author: KAYATTA, Circuit Judge.

text:
    Heidi GERMANOWSKI, Plaintiff, Appellant, v. Patricia HARRIS, individually and in her capacity as Register of Deeds; Commonwealth of Massachusetts, Defendants, Appellees.
    No. 16-1306
    United States Court of Appeals, First Circuit.
    April 12, 2017

      Andrea F. Nucífero, Jr. and Nuciforo Law Group LLC, Pittsfield, MA, on brief for appellant.
    Heather A. Valentine, Assistant Attorney General, Government Bureau, and Maura Healey, Attorney General of Massachusetts, on brief for appellees.
    Before HOWARD, Chief Judge, TORRUELLA and KAYATTA, Circuit Judges.
   KAYATTA, Circuit Judge.

Heidi Germanowski challenges the district court’s order dismissing claims that her former employer violated her rights under the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. §§ 2611-2654. According to Germanowski, the facts pleaded in her complaint plausibly allege that her supervisor fired her because she sought leave protected by the FMLA. We disagree and thus affirm.

I.

Because this appeal follows a dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, we accept as true all well-pleaded facts in Germanowski’s complaint and draw all reasonable inferences in her favor. See Carrero-Ojeda v. Autoridad de Energía Eléctrica, 755 F.3d 711, 712 (1st Cir. 2014).

Germanowski worked at the Berkshire Middle District Registry of Deeds for more than a decade, ascending the ranks from Recording Clerk to First Assistant Register. For much of her tenure, Germa-nowski worked alongside Patricia Harris, a defendant in this action. They enjoyed a strong friendship in addition to a collegial working relationship. But sometime after Harris became Germanowski’s supervisor in January 2013, their relationship began to deteriorate, culminating in Germanow-ski’s termination in February 2015.

According to the complaint, the trouble started a little over a year after Harris became Register. Germanowski, then serving as First Assistant Register, began experiencing stress and anxiety accompanied by fatigue, hair loss, aches, and gastrointestinal pain.’She sought medical attention, visiting her primary care physician and other healthcare providers. She kept Harris abreast of her symptoms and physician visits.

A few months later, in June 2014, Harris allegedly began pressuring Germanowski' to support William Galvin, the Secretary of the Commonwealth of Massachusetts, in his upcoming bid for reelection. Germa-nowski twice refused Harris’s requests to make financial contributions to Secretary Galvin’s campaign committee. Around the time of Germanowski’s second refusal, Harris reassigned certain tasks from Ger-manowski to other employees and boxed her out of management meetings and decisions. Harris also redoubled her efforts to extract a financial contribution from Ger-manowski, cautioning that “it would look bad” if she declined to make a contribution and demanding that she defend her decision. Fearing that her continued employment was contingent upon making a contribution, Germanowski ultimately caved to the pressure in August 2014 and contributed.

The following month, Germanowski visited her gynecologist and complained of uncontrollable crying, weight loss, anxiety, and other symptoms of stress. The gynecologist diagnosed Germanowski with anxiety disorder. Once again, Germanowski apprised Harris that she was seeking medical care and reported her symptoms.

Weeks after the diagnosis, in October 2014, Germanowski suffered a nervous breakdown while working. Harris drove Germanowski home, notwithstanding Ger-manowski’s protests that Harris was the cause of her stress and anxiety. Germa-nowski saw her primary care physician, who prescribed medication and instructed her to contact a therapist. Over the following week, Germanowski tried to connect with Harris to discuss her absence from work and arrange coverage of her responsibilities. When they finally connected, “Harris accused Germanowski of disloyalty, and ... of inappropriately informing staff members about Germanowski’s condition.” According to the complaint, these accusations worsened Germanowski’s physical and emotional state.

Germanowski informed Harris that she had begun treatment with both a psychiatrist and a therapist. She then tried to return to work on October 20, two and a half weeks after her nervous breakdown, but Harris suggested another week of rest. They met at the conclusion of that week and agreed to Germanowski’s return to work the following day, October 28.

The next several weeks were uneventful. In early December, however, Harris asked a question of Germanowski in the presence of another employee. Germanowski alleges that the question was “intended ... to embarrass and humiliate Germanowski, and to have significant emotional and physical consequences for Germanowski,” and that it did so. Germanowski’s complaint does not reveal what the question was.

Later that month, on Christmas Day, Germanowski received a sport pistol from her husband as a gift. She told Harris, who was familiar with Germanowski’s sport shooting hobby. Approximately one month later, on January 28, 2015, Harris called Germanowski’s husband to express her discomfort with the gift and ask whether Germanowski carried it to work. Germa-nowski’s husband emphasized during then-telephone conversation that Germanowski posed no danger to herself or others and denied that his wife carried the pistol at work.

The next day, Harris accused Germa-nowski of having an affair. According to the complaint, the accusation — which lacked any factual basis — was “made to provoke a response from Germanowski” and “had its intended effect.” The complaint does not describe that effect. It does allege that, later the same day, Harris left Germanowski two voicemails directing her not to come to work the following day, Friday, January 30. When Germanowski went to the Registry building on the morning of January 30 to drop off keys to a basement storage room, a court security officer denied her access to the building. Germanowski claims that Harris told the officer and others than she posed a safety threat.

Two days later, on Sunday, February 1, Harris sent Germanowski a text message indicating that they needed to speak that day because Harris would not have time to do so on Monday or Tuesday. It is unclear from the complaint whether they connected that day or whether Germanowski reported to work the following day. But on the afternoon of Monday, February 2, Harris left word with Germanowski not to come to work on February 3.

At this point, Germanowski feared that her employment was “in jeopardy.” She sent an email to Harris on February 8 stating “that she would be out sick for the week, and that she was scheduled to see her doctor.” Two days later, on February 5, Germanowski saw her psychiatrist, who gave her a letter advising her to take a leave of absence in order to pursue treatment. Germanowski does not allege that she provided this letter to anyone at the Registry or that anyone at the Registry otherwise obtained it.

The next day, February 6, Germanowski received a voicemail message from the chief court officer. The message stated that Germanowski was terminated effective immediately. Moments later, Germa-nowski received a written termination notice from Harris via email.

Germanowski brought this lawsuit against Harris (individually and in her official capacity) and the Commonwealth of Massachusetts, alleging in a five-count complaint that the defendants violated the FMLA as well as Massachusetts statutory and common law. According to the complaint, the defendants violated Germanow-ski’s FMLA rights, discriminated against her on the basis of a covered impairment, illegally required her to participate in prohibited political activity, and wrongfully terminated her with actual malice.

In subsequent course, the district court granted a motion by the defendants to dismiss the case under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. The court dismissed on Eleventh Amendment grounds all of Germanowski’s FMLA claims against the Commonwealth as well as those FMLA claims against Harris in her official capacity seeking monetary damages. It then considered the remaining FMLA claims against Harris and dismissed them because Germanowski’s complaint failed to allege facts stating, or supporting the inference, that Harris knew or had reason to know at the time of Germanowski’s termination that Germa-nowski intended to take FMLA-protected leave. Because Harris lacked such knowledge, the district court reasoned, it was implausible that Harris acted on account of it when terminating Germanowski. Having dismissed Germanowski’s FMLA claims with prejudice, the district court declined to exercise supplemental jurisdiction over the remaining state law claims and dismissed them without prejudice. This appeal followed.

II.

A.

Germanowski appeals the portion of the district court’s order dismissing certain FMLA claims against Harris not barred by the Eleventh Amendment. She also asks this court to order reinstatement of her state law claims upon reversing the dismissal of her FMLA claims. “We review orders granting motions to dismiss under Rule 12(b)(6) de novo, applying the same criteria as the district court.” Carrero-Ojeda, 755 F.3d at 717 (emphasis omitted). In undertaking this review, we ask whether the well-pleaded factual allegations, viewed in the light most favorable to the plaintiff, state a claim for which relief can be granted. See Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 7 (1st Cir. 2011) (citing Fed. R. Civ. P. 12(b)(6)). A complaint clears this hurdle when the facts alleged, which we take as true, and the inferences they support, which we draw in the plaintiffs favor, “plausibly narrate a claim for relief.” Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012). By “plausibly,” we mean “something more than merely possible,” id. or “merely consistent with a defendant’s liability,” Ocasio-Hernández, 640 F.3d at 11 (citing Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)).

“It is not necessary to plead facts sufficient to establish a prima facie case at the pleading stage.” Rodríguez-Reyes v. Molina-Rodriguez, 711 F.3d 49, 54 (1st Cir. 2013). But this does not mean “that the elements of the prima facie case are irrelevant to a plausibility determination in a discrimination suit.... Those elements are part of the background against which a plausibility determination should be made.” IA In order to give rise to a “plausible” claim, a complaint must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. While this standard does not impose a “probability requirement,” it does require “more than a sheer possibility that a defendant has acted unlawfully.” IA Engaging in this plausibility inquiry is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679, 129 S.Ct. 1937.

