Of the Federal Circuit, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 06-2508

UNITED STATES OF AMERICA,

Appellee,

v.

GARY BROWN, A/K/A ANTHONY GREEN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

 Howard, Circuit Judge,

Selya, Senior Circuit Judge,

and Dyk, Circuit Judge. *

Scott J. Lynch, with whom Hornblower Lynch Rabasco & Vandyke,

P.A., was on brief for appellant.

F. Mark Terison, Senior Litigation Counsel, with whom Paula D.

Silsby, United States Attorney, was on brief for appellee.

August 22, 2007
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SELYA, Senior Circuit Judge. A jury convicted defendantappellant Gary Brown of possessing a controlled substance with

intent to distribute. On appeal, the defendant challenges his

conviction on two grounds, one relating to the denial of his

pretrial motion to suppress and the other relating to the exclusion

of certain evidence at trial. He also challenges his mandatory

minimum life sentence, raising an apparent issue of first

impression as to whether, for purposes of 21 U.S.C. § 841(b)(1),

"attempt" offenses are considered "felony drug offenses" (and,

therefore, may count as predicate offenses on which to base a

recidivist sentencing enhancement). Discerning no error in the

district court's handling of these various matters, we affirm the

judgment below.

I. BACKGROUND

We rehearse here only those facts necessary to place this

appeal in perspective. 

On July 7, 2005, Kevin Cashman, a Lewiston police officer

assigned to the Maine Drug Enforcement Agency (MDEA), received a

tip about an imminent narcotics transaction. Although Cashman's

confidential informant (the CI) had been cooperating with the MDEA

for less than a week, he already had provided Cashman with

trustworthy information about sellers, transporters, and users of

drugs in the Portland area. 
-3-

The substance of the tip was as follows. The CI told

Cashman that a black male known as "Pink" traveled weekly by bus

from New York City to Maine to peddle between ten and twenty ounces

of crack and powdered cocaine. He further stated that Pink's usual

praxis was to stay in a hotel off the Maine Turnpike. The room

that he used would be rented under the name of Tanguay (David or

Peter). The CI explained that David Tanguay was currently

incarcerated and that his brother, Peter, sometimes used David's

identification. Other than skin color, the CI provided no physical

description of the putative drug peddler. 

The CI subsequently advised Cashman that "Pink" had

arrived in Portland and was staying in a hotel near the Maine

Turnpike. Cashman and another officer proceeded to the Ramada Inn,

off former Exit 8 of the Maine Turnpike, and learned that room 127

had been rented in the name of David Tanguay. Comparison of the

signatures on the registration form and the identification used in

renting the room revealed marked discrepancies.

Cashman called a police dispatcher and corroborated David

Tanguay's current status as a federal prison inmate. The officers

then obtained access to a room diagonally across from room 127 and

conducted a five-hour stake-out. While they observed a black man

go in and out of room 127, limitations on their surveillance

capabilities rendered them unable to identify the man. 
-4-

Three weeks later, the CI told Cashman that Pink was en

route to Portland on board a Vermont Transit bus from New York

City. He said that the wayfarer would arrive that afternoon and

would be picked up at the bus station by Peter Tanguay. Tanguay

would be driving an old green pick-up truck, plate number 760-409,

belonging to the CI. The CI assured Cashman that Pink would be

transporting his wonted wares. He explained that he was privy to

this information because he had spoken with Peter Tanguay when the

latter asked to borrow his truck.

In response to this lead, Cashman called in a fellow

officer, who searched both the CI and his truck to ensure the

absence of any preexisting contraband. The CI drove away and the

officers tailed the truck. They saw Peter Tanguay enter it. After

the truck made several stops, Tanguay drove away alone. The

officers continued to follow the truck until it reached the bus

terminal. 

At 3:30 p.m., the officers saw a Vermont Transit bus

arrive from New York City. They watched a black man alight

carrying two large duffel bags. The man walked to the truck,

placed the duffel bags in the cab, and climbed aboard.

By prearrangement, two Portland police cruisers converged

on the truck a short distance from the bus terminal. Officer

Robert Bickford directed the passenger to disembark, frisked him,

and asked for his name and date of birth. The passenger identified
-5-

himself as Anthony Green, gave a date of birth, and claimed to be

from Boston. He appeared older than the proffered date of birth

suggested. Moreover, he professed to have no identification and,

when asked how to spell his name, he hesitated. 

