Of the Federal Circuit, sitting by designation. * 

# U nit edStates C ou rt o f App eal s

For t h e Firs t C ircu it

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, 2007-2- SELYA, Senior Circuit Judge. A jury convicted defendantappellant Gary Brown o f 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 consider e d " 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 Mai n e D r ug Enforcement Agency (MDEA), received a tip about an imminent narcotics transacti o n . 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 subst a n c e o f t he tip was as follows. The CI told Cashman that a black ma l e k nown 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 r oom that he used would be rented under the name of Tanguay (David or Peter). The C I e x plained that David Tanguay was currently incarcerated and that his b r o t her, Peter, sometimes used David's identification. Other than skin color, the CI provided no physical description of the putative drug peddler.

The C I subsequently advised Cashman that "Pink" had arrived in Portland and was staying i n a h o t el 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 t o P ortland on board a Vermont Transit bus from New York City. He said that the wayfarer would arrive t h a t 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 offic e r , w h o 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 C i t y . T hey watched a black man alight carrying t w o l a r g e 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 bu s t e r m i n al. 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 appear e d o lder 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, s t ated 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 s econd 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 t r u ck 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 b a g s o f m arijuana. A search of the truck's glove co m p artment 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 o f t h e roadside stop. The district court referred that motion to a magistrate judge.

After conducting an evidentiary hearing, the magistrate judge found the sto p , the ensuing searches, and the defendant's arrest justified. See United States v. Brown, Crim. No. 05-70, 2006 WL 1 4 9 0 3 1 , at *4-7 (D. Me. Jan. 17, 2006). In his view, the information provided by the CI po s s e ssed 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 app eal, the defendant assigns error to the denial of his pretrial motion to suppress, the exclusion of certain evidence at t r i a l , a n dt h e s e n t e n c e i mp o s e d . W e c o n s i d e r t h e s e a s s igned 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 constituti onality) to de novo review. Orne l a s v . U n i t e dS t a t e s , 5 1 7 U . S . 6 9 0 , 6 9 9 ( 1 9 9 6 ) ; U n i t e dS tates 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 s e a r c h es and seizures. U.S. Const. amend. IV. The protection ag ainst unreasonable seizures extends to investigatory stops, including vehicle stops. S e e D elaware 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 pu rposes and, thus, are entitled to challenge the const i t u t i o nality of the stop. See Brendlin v. California, 127 S. Ct. 2400, 2406-07 (2007).

In Terry v. Ohio, 392 U.S. 1 (196 8 ) , t h e Supreme Court established the baseline test for determining the constitutionality of such detentions. Police officers may lawfully effect an inv e s t i g a tory stop as long as they can "point to specific and articulable facts which, ta k e n t ogether 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 t h a n p r o bable 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 St a t e s 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 o f a l l the attend a n t c i r c u m s t a n c e s . S e e F l o r i d a v . R o y e r , 4 6 0 U . S . 4 9 1 , 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 d e f endant contends that the police lacked a reasonable and articulable basis for the roadside stop because they relied exclusively on a tip provide d by an unproven informant. Cou r t s h a ve paid close attention to the use of informants' tips. Even though such tips compri s e 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
. T h u s, if informant information is to provide reasonable suspicion sufficient to ground an investiga tory stop, it must possess adequate indicia of reliability. Alabama v. White, 496 U.S. 325, 332 (1990).

The r e liability inquiry — like the reasonable suspicion inquir y itself — must be made in light of the totality of the circumstances. Gates, 462 U.S. a t 2 3 0 . 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 " s h ould [not] be understood as entirely separate and independent requirements to be rigidly exacted in every case." Id.

I n t h i s i n s t a n c e , t h e C I w a s n o t a m o d e l c i t izen — he sported a criminal record and unresolved state criminal charges were looming. The defendant asserts that the po l i c e 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 goodReliance 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 wh a t t h e police knew and when they knew it. For one thing, the CI was not anonymous. Since he was 1 know n t o t h e p o l i c e , h e c o u l d h a v e b e e n h e l d a c c o u n t a b l e if his information proved inaccurate or false. Cf. Adams v. Williams, 407 U.S. 143, 146-47 (1972) (suggesting that informant's reliability was buttres s e dby the fact that he risked prosecution should he make a false report). F o r another thing, at the time of the tip that prompted the ar r e s t , the CI had been cooperating with the autho r i ties for approximately one month. During that period, Cashman had several interactions with him. Moreover, even prior to July 7, the CI h ad provided trustworthy information and had demonstrated his knowledge of the dru g t r ade in the Portland area. Thus, by July 29 the CI had compiled some record of reliability.

