PRECEDENTIAL 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

Case No. 18-2967 

UNITED STATES OF AMERICA

v. 

JULIO AVILES, SR., 

 Appellant 

On Appeal from the United States District Court 

for the Middle District of Pennsylvania 

(District Court No.: 1-15-cr-00181-001) 

District Judge: Honorable John E. Jones, III 

Argued on July 9, 2019 

(Opinion filed: September 12, 2019) 

Before: McKEE, ROTH and RENDELL, Circuit Judges 
2

Daryl F. Bloom

Stephen R. Cerutti, II (Argued)

Office of United States Attorney

228 Walnut Street

P. O. Box 11754

220 Federal Building and Courthouse

Harrisburg, PA 17108

Counsel for Appellee

Quin M. Sorenson (Argued)

Office of Federal Public Defender

100 Chestnut Street

Suite 306

Harrisburg, PA 17101

Counsel for Appellant

O P I N I O N 

RENDELL, Circuit Judge:

Appellant Julio Aviles, Sr. was charged with various 

federal drug trafficking crimes and related offenses based, in 

large part, on evidence obtained pursuant to a search warrant. 

Aviles moved to suppress evidence obtained in the search or, 

alternatively, for a hearing to challenge the validity of the 

warrant. The District Court denied his motion, and he was 
3

convicted on all counts. At sentencing, the Government sought 

a term of mandatory life imprisonment pursuant to the 

Controlled Substances Act, 21 U.S.C. § 841(b), arguing that 

Aviles’s prior state court convictions qualified as “felony drug 

offenses” under the statute. The District Court agreed and 

sentenced him accordingly. Aviles appeals the denial of his 

motion to suppress evidence obtained pursuant to the warrant

and the District Court’s order sentencing him to life 

imprisonment. We will affirm the District Court’s denial of his 

motion to suppress, but, because we hold that at least two of 

his prior convictions do not qualify as felony drug offenses, we 

will vacate the District Court’s sentencing order and remand 

for resentencing.

I.

In the course of investigating reports that Aviles was 

conducting a drug trafficking operation, the Lebanon County 

Drug Task Force applied for a search warrant to search, among 

other locations, Aviles’s residence. In the affidavit of probable 

cause in the warrant application, Detective Ryan Mong and 

Sergeant Brett Hopkins, the affiants, relied upon information 

gathered through multiple controlled buys conducted by a 

confidential information, “RCI-1.” The affidavit states that 

RCI-1 was involved in a total of eight successful controlled 

buys and describes the five that involved purchases of narcotics 

from Aviles. These descriptions included, among other things, 

the dates of the buys and, for four of the five, that RCI-1 

exchanged money for narcotics.

1

 The affidavit also describes 

 1 The application is silent on what she exchanged during the 

fifth buy. 
4

the affiants and their experience on the Lebanon County Drug 

Task Force, and offers a general explanation of the execution 

of controlled buys, which included a statement that an 

informant “is provided recorded Drug Task Force currency to 

make the purchase” during a controlled buy. 

A magistrate judge issued a warrant, and, in the 

resulting searches, law enforcement recovered large quantities 

of multiple controlled substances, drug paraphernalia, and 

firearms. Aviles and twelve co-defendants were arrested and 

charged with various drug trafficking crimes and related 

offenses. In the twenty-one-count indictment, Aviles was 

charged with conspiracy to distribute heroin, cocaine, and 

cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 

(b)(1)(A)(i), and (b)(1)(A)(iii) (Count 1); possession with 

intent to distribute heroin in violation of 21 U.S.C. §§ 841(a)(1) 

and (b)(1)(B)(i) (Count 2); possession with intent to distribute 

cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 

(b)(1)(B)(iii) (Count 3); possession with intent to distribute 

cocaine hydrochloride in violation of 21 U.S.C. §§ 841(a)(1) 

and (b)(1)(C) (Count 4); distribution of cocaine hydrochloride 

in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) (Count 5); 

distribution of cocaine base in violation of 21 U.S.C. §§

841(a)(1) and (b)(1)(C) (Count 6); distribution of heroin in 

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) (Counts 11, 

14, and 15); possessing a firearm in furtherance of a drug 

trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) 

(Count 19); unlawful possession of a firearm in violation of 18 

U.S.C. § 922(g)(1) (Count 20); and maintaining a druginvolved premises in violation of 21 U.S.C. § 856(a) (Count 

