United States of America v. Alexander Monday Coleman

United States Court of Appeals
For the Eighth Circuit
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No. 19-3119
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United States of America
Plaintiff - Appellee
v.
Alexander Monday Coleman
Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Springfield
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Submitted: September 21, 2020
Filed: October 5, 2020
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Before BENTON, MELLOY, and KOBES, Circuit Judges.
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BENTON, Circuit Judge.
Alexander Monday Coleman pled guilty to being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). The district court1 applied an Armed
Career Criminal Act (ACCA) enhancement, sentencing him to 192 months in prison.
Coleman appeals. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
1 The Honorable Roseann A. Ketchmark, United States District Judge for
the Western District of Missouri.

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Coleman argues the ACCA’s enhancement does not apply because two of his
convictions are not “serious drug offenses.” Whether a conviction is a “serious drug
offense” is a legal question this court reviews de novo. See United States v. Keith,
638 F.3d 851, 852 (8th Cir. 2011). At sentencing, Coleman objected to the ACCA
enhancement, but on different grounds than raised here. He must therefore establish
the four elements of plain error: (1) there is an error; (2) the error is plain; (3) the
error affects his substantial rights; and (4) the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings. See United States v. Pirani,
406 F.3d 543, 550 (8th Cir. 2005) (en banc), applying United States v. Olano, 507
U.S. 725, 732-36 (1993).
The ACCA mandates fifteen years in prison for anyone who violates 18
U.S.C. § 922(g) and “has three previous convictions . . . for a violent felony or a
serious drug offense, or both.” 18 U.S.C. § 924(e)(1). A state conviction is a
“serious drug offense” when it “involv[es] manufacturing, distributing, or
possessing with intent to manufacture or distribute, a controlled substance” and is
punishable by “a maximum term of imprisonment of ten years or more.” 18 U.S.C.
§ 924(e)(2)(A)(ii).
On appeal, Coleman does not contest he has two ACCA predicate offenses.
At issue are two other offenses: (1) delivery or manufacture of an imitation
controlled substance in Missouri (2004) and (2) possession of cocaine for resale in
Tennessee (2003).
In 2004, Coleman was convicted in Missouri for delivery or manufacture of
an imitation controlled substance, a class D felony. See § 195.242 RSMo (2004).
Because this offense was punishable by a maximum of four years in prison, the
district court erred in concluding it is a valid ACCA predicate offense. Compare §
558.011.1(4) RSMo (2003) (prescribing a maximum sentence of four years in prison
for a class D felony), with 18 U.S.C. § 924(e)(2)(A)(ii) (to be an ACCA predicate
offense, a state conviction must have a maximum penalty of ten (or more) years in

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prison). Since the Missouri conviction is not an ACCA predicate offense, this case
turns on Coleman’s Tennessee conviction.
In 2003, Coleman was convicted for violating Tenn. Code § 39-17-417. He
argues that this conviction is not an ACCA predicate, asserting that the state statute
criminalizes a broader swath of conduct than what the ACCA defines as a “serious
drug offense.” See 18 U.S.C. § 924(e)(2)(A)(ii). See generally Shular v. United
States, 140 S. Ct. 779, 784-85 (2020) (setting the standard for state-law serious drug
offense predicates under the ACCA).
A categorical approach determines whether a previous conviction is an ACCA
predicate offense. See Taylor v. United States, 495 U.S. 575, 600 (1990). Under
this approach, courts compare the statutory elements of a conviction to the ACCA’s
description of a predicate offense. See Descamps v. United States, 570 U.S. 254,
261 (2013). The previous conviction is an ACCA predicate offense if the state
statute’s elements are the same or narrower than the ACCA predicate offense. Id.
But if the statute’s elements are broader than the ACCA’s predicate offense, the
conviction is not an ACCA predicate offense. Id. The categorical approach, as
relevant here, requires considering whether the statutory elements “necessarily entail
one of the types of conduct identified in § 924(e)(2)(A)(ii).” Shular, 140 S. Ct. at
784 (internal quotation marks omitted).
By listing alternative elements, some statutes create multiple offenses. See
United States v. Vanoy, 957 F.3d 865, 867 (8th Cir. 2020). These “divisible”
statutes trigger a modified categorical approach, where “certain approved
documents” may “determine which statutory phrase was the basis for the
conviction.” Id., citing Descamps, 570 U.S. at 263. The modified categorical
approach then compares the appropriate statutory phrase to the ACCA’s description
of a predicate offense. See Descamps, 570 U.S. at 263.
The Tennessee statute that Coleman violated states: “It is an offense for a
defendant to knowingly: (1) Manufacture a controlled substance; (2) Deliver a