To be sur e , f a c tors like an informant's prior criminal record and desire to advantage himself with respect to p e nding 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 p o s sess information about the inner workings of the drug t r a d e are unlikely to be persons of impeccable moral-11-

integ r i t y . While the source's general credibility must be considered, all that t h e law requires is that, when all the pertinent considerations are weighed, the inf o r mation 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 su f f i c i e ntly 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 t h e CI provided a plethora of details about th e a l l eged drug trafficker's modus operandi — and a tip that describes the criminal a c t ivity in detail is more likely to be reliable
. S e e Spinelli v. United States, 393 U.S. 410, 416 (1969); cf. United States v. Barnard, 299 F.3d 90, 93 (1st Cir. 2002) ("T h e credibility of an informant is enhanced to the extent he has provided information t h a t indicates first-hand knowledge.").

T o i l l ustrate, the CI specified the type and quantity of the drugs in transit, the transport e r ' s method of travel, what bus line he would p atronize, 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 deploye d , a n dt he suspect's intended destination. In short, the tip was sufficiently-12-

laden with details to demon s t r a te that the CI had inside knowledge of the events that he was describing.

The defen d a n t ' s attack on this panoply of facts is imp u i s s ant. 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, w e believe that the CI's description,

v i e w e din light of the totality of the circumstances, was const itutionally sufficient to justify reasonable suspicion. Even though he did n o t recount the precise physical characteristics of the alleged drug trafficker, he s p e cified the suspect's race — a datum that the police regularly use to facilitate id e n tification, 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 abo u t the suspect's whereabouts, associates, activities, and destination. As a result, the po l i c e were not simply looking fo r 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 ille g a l drugs, and being met by Peter Tanguay in the CI's green pick-up truck. We find that description constitutionally sufficient.-13- The de f e ndant's asseveration that the police failed adequately to corroborate the tip is equally unavailing. The record, fairly read, suggests t he opposite. In terms of corrobora t i o n , 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 re d u ce the risk of a mendacious or misguided informant. S e e U nited States v. Winchenbach, 197 F.3d 548, 556 (1st Cir. 1999).

In the case at hand, the police adequately discharged this duty through direct s urveillance and fact-checking. See United States v. Jordan, 999 F.2d 11, 14 (1st Cir. 1993). Although t hey were frustrated in th e i r e fforts to make a positive identification in consequence of the July 7 tip, they were able to corroborate that certa i n e v e n t s h a dt a k e n p l a c e e x a c t l ya s t h e C I h a dp r e d i c t ed (e.g., that a hotel room had been rent e din 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 a l o n g this line would be to paint the lily. The district court, after an evident i a ry 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 i n v e s t i g a t o r y s t o p , w e t u r n t o t h e c o n s t i t u t i o n a l i t y o f the ensuing arrest.

It is common ground that a wa r r a n t less arrest must be based o n p r o b a ble cause. See, e.g., United States v. Watson, 423 U.S. 411, 417-18 (1976); United States v. Figueroa, 818 F . 2 d 1020, 1023 ( 1 s t Cir. 1987). If a warrantless arrest is effected without probable cause for an a r rest, evidence obtained as a result of the arrest is normall y inadmissible against the arrestee. See, e.g., Brown v. Illinois, 422 U.S. 590, 601-02 (1975); Wong S u n v. United Sta t e s , 371 U.S. 471, 484-86 (1963). Probable cause for an arrest

" e x i s t s w h e n t h e a r r e s t i n go f f i c e r , a c t i n gu p o n a p p a rently 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 endeavo r s t o ground his challenge to the existence of p r o b a ble cause on the CI's unreliability. That

e n d eavor is hopeless; we already have upheld the lower court's reliability det ermination 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 i n s ufficient to undermine the lower court'sBecause 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 c h a llenge requires us to determine whether the police, after stopping the truck, d e v e loped probable cause for the ensuing arrest. In making this determination, our assay is not confined to

