United States Court of Appeals 

For the First Circuit 

No. 14-1783 

UNITED STATES, 

Appellee, 

v. 

JAMES MELVIN, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. Nathaniel M. Gorton, U.S. District Judge] 

Before 

Howard, Chief Judge, 

Lynch and Lipez, Circuit Judges. 

Richard B. Klibaner, for appellant. 

Randall E. Kromm, Assistant United States Attorney, with whom 

Carmen M. Ortiz, United States Attorney, was on brief, for 

appellee. 

October 23, 2015 
- 2 - 

LYNCH, Circuit Judge. In a previous appeal in this case, 

we vacated James Melvin's conviction for possession of cocaine 

base with intent to distribute. United States v. Melvin, 730 F.3d 

29, 40 (1st Cir. 2013). We remanded for a new trial on the basis 

of a non-harmless trial error. Id. On retrial, Melvin was again 

found guilty of possession of cocaine base with intent to 

distribute and sentenced to 168 months of imprisonment and six 

years of supervised release. On appeal, he challenges his sentence 

on the ground that he was erroneously sentenced as a career 

offender pursuant to U.S.S.G. § 4B1.1(a). He brings additional 

claims of trial and sentencing error in a supplemental pro se 

brief. We affirm his sentence and conviction. 

I. 

Evidence at Melvin's second trial was sufficient to 

satisfy a jury that, on February 19, 2010, he sold approximately 

11.5 grams of cocaine base to a government informant. The jury 

returned a guilty verdict on March 27, 2014. 

The presentence report (PSR) calculated Melvin's base 

offense level at 20, based on the quantity of cocaine base. 

U.S.S.G. § 2D1.1(a)(5) (2013). Because no adjustments were 

applied, the total offense level was also 20. However, because of 

his "two prior felony convictions of . . . a controlled substance 

offense," the PSR recommended a career offender offense level of 

34. U.S.S.G. § 4B1.1(a), (b)(2). Melvin objected to his career 
- 3 - 

offender status on the basis that he only had one predicate 

offense. He conceded that a 2005 conviction in the Southern 

District of New York qualified as a predicate controlled substance 

offense, but he argued that he had no other qualifying prior 

conviction. The probation officer responded that a 1998 New York 

state conviction for "Criminal Sale of a Cntr. Subst. 3rd Degree" 

was the second predicate offense.1

At the sentencing hearing on July 8, 2014, the district 

court overruled Melvin's objection. It found that this court's 

decision in United States v. Bryant, 571 F.3d 147 (1st Cir. 2009), 

and an unpublished Second Circuit opinion in United States v. 

Spells, 267 F. App'x 93 (2d Cir. 2008), foreclosed his argument. 

The district court applied an offense level of 34 and a criminal 

history category of VI, which yielded a guideline sentencing range 

of 262 to 327 months, and imposed a below-guideline sentence of 

168 months. This appeal followed. 

II. 

Melvin challenges the district court's reliance on his 

1998 New York state conviction to categorize him as a career 

offender for sentencing purposes. Reviewing this question of law 

 1 Although the PSR did not identify the statute of conviction 

by section number, both parties agree that the conviction was under 

New York Penal Law § 220.39, which defines the offense as 

"knowingly and unlawfully sell[ing] . . . a narcotic drug."
- 4 - 

de novo, United States v. Almenas, 553 F.3d 27, 31 (1st Cir. 2009), 

we reject this challenge for two independent reasons.2

A. Law of the Circuit Doctrine 

Melvin's challenge is foreclosed by our earlier panel 

decision in Bryant. There, we held that a New York state 

conviction for "attempted criminal sale of a controlled substance"3

was a controlled substance offense for the purpose of determining 

career offender status. Bryant, 571 F.3d at 156–58. 

Under the law of the circuit doctrine, we are "bound by 

a prior panel decision, absent any intervening authority." United 

States v. Mouscardy, 722 F.3d 68, 77 (1st Cir. 2013) (quoting 

United States v. Grupee, 682 F.3d 143, 149 (1st Cir. 2012)). Even 

an argument that an earlier panel "fundamentally misinterpreted" 

then-existing precedent does not allow us to overturn prior panel 

precedent; rather, "[o]nly the Supreme Court or an en banc court 

 2 The government also makes a third argument: that the law of 

the case doctrine forecloses Melvin's challenge to his career 

offender status because he had the opportunity and incentive to 

raise the issue in his first appeal but failed to do so. However, 

the government did not raise this argument before the district 

court. Because our affirmance is supported by two other grounds, 

we do not decide whether this argument was waived or whether the 

law of the case doctrine forecloses Melvin's appeal. 