21). 
5

After pleading not-guilty, Aviles moved to suppress the 

evidence discovered through the searches authorized by the 

warrant because, he claimed, the officers who had submitted 

the affidavit included false information and omitted other 

information, each of which may have affected the magistrate 

judge’s decision to issue the warrant. Specifically, he argued 

that, while the general description of controlled buys 

represented that currency is exchanged for drugs at all

controlled buys, some of Aviles’s buys may have involved 

RCI-1’s exchanging prescription drugs instead of currency. He 

also claimed that RCI-1 had conducted additional drug-related 

transactions with Aviles outside of the controlled buys. In his 

motion, Aviles argued that he had made “a substantial 

preliminary showing” that the false information and omissions 

were made intentionally or recklessly, and the falsity and 

omissions undermined the probable cause finding, and, 

therefore, he is entitled to an evidentiary hearing pursuant to 

Franks v. Delaware, 438 U.S. 154, 155–56 (1978). 

Although the District Court determined that Aviles had

not made “a substantial preliminary showing” to warrant a 

Franks hearing, the Court conducted an evidentiary hearing to 

allow him to further develop his claim and make that showing. 

The Court allowed both parties to question Detective Mong 

and Sergeant Hopkins regarding their affidavit of probable 

cause but refused the defense’s request to question RCI-1

based on concerns regarding her identity. In supplemental 

briefing following the hearing, and based on the officers’ 

testimony, Aviles asserted that at least two of the controlled 

buys involved an exchange of personal property for the drugs,2

 2 The District Court did not allow the defense to inquire into 

the exact nature of the personal property exchanged because, 
6

that Aviles and RCI-1 had a “relationship” independent of the 

controlled buys, that RCI-1 was a heroin addict, and that she 

had failed to abide by some of the officers’ instructions during 

the controlled buys. He asked that the District Court suppress

the evidence discovered through the search pursuant to the 

warrant. 

The District Court denied Aviles’s motion to suppress, 

holding that he had failed to make the requisite threshold 

showing under Franks that the inaccuracies and omissions in 

the affidavit were made deliberately or recklessly. The Court

also dismissed Aviles’s challenges to RCI-1’s credibility, 

reasoning that the affidavit “contained sufficient information 

for the judge to evaluate the informant’s reliability.” A. 166 

n.2.

A jury convicted Aviles of all counts. Prior to 

sentencing, the Government indicated that it would seek 

mandatory life imprisonment pursuant to the Controlled 

Substances Act, 21 U.S.C. § 841(b). Under the law at the time, 

such a sentence could be imposed upon a defendant who had 

two or more previous convictions for “felony drug offenses.” 

21 U.S.C. § 841(b)(1)(A). The Government averred that 

Aviles had three qualifying predicate state convictions: (1) 

possession of a controlled dangerous substance with intent to 

distribute near a school zone in violation of N.J. Stat. § 2C:35-

7, (2) operation of a controlled substance production facility in 

violation of N.J. Stat. § 2C:35-4, and (3) possession of a 

dangerous substance with intent to distribute or manufacture in 

violation of Md. Crim. Code § 5-602. In support, the 

 

as the Government asserted, doing so may reveal RCI-1’s 

identity. 
7

Government submitted charging documents and commitment 

orders from the New Jersey convictions and a docket report 

from the Maryland conviction. 

Aviles objected to the application of Section 841(b), 

arguing that none of his prior convictions qualified as felony 

drug offenses. In order to qualify as a predicate offense, he 

claimed that the state crime must criminalize the same 

controlled substances as those named in the Controlled 

Substances Act, 21 U.S.C. § 802(44), and the state crimes of 

which he had been convicted each named at least one 

additional substance not listed in § 802(44). He also argued 

that the Maryland conviction was not his. 

The District Court overruled Aviles’s objections. The 

Court first noted that whether Aviles’s prior convictions 

qualified as felony drug offenses hinged on the approach used 

to compare them to the federal definition. Under one approach, 

the categorical approach—described in Taylor v. United 

States—a court may only look to the statutory elements of a 

defendant’s prior offenses and not to the facts underlying those 

convictions. See 495 U.S. 575, 600–01 (1990). Under the 

other, the modified categorical approach, a court is permitted 

to look at the statutory elements and record documents from 

the underlying convictions. Mathis v. United States, 136 S. Ct. 