2 the contents of the tip but ex t e n d s t o the events occurring after the ini t i a tion of the stop. See United States v. Baldacchino, 762 F.2d 170, 175 (1st Cir. 1985). For the reasons l i m ned below, we find fully supportable the district cou r t ' s d etermination 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 r e lated to his name, age, and ownership of the duffel bags. His demeanor during th e s top evoked suspicion. Then, too, a po l ice dog alerted to the presence of contraband inside the truck — and a reliable canine sniff outside a vehic l e c a n p rovide probable cause to search the vehicle. See 3 United States v. Lopez, 380 F.3d 538, 544 (1st Ci r . 2004). An-16-

interior vehicle sniff led the dog to sing l e o u t one of the defendant's duffel bags . That, in turn, yielded up the cache of

c o n t r aband. At that point, probable cause for the arrest was obvious. B. Exclusion of Evidence.

Next, the defendant complains tha t t h e district court improperly refused to admit testimony about his whereabouts on July 7, 2005 — the day of the first tip. That exclus i o n, he says, transgressed his Sixth Amendment righ t t o present witnesses in his own defense.

We s e t the stage. At trial, the defendant sought to introduce testimony showing that he was in New York on July 7. He theorized that this tes t i m ony 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 e v e n t s o f J u l y7 . T h u s , e v i d e n c e o f t h e d e f e n d a n t 's whereabouts on July 7 was irrelevant to the charge that he possessed drugs with intent to distribute on July 29.

The distric t c ourt refused to admit the testimony, concluding that the danger of confusing the issues (and, t h us, misleading the jury) substantially outweighed a ny slight probative value that the testimon y 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 . 1 4 , 19 (1967). It is elementary, however, that the mere assertion of that right does not automatically and inevitably ensure the admissibility of the proffered te s t i m o ny. See Taylor v. Illinois, 484 U.S. 400, 414-15 (1988). C o m p e ting 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

a d v e r s a r y p r o c e s s , t h e d a n g e r o f u n f a i r l y s k e w i n g t h e 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 Stat e s 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 Eviden c e 4 03, 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 t y p i c ally review Rule 403 determinations for abuse of discretion. See, e.g., United States v. Gobbi, 471 F.3d 302, 311 (1st Cir. 200 6 ) ; U n i t edRelying on United States v . L evy-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 c o u r t reviewed a district court's exclusion o f o therwise 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, 4 4 6 F.3d 227, 231 (1st Cir. 2006). We apply that standard here. 4

Abus e of discretion review has a special connotation in Rule 4 0 3 c a s e s . A s w e h a v e s a i d , " [ o ] n l y r a r e l y— a n din extraordinarily compelling circumstances—will we, from the vista of a cold appellate rec o r d, reverse a district court's on-the-spot judgm e n t c o ncerning the relative weighing of probative value and unfair e f f ect." Freeman v. Package Mach. Co., 865 F.2d 1331, 1340 (1st Cir. 1988).

Here, the distric t 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 o f the testimony to the substantially different mix of issues litigated at trial was tenuous at best. The test i m ony could not have been used to impeach any evidence adduced by the g o v e r nment in its case in chief: the indictment charged only a single ep i s o d e 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 noIn a close l y r e lated 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 confro n t t h e 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 w h ereabouts 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 Por t l a n d o n a d a t e m o r e t h a n t h r e e w e e k s p r i o r t o t h e d a te 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 a l gorithm. Specifically, he challenges the court's ruling that an "attempt" conviction for a state drug offense qualifies as a " f elony drug offense" within the purview of the career offender provision s o f 21 U.S.C. § 841(b)(1). This claim raises what appears to b e a question of first impression (the parties cite no case law directly on point, and w e h ave 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 statu t o ry scheme contains specific penalty provisions applicable to recidivist drug offenders. See id. § 841(b). In pertinent part, it p r ovides that if a person is convicted und e r s e c tion 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 disp o s ition hearing in this case, the sentencing court found that the defendant had convictions for two prior felony drug offenses: a 1990 M a s s achusetts conviction for possession of a controlled substance with intent to distribute, see Mass. Gen. Laws ch. 94C, § 32A, a nd a 1996 New York conviction for attempted possess i o n 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 dru g o f f ense" within the meaning of section 841(b)(1). He posits t h a t for "possession" crimes to be "felony drug offenses," the government must prove actual possession-21-