B.

The FMLA, in relevant part, entitles “an eligible employee ... to a total of 12 workweeks of leave during any 12-month period ... [b]eeause of a serious health condition that makes the employee unable to perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D). The leave can be unpaid. Id. § 2612(c). “Upon an employee’s return, her employer must reinstate her to the same or an equivalent position, without any loss of accrued seniority.” Carrero-Ojeda, 755 F.3d at 718 (citing Colburn v. Parker Hannifin/Nichols Portland Div., 429 F.3d 325, 330 (1st Cir. 2005)); see also 29 U.S.C. § 2614(a)(1).

The pertinent regulations place the burden on the employee to notify the employer of the need for such leave. See 29 C.F.R. § 825.303. Where the leave is unforeseeable, “an employee must provide notice to the employer as soon as practicable under the facts and circumstances of the particular case.” Id. § 825.303(a). In providing such notice, the employee must supply “sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request.” IA § 825.303(b). What constitutes “sufficient information” depends on whether the employee has received leave for that FMLA-qualifying reason before. If she has, “the employee must specifically reference either the qualifying reason for leave or the need for FMLA leave.” IA If she has not, “the employee need not expressly assert rights under the FMLA or even mention the FMLA.” Id. In either case, however, the employee does not satisfy this burden merely by calling in sick. See id. (“Calling in ‘sick’ without providing more information will not be considered sufficient notice to trigger an employer’s obligations under the Act.”).

To protect the exercise of the substantive rights described above, the FMLA makes it “unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise” such rights. 29 U.S.C. § 2615(a)(1). Under this provision, employees may assert so-called “interference” claims alleging deprivations of their substantive rights. Colburn, 429 F.3d at 331. We also permit employees to advance claims under a “retaliation” theory based on their employers’ “use [of] the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions.-” 29 C.F.R. § 825.220(c); see also Colburn, 429 F.3d at 330-32 (identifying the basis of retaliation claims and exploring the overlap between retaliation and interference claims).

GermanowsM’s complaint might be read as seeking to assert both an interference claim and a retaliation claim. Without objection, the district court so construed it. On appeal, however, Germanowski focuses her challenge on the district court’s dismissal of her FMLA retaliation claim. This narrowing of Germanowski’s focus makes good sense because the interference claim necessarily fails if Germanowski was properly discharged. Carrero-Ojeda, 755 F.3d at 722 (“[T]he FMLA does not protect an employee from discharge for any reason while she is on leave — rather, ... it protects her only from discharge because she requests' or takes FMLA leave.”). We therefore also train our analysis of this appeal on Germanowski’s contention that the district court erred in dismissing her FMLA retaliation claim.

C.

We begin with the elements of a prima facie case of FMLA retaliation, which “are useful ‘as a prism to shed light upon the plausibility of a [plaintiffs] claim.’ ” Id. at 719 (alteration in original) (quoting Rodríguez-Reyes, 711 F.3d at 54). The prima facie case has three elements that Germanowski need establish: “(1) she availed herself of a protected FMLA right; (2) she was ‘adversely affected by an employment decision;’ and (3) ‘there was a causal connection between [her] protected conduct and the adverse employment action.’ ” Id. (alteration in original) (quoting Orta-Castro v. Merck, Sharp & Dohme Química P.R., Inc., 447 F.3d 105, 107 (1st Cir. 2006)).

Like the district court, we find that the complaint’s allegations lack a plausible theory of causation connecting Germanowski’s attempt to exercise FMLA rights and her termination. Our reasons are slightly different than the district court’s but are entirely consistent with its result. See Rocket Learning, Inc. v. Rivera-Sánchez, 715 F.3d 1, 8 (1st Cir. 2013).

The district court homed in on the February 3 email, finding that it gave no notice that Germanowski was asserting any right to unpaid leave of up to twelve weeks for a serious health condition. Rather, the cryptic email, within its four corners, bore many of the attributes of a simple “Mailing in ‘sick’ ” missive. 29 C.F.R. § 825.303(b). So construing it, the district court reasoned that Harris could not.have retaliated against Germanowski for an assertion of FMLA rights that did not plausibly appear to have been made. See Ameen v. Amphenol Printed Circuits, Inc., 777 F.3d 63, 70 (1st Cir. 2015) (“To demonstrate that he was fired in retaliation for engaging in FMLA-protected conduct, [the plaintiff] ‘must show that the retaliator knew about [his] protected activity — after all, one cannot have been motivated to retaliate by something he was unaware of.’ ” (second alteration in original) (quoting Medina-Rivera v. MVM, Inc., 713 F.3d 132, 139 (1st Cir. 2013))).

Germanowski’s email certainly could have been more clear concerning the reason for which she was missing work. See Collins v. NTN-Bower Corp., 272 F.3d 1006, 1008-09 (7th Cir. 2001) (holding that where plaintiff had previously advised supervisors of her depression, which “incapacitated her on a particular day[,] she could have made clear the ‘serious’ nature of her condition by referring to knowledge already in the employer’s possession”; by instead saying only that she was “sick,” plaintiff “not only withheld important information from the employer but likely threw it off the scent”).

We nevertheless do not settle on the lack of notice as a reason to dismiss the complaint. The allegations here depict Ger-manowski’s employer as already knowing that she was suffering from a chronic and significant health condition, symptoms of which were recently obvious to her employer. In this context, a notice that Ger-manowski would be out for the week and would be seeing her doctor might arguably be read as informing her employer that she would be absent due to a serious health condition.

We rest our decision, instead, on an alternative ground addressed and argued in the parties’ briefs on appeal. In a nutshell, no matter how one interprets the February 8 email, the allegations in the complaint fail to make it plausible that the email triggered the firing. Rather, Germa-nowski’s own allegations make it almost certain that the decision to fire her was already in the works and had nothing to do with the email.

To explain why this is so, we begin with the allegations that describe Harris’s treatment of Germanowski’s prior illness-related absences. The complaint alleges that, during the year preceding Germa-nowski’s termination, Harris consistently accommodated Germanowski when she felt unable to work. As best the complaint reveals, whenever Germanowski asked to stay out of work, Harris agreed, and there is no indication that Harris required that the absences be unpaid or even reduced Germanowski’s available FMLA leave time. As Germanowski describes it, Harris actually urged Germanowski to stay out longer during her leave of absence in October 2014. This record provides poor soil in which to plant a claim that Harris’s receipt of a notice that Germanowski would be out sick for the week precipitated Germanow-ski’s termination.

Germanowski’s principal rejoinder is to urge an inference of a causal link between the February 3 email and the firing because the firing came fast on the heels of the email. Certainly there are circumstances in which a “’[v]ery close’ temporal proximity between protected activity and an adverse employment action can satisfy a plaintiffs burden of showing causal connection.” Sánchez-Rodríguez v. AT & T Mobility P.R., Inc., 673 F.3d 1, 15 (1st Cir. 2012) (quoting Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 25 (1st Cir. 2004)). Imagine an employee with an unblemished record and steady performance who, shortly after requesting FMLA leave, is terminated by her employer without explanation. In such circumstances, temporal proximity would most likely suffice to allege a plausible claim. At the same time, the notion that temporal proximity is not always enough must also be correct. Imagine an employee shoots her boss, immediately asks for FMLA leave, and gets fired the next day. We would hope that our common sense would protect us from saying that the close proximity between the FMLA request and the termination makes retaliation plausible.

Here, there was no shooting. But the allegations relate a history of an emotionally fraught and longstanding dispute between the employer and the employee, an expressed fear by the employer that the employee may have brought. a gun to work, and a subsequent lock-out of the employee, all in a context that caused even Germanowski to suspect imminent termination, and all before she sent her email saying she would be out sick. To think that an employer in such a case fired Germa-nowski because she asked for some time off while she was already locked out is to suggest that common sense borne of real world experience has no role to play in the plausibility analysis. We think otherwise. As the district court observed, the “FMLA is not a tool an employee can use to delay or avoid a termination.” Germanowski v. Harris, No. 15-CV-30070, 2016 WL 696097, at *4 (D. Mass. Feb. 19, 2016).

Germanowski’s remaining arguments fare even worse. She contends that Harris was out to get her, intentionally aggravated her condition, and began taking away her responsibilities. But that, too, all preceded the February 3 email, and thus cuts against the causal connection Germanow-ski’s complaint need make plausible. Ger-manowski alleges that Harris accused her of disloyalty for telling other employees about her condition, but she offers no reason why such an accusation bears on the issue at hand. All in all, her arguments— even considered cumulatively — simply reinforce the plausibility of other, preexisting motives behind a termination that had been set in motion before the February 3 email.

