An inmate in the First Circuit pled guilty to Felon in Possession of Ammunition.  He had two ACCA-Qualifying Maine Burglary conditions as well as a 2001 Maine Robbery Conviction and a 2004 Maine Drug-Trafficking conviction.  The District Court applied the enhancement.

On appeal, the Government argued that the inmate pled to a section of the Maine Robbery Statute that criminalized the “use of physical force on another” and noted that Maine’s Highest court recognized that “any physical force” suffices to satisfy the physical force element, even physical force that does not make direct contact with the victim. That means that the crime does not need a showing of force capable of “causing physical pain or injury” which is required under Johnson.  And that means that this particular crime cannot be used against him for ACCA purposes.

With regard to the inmate’s drug trafficking conviction, the court determined that it was not a “serious drug offense.”  The court determined that by rejecting that the Maine Legislature designates the crime as “trafficking” and that means buying and selling because the “meaning of the ACCA’s terms do not depend on the definition adopted by the State of conviction.”  The court also held that 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 and noted that the inmate’s quantity of drugs in this case (2 grams) would not rise to the level where the court could infer intent to distribute.

The First Circuit Reversed.  US. v. Mulkern, 1st Circuit No. 16-1146

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