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controlled substance; (3) Sell a controlled substance; or (4) Possess a controlled
substance with intent to manufacture, deliver or sell the controlled substance.”
Tenn. Code § 39-17-417(a) (2003). The statute is divisible because an individual
may violate it by manufacturing, or delivering, or selling, or possessing with the
intent to manufacture/deliver/sell a controlled substance. See United States v.
Goldston, 906 F.3d 390, 394 (6th Cir. 2018) (holding this statute is divisible).
The Tennessee indictment and judgment show that Coleman was convicted
under section 39-17-417(a)(4). See Case No. 242630, Alexander Monday Coleman,
in Hamilton Cty. Crim. Ct. Recs., available at
http://cjuscriminal.hamiltontn.gov/appfolder/cc_Web_Calendar.aspx (last visited
Aug. 10, 2020) (reflecting the charge listed in the indictment and the judgment). The
indictment’s heading reads “Possession of Cocaine for Resale,” a phrase the
judgment repeats twice in abbreviated form. The charge in the indictment recites
the fourth subsection’s text: “Alexander Monday Coleman . . . did unlawfully and
knowingly possess a controlled substance . . . with intent to sell or deliver” (emphasis
added). See Mathis v. United States, 136 S. Ct. 2243, 2249 (2016) (authorizing the
use of an indictment in the modified categorical approach). Coleman quibbles,
highlighting the imprecise term “resale” in both the indictment and the judgment.
Regardless, the indictment’s and judgment’s four references to “possession” leave
no doubt: Coleman was convicted under the fourth subsection of 39-17-417(a).
The issue is whether Tennessee’s prohibition on “[p]ossess[ing] a controlled
substance with intent to manufacture, deliver or sell the controlled substance”
necessarily entails “possessing with intent to manufacture or distribute, a controlled
substance.” Compare Tenn. Code § 39-17-417(a)(4), with 18 U.S.C. §
924(e)(2)(A)(ii). Stripped of the two statutes’ shared terms, the issue becomes
whether “intent to deliver or sell” necessarily entails “intent to distribute.”
Tennessee’s definition of “deliver” is “the actual, constructive, or attempted transfer
from one person to another.” Tenn. Code § 39-17-402(6). The relevant federal
definition of “distribute” is almost identical, but explicitly excludes “administering
or dispensing.” See 21 U.S.C. § 802(8), 802(11) (defining “deliver” as “the actual,