To summarize, the only issue raised on appeal is whether the complaint plausibly alleges that Harris terminated Germanow-ski in retaliation for asserting rights protected by the FMLA. Pagán-Colón v. Walgreens of San Patricio, Inc., 697 F.3d 1, 8 (1st Cir. 2012) (“[A] crucial component of an FMLA retaliation claim is some animus or retaliatory motive on the part of the plaintiffs employer that is connected to protected conduct.”). For the foregoing reasons, we agree with the district court that it does not.

Affirmed.

      . Contrary to Germanowski’s argument on appeal, the complaint does not ”detail[] the repeated communications she had with defendants on and after February 2, 2014 regarding her leave.” It instead describes only one communication: this February 3 email.

      . Germanowski argues in her brief on appeal that Harris made "relentless barbs and negative comments concerning ... her leave taking for months before she was discharged.” That characterization lacks support in the complaint’s allegations.

      . Germanowski advances a perfunctory argument without any cited support to the effect that we should ignore these pleaded facts as merely pleading in the alternative. While we doubt this is so, we need not decide because the argument is waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[Tissues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.”).


source: Caselaw Access Project

author: BARRON, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. José A. MILLÁN-ROMÁN, Defendant, Appellant.
    No. 15-2248
    United States Court of Appeals, First Circuit.
    April 14, 2017

      Carlos M. Sánchez La Costa, San Juan, PR, for appellant.
    Francisco A. Besosa-Martinez, Assistant United States Attorney, Rosa Emilia Rodriguez-Velez, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, on brief, for appellee.
    Before TORRUELLA, THOMPSON, and BARRON, Circuit Judges.
   BARRON, Circuit Judge.

This appeal requires us to review José Millán-Román’s challenge to the 120-month prison sentence that he received after he pled guilty, pursuant to a plea agreement, to two offenses: possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c), and possession of controlled substances with intent to distribute, in violation of 18 U.S.C. § 841(b)(1)(C). We affirm.

I.

Millán entered his plea in June 2015. The plea agreement set forth detailed recommendations regarding the sentence.

As to the firearms count, the plea agreement stated that the applicable sentence under the United States Sentencing Commission Guidelines was 60 months of imprisonment — the statutory minimum sentence for that offense. See U.S.S.G. § 2K2.4(b) (noting that the guideline sentence for a conviction under 18 U.S.C. § 924(c) is the minimum term of imprisonment required by statute). Nonetheless, the plea agreement recommended an upward-variant sentence of 84 months of imprisonment. The plea agreement did not give a reason for this upward-variant sentence, but MilMn’s defense counsel acknowledged at sentencing that the parties had stipulated to a sentence higher than the statutory minimum “knowing that [the sentencing judge] was not going to give him [the statutory minimum].”

Regarding the controlled-substances count, the plea agreement stated that, under the Guidelines, Millán had a base offense level of twelve, but that he was entitled to a two-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. The plea agreement thus calculated Millán’s total offense level to be ten.

The plea agreement did not set forth a criminal history category (“CHC”) for Mil-lán. But the plea agreement stated that the recommended sentencing range under the Guidelines would be 6-12 months of imprisonment if Millán had a CHC of I and 8-14 months of imprisonment if Millán had a CHC of II.

The plea agreement then recommended a sentence of six months of imprisonment for the eontrolled-substance offense. The plea agreement also recommended that this sentence be served consecutively to the 84-month prison sentence for the firearms offense. Thus, the plea agreement recommended a total sentence of 90 months’ imprisonment.

On September 22, 2015, the District Court imposed a sentence of 114 months’ imprisonment for the firearm offense, and six months’ imprisonment for the controlled-substance offense, to be served consecutively, for a total prison sentence of 120 months. The District Court also imposed five years’ supervised release.

On appeal, Millán contends that the District Court committed a number of errors — some of which he characterizes as procedural and others as substantive — in calculating his sentence for the firearms count.

II.

We begin with the claims of error that Millán characterizes as procedural. Because Millán did not object to the District Court’s sentencing decision below, our review is for plain error. United States v. Arroyo-Maldonado, 791 F.3d 193, 197 (1st Cir. 2015). Thus, Millán must show (1) that an error occurred (2) which was clear or obvious and which not only (3) affected the defendant’s substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings. Id.

A.

Millán argues, .first, that the District Court committed procedural error by failing properly to consider mitigating factors as required by 18 U.S.C. § 3553(a). Specifically, Millán contends that the District Court failed to consider that Millán was a first-time offender, that he had no prior adult criminal history, that he was close with his family, that he was employed, and that he helped to support his three-year-old son.

The record makes clear, however, that the District Court was aware of these mitigating factors, as Millán’s defense counsel elucidated them at the sentencing hearing. The District Court also expressly noted that Millán “has no criminal record, no arrests, nothing,” and added: “He’s a young guy. The amount of drugs he had was small, if you think about it.”

The District Court did not expressly mention the particular mitigating factors Millán now identifies on appeal as ones that were overlooked. But, while district courts must consider factors listed in § 3553(a) at sentencing, United States v. Lozada-Aponte, 689 F.3d 791, 793 (1st Cir. 2012), “we do not require an express weighing of mitigating and aggravating factors or that each factor be individually mentioned.” Id. Moreover, we have held that the failure of a district court to “explicitly mention them during the sentencing hearing suggests they were unconvincing, not ignored.” Id. Thus, Millán does not meet his substantial burden of showing that the District Court plainly erred.

B.

Separately, Millán argues that the District Court committed procedural error by justifying the sentence in part by reference to the “Tómbola massacre” — a 2009 shooting in Sabana Seca, the community in which Millán resided and in which a number of people were killed — without following the procedure for “bring[ing] [a defendant’s] uncharged conduct into play.” United States v. Sklar, 920 F.2d 107, 110 (1st Cir. 1990). But the record makes clear that the District Court was not suggesting that Millán was in any way responsible for the massacre, and so Millán’s argument rests on a mistaken premise.

Moreover, we have made clear that, in considering the need for deterrence, see 18 U.S.C. § 3553(a)(2)(B), district courts may take into account not only the need for individual deterrence, but also the need for community deterrence within the defendant’s particular community. See United States v. Flores-Machicote, 706 F.3d 16, 22-23 (1st Cir. 2013) (holding that “a sentencing judge may consider community-based and geographic factors” and explaining that “the incidence of particular crimes in the relevant community appropriately informs and contextualizes the relevant need for deterrence”); Lozada-Aponte, 689 F.3d at 793 (noting that sentencing judge’s discussion of “incidence of crime in Puerto Rico” was a “permissible [sentencing] consideration”); United States v. Politano, 522 F.3d 69, 74 (1st Cir. 2008) (allowing sentencing court “to take into account all of the circumstances under which [the defendant] committed the offense, including the particular community in which the offense arose”). Thus, while we question the weight that may be given to a now seven-year-old incident, the District Court did not plainly err in referencing this incident as part of its more general explanation of the need for community deterrence, given what the District Court perceived to be the scourge of drugs and guns in Puerto Rico.

C.

Millán next contends that the District Court committed procedural error in failing to give Millán an opportunity to address the Court about the Tómbola massacre. See United States v. Berzon, 941 F.2d 8, 18-19 (1st Cir. 1991). We disagree.

The District Court first raised the Tóm-bola massacre when Millán entered his guilty plea, prior to the sentencing hearing. The District Court asked, “You know for example what happened in Sabana Seca some years ago? The La Tómbola? ... You know what happened there, how many people were killed?” Millán responded, “Yes,” and the District Court stated that the massacre-was “the consequence of firearms” like those Millán pled guilty to possessing. Millán neither objected nor sought to address the matter with the Court.

Then, at the sentencing hearing itself, the District Court gave Millán’s defense counsel another opportunity to address the Court regarding the massacre:

District Court: Isn’t it a fact, sir, that [Sabana Seca] is an area of high criminality where horrible things have occurred in the past? Including the famous case I tried a couple of years ago involving the murder of 13 people, the Alexis Candelario case?
Defense counsel: We are aware.
District Court: Isn’t that a fact?
Defense counsel: It is.

Given this record, there is no basis for concluding that Millán was not given an opportunity to address the Tómbola massacre.

III.