by the accused — an element t hat is lacking in the typical attempt offense. This co n t ention presents an issue of statutory construction, which we review de novo. See United States v. Leahy, 47 3 F . 3 d 4 0 1 , 4 0 5 ( 1 s t C i r . 2 0 0 7 ) . T h e C o n t r o l l e d S u b s t ances Act (CSA), 21 U.S.C. §§ 801-971, defines the term "felony drug offense." Id. § 802(44). This court has d e e med that definition controlling for the purpose of determining whe t h er 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 examina t i o n of the particular facts of the putative predicate crime and insteadr ead the term "felony drug offense" categorically. See Shepard v. United States, 544 U.S. 13, 26 (2005); Taylor v. Unite d S t a t e s , 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. 8 1 3, 818 (1999); Plumley v. S. Container, Inc. 303 F.3d 364, 3 6 9 ( 1 s t Cir. 2002). Under the ap p l i c a b l e s t a t u t o r yd e f i n i t i o n , t h e t e r m" f e l o n yd r u go f fense" 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 r e l a t ing to narcotic drugs." 21 U.S.C. § 802(44).-22- The defendant's "attempt" crime is unarguably an offense punisha b l e for more than one year under state law (indeed, the defendant's conviction for that crime resulted in a New Yor ks t ate inc a r c e rative sentence of three to six years). Equally clear is that New York treats atte m p t e dcriminal 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 questi o n , then, is whether the statute of conviction — here, the New York "attempt" statute — prohibi t s o r restricts conduct "relating to narcotic drugs." As we explain below, we believe that it does.

The classif i c a t i o n t h a t Congress has built into the CSA sweeps broadly. To relate means to "show or establish a logical or

causa l connection between." Webster's Third New International Dictionary 1916 (1981). An attempt to possess a co n t rolled substance is, by definition, connected logically and c a u s a l ly to narcotic drugs.

We add, moreover, that claiming that an attempt should be exclu d e d from the definition of "felony drug offense" overlooks Congress's clear mandate, for purposes of the CSA, to treat inchoate offenses with a s 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 prescri b e d for the offense, the commission of w h i c h w a s the object of the attempt or-23-

conspiracy."). The defendant's proposed readi n g of the statutory phrase would mean that a federa l c o nviction for an attempt to possess a controlled substance, itself an offense of sufficient gr a v i t yt o t r i g g e r t h e r e c i d i v i s t p r o v i s i o n s o f s e c t ion 841(b)(1)(A), would nonet h e l e s s , had a duplicate of that offense occurred earlier, be ineligible to count as a predicate offense when it came to applying those prov i s i o ns. That would confound common sense — and we see no reason to believe that Cong r e ss intended so quixotic a result.

The cas e l aw 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 recidiv i s t 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 " s e rious drug offense," notwithstanding its inchoate character. See, e.g., United S t a t e s 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 r e c e n t c a s e i n t e r p r e t i n g t h e A C C A , w e r e j e c ted a claim sim i l a r to the one before us, finding that conspiracy to violate a state drug law qualified as a n ACCA predicate offense. Uni t e dS t a t e s v . M c K e n n e y , 4 5 0 F . 3 d3 9 , 4 2 ( 1 s t C i r . 2 006)-24-

(concluding that Congress's use of the word "involving" in the ACCA captures more than t he actual manufacture, distribution, or possession with intent to distribute of a controlled substance); cf. James v. U n i ted States, 127 S. Ct. 1586, 1592 (2007) (holding that a conviction for attempte d b u r g lary constitutes a "violent felony" under the A C C A ) . T he Sentencing Commission appears to be of much the same mind. See USSG §4B1. 2 , c mt. (n.1) (defining "controlled substance offense" under the career offender provis i o n s o f the federal sentencing guidelines to include inchoate offenses, such as attempts). The short of it is that the defendant's reading of section 8 4 1 ( b ) ( 1 ) i s n o t o n l y c o n t r a r y t o t h e s t a t u t e ' s p l a i n m e a n i ng but also t h r eatens to frustrate Congress's express intent to punish inchoate drug-related crimes th e s a m e as completed ones. Consequently, we reject that reading and hold that, u n der 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 w a s f airly tried, justly convicted, and lawfully sentenced.

Affirmed.