Bickford tried unsuccessfully to verify the passenger's

stated identity using the computer in his cruiser. He eventually

asked the man for his social security number, but "Green" said that

he did not remember it. When Cashman showed up, he inquired as to

the ownership of the duffel bags. Tanguay claimed ownership and

Green, in an apparent effort to substantiate that claim, stated

that the bags had been in the truck when he arrived. The

surveilling officers knew that statement to be untrue.

The officers (whom the magistrate judge credited)

asserted that throughout this exchange Green was constantly looking

around, as if looking for a way to escape. When asked a second

time for identification, he tried to peer into Bickford's notebook,

as if trying to recollect the name that he had given. 

A canine unit arrived at the scene around thirty minutes

after the stop was effected. A trained "drug dog" reacted to a

scent emanating from the cab of the truck and, later, alerted to

one of the duffel bags. The bag was found to contain 340 grams of

crack cocaine as well as numerous small bags of marijuana. A

search of the truck's glove compartment revealed additional

cocaine. Both the driver (Peter Tanguay) and the passenger were
-6-

arrested. Police subsequently identified the passenger as Gary

Brown. 

On August 25, 2005, a federal grand jury returned a onecount indictment charging the defendant with possessing 50 grams or

more of a mixture or substance containing cocaine base on July 29,

2005, with intent to distribute, in violation of 21 U.S.C. §

841(a)(1). Early in the case, the defendant moved to suppress all

the evidence acquired at the scene of the roadside stop. The

district court referred that motion to a magistrate judge. 

After conducting an evidentiary hearing, the magistrate

judge found the stop, the ensuing searches, and the defendant's

arrest justified. See United States v. Brown, Crim. No. 05-70,

2006 WL 149031, at *4-7 (D. Me. Jan. 17, 2006). In his view, the

information provided by the CI possessed sufficient indicia of

reliability to support stopping the truck, id. at *5; the defendant

lacked standing to challenge the search of either the truck or the

duffel bags, id. at *6; and the police had probable cause to effect

a warrantless arrest, id. at *7.

The defendant objected to the magistrate judge's factual

findings and legal conclusions. The district court nonetheless

adopted the report and recommendation and denied the motion to

suppress. United States v. Brown, Crim. No. 05-70 (D. Me. Feb. 14,

2006).
-7-

Following a trial, a jury found the defendant guilty. The

court sentenced him to life in prison as a career offender. This

timely appeal ensued.

II. ANALYSIS

On appeal, the defendant assigns error to the denial of

his pretrial motion to suppress, the exclusion of certain evidence

at trial, and the sentence imposed. We consider these assigned

errors sequentially.

A. Motion to Suppress.

When reviewing a district court's disposition of a motion

to suppress, we accept the court's findings of fact unless they are

clearly erroneous and subject its conclusions of law (including its

ultimate conclusions as to constitutionality) to de novo review.

Ornelas v. United States, 517 U.S. 690, 699 (1996); United States

v. Coplin, 463 F.3d 96, 100 (1st Cir. 2006). Here, the suppression

motion challenged the constitutionality of both the initial traffic

stop and the subsequent arrest. Consequently, we address those two

components separately.

1. The Stop. The Fourth Amendment protects persons from

unreasonable searches and seizures. U.S. Const. amend. IV. The

protection against unreasonable seizures extends to investigatory

stops, including vehicle stops. See Delaware v. Prouse, 440 U.S.

648, 653 (1979); United States v. Chhien, 266 F.3d 1, 5 (1st Cir.

2001). Passengers in a motor vehicle subjected to a traffic stop
-8-

are deemed seized for Fourth Amendment purposes and, thus, are

entitled to challenge the constitutionality of the stop. See

Brendlin v. California, 127 S. Ct. 2400, 2406-07 (2007).

In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court

established the baseline test for determining the constitutionality

of such detentions. Police officers may lawfully effect an

investigatory stop as long as they can "point to specific and

articulable facts which, taken together with rational inferences

from those facts, reasonably warrant" such an intrusion. Id. at 21;

see United States v. Romain, 393 F.3d 63, 71 (1st Cir. 2004).