Finally, Millán brings a claim that he characterizes as substantive. He contends that his sentence is unreasonable because the District Court placed too much weight on the Tómbola massacre, and did so at the expense of considering the particular facts of Millán’s conviction. Though Millán characterizes this claim as a claim of substantive error, the case he relies on in making this claim treats this type of error as procedural. See United States v. Santiago-Rivera, 594 F.3d 82, 83 (1st Cir. 2010). So, too, do we. See also Flores-Machicote, 706 F.3d at 22-24 (finding no procedural error where District Court placed great .weight on violence in the community but also paid sufficient heed to the facts particular to the defendant’s case). Thus, we again apply the standard of review that we use for claims of procedural error that were not raised below—namely, plain error. See Arroyo-Maldonado, 791 F.3d at 197.

While a court may consider the incidence of crimes in the defendant’s, geographic community in order to properly weigh the need for community deterrence, “[a] sentencing judge’s resort to community-based characteristics does not relieve him or her of the obligation to ground sentencing determinations in case-specific factors.” Flores-Machicote, 706 F.3d at 24 (citation omitted). Accordingly, “[i]t is possible for a sentencing judge to focus too much on the community and too little on the individual.” Id.

The District Court here, however, committed no such error. Rather, the District Court discussed the facts of Millári’s particular conviction in detail and specifically enumerated each firearm that Millán pled guilty to possessing, stating:

The firearms were AK-47 type rifle with an obliterated serial number, loaded with 41 rounds, and one in the chamber; a Baretta pistol, nine millimeter, loaded with 11 rounds, and one in the chamber; a Baretta pistol, nine millimeter, bearing whatever serial number, loaded with 11 rounds, and one in the chamber; a Smith and Wesson pistol, caliber — .40 caliber, loaded with 12 rounds,'and one in the chamber, in furtherance of a drug trafficking crime.

The District Court then explained that the 84-month sentence recommended by the parties in the plea agreement did not “seem to correlate with this number of firearms” and the firearms! “deadly fire power.”

In addition, the District Court observed that, unless .Millán was storing the firearms for someone else, the nature of the firearms suggested that Millán “was involved in big time drug dealing and he understood that he needed all these things to protect these drugs and his business.” And the District Court noted that, according to the unchallenged pre-sentence report, Millán “voluntarily stated to the police, to the agents, that he is indeed a drug dealer.” The District Court concluded that the pre-sentence report painted a picture “not of an individual who was storing firearms for somebody else,” but “of a man who has no criminal record, who is young, who accepted beirig a drug dealer, and who had all these guns in reference to his drug trafficking crimes.”

Thus, while the District Court noted the massacre in the context of considering the need for community deterrence, it did not do so at the expense of considering the facts of Millán’s individual case. Accordingly, Millán has not shown that the District Court erred proeedurally.

Millán appears to separately assert that the length of his sentence was substantively unreasonable. The law in our circuit is unsettled as to whether we review claims of substantive error for abuse of discretion or for plain error where the defendant fails to object below. United States v. Arsenault, 833 F.3d 24, 29 (1st Cir. 2016). We need not resolve this question here, as Millán’s claim fails even, under the more favorable abuse of discretion standard.

“The essence of appellate review for substantive reasonableness is whether the sentence is the product of a plausible ... rationale and a defensible result.” United States v. Rivera-González, 776 F.3d 45, 51 (1st Cir. 2015) (citation omitted). As discussed above, the District Court articulated a plausible rationale for arriving at its sentence by weighing the relevant facts of the offense and the need for deterrence against the mitigating factors. To be sure, the sentence the District Court arrived at was higher than the statutory minimum of 60 months and the 84-month sentence jointly recommended by the parties. But the District Court was not bound by the parties’ recommended sentence. See id. And “a mandatory minimum sentence is just that: the lowest sentence that can lawfully be imposed. A sentencing court may lawfully select a higher sentence up to the statutory maximum (which in [18 U.S.C. § 924(c) ] is life imprisonment).” Id. at 51-52. Thus, to the extent that this challenge is preserved, it, too, fails, as we see no basis for concluding on this record that the sentence that resulted was unreasonably long.

IV.

For the foregoing reasons, the sentence is affirmed.


author: TORRUELLA, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Isar COLEMAN, Defendant, Appellant.
    No. 15-2302
    United States Court of Appeals, First Circuit.
    April 14, 2017

      Sarah A. Churchill, Portland, ME, and Nichols & Churchill, P.A., on brief for appellant.
    Renée M. Bunker, Assistant United States Attorney, and Thomas E. Delahanty II, United States Attorney, on brief for appellee.
    Before HOWARD, Chief Judge, TORRUELLA and LYNCH, Circuit Judges.
   TORRUELLA, Circuit Judge.

Defendant-appellant Isar Coleman (“Coleman”) pleaded guilty to conspiracy to distribute and possess with intent to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), 846. He was sentenced to a forty-six-month term of imprisonment, at the lower end of his United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) imprisonment range. Coleman now appeals, challenging the district court’s application of a two-level enhancement for possession of a dangerous weapon under the U.S.S.G. § 2Dl.l(b)(l), and the substantive reasonableness of his sentence. After careful consideration, we affirm.

I. Facts

In 2014, the Maine Drug Enforcement Agency began investigating Coleman for illegal drug trafficking. As part of the investigation, in October 2014, the agents intercepted various phone calls between Coleman and another related defendant, Christian Dent, in which Coleman ordered an “eight ball” (3.5 grams) of cocaine base from Dent for $250 and inquired about “blues” (Oxycodone).

On November 26, 2014, the agents seized .3 grams of cocaine base from a confidential source, who admitted to purchasing the illegal substance from Coleman. Later, on December 8, 2014, the agents listened to recorded calls between Coleman and the confidential source, in which they agreed to meet at Coleman’s location for the confidential source to purchase $50 to $100 of cocaine base. Later that day, agents arrived at Coleman’s location, seized drugs, drug paraphernalia, and drug-related money, and arrested Coleman, a resident, a female, and a juvenile. Coleman informed the agents that the juvenile was going to sell the drugs to the confidential source because Coleman was awaiting a resupply of cocaine base.

After Coleman’s arrest, he told the agents about a drug-trafficking scheme, and admitted, among other things, that a related defendant, Tasheem Carter (“Carter”), from whom he purchased three “eight balls” per month for $350 each “from April through November,” “traded guns for drugs.” Coleman also admitted that, while he was in an apartment with Carter, “Carter traded drugs for a black handgun and that the transaction appeared to be ‘second nature’ for Carter.” Coleman further admitted that on one occasion Carter had been in a “feud” with a related defendant, Sabree Branch, and “Carter bragged about shooting at Branch.” Finally, Coleman admitted that on one occasion, he was in an apartment with Carter waiting for Branch to deliver what he “assumed was a gun,” but Branch was arrested right in front of the apartment. This was the same apartment where Coleman was arrested and where the confidential source had bought cocaine base from Coleman.

On January 15, 2015, a grand jury returned an indictment charging Coleman with conspiracy to distribute and possess with intent to distribute cocaine base, in violation of 18 U.S.C. §§ 841(a)(1) and (b)(1)(C), 846. On June 15, 2015, Coleman pleaded guilty, pursuant to a written plea agreement.

At sentencing, the district court calculated a total offense level of twenty-three, which resulted from a base offense level of twenty-six pursuant to U.S.S.G. § 2D1.1; a two-level enhancement for possession of a dangerous weapon, pursuant to U.S.S.G. § 2Dl.l(b)(l); a two-level reduction pursuant to U.S.S.G. § 5C1.2 for meeting the requirements of the safety valve provision; and a three-level reduction pursuant to U.S.S.G. § 3El.l(a) and (b) due to Coleman’s timely acceptance of responsibility. The total offense level of twenty-three, combined with a criminal history category 1, yielded a guideline sentencing range (“GSR”) of 46-57 months of imprisonment. The district court then proceeded to consider the relevant statutory factors under 18 U.S.C. § 3553(a). Specifically, the district court stated that it had “listened carefully” to defense counsel’s statements and Coleman’s “sincere” allocution, and had read the revised Presentence Report and Coleman’s sentencing memorandum, “as well as all the other written materials.” The sentencing court also took notice of Coleman’s “very difficult childhood.” However, the sentencing court stated that these factors needed to be balanced with others, such as the seriousness of the offense, the significant quantity of drugs involved, the severe effects to other people, and the presence of a juvenile when Coleman was arrested. The district court ultimately sentenced Coleman to forty-six months of imprisonment to be followed by three years of supervised release.

On appeal, Coleman challenges both the procedural and substantive reasonableness of his sentence. He submits that thé district court proeedurally erred in calculating his GSR by applying a two-level enhancement for possession of a dangerous weapon under U.S.S.G. § 2Dl.l(b)(l), and that the district court abused its discretion by imposing a sentence at the lower end of his GSR — rather than below it — because it should have weighed some factors differently in crafting his sentence.