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constructive, or attempted transfer of a controlled substance”). By the plain
language of the statute, “intent to deliver or sell” necessarily entails “intent to
distribute,” and thus, Coleman’s 2003 conviction is a serious drug offense under the
ACCA.
Coleman argues that because Tennessee’s “deliver” definition does not
explicitly exclude “administering” and “dispensing” like the federal definition, the
Tennessee statute is broader than a “serious drug offense” and thus not a predicate
offense. The Sixth Circuit addressed this argument in United States v. Goldston,
906 F.3d 390. There, the court noted that Tennessee law explicitly permits
“practitioners” to “administer” and “dispense” controlled substances. See Goldston,
906 F.3d at 395, citing Tenn. Code §§ 39-17-402(1), (7), and 39-17-402(23)(A).
Yet another Tennessee statute confirms this: “It is an exception to [the prohibition
on possession of controlled substances] if the person lawfully possessed the
controlled substance as otherwise authorized by this part.” Tenn. Code § 39-17-
427. Thus, while section 39-17-417(a) by itself might appear to prohibit
administering and dispensing, neighboring provisions make clear it does not. See
Goldston, 906 F.3d at 395, 397 (“It is clear, therefore, that Tennessee has not
criminalized what it has otherwise defined as lawful behavior by using the term
‘deliver’ in Tenn. Code § 39-17-417(a)(2).”); United States v. Brown, 408 F.3d
1016, 1018 (8th Cir. 2005) (applying similar logic to Missouri’s definition of
“deliver”).
According to Coleman, any reliance on Goldston is misplaced because the
Supreme Court’s Shular decision supersedes it. But cf. United States v. McClain,
810 Fed. Appx. 404, 408 (6th Cir. 2020) (following Goldston after the Shular
decision). Shular held that when applying the categorical approach, the ACCA’s
state-law “serious drug offense” provision requires comparing statutory elements
and conduct, not generic offenses. See Shular, 140 S. Ct. at 785. Far from
undercutting Goldston, Shular confirms its focus on conduct—possession with
intent to distribute.

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Coleman also asserts there is a “realistic probability, not a theoretical
possibility” that section 39-17-417(a) will extend to conduct the ACCA does not
cover. See United States v. Maldonado, 864 F.3d 893, 900 (8th Cir. 2017), cited in
Goldston, 906 F.3d at 396. As proof of a realistic probability, Coleman emphasizes
three purported prosecutions of medical professionals under section 39-17-417. One
is a prosecution of a pharmacist, but a pharmacist who illicitly provided pain pills
outside the pharmacy and without a prescription. See State v. Lindsey, 1991 WL
207934, at *1 (Tenn. Crim. App. 1991). Another is a prosecution, but does not
indicate that the defendant was a medical professional. Rather, the case involves a
former pharmacist as an informant. See State v. Morris, 2007 WL 609203, at *1
(Tenn. Crim. App. 2007). The third—not even a criminal case—is a civil case where
the court remarks in a footnote that a pharmacist giving pain medication to a special
customer (again, without a prescription) could be prosecuted. See Carter v. Bell,
2007 WL 2323396, at *5 n. 3 (Tenn. Ct. App. 2007). These cases do not establish a
“realistic probability” that Tennessee will prosecute medical professionals for
administering and dispensing controlled substances in a lawful manner.
Coleman also invokes a nearby section of the criminal code describing
inferences: “It may be inferred from [certain circumstances] that the controlled
substance or substances were possessed with the purpose of selling or otherwise
dispensing.” Tenn. Code § 39-17-419 (emphasis added). He insists that the use of
“dispensing” in section 39-17-419 shows that section 39-17-417 does cover medical
professionals’ conduct, and thus is too broad to be a serious drug offense. To the
contrary, having defined “dispensing” as lawful just sections before, the Tennessee
law would make little sense if it then permitted that lawful activity to support an
inference of unlawful activity. While awkward, the two uses of the word
“dispensing” cannot reasonably be understood to mean the same thing (and thus to
extend section 39-17-417’s coverage to state-sanctioned conduct). Because
Coleman’s interpretation yields an absurd result, this court rejects it. See McNeill
v. United States, 563 U.S. 816, 822 (2011).

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Finally, section 39-17-417(a)(4) also prohibits the intent to sell. The
legislature has not defined “sell,” but the state’s courts have. “[A] ‘sale’ requires ‘a
bargained-for offer and acceptance, and an actual or constructive transfer or delivery
of the subject matter property.’” Davis v. Freeman, 2018 WL 1545739, at *21
(M.D. Tenn. 2018), quoting State v. Holston, 94 S.W.3d 507, 510 (Tenn. Crim. App.
2002). This definition of “sell” necessarily entails the conduct that the ACCA’s
“distribute” describes.
Coleman’s 2004 Missouri conviction is not a predicate offense under the
ACCA, but his 2003 Tennessee conviction is. He therefore has the three previous
convictions the ACCA requires.
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The judgment is affirmed.
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