While the reasonable suspicion standard requires more than

a visceral hunch about the presence of illegal activity, it requires

less than probable cause. Chhien, 266 F.3d at 6. By the same

token, reasonable suspicion can flourish in the absence of a direct

evidentiary link between the suspect and the suspected crime. See

United States v. Cortez, 449 U.S. 411, 417-18 (1981). 

In practice, then, the constitutional validity of a stop

must be evaluated through a broad-based consideration of all the

attendant circumstances. See Florida v. Royer, 460 U.S. 491, 500

(1983); Chhien, 266 F.3d at 6. In this process, the circumstances

underlying the stop "must be seen and weighed not in terms of

library analysis by scholars, but as understood by those versed in

the field of law enforcement." Cortez, 449 U.S. at 418.
-9-

Here, the defendant contends that the police lacked a

reasonable and articulable basis for the roadside stop because they

relied exclusively on a tip provided by an unproven informant.

Courts have paid close attention to the use of informants' tips.

Even though such tips comprise an important weapon in the

armamentarium of law enforcement, see, e.g., Illinois v. Gates, 462

U.S. 213, 237-38 (1983), their use entails a risk that police action

may be predicated on malicious or unfounded reports. Thus, if

informant information is to provide reasonable suspicion sufficient

to ground an investigatory stop, it must possess adequate indicia

of reliability. Alabama v. White, 496 U.S. 325, 332 (1990). 

The reliability inquiry — like the reasonable suspicion

inquiry itself — must be made in light of the totality of the

circumstances. Gates, 462 U.S. at 230. While "an informant's

'veracity,' 'reliability,' and 'basis of knowledge' are all highly

relevant in determining the value of [an informant's] report," these

elements "should [not] be understood as entirely separate and

independent requirements to be rigidly exacted in every case." Id.

In this instance, the CI was not a model citizen — he

sported a criminal record and unresolved state criminal charges were

looming. The defendant asserts that the police knew little or

nothing more about the CI. He adds that, although no money had been

offered or explicit promises made, the CI obviously expected a good
Reliance on information gleaned from anonymous sources 1

presents a special increment of risk, see Florida v. J.L., 529 U.S.

266, 270 (2000); White, 496 U.S. at 329, but those risks are absent

here.

-10-

reference from the officers to the local district attorney as a quid

pro quo for the tip. 

This assertion understates what the police knew and when

they knew it. For one thing, the CI was not anonymous. Since he was 1

known to the police, he could have been held accountable if his

information proved inaccurate or false. Cf. Adams v. Williams, 407

U.S. 143, 146-47 (1972) (suggesting that informant's reliability was

buttressed by the fact that he risked prosecution should he make a

false report). For another thing, at the time of the tip that

prompted the arrest, the CI had been cooperating with the

authorities for approximately one month. During that period,

Cashman had several interactions with him. Moreover, even prior to

July 7, the CI had provided trustworthy information and had

demonstrated his knowledge of the drug trade in the Portland area.

Thus, by July 29 the CI had compiled some record of reliability.

To be sure, factors like an informant's prior criminal

record and desire to advantage himself with respect to pending

criminal charges are to be considered in evaluating his reliability.

But such considerations are not dispositive. The fact of the matter

is that those who possess information about the inner workings of

the drug trade are unlikely to be persons of impeccable moral
-11-

integrity. While the source's general credibility must be

considered, all that the law requires is that, when all the

pertinent considerations are weighed, the information reasonably

appears to be reliable. See Gates, 462 U.S. at 230.

There is no point in beating a dead horse. In this case,

the character, quality, and subsequent corroboration of the tip made

it sufficiently reliable to provide a "specific and articulable"

predicate for the investigatory stop. Terry, 392 U.S. at 21. 

Central to this conclusion is the fact that the CI

provided a plethora of details about the alleged drug trafficker's

modus operandi — and a tip that describes the criminal activity in

detail is more likely to be reliable. See Spinelli v. United

States, 393 U.S. 410, 416 (1969); cf. United States v. Barnard, 299

F.3d 90, 93 (1st Cir. 2002) ("The credibility of an informant is

enhanced to the extent he has provided information that indicates

first-hand knowledge.").