2243, 2249 (2016). The former approach applies to indivisible 

statutes, or statutes that set forth only one crime, while the 

latter applies to divisible statutes, or statutes that include more 

than one crime. See id. at 2248–49. Citing Mathis, the District 

Court first determined that the New Jersey statutes under which 

Aviles had been convicted were divisible and, therefore, 

subject to the modified categorical approach. Because the 

indictment clearly established that Aviles’s conviction had 
8

included heroin as an element for each of his New Jersey 

convictions and because crimes involving heroin are felony 

drug offenses, the Court held that his convictions qualified as 

such for purposes of 21 U.S.C. § 841(b)(1). 

The District Court also briefly addressed Aviles’s 

Maryland conviction, overruling his objection because “a 

history report generated by the Defendant’s fingerprints is 

sufficient to prove that the prior conviction is properly 

attributed to the Defendant.” A. 618–19. However, the Court 

noted that a conclusive ruling on the nature of this conviction

was not necessary in order to impose a mandatory life sentence, 

since it concluded that he had been convicted of the requisite

two felony drug offenses. The Court held that its determination 

that Aviles’s New Jersey convictions qualify as such is 

sufficient and, accordingly, sentenced him to a term of life 

imprisonment. This appeal followed.

After the District Court entered its sentencing order but 

while Aviles’s appeal was pending, Congress amended the 

Controlled Substances Act with the First Step Act of 2018, 

Pub. L. No. 115-391, § 401. The First Step Act replaced the 

mandatory term of life imprisonment with a mandatory term of 

25 years. § 401(a)(2)(A)(ii) (amending 21 U.S.C. § 841(b)). It 

also replaced the term “felony drug conviction” with “serious 

drug felony” and limited the offenses that qualified for that 

mandatory sentence. § 401(a)(1) (amending 21 U.S.C. § 802). 

The First Step Act provides that the amendments made by it 

“shall apply to any offense that was committed before the date 

of enactment of this Act, if a sentence for the offense has not 

been imposed as of such date of enactment.” § 401(c).
9

II.

The District Court had jurisdiction pursuant to 18 

U.S.C. § 3231. We have jurisdiction under 28 U.S.C. §§ 1291 

and 3742(e).

III.

On appeal, Aviles urges that we should vacate his 

conviction because the District Court erred by denying his 

motion to suppress or, alternatively, by denying him a Franks

hearing. He also seeks resentencing, arguing that a term of life 

imprisonment should not have been imposed under either the 

First Step Act or the prior version of the Controlled Substances 

Act.

A.

In challenging his conviction, Aviles claims that the 

affidavit submitted in support of the warrant application 

contained two factual errors and omitted several important 

pieces of information. Specifically, he urges that the affidavit 

incorrectly stated that RCI-1 paid for the drugs with police 

currency at every buy and that RCI-1 exchanged cash for drugs 

on April 15. He also argues that the affidavit omitted that 

personal property was traded for drugs on March 30, that RCI1 scheduled controlled buys without police instruction, that 

RCI-1 was a heroin addict, any information with which a judge 

could assess RCI-1’s reliability, that RCI-1 had an 

“independent relationship” with Aviles, and that the personal 

property was illicit. Br. for Appellant at 17 (internal quotation 

marks omitted). Aviles urges that these errors and omissions 

were, at the very least, made recklessly and affected the 
10

magistrate judge’s probable cause determination. Thus, he 

claims that we cannot say with certainty that the warrant would 

have issued had these errors and omissions been corrected, and 

the District Court should have granted his motion to suppress, 

or, alternatively, granted him an opportunity to support his 

motion in a Franks hearing. On this basis, he asks that we 

vacate his conviction.

The Fourth Amendment provides that “no Warrants 

shall issue but upon probable cause, supported by Oath or 

affirmation.” U.S. Const. amend. IV. In Franks, the Supreme 

Court held that a defendant has a right to challenge the veracity 

of statements made in an affidavit of probable cause that 

supported the issuance of a warrant. See Franks, 438 U.S. at 

167–71. In order to obtain a hearing to do so, the defendant 

must first make “a substantial preliminary showing” that the 

affidavit contained a false statement or omission that (1) was 

made knowingly and intentionally, or with reckless disregard 

for the truth, and (2) was material to the finding of probable 

cause. Franks, 438 U.S. at 155–56; see also United States v. 