3 Although the decision in Bryant did not identify the statute 

of offense by section number, the parties agree that it was the 

same as the statute at issue here: New York Penal Law § 220.39. 

The New York state decision relied on by Bryant also makes clear 

that the conviction at issue was under § 220.39. See Bryant, 571 

F.3d at 158 (citing People v. Samuels, 780 N.E.2d 513, 515 (N.Y. 

2002)). 
- 5 - 

can overturn prior panel precedent in ordinary circumstances." 

United States v. Holloway, 499 F.3d 114, 118 (1st Cir. 2007). 

Melvin argues that Bryant does not control because it 

found New York Penal Law § 220.39 to be a predicate offense only 

under one prong of the definition of a controlled substance 

offense, and he is challenging the applicability of the other 

prong. That argument is meritless. A controlled substance offense 

is defined as: 

an offense under federal or state law, punishable by 

imprisonment for a term exceeding one year, that 

prohibits [1] the manufacture, import, export, 

distribution, or dispensing of a controlled substance 

(or a counterfeit substance) or [2] the possession of a 

controlled substance (or a counterfeit substance) with 

intent to manufacture, import, export, distribute, or 

dispense. 

U.S.S.G. § 4B1.2(b). Because that definition employs a disjunctive 

construction, the government need only show that § 220.39 is a 

controlled substance offense under either prong of U.S.S.G. 

§ 4B1.2(b). Because Bryant establishes that § 220.39 is a 

controlled substance offense under the second prong, the 

possession clause, Bryant disposes of this appeal notwithstanding 

Melvin's arguments about the inapplicability of the other prong. 

Melvin also challenges the reasoning of Bryant. 

However, he does not point to any intervening authority that 

requires us to reconsider Bryant and instead suggests that Bryant 
- 6 - 

was incorrect when decided. Because that is not sufficient to 

defeat the law of the circuit doctrine, Bryant controls.4

B. Controlled Substance Offense 

Even if Melvin could overcome the law of the circuit 

doctrine, we still affirm because we conclude, independently of 

Bryant, that a conviction under New York Penal Law § 220.39 is a 

controlled substance offense for the purpose of determining career 

offender status under U.S.S.G. § 4B1.1. 

In Bryant, we relied on the second prong of U.S.S.G. 

§ 4B1.2(b), the possession clause, to find that a conviction under 

§ 220.39 was a controlled substance offense. 571 F.3d at 156–58. 

Melvin argues that Bryant's reasoning was in error.

Whatever the merits of Melvin's argument, we leave his 

sentence undisturbed because a conviction under § 220.39 is a 

controlled substance offense, in any event, under the first prong 

of § 4B1.2(b): "distribution . . . of a controlled substance."5 

 4 Melvin also argues, for the first time in his reply brief, 

that Bryant should not apply because his § 220.39 conviction 

predates the line of New York state cases on which Bryant relied. 

See Bryant, 571 F.3d at 158 (citing Samuels, 99 N.Y.2d at 23–24). 

However, we do not consider arguments raised for the first time in 

a reply brief. See, e.g., Román-Oliveras v. Puerto Rico Elec. 

Power Auth. (PREPA), 797 F.3d 83, 85 n.1 (1st Cir. 2015). 

5 We apply the categorical approach, under which the question 

is whether § 220.39 encompasses only conduct that qualifies as a 

controlled substance offense. See Taylor v. United States, 495 

U.S. 575, 600–02 (1990); United States v. Dávila-Félix, 667 F.3d 

47, 55–56 (1st Cir. 2011). 
- 7 - 

Melvin argues that New York defines a sale of a controlled 

substance to include a mere "offer" to sell, see N.Y. Penal Law 

§ 220.00(1), and a mere offer to sell does not qualify as 

distribution. However, under Application Note 1 of U.S.S.G. 

§ 4B1.2, a controlled substance offense "include[s] the offense[] 

of . . . attempting to commit such offense[]." A defendant is 

guilty of attempted distribution if he (1) had the intent to commit 

the crime and (2) took a substantial step toward its commission. 