To illustrate, the CI specified the type and quantity of

the drugs in transit, the transporter's method of travel, what bus

line he would patronize, and the name of one of his confederates

(Peter Tanguay). He also specified the date, time, and place of the

suspect's arrival in Portland, the identity of the person who would

meet him there, the exact vehicle that would be deployed, and the

suspect's intended destination. In short, the tip was sufficiently
-12-

laden with details to demonstrate that the CI had inside knowledge

of the events that he was describing. 

The defendant's attack on this panoply of facts is

impuissant. As framed, that attack places undue emphasis on the

CI's inability to provide a detailed physical description of the

alleged drug trafficker. Although vague or ubiquitous descriptions

may raise Fourth Amendment concerns, see, e.g., United States v.

Hudson, 405 F.3d 425, 438-39 (6th Cir. 2005), everything depends on

context. 

In this instance, we believe that the CI's description,

viewed in light of the totality of the circumstances, was

constitutionally sufficient to justify reasonable suspicion. Even

though he did not recount the precise physical characteristics of

the alleged drug trafficker, he specified the suspect's race — a

datum that the police regularly use to facilitate identification,

see 4 Wayne R. LaFave, Search and Seizure, A Treatise on the Fourth

Amendment § 9.5(g), at 555-56 n.376 (4th ed. 2004) — and he supplied

pertinent details about the suspect's whereabouts, associates,

activities, and destination. As a result, the police were not

simply looking for a black man; they were looking for a black man

getting off the afternoon bus from New York City on July 29, at the

Vermont Transit bus terminal in Portland, carrying illegal drugs,

and being met by Peter Tanguay in the CI's green pick-up truck. We

find that description constitutionally sufficient. 
-13-

The defendant's asseveration that the police failed

adequately to corroborate the tip is equally unavailing. The

record, fairly read, suggests the opposite. In terms of

corroboration, the authorities need not totally eliminate the risk

that an informant is providing erroneous information. That would be

an unrealistically heavy burden, and the law does not impose it: the

police need only act with due diligence to reduce the risk of a

mendacious or misguided informant. See United States v.

Winchenbach, 197 F.3d 548, 556 (1st Cir. 1999). 

In the case at hand, the police adequately discharged this

duty through direct surveillance and fact-checking. See United

States v. Jordan, 999 F.2d 11, 14 (1st Cir. 1993). Although they

were frustrated in their efforts to make a positive identification

in consequence of the July 7 tip, they were able to corroborate that

certain events had taken place exactly as the CI had predicted

(e.g., that a hotel room had been rented in the name of David

Tanguay and that David Tanguay was incarcerated at the time). With

respect to the July 29 tip, the police corroborated virtually every

aspect of the account given by the CI. No more was exigible. 

To continue along this line would be to paint the lily.

The district court, after an evidentiary hearing, determined that

the tip constituted reliable information justifying an investigatory

stop. On this record, that determination was neither clearly

erroneous nor contrary to law.
-14-

2. The Arrest. Having verified the constitutionality of

the investigatory stop, we turn to the constitutionality of the

ensuing arrest.

It is common ground that a warrantless arrest must be

based on probable cause. See, e.g., United States v. Watson, 423

U.S. 411, 417-18 (1976); United States v. Figueroa, 818 F.2d 1020,

1023 (1st Cir. 1987). If a warrantless arrest is effected without

probable cause for an arrest, evidence obtained as a result of the

arrest is normally inadmissible against the arrestee. See, e.g.,

Brown v. Illinois, 422 U.S. 590, 601-02 (1975); Wong Sun v. United

States, 371 U.S. 471, 484-86 (1963). Probable cause for an arrest

"exists when the arresting officer, acting upon apparently

trustworthy information, reasonably concludes that a crime has been

(or is about to be) committed and that the putative arrestee likely

is one of the perpetrators." Acosta v. Ames Dep't Stores, Inc., 386

F.3d 5, 9 (1st Cir. 2004); see Beck v. Ohio, 379 U.S. 89, 91 (1964).

The defendant endeavors to ground his challenge to the

existence of probable cause on the CI's unreliability. That

endeavor is hopeless; we already have upheld the lower court's

reliability determination and its corollary determination that the

tip created reasonable suspicion sufficient to justify the roadside

stop. See supra Part II(A)(1). The defendant's concerns about the

CI's reliability were insufficient to undermine the lower court's
Because we determine that events after the Terry stop created 2

probable cause for the arrest, we need not determine whether the

information possessed by the officers before the stop, by itself,

furnished probable cause for the arrest.

