 

federal statute requires more than the application of legal 

imagination to a state statute's language. It requires a realistic 

probability, not a theoretical possibility, that the State would 

apply its statute to conduct that falls outside the generic 

definition of a crime."); see also Moncrieffe v. Holder, 569 U.S. 

184, 191 (2013). Duenas-Alvarez teaches that it is Burghardt's 

burden to show a "realistic probability" that New Hampshire would 

apply section 318-B:2(I) to "mere" offers to sell drugs. 549 U.S. 

at 193. With the statutory text read as a whole in context 

providing only a questionable reed of support for Burghardt's 

preferred reading, he need "at least point to his own case or other 
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cases in which the state courts in fact did apply the statute in 

the special (nongeneric) manner for which he argues." Id. 

Instead, Burghardt relies on Swaby, a case where we 

concluded that Duenas-Alvarez's legal-imagination doctrine was 

inapplicable. 847 F.3d at 66. But Swaby is easily distinguishable 

from the case at hand. There, a noncitizen was convicted for a 

manufacturing-delivering-or-possessing-a-drug offense under Rhode 

Island law. Id. at 65. We held that "[t]he state crime at issue 

clearly does apply more broadly than the federally defined offense" 

because the Rhode Island drug schedules unambiguously included a 

drug not listed on the federal drug schedule. Id. at 66 ("Simply 

put, the plain terms of the Rhode Island drug schedules make clear 

that the Rhode Island offense covers at least one drug not on the 

federal schedules. That offense is simply too broad to qualify as 

a predicate offense under the categorical approach, whether or not 

there is a realistic probability that the state actually will 

prosecute offenses involving that particular drug."). 

Burghardt's reliance on Swaby would be apt if New 

Hampshire similarly and unambiguously defined a "sale" as "an 

offer, even if the offeror has neither the intent nor the ability 

to proceed with the sale." If that were the case, the panel would 

follow Swaby's teaching to avoid "treat[ing] [the state offense] 

as if it is narrower than it plainly is." Id. at 66. But here, 

the fair and likely most reasonable reading of the statute and New 
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Hampshire law, given the law's ambiguity, places on Burghardt the 

burden of producing authority to suggest that New Hampshire would 

apply section 318-B:2(I) to "mere" offers. Duenas-Alvarez, 549 

U.S. at 193. Because he has not done so, his sentencing challenge 

is unavailing. 

For the foregoing reasons, we hold that section 318-

B:2(I) is a "serious drug offense" as defined under the ACCA. 

C. 

Having determined that the district court properly 

sentenced Burghardt under the ACCA, we need not address his 

argument that his Guidelines base offense level was miscalculated. 

And, as noted above, Burghardt correctly concedes that his 

challenge to the application of the ACCA's mandatory minimum as a 

violation of his Sixth Amendment rights is foreclosed by binding 

precedent. See Almendarez-Torres v. United States, 523 U.S. 224, 

226-27 (1998); see also United States v. McIvery, 806 F.3d 645, 

653 (1st Cir. 2015); United States v. Jiménez-Banegas, 790 F.3d 

253, 258-59 (1st Cir. 2015). 

III. 

For the foregoing reasons, we affirm Burghardt's 

conviction and sentence.