II. Discussion

We review “the reasonableness of a sentence ‘under a [bifurcated] deferential abuse-of-discretion standard,’ ” United States v. Battle, 637 F.3d 44, 50 (1st Cir. 2011) (quoting Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)), by which “we first determine whether the sentence imposed is procedurally reasonable and then determine whether it is substantively reasonable.” United States v. Clogston, 662 F.3d 588, 590 (1st Cir. 2011). A sentence is proeedurally reasonable if the district court committed no procedural sentencing errors, such as “failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the section 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.” United States v. Trinidad-Acosta, 773 F.3d 298, 309 (1st Cir. 2014). This assessment of the procedural reasonableness of a sentence, in turn, is done by applying a multifaceted analysis, by which “[w]e review factual findings for clear error, arguments that the sentencing court erred in interpreting or applying the guidelines de novo, and judgment calls for abuse of discretion simpliciter.” Id. (quoting United States v. Serunjogi, 767 F.3d 132, 142 (1st Cir. 2014)).

Once we determine that the district court committed no significant procedural errors, we proceed to “consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Id. At this point, “[t]he linchpin of a reasonable sentence is a plausible sentencing rationale and a defensible result.” Id. (quoting United States v. Ramos, 763 F.3d 45, 58 (1st Cir. 2014)).

A. The Procedural Reasonableness of Coleman’s Sentence

Coleman first submits that the district court erred in applying the two-level enhancement for possession of a dangerous weapon under U.S.S.G. § 2Dl.l(b)(l). Coleman argues that he pleaded guilty to a conspiracy that lasted only one day, December 8, 2014, and since no evidence linked firearms to that specific day, an enhancement under § 2Dl.l(b)(l) was improper. Since- Coleman preserved this first submission, we review the district court’s interpretation or application of the guidelines de novo, and its factual findings for clear error. United States v. Cotto-Negrón, 845 F.3d 434, 437 (1st Cir. 2017).

A two-level increase in the offense level applies “[i]f a dangerous weapon (including a firearm) was possessed,” U.S.S.G. § 2Dl.l(b)(l), “unless it is clearly improbable that the weapon was connected with the offense,” id at § 2D1.1 cmt. n.ll(A). To determine the applicability of this enhancement, the district court may consider all relevant conduct. Id. at § lB1.3(a)(l)(A)-(B). Since .the court may consider all relevant conduct, it follows that the court’s assessment is not “limited to the charged conspiracy.” See, e.g., United States v. Shippley, 690 F.3d 1192, 1200 (10th Cir. 2012) (noting that “a § 2Dl.l(b)(l) enhancement applies if a dangerous weapon was present or possessed during uncharged drug trafficking activity that constitutes relevant conduct under § 1B1.3” (citing United States v. Roederer, 11 F.3d 973, 982 (10th Cir. 1993))); see also United States v. Mitchell, 528 Fed.Appx. 800, 806 (10th Cir. 2013) (holding that the § 2D1.1(b)(1) enhancement is not “limited to the charged conspiracy”) (emphasis in original). Further, we have held that “[f]or this enhancement to attach, a defendant need not be caught red-handed: the enhancement applies not only where a defendant himself possessed a firearm but also where it was reasonably foreseeable to the defendant that firearms would be possessed by others during the conspiracy.” United States v. Burgos-Figueroa, 778 F.3d 319, 321 (1st Cir. 2015). The Government bears the initial burden of establishing the nexus between the firearm and the offense conduct. United States v. Corcimiglia, 967 F.2d 724, 728 (1st Cir. 1992). Once this nexus has been established, “[t]he burden then falls on [the] defendant to come forward with evidence demonstrating the existence of special circumstances that would render it ‘clearly improbable’ that the weapon’s presence has a connection to the [offense].” Id.

Here, even though no evidence linked firearms to December 8, 2014, it was reasonably foreseeable to Coleman, and in fact he knew, that firearms were present or possessed by others during drug trafficking activity that constitutes relevant conduct. The record reveals that Coleman admitted that, during the time that he was held accountable for the drug-trafficking conspiracy, one of his co-conspirators and drug suppliers, Carter, traded guns for drugs. Coleman also admitted that he was in an apartment with Carter when a related defendant, Branch, was scheduled to deliver what he “assumed was a gun.” Thus, Coleman’s own admissions established his knowledge that others possessed firearms during the conspiracy. Under these circumstances, the district court did not clearly err in finding that Coleman “both knew of and could reasonably foresee his co-conspirators’ possession of firearms.” United States v. Casas, 356 F.3d 104, 129 (1st Cir. 2004). The government having established the nexus between the firearm and the relevant offense conduct, Coleman failed to prove that the connection between the weapon’s presence and the offense was clearly improbable.

We thus conclude that the district court did not clearly err in applying the two-level enhancement under U.S.S.G. § 2Dl.l(b)(l), and that its sentence is procedurally reasonable.

B. The Substantive Reasonableness of Coleman’s Sentence

Because we find no procedural error, we turn to consider whether Coleman’s sentence was substantively reasonable. See United States v. Rossignol, 780 F.3d 475, 477 (1st Cir. 2015). After reviewing the record, and considering the totality of the circumstances, we conclude that his sentence is substantively reasonable.

Coleman submits that his sentence was substantively unreasonable because “[t]here are other factors that a sentencing court can consider in determining whether a variance from the Guideline range is appropriate,” such as “cooperation,” difficult upbringing, and “[t]he disparity between the treatment of cocaine base and cocaine powder.” The Government contends that Coleman failed to preserve this claim below, and that we must therefore review it under the plain error standard. But, because we conclude that Coleman’s challenge fails even under the more favorable abuse-of-diseretion standard, Gall, 552 U.S. at 46, 128 S.Ct. 586, we need not decide whether Coleman forfeited this claim below. See United States v. Arsenault, 833 F.3d 24, 29 (1st Cir. 2016) (noting that the law in our circuit is unsettled as to whether we review a substantive reasonableness challenge for abuse of discretion or for plain error where the defendant fails to object below).

Once the GSR has been properly calculated, “sentencing becomes a judgment call,” United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008), and it may be constructed “based on a complex of factors whose interplay and precise weight cannot even be precisely described.” Id. (quoting United States v. Vega-Santiago, 519 F.3d 1, 4 (1st Cir. 2008) (en banc)). Indeed, “[tjhere is no one reasonable sentence in any given case but, rather, a universe of reasonable sentencing outcomes.” Clogston, 662 F.3d at 592 (citing Martin, 520 F.3d at 92). Where, as here, a defendant is sentenced within the applicable GSR, he carries “a heavy burden.” Trinidad-Acosta, 773 F.3d at 310 (quoting United States v. Pelletier, 469 F.3d 194, 204 (1st Cir. 2006)). Coleman, however, has not carried his burden.

He concedes that the sentencing court received evidence of his “upbringing and the domestic violence he was a victim of when he was a child,” and “heard argument about the disparity in the Guideline calculations that still exist for cocaine base.” Nothing on the record suggests that the sentencing court did not consider these factors pressed by Coleman. Indeed, the record reflects that the sentencing court did take into account Coleman’s history and characteristics, including his “very difficult childhood,” and the defense counsel’s “arguments about powder versus crack.” Also, the court noted that it could “consider cooperation even if it [did] not result in a 5K1 motion from the Government.” Furthermore, the record reveals that the sentencing court also considered all of the other § 3553(a) sentencing factors. Where, as here, the district court states that it has considered all of the § 3553(a) factors, “[s]uch a statement ‘is entitled to some weight.’ ” Clogston, 662 F.3d at 592 (quoting United States v. Dávila-González, 595 F.3d 42, 49 (1st Cir. 2010)). We discern no abuse of discretion in the sentencing court’s weighing of the § 3553(a) factors.

III. Conclusion

The district court did not clearly err by applying the two-level enhancement for the possession of a dangerous weapon under U.S.S.G. § 2Dl.l(b)(l), and thus Coleman’s GSR was properly calculated. After correctly calculating the total offense level and GSR, it imposed a within-the-Guidelines sentence. Because Coleman’s sentence is both procedurally and substantively reasonable, we affirm.

Affirmed.

      . According to wiretapped calls, Carter was planning on purchasing a firearm from Branch on November 28, 2014.