While the existence of probable cause based on a positive 3

canine sniff depends upon the dog's reliability, see United States

v. Owens, 167 F.3d 739, 749 (1st Cir. 1999), the defendant does not

question the dog's reliability on appeal.

-15-

reliability determination in that context and, for the same reasons,

those concerns cannot sully the arrest.

Of course, that is not the end of the matter. The

defendant's challenge requires us to determine whether the police,

after stopping the truck, developed probable cause for the ensuing

arrest. In making this determination, our assay is not confined to 2

the contents of the tip but extends to the events occurring after

the initiation of the stop. See United States v. Baldacchino, 762

F.2d 170, 175 (1st Cir. 1985). For the reasons limned below, we

find fully supportable the district court's determination that the

police reasonably concluded that a crime was being committed and

that, therefore, probable cause existed to effect an arrest. 

After stopping the truck, the police caught the suspect in

several lies and inconsistencies related to his name, age, and

ownership of the duffel bags. His demeanor during the stop evoked

suspicion. Then, too, a police dog alerted to the presence of

contraband inside the truck — and a reliable canine sniff outside a

vehicle can provide probable cause to search the vehicle. See 3

United States v. Lopez, 380 F.3d 538, 544 (1st Cir. 2004). An
-16-

interior vehicle sniff led the dog to single out one of the

defendant's duffel bags. That, in turn, yielded up the cache of

contraband. At that point, probable cause for the arrest was

obvious.

B. Exclusion of Evidence. 

Next, the defendant complains that the district court

improperly refused to admit testimony about his whereabouts on July

7, 2005 — the day of the first tip. That exclusion, he says,

transgressed his Sixth Amendment right to present witnesses in his

own defense.

We set the stage. At trial, the defendant sought to

introduce testimony showing that he was in New York on July 7. He

theorized that this testimony would impeach the government's

suggestion that he was "Pink."

The government objected to this testimony. It noted that

its case in chief had included no evidence of either the initial tip

or the events of July 7. Thus, evidence of the defendant's

whereabouts on July 7 was irrelevant to the charge that he possessed

drugs with intent to distribute on July 29. 

The district court refused to admit the testimony,

concluding that the danger of confusing the issues (and, thus,

misleading the jury) substantially outweighed any slight probative

value that the testimony might possess. The defendant challenges

this ruling. We discern no abuse of discretion.
-17-

The right of a defendant to offer witnesses in his defense

is a fundamental component of due process. Washington v. Texas, 388

U.S. 14, 19 (1967). It is elementary, however, that the mere

assertion of that right does not automatically and inevitably ensure

the admissibility of the proffered testimony. See Taylor v.

Illinois, 484 U.S. 400, 414-15 (1988). Competing interests are at

stake, and district courts must carefully balance an accused's right

to present evidence with considerations such as the integrity of the

adversary process, the danger of unfairly skewing the truthdetermining function that lies at the epicenter of that process, and

the efficient administration of justice. See id. Conscious of the

fact-sensitive nature of this enterprise, appellate courts are welladvised to give appreciable deference to the trier's calibration of

these scales. See, e.g., United States v. Hadfield, 918 F.2d 987,

994-95 (1st Cir. 1990). 

Here, the district court's ruling comes within the compass

of Federal Rule of Evidence 403, which provides in pertinent part

that "[a]lthough relevant, evidence may be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury." We typically

review Rule 403 determinations for abuse of discretion. See, e.g.,

United States v. Gobbi, 471 F.3d 302, 311 (1st Cir. 2006); United
Relying on United States v. Levy-Cordero, 67 F.3d 1002 (1st 4

Cir. 1995), the defendant suggests that the Rule 403 determination

in this case is subject to de novo review. This reliance is

mislaid. In Levy-Cordero, the court reviewed a district court's

exclusion of otherwise relevant alibi evidence based solely on a

discovery violation. Id. at 1011. That does not bear any real

resemblance to the situation here.

-18-

States v. Maldonado-García, 446 F.3d 227, 231 (1st Cir. 2006). We

apply that standard here. 