Yusuf, 461 F.3d 374, 383 (3d Cir. 2006). A motion to suppress 

is granted if, at the hearing, the defendant establishes the same 

elements by a preponderance of the evidence. See Franks, 438 

U.S. at 156. Thus, if Aviles cannot show that he is entitled to 

a Franks hearing, he necessarily cannot show that his motion 

to suppress should have been granted. Accordingly, we will 

first consider his argument that the District Court erred in 

denying him a Franks hearing.3

 3 We have not yet determined the standard of review that 

applies to a district court’s denial of a Franks hearing, see 

United States v. Pavulak, 700 F.3d 651, 665 (3d Cir. 2012), but 

because our conclusion is the same under any standard, 
11

In this case, regardless of whether the alleged omissions 

and misstatements were made knowingly or recklessly, Aviles 

has failed to substantially show that probable cause would have 

been lacking if they had not been made. The following facts, 

among others, were supported by the affidavit and would have 

been unaffected by the deletion of the misstatements and the

inclusion of the omissions:

• the affiants have extensive experience with the Lebanon 

County Drug Task Force;

• RCI-1 assisted the affiants in a total of eight policesupervised controlled buys, six of which involved the 

exchange of cash for drugs and two of which involved 

personal property;4

• the affiants conducted “a complete strip search” of RCI1 immediately before each buy, A. 60;

• the affiants witnessed RCI-1 enter the locations of the 

controlled buys without heroin and saw her reappear 

with it afterwards;

 

including plenary review, this case does not require us to adopt 

one.

4 Aviles contends that drugs were exchanged for drugs, but he 

does not provide sufficient evidence to support his claim. 

Instead, the record shows that the affiants conducted a 

thorough search of RCI-1 and her belongings before every 

controlled buy, and that the personal property exchanged at the 

controlled buys was legal and photographically documented.
12

• the affiants witnessed one of the deals, which occurred 

inside Aviles’s car; 

• the affiants conducted a search of RCI-1’s person and 

belongings after each buy;

• the affiants witnessed “short term vehicle traffic . . . 

consistent with drug trafficking” coming and going at 

Aviles’s residence, A. 59; and 

• the affiants conducted a background check on Aviles, 

which revealed multiple prior felony drug convictions.

These facts, on their own, provided probable cause to support 

the issuance of the warrant. Moreover, they are dependent 

upon police observation and, thus, would not be affected by a 

judge’s questioning of RCI-1’s credibility. Because Aviles has 

not made a substantial showing that the alleged omissions and 

misstatements would have been material to the magistrate 

judge’s probable cause determination, we conclude that the 

District Court did not err in denying his request for a Franks

hearing. Accordingly, because he failed to meet his burden to 

support a Franks hearing, he necessarily cannot show that his 

motion to suppress should have been granted. We will affirm 

the District Court’s denial of that motion.

B.

Aviles’s challenge to the District Court’s sentencing 

order is twofold: First, he urges that the First Step Act, which 

was enacted while this case was pending on appeal, applies. 

Because that legislation replaced the mandatory life sentence 

with a mandatory term of 25 years’ imprisonment and limited 
13

the predicate offenses that would qualify a defendant for a 

mandatory sentence, Aviles argues that his life sentence should 

be vacated. Even if we determine that the First Step Act does 

not apply, he argues that his prior state convictions do not 

qualify as felony drug offenses under the former version of the 

Controlled Substances Act.

1.

Aviles’s first argument, that the First Step Act applies 

to him, is based on the language provided in Section 401(c) of 

that Act: Amendments made by it “shall apply to any offense 

that was committed before the date of enactment of this Act, if 

a sentence for the offense has not been imposed as of such date 

of enactment.” Pub. L. No. 115-391, § 401(c). The crux of 

Aviles’s argument is that a sentence is not “imposed” until

entry of final judgment by the highest court authorized to 

review it. 

Although we have not yet had occasion to determine the 

applicability of the First Step Act to cases pending on appeal 

at the time of its enactment, the Seventh Circuit recently 

addressed the issue in United States v. Pierson and held that 

the defendant’s “[s]entence was ‘imposed’ here within the

meaning of [the First Step Act] when the district court 

sentenced the defendant.” 925 F.3d 913, 927–28 (7th Cir. 

2019). The court rejected reasoning from United States v. 

Clark, which suggested that “[a] case is not yet final when it is 

pending on appeal,” id. at 928 (quoting 110 F.3d 15, 17 (6th 

Cir. 1997)), because “no other circuits have applied Clark’s 

definition of ‘imposed’” and because the word more 

commonly applies to the activity of district courts. Id.; see also 

id. at 927 (citing federal statutes and rules that indicate that a 

sentence is imposed by a district court).
14

We agree. “Imposing” sentences is the business of 

district courts, while courts of appeals are tasked with 

reviewing them by either affirming or vacating them. See, e.g., 

United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (“In 

other words, if the district court’s sentence is procedurally 

sound, we will affirm it unless no reasonable sentencing court 

would have imposed the same sentence on that particular 

defendant for the reasons the district court provided.” 