      . The plea agreement contained a waiver-of-appeal provision should Coleman’s incarcera-tive sentence not exceed thirty months, but the provision is inapplicable here given the district court’s imposition of a forty-six month sentence.


author: THOMPSON, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Brian T. MULKERN, Defendant, Appellant.
    No. 16-1146
    United States Court of Appeals, First Circuit.
    April 14, 2017

      Jon A. Haddow, with whom Farrell, Ro-senblatt & Russell, Bangor, ME, was on brief, for appellant.
    Margaret D. McGaughey, Assistant United States Attorney, with whom Thomas E, Delahanty II, United States Attorney, was on brief, for appellee.
    Before TORRUELLA, THOMPSON, and KAYATTA, Circuit Judges.
   THOMPSON, Circuit Judge.

Stage Setting

Brian Mulkern pled guilty to a federal charge of possessing ammunition as a felon. See 18 U.S.C. § 922(g)(1). Normally the max prison sentence for an ammunition-possessing felon is 10 years. See 18 U.S.C. § 924(a)(2). But under the Armed Career Criminal Act (“ACCA,” for short), a felon with three or more prior convictions for “violent felon[ies]” or “serious drug offensefs]” carried out “on occasions different from one . another” must get at least 15 years. See id. § 924(e)(1). In addition to two concededly AC CA- qualifying Maine burglary convictions, Mulkern has a 2001 Maine robbery conviction and a 2004 Maine drug-trafficking conviction on his record. So when it came time for sentencing, the government argued for an ACCA enhancement. Mulkern argued against it, unsurprisingly. But siding with the government, the judge sentenced him to the statutory minimum of 15 years in jail.

Mulkern now appeals. And having reviewed the matter afresh, we now vacate his sentence and remand for resentencing. We will explain our thinking shortly — right after a quick tutorial on some ACCA-relat-ed rules.

ACCA

As just noted, ACCA requires mandatory sentences for recidivist criminals with three or more convictions for crimes — committed on different occasions — that qualify as predicate offenses. The government bears the burden of proving by a preponderance of the evidence that a defendant stands convicted of a particular crime. See United States v. Murdock, 699 F.3d 665, 672 (1st Cir. 2012). And whether that crime is an ACCA-predicate offense is ultimately a legal question subject to de novo review. See, e.g., United States v. Hudson, 823 F.3d 11, 14 (1st Cir. 2016), cert. denied, - U.S. -, 137 S.Ct. 620, 196 L.Ed.2d 530 (2017).

One type of ACCA-qualifying offense is a “violent felony,” relevantly defined as “any crime punishable by imprisonment for a term exceeding one year” that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)®. The phrase “physical force” means “force capable of causing physical pain or injury to another person.” Johnson v. United States (“Johnson I”), 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010).

The other type of ACCA-qualifying offense is a “serious drug offense,” pertinently defined as “an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance ..., for which a maximum term of imprisonment of ten years or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii). The word “involving” helps ACCA “capture[] more offenses than just those that ‘are in fact’ the manufacture, distribution, or possession of, with intent to distribute, a controlled substance” — ie., thanks to “involving,” the statute captures “ ‘offenses that are related to or connected with such conduct’ ” as well. See United States v. McKenney, 450 F.3d 39, 42, 43-44 (1st Cir. 2006) (quoting United States v. King, 325 F.3d 110, 113 (2d Cir. 2003)); see also Whindleton, 797 F.3d at 109.

Our judicial superiors have devised two ways for deciding whether a defendant’s prior conviction satisfies ACCA — the categorical approach and the modified-categorical approach. Bear with us, because explaining these approaches is no walk in the park.

Under the categorical approach, the court assumes that the state statute of conviction “ ‘rested upon [nothing] more than the least of th[e] acts’ criminalized.” See Moncrieffe v. Holder, — U.S. -, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013) (quoting Johnson I, 559 U.S. at 137, 130 S.Ct. 1265). The court then compares the state statute of conviction’s elements to ACCA’s definitions of “violent felony” or “serious drug offense.” Cf. Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 2248, 195 L.Ed.2d 604 (2016). And if there is a match, the state conviction is an ACCA predicate. See id. (citing, among other things, Taylor v. United States, 495 U.S. 575, 600-01, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)).

This comparison is difficult enough when the state statute lists “a single”— a.k.a., “‘indivisible’” — body “of elements to define a single crime.” See id. But some state statutes — a.k.a., “‘divisible’” statutes — lay out “elements in the alternative, and thereby define multiple crimes,” making the comparison of elements harder still. See id. at 2249. In that situation, courts employ the modified-categorical approach. See id. Under that method, the court looks beyond the statute of conviction to a narrow “class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy)” — known as Shepard documents — “to determine what crime, with what elements, a defendant was convicted of.” Id. (citing Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)). “The court can then compare that crime, as the categorical approach commands,” with the pertinent ACCA definitions to see if the state conviction is ACCA eligible. See id.

With these principles in place, we turn to whether Mulkern’s Maine robbery and drug-trafficking convictions trigger the ACCA bump up. FYI: As the combatants correctly agree, Mulkern’s convictions rest on divisible statutes. So we — as do the parties — apply the modified-categorical approach to this case.

Mulkern’s 2001 Robbery Conviction

The Maine Statute

At the time Mulkern pled guilty to robbery in 2001, the Maine legislature defined the crime as follows:

1. A person is guilty of robbery if he commits or attempts to commit theft and at the time of his actions:

A. He recklessly inflicts bodily injury on another;
B. He threatens to use force against any person present with the intent
(1) to prevent or overcome resistance to the taking of the property, or to the retention of the property immediately after the taking; or
(2) to compel the person in control of the property to give it up or to engage in other conduct which aids in the taking or carrying away of the property;
C. He uses physical force on another with the intent enumerated in paragraph B, subparagraphs (1) or (2);
D. He intentionally inflicts or attempts to inflict bodily injury on another; or
E. He or an accomplice to his knowledge is armed with a dangerous weapon in the course of a robbery as defined in paragraphs A through D.

Me. Stat. tit. 17-A, § 651(1). According to the statutes in effect in 2001, violations of subparts A and B constituted Class B crimes (punishable by up to 10 years in prison), while violations of subparts C, D, and E constituted Class A crimes (punishable by up to 40 years in prison). See id. §§ 651(2), 1252(A) & (B).

The Parties’ Arguments

The parties begin on common ground, agreeing that the relevant count in the 2001 Maine court indictment alleged the following:

[0]n or about July 04, 2001, in Pownal, Cumberland County, Maine, BRIAN MULKERN did attempt to commit theft by attempting to exercise unauthorized control over the property of the Short Stop store and/or [named victim], namely money, and at the time of his actions he threatened to use force against [named victim] with intent to compel her to give up the money, and he was armed with a dangerous weapon during the course of the robbery.

The indictment’s cover sheet listed section “651(1)(E)” as the charged offense, recording it as a Class A crime. Someone crossed out the “A” in “Class A crime” and replaced it with a “B,” though this alteration is not signed or dated. Someone also crossed out “and he was armed with a dangerous weapon during the course of the robbery” and section “651(1)(E)” and signed and dated the crossed-out area (the signature is illegible, and the parties do not tell who did this). Without mentioning a subpart, the judgment form has a handwritten note that listed section “651” as the offense of conviction, recording it as a Class B crime — though the state docket sheet lists section 651(1)(A) as the offense of conviction.

Now to the key points of contention between the parties:

Insisting that he ultimately pled guilty to section 651(1)(B)(2), Mulkern principally relies on Raymond v. State, a Maine case holding that “any physical force” — e.g., pulling a purse from a person’s hand — is “sufficient force to convict of robbery.” See 467 A.2d 161, 164-65 (Me. 1983) (discussing, among other things, Commonwealth v. Jones, 362 Mass. 83, 283 N.E.2d 840, 845 (1972)). In other words, a “de minimis amount of force,” Mulkern writes, suffices “to raise a crime of theft to one of robbery.” Ergo, his theory concludes, robbery under Maine law is not a “violent felony” after Johnson I because section 651(1)(B)(2) does not require the use of force “capable of causing physical pain or injury to another.” See 559 U.S. at 140, 130 S.Ct. 1265. Raymond dealt with robbery under section 651(1)(C), not section 651(1)(B). See 467 A.2d at 162-63. But Mulkern’s argument appears to be that robbery under section 651(1)(B) — which requires a threat to use “force” — must mean a threat to use the same amount of force required for section 651(1)(C).