4

Abuse of discretion review has a special connotation in

Rule 403 cases. As we have said, "[o]nly rarely—and in

extraordinarily compelling circumstances—will we, from the vista of

a cold appellate record, reverse a district court's on-the-spot

judgment concerning the relative weighing of probative value and

unfair effect." Freeman v. Package Mach. Co., 865 F.2d 1331, 1340

(1st Cir. 1988). 

Here, the district court acted well within the scope of

its discretion in excluding the proffered testimony. Although that

testimony might have played a part in determining the CI's

reliability, that issue was litigated during the pretrial hearing on

the motion to suppress. The relevance of the testimony to the

substantially different mix of issues litigated at trial was tenuous

at best. The testimony could not have been used to impeach any

evidence adduced by the government in its case in chief: the

indictment charged only a single episode of possession with intent

to distribute, occurring on July 29, 2005. Similarly, the testimony

was not alibi evidence; for aught that appears, the witnesses had no
In a closely related vein, the defendant argues that the 5

trial court, by refusing to allow him to cross-examine Cashman

about the events of July 7, infringed his Sixth Amendment right to

confront the witnesses against him. The district court premised

this limitation on Rule 403. For the reasons articulated above, we

find that limitation to be within the court's informed discretion.

-19-

knowledge of the defendant's whereabouts on July 29. Finally, the

government's case did not depend on whether or not the defendant and

"Pink" were one and the same person. 

In sum, testimony relating to the defendant's absence from

Portland on a date more than three weeks prior to the date of the

charged crime was, at most, marginally relevant to the case that was

being tried. Given that meager probative value, we do not think it

can fairly be said that the district court abused its discretion in

weighing competing concerns and concluding that introduction of the

testimony would raise a significant risk of confusing the issues.5

C. Sentencing.

The defendant's final claim of error concerns the district

court's sentencing algorithm. Specifically, he challenges the

court's ruling that an "attempt" conviction for a state drug offense

qualifies as a "felony drug offense" within the purview of the

career offender provisions of 21 U.S.C. § 841(b)(1). This claim

raises what appears to be a question of first impression (the

parties cite no case law directly on point, and we have discovered

none). Despite this dearth of direct authority, however, the answer

is transparently clear. 
-20-

The relevant facts are not in dispute. The jury convicted

the defendant of violating 21 U.S.C. § 841(a)(1), which criminalizes

possession of certain controlled substances (including cocaine) with

intent to distribute. The statutory scheme contains specific

penalty provisions applicable to recidivist drug offenders. See id.

§ 841(b). In pertinent part, it provides that if a person is

convicted under section 841(a)(1) "after two or more prior

convictions for a felony drug offense have become final, such person

shall be sentenced to a mandatory term of life imprisonment without

release." Id. § 841(b)(1)(A).

At the disposition hearing in this case, the sentencing

court found that the defendant had convictions for two prior felony

drug offenses: a 1990 Massachusetts conviction for possession of a

controlled substance with intent to distribute, see Mass. Gen. Laws

ch. 94C, § 32A, and a 1996 New York conviction for attempted

possession of a controlled substance in the third degree, see N.Y.

Penal Law §§ 110.00, 220.16. These two predicate convictions

combined to trigger a mandatory life sentence. 

The defendant challenges the classification of the latter

conviction as a proper predicate, contending that an "attempt" crime

cannot constitute a "felony drug offense" within the meaning of

section 841(b)(1). He posits that for "possession" crimes to be

"felony drug offenses," the government must prove actual possession
-21-

by the accused — an element that is lacking in the typical attempt

offense.

This contention presents an issue of statutory

construction, which we review de novo. See United States v. Leahy,

473 F.3d 401, 405 (1st Cir. 2007). The Controlled Substances Act

(CSA), 21 U.S.C. §§ 801-971, defines the term "felony drug offense."

Id. § 802(44). This court has deemed that definition controlling

for the purpose of determining whether the enhanced penalties

provided under section 841(b)(1) are implicated. See United States

v. Roberson, 459 F.3d 39, 51 (1st Cir. 2006). Consistent with

analogous Supreme Court precedent, we eschew an examination of the

particular facts of the putative predicate crime and instead read

the term "felony drug offense" categorically. See Shepard v. United

States, 544 U.S. 13, 26 (2005); Taylor v. United States, 495 U.S.