(emphasis added)); Rita v. United States, 551 U.S. 338, 352 

(2007) (“A pro-Guidelines ‘presumption of reasonableness’ 

will increase the likelihood that courts of appeals will affirm 

such sentences, thereby increasing the likelihood that 

sentencing judges will impose such sentences.” (emphasis 

added)). Congress did not refer to “finality,” and imposition 

and finality are two different concepts. Congress’s use of the 

word “imposed” thus clearly excludes cases in which a 

sentencing order has been entered by a district court from the 

reach of the amendments made by the First Step Act.5

 

Accordingly, we hold that that Act does not apply to Aviles.

 5 Many of the cases to which Aviles cites in support of his 

argument discuss abatement by repeal, a common law rule 

requiring “abate[ment] of all prosecutions which had not 

reached a final disposition in the highest court authorized to 

review them” when a criminal statute is repealed or reenacted 

with different penalties. Bradley v. United States, 410 U.S. 

605, 607–08 (1973). But even that rule does not apply where 

“there is statutory direction or legislative history to the 

contrary.” United States v. Dixon, 648 F.3d 195, 199 (3d Cir. 

2011) (quoting United States v. Jacobs, 919 F.2d 10, 11 (3d 

Cir. 1990)) (internal quotation marks omitted); see also

Bradley, 410 U.S. at 608 (“To avoid such results, legislatures 

frequently indicated an intention not to abate pending 
15

2.

We next turn to Aviles’s argument that the District 

Court erred in imposing a life sentence under the prior version 

of the Controlled Substances Act. Specifically, Aviles urges

that his New Jersey and Maryland convictions do not qualify 

as felony drug offenses under that Act. Because his challenge

presents a purely legal question, we exercise plenary review

over the District Court’s sentencing order. United States v. 

Henderson, 841 F.3d 623, 626 (3d Cir. 2016).

Pursuant to 21 U.S.C. § 841(b)(1)(A), convicted 

defendants were subject to a mandatory term of life 

imprisonment if they had previously been convicted of two or 

more “felony drug offenses.” “Felony drug offense” is defined 

as:

an offense that is punishable by 

imprisonment for more than one 

year under any law of the United 

 

prosecutions by including in the repealing statute a specific 

clause stating that prosecutions of offenses under the repealed 

statute were not to be abated.”). Congress provided statutory 

direction here with its use of the word “imposed.”

 Aviles also argues that our reading of Section 401(c) 

should be “precluded by the doctrine of constitutional 

avoidance.” Br. for Appellant at 43. However, similar statutes 

have been held to not apply retroactively and have not raised 

constitutional concerns. See, e.g., Bradley, 410 U.S. at 609–11 

(holding that an amendment to a criminal statute did not apply 

retroactively to offenses committed prior to the effective date 

of the amendment, even though the defendants were sentenced 

after that date).
16

States or of a State or foreign 

country that prohibits or restricts 

conduct relating to narcotic drugs, 

marihuana, anabolic steroids, or 

depressant or stimulant 

substances.

21 U.S.C. § 802(44). Other subsections provide the controlled 

dangerous substances that fall under each substance group. 

See, e.g., § 802(17) (defining “narcotic drug”).

To determine whether a conviction qualifies as a felony 

drug offense, we typically employ the “categorical approach,” 

which requires us to “compar[e] the elements of the statute 

forming the basis of the defendant’s conviction with the 

elements of the generic crime,” i.e., the elements of a felony 

drug offense. Henderson, 841 F.3d at 627 (quoting Descamps 

v. United States, 570 U.S. 254, 257 (2013)) (internal quotation 

marks omitted). A conviction will qualify as a predicate under 

this approach “only if the statute’s elements are the same as, or 

narrower than, those of the generic offense.” Id. (quoting 

Descamps, 570 U.S. at 257) (internal quotation marks omitted) 

(emphasis in original). We do not consider the facts underlying 

a conviction when applying this approach. Id. Here, that 

would require us to compare the elements of the crimes defined 

in the New Jersey and Maryland statutes to the definition of 

“felony drug offense.” If one of the state statutes is broader, or 

covers more conduct than the federal law, then Aviles’s 

conviction under that law cannot qualify as a felony drug 

offense.