Hold on, says the government: Mulkern actually pled guilty to section 651(1)(C)~— indeed, the government at oral argument adamantly opposed the notion that he had pled guilty to anything else. And as the government sees it, because section 651(1)(C) requires the “use[ ]” of “physical force” (a quote lifted from the statute), a violation of that provision “amounts to an ACCA felony” (a quote lifted from its brief). The government then talks up Jones, a Massachusetts case mentioned in Raymond. Jones noted that under the commonwealth’s “statutes, as at common law, in order to sustain a charge of robbery, there must be proof of a larceny (1) ‘from ... (the) person,’ and (2) ‘by force and violence, or by assault and putting in fear.’ ” 283 N.E.2d at 843 (alteration in original) (footnote omitted) (quoting Mass. Gen. Laws ch. 277, § 39). Looking to parry Mulkern’s purse-snatching/de-minimis-force argument, the government again quotes the Massachusetts high court in Jones:

Snatching necessarily involves the exercise of some actual force.... [W]e hold that, where, as here, the actual force used is sufficient to produce awareness, although the action may be so swift as to leave the victim momentarily in a dazed condition, the requisite degree of force is present to make the crime robbery.

Id. at 845. And, says the government, because robbery “requires” actual force, “robbery in violation of Maine law has as an element force and violence sufficient for purposes of Johnson I.”

Our Take

We need not resolve the parties’ dispute over which subpart of the robbery statute Mulkern pled guilty to violating — section 651(1)(B)(2) or section 651(1)(C). And we take this tack because, even assuming — as the government urges — that he pled guilty to infracting section 651(1)(C), we believe his robbery conviction cannot be an ACCA predicate. Our reasoning is simple.

Section 651(1)(C), to repeat, criminalizes the “ ‘use[ ]’ ” of “ ‘physical force on another’ with the intent either to prevent or overcome resistance to the taking of the property or to compel the person in control of the property to give it up.” Raymond, 467 A.2d at 162 (quoting Me. Stat. tit. 18-A, § 651(1)(C)); see generally Johnson I, 559 U.S. at 138, 130 S.Ct. 1265 (stressing that, in deciding whether a state conviction is a “violent felony” under ACCA, federal courts are “bound by the [state] Supreme Court’s interpretation of state law, including its determination of the elements of’ the statute of conviction). Maine’s highest court recognizes that “any physical force” suffices to satisfy the “physical force” element in section 651(1)(C). See Raymond, 467 A.2d at 165. So, for example, “the mere act of snatching a purse from the hand of a victim” is thus “a sufficient act of physical force required for robbery,” even if the robber never made “direct bodily contact” with the victim. Id. at 164, 165; see also State v. Rembert, 658 A.2d 656, 657 (Me. 1995).

Now we must compare section 651(l)(C).’s elements to the definition of “violent felony” in ACCA’s force clause, keeping in mind that for a crime to be an ACCA “violent felony,” it must involve “physical force,” which “means violent-force — that is, force capable of causing physical pain or injury to another person.” See Johnson I, 559 U.S. at 140, 130 S.Ct. 1265. True, as the government notes, section 651(1)(C) talks about “physical force.” But again — and we apologize for the repetition — in defining that element, Maine’s top court proclaimed that “any physical force” with the required intent is enough “to raise” the “offense to the level of robbery.” See Raymond, 467 A.2d at 165. The word “any” is a powerful beacon to us here, making clear that the crime does not require a showing of force “capable of causing physical pain or injury” — something short of that will do. Given Raymond, Mulkern’s robbery conviction is not a “violent felony” for ACCA purposes.

And the government’s argument about Massachusetts law does not alter this conclusion. Whatever the exact state of Massachusetts law may be — and we express no opinion here on that matter (zero, none, zip) — Raymond, as we said, is the beacon by which we steer our course. And Raymond, as we have been at pains to explain, flat-out held that “any physical force” with the specified intent elevates the crime to robbery, see 467 A.2d at 164 — a holding that compels us to hold that Mulkern’s robbery conviction cannot be an ACCA predicate.

The net result is that Mulkern’s 2001 conviction cannot provide the third predicate offense necessary to uphold his ACCA sentence. So now we must see if his 2004 drug-trafficking conviction can — a task we turn to in the next part of this opinion.

Mulkern’s 2004 Drug-Trafficking Conviction

The Maine Statute

Everyone agrees that Shepard documents show Mulkern pled guilty in Maine state court to trafficking in “2 grams or more of heroin” in 2004. Under the version of the statute to which he pled guilty— titled “Unlawful trafficking in scheduled drugs” — “a person is guilty of unlawful trafficking in a scheduled drug if the person intentionally or knowingly trafficks in what the person knows or believes to be a scheduled drug, which is in fact a scheduled drug.” See Me. Stat. tit. 17-A, § llOB(l-A) (emphases added). The statute defines “traffick” this way:

A. To make, create, manufacture;
B. To grow or cultivate, except for marijuana;
C. To sell, barter, trade, exchange or otherwise furnish for consideration;
D. To possess with the intent to do any act mentioned in paragraph C; or
E. To possess 2 grams or more of heroin or 90 or more individual bags, folds, packages, envelopes or containers of any kind containing heroin.

Id. § 1101(17). If the drug trafficked is a “schedule W drug” — which heroin, then statutorily defined as “any compound, mixture!,] or preparation containing heroin,” unquestionably is — then a violation of this statute is a “Class B crime.” See id. §§ 1103(1-A)(A), 1102(1)(I). And a Class B crime carries a max penalty of 10 years in jail. See id. § 1252(2)(B).

The Parties’ Arguments

Mulkern’s argument for why this conviction is not a countable ACCA predicate is straightforward enough. As he sees things, he did not plead guilty to a “serious drug crime” — defined for our purposes (remember) as “involving” possession of a controlled substance “with intent to manufacture or distribute.” And he quickly adds that the pertinent trafficking statute— dealing with the 2 grams or more of heroin — criminalizes possession with no intent to manufacture or distribute. All that is required, he says, is that the possessor possessed the requisite amount of heroin— and nothing in the Shepard documents, he writes, shows he pled guilty to intending to manufacture or distribute heroin either.

Stressing that we must interpret “involving” expansively, see Whindleton, 797 F.3d at 109, the government counters that the statute of conviction need not match up word for word with ACCA’s definitions to qualify as a “serious drug offense.” So, the government writes, it is of no moment that the state statute here “does not require proof of intent to distribute” — what matters is whether the pled-to offense “in-volvfes]” (in ACCA lingo) “possession] with intent to ... distribute.”

Building on this foundation, the government then argues that we must conclude that Mulkern’s trafficking conviction “in-volv[ed]” an intent to distribute. It offers two reasons why. The first reason turns on the “trafficking” name Maine’s legislature used for the at-issue statute: “trafficking” is synonymous with distribution, the government suggests, so from the legislature’s “trafficking” label we can infer that Mul-kern’s crime here “involv[es]” the required distributive intent. The second reason turns on the statute’s saying that 2 or more grams of heroin can support a drug-trafficking conviction: relying chiefly on Eleventh Circuit case law, the government implies that this drug amount justifies the inference that Mulkern possessed the heroin with intent to distribute, rather than for his personal use. See United States v. James, 430 F.3d 1150, 1155, 1156 (11th Cir. 2005) (inferring intent to distribute from the defendant’s copping “to trafficking in cocaine by possess[ing] ... between 200 and 400 grams of the drug”), overruled on other grounds by Johnson II, 135 S.Ct. 2551.

Not about to go down without a fight, Mulkern argues that reading “involving” broadly helps the government not a whit because “it would stretch” that word “beyond its breaking point” to hold that “a state conviction for trafficking by possession alone” — ie., possession without intent to distribute — is a conviction “involving” possession with intent to distribute. And he highlights Fourth Circuit caselaw to support the idea that one cannot infer that he had the requisite intent either from Maine’s designating the pled-to crime as “trafficking” or from the small amount of heroin in play. See United States v. Brandon, 247 F.3d 186, 196-97 (4th Cir. 2001) (emphasizing that, per Taylor, an ACCA enhancement “applies] to those who have engaged in certain specific conduct, regardless of the label attached to that conduct by state law,” and concluding that “because we cannot say that intent to manufacture or distribute is inherent” in the class of conduct banned “by the statute and alleged in the indictment at issue in this case (possession of between twenty-eight and two hundred grams of cocaine),” the defendant’s state drug-trafficking conviction was not an ACCA “serious drug offense”).

Our Take

As we said many pages ago, ACCA pertinently defines “violent felony” as a felony that “has as an element the use, attempted use, or threatened use of physical force.” See 18 U.S.C. § 924(e)(2)(B)® (emphases added). Contrastingly, ACCA relevantly defines “serious drug offense” as crimes “involving ... possession] with intent to ... distribute.” Id. § 924(e)(2)(A)(ii) (emphases added). The word “ ‘involv[es],’ ” we have held, “mean[s] something other than” — indeed, something “broader than” — “ ‘has as an element.’ ” McKenney, 450 F.3d at 43 (emphasizing that, among other things, “[t]o ‘involve’ ... means ‘to relate closely,’ ... or to ‘connect closely’ ” (citations omitted)). And because of the drafter’s use of “involv[e]” rather than “el-ementes],” a crime that does not have possession -with intent to distribute as a formal element can qualify as a “serious drug offense” if it involves possession with intent to distribute. See id. (discussing Brandon, 247 F.3d at 190).