United States v. Piesak, 521 F.3d 41, 44 (1st Cir. 2008). A 

conviction under § 220.39 under an offer-to-sell theory would 

require proof of a bona fide offer to sell with intent to proceed 

with the sale and the ability to do so. See Bryant, 571 F.3d at 

158 (citing People v. Samuels, 780 N.E.2d 513, 515 (N.Y. 2002)). 

A bona fide offer comprises both the intent and substantial step 

necessary to constitute an attempted distribution of a controlled 

substance.6 Cf. Pascual v. Holder, 723 F.3d 156, 158–59 (2d Cir. 

2013) (per curiam) (holding that New York Penal Law § 220.39 is 

analogous to the federal crime of attempted distribution and thus 

qualifies as an aggravated felony under the Immigration and 

Nationality Act); Berroa v. Att'y Gen. of U.S., 523 F. App'x 913, 

917–18 (3d Cir. 2013) (per curiam) (same); United States v. Evans, 

 6 In so deciding, we answer a question explicitly left open 

in our recent decision in United States v. Whindleton, 797 F.3d 

105, 111 n.5 (1st Cir. 2015). 
- 8 - 

699 F.3d 858, 868 (6th Cir. 2012) (holding, with respect to an 

Ohio drug conviction, that "[a]n offer to sell a controlled 

substance is an act perpetrated in furtherance of a sale, typically 

as part of the negotiation for the price and quantity, and it is 

therefore a substantial step in attempting to consummate a sale"). 

Under the distribution prong of U.S.S.G. § 4B1.2(b), New York Penal 

Law § 220.39 is categorically a controlled substance offense that 

can trigger career offender status for sentencing purposes. 

III. 

In his pro se supplemental brief, Melvin claims a number 

of trial and sentencing errors. 

First, Melvin argues that the district court erred in 

denying his motion for a mistrial on the basis that the jury saw 

him in handcuffs. The government denied there was any such event. 

Even if the event had taken place, "exposure of the jury to a 

defendant in shackles does not necessarily require a mistrial." 

United States v. Pina, 844 F.2d 1, 8 (1st Cir. 1988). Although 

Melvin alleged that he made eye contact with one juror, that juror, 

when questioned by the district court, did not substantiate 

Melvin's allegation and stated that he recalled nothing out of the 

ordinary. These circumstances do not establish "the kind of clear 

prejudice that would render the court's denial of his motion for 

a mistrial a manifest abuse of discretion." United States v. 
- 9 - 

Trinidad-Acosta, 773 F.3d 298, 306 (1st Cir. 2014) (quoting United 

States v. Dunbar, 553 F.3d 48, 58 (1st Cir. 2009)). 

Second, Melvin argues that the district court erred in 

allowing evidence of his 2007 drug conviction in cross examination. 

A felony conviction can be admitted to attack a criminal 

defendant's credibility "if the probative value of the evidence 

outweighs its prejudicial effect to that defendant." Fed. R. Evid. 

609(a)(1)(B). We find no abuse of discretion in the district 

court's decision to admit this evidence.7

Third, Melvin challenges his designation as a career 

offender for the purposes of sentencing. These arguments largely 

repeat those in his initial brief submitted through counsel and 

are addressed above. His argument that the career offender 

guideline violates the double jeopardy clause has been previously 

rejected. See Witte v. United States, 515 U.S. 389, 400 (1995). 

 7 As a general matter, informing the jury of a past felony 

conviction creates a risk of prejudice, and that risk is heightened 

where the crime of conviction is similar to the crime with which 

the defendant is charged. See United States v. Brito, 427 F.3d 

53, 64 (1st Cir. 2005) ("[C]onvictions for dissimilar crimes are 

customarily thought to be less prejudicial than convictions for 

similar crimes (which may run a risk of implying a propensity to 

commit the crime)."). It is well established, however, that prior 

convictions for drug distribution bear on character for 

truthfulness, see United States v. Barrow, 448 F.3d 37, 44 (1st 

Cir. 2006); Brito, 427 F.3d at 64, and the district court did not 

abuse its discretion here in determining that the probative value 

of that conviction outweighed its prejudicial effect. 
- 10 - 

IV. 

For the reasons stated, we affirm.