The categorical approach cannot be applied with ease, 

however, where a statute of conviction is “divisible,” or 
17

contains alternative elements, thereby making it impossible to 

determine precisely which crime was committed. Id. When 

presented with such a statute, we employ the “modified 

categorical approach,” which allows courts to “look[] 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.” Mathis v. United States, 136 S. Ct. 2243, 2249 (2016) 

(citation omitted). In this case, we would then compare the 

elements of that crime to the definition of “felony drug 

offense” to determine whether Aviles’s state conviction 

qualifies as such.

Although these two approaches appear straightforward, 

difficulty ensues when presented with a statute that contains 

alternatives that may not be elements and, instead, may be 

“various factual means of committing a single element” that “a 

jury need not find (or a defendant admit).” Id. If the listed 

alternatives are indeed elements, the modified categorical 

approach applies. If, on the other hand, the listed alternatives 

are means of committing the crime, so that we are presented 

with essentially one crime, the categorical approach applies. 

Thus, “[t]he first task for a sentencing court faced with an 

alternatively phrased statute is . . . to determine whether its 

listed items are elements or means.” Id. at 2256. In Mathis, 

the Supreme Court enumerated a three-step process for doing 

so: First, a sentencing court should look to see if a state court 

decision “definitively answers the question.” Id. Second, the 

court looks to “the statute on its face.” Id. “If statutory 

alternatives carry different punishments, then . . . they must be 

elements.” Id. On the other hand, if the list provides only 

“illustrative examples” of how the same crime might be 

committed, then they are merely means. Id. (citation and 
18

internal quotation marks omitted). If these “authoritative 

sources of state law” “fail[] to provide clear answers,” then a 

sentencing court may look to “the record of prior conviction 

itself.” Id. The Court explained that if an indictment and jury 

instructions reiterated the alternatives laid out in the law or 

used an umbrella term when charging the defendant, the 

alternatives are means. Id. at 2257. Conversely, reference to 

one of the alternatives at the exclusion of the others indicates

that the listed alternatives are elements. Id. The Court warned 

that:

such record materials will not in 

every case speak plainly, and if 

they do not, a sentencing judge 

will not be able to satisfy “Taylor’s 

demand for certainty” when 

determining whether a defendant 

was convicted of a generic offense. 

But between those documents and 

state law, that kind of 

indeterminacy should prove more 

the exception than the rule.

Id. (citation omitted).

The District Court imposed a mandatory life sentence

based on Aviles’stwo prior convictions under New Jersey state 

law. Because all three state statutes of conviction—both New 

Jersey statutes and the Maryland statute—explicitly list, or 

incorporate other provision’s lists of, covered controlled 

substances, and each criminalize conduct involving at least one 

substance not covered by Section 841’s definition of “felony 

drug offense,” we need to delve more deeply under Mathis to 

determine whether the statute is divisible. If it is divisible 
19

because the alternative drug types listed or incorporated by the 

state statutes are elements, such that different crimes are 

enumerated, we may use the modified categorical approach

and look at the relevant criminal records to determine whether 

those state offenses are predicate offenses. On the other hand, 

if those substances are merely means, such that there is only 

one crime with different ways of committing it, then the state 

statute criminalizes conduct broader than that included in the 

definition of “felony drug offense,” and Aviles’s convictions 

cannot qualify as such. We must consider whether substance 

type is an element or a means in each statute of conviction

individually.

We first address Aviles’s conviction under N.J. Stat. 

Ann § 2C:35-4 for maintaining or operating a controlled 

dangerous substance production facility. That New Jersey law 

provides:

Except as authorized by P.L.1970, 

c. 226 (C.24:21-1 et seq.), any 

person who knowingly maintains 

or operates any premises, place or 

facility used for the manufacture of 

methamphetamine, lysergic acid 

diethylamide, phencyclidine, 

gamma hydroxybutyrate, 

flunitrazepam, marijuana in an 

amount greater than five pounds 

or ten plants or any substance 

listed in Schedule I or II, or the 

analog of any such substance, or 

any person who knowingly aids, 

promotes, finances or otherwise 

participates in the maintenance or 
20

operations of such premises, place 

or facility, is guilty of a crime of 

the first degree and shall, except as 

provided in N.J.S.2C:35-12, be 

sentenced to a term of 

imprisonment which shall include 

the imposition of a minimum term 

which shall be fixed at, or between, 

one-third and one-half of the 

sentence imposed, during which 

the defendant shall be ineligible 

for parole. Notwithstanding the 

provisions of subsection a. of 

N.J.S.2C:43-3, the court may also 

impose a fine not to exceed 

$750,000.00 or five times the 

street value of all controlled 

dangerous substances, controlled 

substance analogs, gamma 

hydroxybutyrate or flunitrazepam 

at any time manufactured or stored 

at such premises, place or facility, 

whichever is greater.