575, 602 (1990); see also Leahy, 473 F.3d at 411.

When interpreting a statute, we begin with its text. See

Richardson v. United States, 526 U.S. 813, 818 (1999); Plumley v.

S. Container, Inc. 303 F.3d 364, 369 (1st Cir. 2002). Under the

applicable statutory definition, the term "felony drug offense"

denotes "an offense that is punishable by imprisonment for more than

one year under any law of the United States or of a State or foreign

country that prohibits or restricts conduct relating to narcotic

drugs." 21 U.S.C. § 802(44).
-22-

The defendant's "attempt" crime is unarguably an offense

punishable for more than one year under state law (indeed, the

defendant's conviction for that crime resulted in a New York state

incarcerative sentence of three to six years). Equally clear is

that New York treats attempted criminal possession of a controlled

substance in the third degree as a felony. See, e.g., City of New

York v. Wright, 618 N.Y.S.2d 938, 939 (1994). The question, then,

is whether the statute of conviction — here, the New York "attempt"

statute — prohibits or restricts conduct "relating to narcotic

drugs." As we explain below, we believe that it does.

The classification that Congress has built into the CSA

sweeps broadly. To relate means to "show or establish a logical or

causal connection between." Webster's Third New International

Dictionary 1916 (1981). An attempt to possess a controlled

substance is, by definition, connected logically and causally to

narcotic drugs.

We add, moreover, that claiming that an attempt should be

excluded from the definition of "felony drug offense" overlooks

Congress's clear mandate, for purposes of the CSA, to treat inchoate

offenses with as much gravity as the substantive offenses that

underlie them. See, e.g., 21 U.S.C. § 846 ("Any person who attempts

or conspires to commit any offense defined in this subchapter shall

be subject to the same penalties as those prescribed for the

offense, the commission of which was the object of the attempt or
-23-

conspiracy."). The defendant's proposed reading of the statutory

phrase would mean that a federal conviction for an attempt to

possess a controlled substance, itself an offense of sufficient

gravity to trigger the recidivist provisions of section

841(b)(1)(A), would nonetheless, had a duplicate of that offense

occurred earlier, be ineligible to count as a predicate offense when

it came to applying those provisions. That would confound common

sense — and we see no reason to believe that Congress intended so

quixotic a result.

The case law confirms this intuition: it staunchly

supports reading the phrase "felony drug offense" to include attempt

offenses. Courts have labored over a similar interpretative task in

the context of the Armed Career Criminal Act (ACCA), which requires

mandatory sentences for recidivist offenders with three or more

convictions for "a serious drug offense." 18 U.S.C. § 924(e). Those

courts regularly have held that attempted possession with intent to

distribute qualifies as a "serious drug offense," notwithstanding

its inchoate character. See, e.g., United States v. Winbush, 407

F.3d 703, 708 (5th Cir. 2005); United States v. Alexander, 331 F.3d

116, 131 (D.C. Cir. 2003). 

In a recent case interpreting the ACCA, we rejected a

claim similar to the one before us, finding that conspiracy to

violate a state drug law qualified as an ACCA predicate offense.

United States v. McKenney, 450 F.3d 39, 42 (1st Cir. 2006)
-24-

(concluding that Congress's use of the word "involving" in the ACCA

captures more than the actual manufacture, distribution, or

possession with intent to distribute of a controlled substance); cf.

James v. United States, 127 S. Ct. 1586, 1592 (2007) (holding that

a conviction for attempted burglary constitutes a "violent felony"

under the ACCA). The Sentencing Commission appears to be of much

the same mind. See USSG §4B1.2, cmt. (n.1) (defining "controlled

substance offense" under the career offender provisions of the

federal sentencing guidelines to include inchoate offenses, such as

attempts). 

The short of it is that the defendant's reading of section

841(b)(1) is not only contrary to the statute's plain meaning but

also threatens to frustrate Congress's express intent to punish

inchoate drug-related crimes the same as completed ones.

Consequently, we reject that reading and hold that, under section

841(b)(1), the term "felony drug offense" includes crimes (such as

attempt crimes) that do not involve outright possession of narcotic

drugs. 

III. CONCLUSION

We need go no further. For the reasons elucidated above,

we conclude that the defendant was fairly tried, justly convicted,

and lawfully sentenced.

Affirmed.