The question then is whether the government met its burden of satisfying this “serious drug offense” definition. The government says it has, arguing (as we noted above) that we can infer that the crime here “involv[es]” distributive intent both from the statute’s calling the offense “trafficking” and from Mulkern’s possessing 2 or more grams of heroin. But like Mul-kern, we think neither argument does the trick.

Take the government’s first claim (which it really stressed at oral argument) — that one can infer Mulkern’s pled-to drug crime “involv[es]” possession with intent to distribute from the simple fact that the Maine legislature designates the copped-to crime as “trafficking,” a descriptor, the theory continues, that denotes buying and selling. What devastates this argument is that the Supreme Court has already rejected a similar contention: as Taylor explains, the meaning of ACCA’s terms do not “depend on the definition adopted by the State of conviction,” because to hold otherwise would mean (for instance) that persons “convicted of unlawful possession of a firearm” might or might not get ACCA enhancements “depending on [how] the State of [the] prior conviction” labeled the crime — a result that would clash with Congress’s desire to avoid inconsistencies in punishment. See 495 U.S. at 590-91, 110 S.Ct. 2143; see also Brandon, 247 F.3d at 196 (reading Taylor essentially the same way).

And the government does no better with its second argument — that one can infer Mulkern’s pled-to drug crime “involv[es]” possession with intent to distribute from his possessing 2 grams or more of heroin. We have never “held that a conviction for trafficking based on the possession of a certain quantity of drugs” is an ACCA “serious drug offense.” United States v. White, 837 F.3d 1225, 1233-34 (11th Cir. 2016) (noting the absence of First Circuit precedent on this issue). But even assuming without deciding “that a statute classifying possession of a certain quantity of drugs [is] sufficient to indicate an intent to distribute,” see id. at 1234, we think the government’s argument still falls short. Here is why.

Drug distribution poses “a greater threat to society” than mere drug use— “though both constitute great dangers,” and it is perfectly sensible “to assume” that persons possessing “very large” drug quantities “intend to distribute” them. Brandon, 247 F.3d at 192. That “very reasonable assumption” is probably why lots of states have trafficking laws “severely punish[ing] possession of large quantities of drugs without making” distributive intent “an element of the crime.” Id. The difficult question is what is the right amount of drugs a person must possess “before this presumption of an intent to distribute is appropriate” — that this is so is “evidenced by the widely varying quantities that states have established as the threshold for a trafficking-by-possession conviction.” Id. (noting, for example, that “possession of five grams of cocáine is considered trafficking in Delaware,” while “possession of more than one hundred and fifty grams” is considered “trafficking in Missouri”). Obviously, “society’s comfort level in equating possession to possession-with-intent increases as the quantity of drugs possessed increases, and it decreases as the quantity ... decreases” — though also obviously, “some defendants possess very small quantities of drugs for the sole purpose of distributing them and ... some defendants possess significant quantities” simply “for personal use.” Id. So while the amount “of drugs possessed can serve as an indicator of the purposes for which the drugs were possessed, at certain levels it is a rough and imprecise indicator at best.” Id.

Moving from the general to the specific, even assuming arguendo that the government is correct about inferring distributive intent from drug-quantity levels, we think that the crime for which Mulkern stands convicted would not come close to raising this inference. Consider James, a case the government relies on. There, a sibling circuit concluded that a statute of conviction classifying possession of between 200 and 400 grams of cocaine as trafficking gave rise to an inference of distributive intent. See 430 F.3d at 1152-56. But Mulkern’s case is worlds apart from James. Here, unlike there, the quantity at the lower end of the statute of conviction — 2 grams of heroin — is “not so large that the only reasonable inference is that one who possesses that amount must intend to distribute it.” See Brandon, 247 F.3d at 192 (emphasis added). Actually, Mulkern could have been convicted for possessing less than 2 grams. And that is because the statute — as it stood at time of his 2004 trafficking conviction — “define[d] the crime as prohibiting trafficking in two grams or more of any mixture containing heroin.” See State v. Pinkham, 137 A.3d 203, 208 (Me. 2016) (emphasis added). So — still assuming without granting that the government’s right about deducing distributive intent from drug-quantity amounts — given the range of drug quantities covered by this law, we simply cannot rule “that the typical conduct reached by that statute inherently involves an intent to ... distribute.” See Brandon, 247 F.3d at 193. And we are doubly persuaded that this is right since— despite having the burden of proving what he stands convicted of — the government offers no authority or persuasive argument suggesting that the 2-gram threshold justifies an inference of intent to distribute.

The bottom line is that Mulkern’s drug-trafficking conviction does not qualify as an ACCA-predicate “serious drug offense.” And that is that.

Wrap Up

Because neither the 2001 robbery conviction nor the 2004 trafficking conviction qualifies as an ACCA predicate, we vacate Mulkern’s sentence and remand for resen-tencing without the ACCA enhancement.

      . See United States v. Whindleton, 797 F.3d 105, 108 (1st Cir. 2015), cert. dismissed, - U.S. -, 137 S.Ct. 23, 195 L.Ed.2d 896 (2016), and cert. denied, - U.S. -, 137 S.Ct. 179, 196 L.Ed.2d 147 (2016).

      . The preponderance standard, of course, "is a more-likely-lhan-not rule.” See, e.g., United States v. Vixamar, 679 F.3d 22, 29 (1st Cir. 2012).

      . This definition is known as the "force clause.” United States v. Fields, 823 F.3d 20, 33 (1st Cir. 2016). ACCA also defines "violent felony” as "any crime punishable by imprisonment for a term exceeding one year” that "is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). That subsection holds no sway here because neither robbery nor drug trafficking is a listed crime and because the Supreme Court invalidated the clause beginning with "or otherwise involves” — -known as the "residual clause” — as unconstitutionally vague. Johnson v. United States (“Johnson II”), - U.S. -, 135 S.Ct. 2551, 2557, 192 L.Ed.2d 569 (2015).

      . ACCA also defines serious drug offense "through reference to specific federal crimes,” see Small v. United States, 544 U.S. 385, 392, 125 S.Ct. 1752, 161 L.Ed.2d 651 (2005) — a definition irrelevant to this case.

      . For a thorough discussion of the categorical and modified-categorical approaches, see United States v. Faust, No. 14-2292, 853 F.3d 39, 49-54, 2017 WL 1244844, at *6-9 (1st Cir. 2017).

      . In his robbery analysis, the district judge did not work through the parties' Shepard submissions to determine which section 651 subpart formed the basis of Mulkerri’s robbery conviction. Instead, in deciding that Mulkern's "2001 robbery conviction constitutes a violent felony within the meaning of the ACCA,” the judge simply relied on an order he had penned in a different case, United States v. Bishop, 350 F.Supp.2d 127 (D. Me. 2004). As relevant to our dispute, Bishop noted that the robbery charge there (involving section 651(1)(B)) "track[edj” ACCA’s "‘violent felony’ ” definition — i.e., " ‘any crime punishable by imprisonment for a term exceeding one year ... that has as an element the ... threatened use of physical force against the person of another’ ” — and concluded that "[i]t is simply beyond argument that robbery is a crime of violence.” Id. at 130 (quoting 18 U.S.C. § 924(e)(2)(B)). But because the judge authored Bishop years before Johnson I, Bishop — to state the obvious — does not deal with Johnson I's holding that the type of "physical force” that comes within the relevant ACCA provision is "force capable of causing physical pain or injury to another person.” 559 U.S. at 140, 130 S.Ct. 1265 (emphasis added).

      . Mulkern has a few more arguments for the same result. For example, pointing to the docket sheet, he suggests he might have been convicted under section 651 (1)(A) — the "recklessly inflict[ing] bodily injury on another” provision. He then says neither recklessly causing bodily injury nor mere causation of bodily injury is a violent felony — based on his reading of United States v. Fish, 758 F.3d 1 (1st Cir. 2014), and Whyte v. Lynch, 807 F.3d 463 (1st Cir. 2015), respectively. Shifting gears, he also says "there is insufficient evidence in the record to conclude” that his 2001 robbery conviction "was committed on a different occasion than his 2001 qualifying burglary conviction” and that therefore both cannot be used to support the ACCA enhancement. But given our ruling on the robbery-conviction issue, we have no need to — and so do not — decide these issues here.