N.J. Stat. Ann. § 2C:35-4 (emphasis added).

First, we look to see if a New Jersey state court decision 

“definitively answers the question.” Mathis, 136 S. Ct. at 

2256. Aviles asserts that State v. Kittrell, 678 A.2d 209, 216 

(N.J. 1996), does so by referencing the drugs listed in the 

statute as “CDS,” or controlled dangerous substances. But that 

case does not address the exact issue before us: whether the 

substances listed in or referenced by the statute are means or 
21

elements. See Mathis, 136 S. Ct. at 2256 (using an Iowa state 

court decision explicitly holding that the Iowa statute’s listed 

alternatives are means). We have neither found nor been 

alerted to any New Jersey state court decision speaking to this 

discrete issue and, thus, must turn to the other two methods 

provided by the Supreme Court in Mathis.

The next method requires us to consider the language of 

N.J. Stat. Ann. § 2C:35-4. As explained above, if different 

punishments are proscribed, then the alternatives are elements. 

Id.; see also Henderson, 841 F.3d at 630 (holding that an 

alternative list of substances provides separate elements in part 

because the statute provides different maximum sentences for 

violators). We have also recently noted that the inverse is true: 

The statutory provision of the same punishment, regardless of 

which alternative was involved in a crime, could indicate that 

the alternatives are means. See Hillocks v. Att’y Gen. United 

States, No. 17-2384, 2019 WL 3772101, at *7–8 (3d Cir. 

2019); see also Harbin v. Sessions, 860 F.3d 58, 65 (2d Cir. 

2017) (reasoning that the fact that a statute carries the same 

punishment regardless of which controlled substance is used 

shows “that each controlled substance is a mere ‘means’ of 

violating the statute, not a separate alternative element”). The 

New Jersey statute provides that any person found guilty under 

it “is guilty of a crime of the first degree,” regardless of the 

substance or substances used in the commission of a crime. See

N.J. Stat. Ann. § 2C:35-4. And N.J. Stat. Ann. § 2C:43-6(a)(1) 

provides that any person convicted of a crime in the first degree 

“may be sentenced to imprisonment . . . for a specific term of 

years which shall be fixed by the court and shall be between 10 

and 20 years . . . .” Because the punishment does not vary 

based on substance type, the statute, on its face, could be said 
22

to indicate that its alternative list of substances are merely 

means. See Hillocks, 2019 WL 3772101, at *8.

Additionally, the language of N.J. Stat. Ann. § 2C:35-4

does not indicate that a jury must agree on the particular 

substance manufactured. Much like the hypothetical statute 

described in Mathis, which allowed jurors to disagree over the 

exact weapon used as long as all agree that the defendant used 

a “deadly weapon,” 136 S. Ct. at 2249, N.J. Stat. Ann. § 2C:35-

4 appears to allow some jurors to conclude that one drug was 

being manufactured in a particular instance, while others may 

believe that the drug involved was a different one. As long as 

they could agree that a defendant maintained or operated a 

facility for the production of a controlled substance, the jury 

may determine that the defendant is guilty. See Harbin, 860 

F.3d at 65 (concluding that a similarly worded New York 

statute “does not suggest that a jury must agree on the 

particular substance sold”).

The Government supports its argument for the opposite 

conclusion by citing to the discretionary fine provided by N.J. 

Stat. Ann. § 2C:35-4, whereby the fine may “not to exceed 

$750,000.00 or five times the street value of all controlled 

dangerous substances, controlled substance analogs, gamma 

hydroxybutyrate or flunitrazepam at any time manufactured or 

stored at such premises, place or facility, whichever is greater.” 

N.J. Stat. Ann. § 2C:35-4 (emphasis added). Because the 

amount of that fine depends upon the specific drug type 

involved, the Government urges that the punishment, in fact, 

varies based on the substance or substances used, and, thus, 

drug type must be an element. Id. We disagree. We first note 

that the fine is discretionary and may not be imposed in all 

cases. Even if the fine was mandatory, however, its provision 
23

in the statute does not support the Government’s argument 

because, in imposing the fine, the sentencing court must total 

the value of all substances involved in a single conviction. 

Thus, the statute itself contemplates a single criminal 

conviction for a violation that could involve more than one 

substance. If the Government’s interpretation were correct and 

drug type was an element, a defendant would be charged with 

separate offenses based on each drug, even if they were being 

manufactured at the same place and at the same time. Because 

the discretionary fine contemplates the opposite scenario, it 

supports our conclusion that the substances listed in the statute 

are merely means by which the crime may be committed.6

Having concluded that Aviles’s conviction under N.J. 

Stat. Ann. § 2C:35-4 is not a predicate felony drug offense, 

both of his two remaining convictions must qualify as such in 

order for us to affirm the District Court’s sentencing order. 

Thus, we turn to Aviles’s conviction under Md. Crim. Code § 

5-602.7

 As noted above, the Maryland statute covers a broader 

 6 The Government argues that the New Jersey Pleading and 

Practice Form and the New Jersey Model Criminal Jury Charge 

for N.J. Stat. Ann. § 2C:35-4 may be considered in our 

analysis. But Mathis instructs us only to look at state court 

decisions and the language of the statute itself as “authoritative 

sources of state law,” 136 S. Ct. at 2256, and this Court has 

recently “rejected the significance the Government places on 

the structure of the model jury instructions.” Hillocks, 2019 

WL 3772101, at *8; see also Harbin, 860 F.3d at 67–68

(rejecting the Government’s reliance on pattern jury 

instructions).

7 Aviles’s second New Jersey conviction, under N.J. Stat. Ann. 

§ 2C:35-7, presents a thorny issue unaddressed by Mathis. The
24

set of substances than the federal definition of “felony drug 

offense.” Thus, if the list of substances incorporated by Md. 

Crim. Code § 5-602 are means, the categorical approach would 

apply, and Aviles’s conviction could not qualify as a felony 

drug offense. On the other hand, if the incorporated substances 

are elements, the modified categorical approach would apply, 

and we look to the record documents underlying that 

conviction to determine of exactly which crime, with which 

elements, Aviles was convicted. Even if the modified 

categorical approach applies, however, the record documents 

from that conviction provide no indication of the substance 

involved in Aviles’s conviction. Instead, those documents 

merely state that Aviles was charged with and found guilty of 

“Poss. of CDS W/I to Dist/Manufacture” and “Poss. of CDS.” 

A. 541. Because we would not be able to determine the exact 

crime of which Aviles was convicted, we could not rule that 

 

statute provides for two different punishments, depending on 

whether “the violation involves less than one ounce of 

marijuana.” N.J. Stat. Ann. § 2C:35-7. Thus, it is divisible, 

but only into two alternative elements, namely, violations 

involving less than one ounce of marijuana, and “all other 

cases,” which would include any other “controlled dangerous 

substance” or “controlled substance analog” (the “other 

controlled substances”). Id. Looking at the definition of the 

other controlled substances, the drug type appears to be a mere 

means of committing the latter crime. Thus, while the statute 

is technically divisible, the drug type, other than the marijuana 

exception, does not appear to be an element. Because this type 

of “hybrid” statute is not addressed by Mathis and because we 

conclude that Aviles’s Maryland conviction clearly cannot 

qualify as a federal drug offense, we decline to address whether 

his second New Jersey conviction does.
25

that conviction is a predicate felony drug offense using that 

approach.

We conclude that two of Aviles’s three prior state 

convictions, his convictions under N.J. Stat. Ann. 2C:35-4 and 

Md. Crim. Code § 5-602, cannot qualify as felony drug

offenses. Thus, he could not have been subject to a mandatory 

term of life imprisonment. See 21 U.S.C. § 841(b)(1)(A) 

(providing for a mandatory life sentence where a defendant has 

been convicted of at least two felony drug offenses). 

Accordingly, we will vacate the District Court’s sentencing 

order.8

IV.

For the foregoing reasons, we will affirm the District 

Court’s denial of Aviles’s motion to suppress, and we will

vacate the judgment of sentence and remand for the District 

Court to determine the appropriate sentence.

 8 We do not address the issue, not raised or briefed before us, 

that could arise on remand, namely, whether the First Step Act 

will apply on resentencing. See, e.g., United States v. Jackson, 

2019 WL 2524786, at *1 (N.D. Ohio June 18, 2019) appeal 

pending, No. 19-3711 (6th Cir. July 19, 2019) (holding that the 

amendments made through the First Step Act applies to a 

defendant on resentencing, even though he was originally 

sentenced before the enactment of the Act); United States v. 

Uriarte, 2019 WL 1858516, at *4 (N.D. Ill. April 25, 2019) 

(holding the same).