          United States Court of Appeals
                        For the First Circuit


Nos. 16-2059, 16-2060

                    UNITED STATES OF AMERICA,

                              Appellee,

                                 v.

                    KARIM DAVIS, a/k/a/ Wise,
                        Defendant, Appellant.


          APPEALS FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

          [Hon. George Z. Singal, U.S. District Judge]



                               Before

                   Lynch, Stahl, and Thompson,
                         Circuit Judges.


     J. Hilary Billings, Assistant Federal Defender, on brief for
appellant.
     Renée M. Bunker, Assistant United States Attorney, and
Richard W. Murphy, Acting United States Attorney, on brief for
appellee.


                          October 11, 2017
            LYNCH,    Circuit   Judge.       Karim   Davis    challenges     his

151-month prison sentence on appeal, after he pled guilty in 2016

to drug crimes, arguing that the district court erred in (1)

sentencing him as a career offender based on his prior drug

convictions under N.Y. Penal Law §§ 110 and 220.31; and (2)

applying    the    criminal-livelihood       enhancement      under     U.S.S.G.

§ 2D1.1(b)(15)(E). There was no error, and we affirm his sentence.

                                      I.

            After indictment in 2015, Karim Davis pled guilty in

August 2016 to two counts of drug trafficking: (1) possession with

intent to distribute heroin and cocaine base and (2) conspiracy to

possess with intent to distribute the same, in violation of 21

U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846.           The first count arose

from crimes alleged in Davis's 2015 indictment, and the second,

from an information the Government filed in 2016 based on Davis's

alleged conspiracy to distribute drugs from April 2014 to June

2015.

            The Presentence Investigation Report (PSR) found Davis

responsible for 479 grams of heroin and 31.4 grams of cocaine base.

Under the Sentencing Guidelines, this merited a base offense level

of 26.     The PSR recommended a two-level enhancement because the

offense was "part of a pattern of criminal conduct engaged in as

a   livelihood,"     U.S.S.G.   §   2D1.1(b)(15)(E);    and    an     additional



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three-level increase for Davis's leadership role as a manager or

a supervisor, id. § 3B1.1(b).           As a result, Davis's adjusted

offense level was 31.

           However, the PSR indicated that the career-offender

guideline under U.S.S.G. § 4B1.1(b) governed Davis's total offense

level because he had "at least two prior felony convictions

of . . . a controlled substance offense."           The report identified

his first predicate offense as a criminal sale of a controlled

substance, in violation of N.Y. Penal Law § 220.31, and his second

predicate offense as an attempted criminal sale of a controlled

substance, in violation of N.Y. Penal Law § 110.

           Section 4B1.1(b) of the Guidelines states that "if the

offense   level   for   a   career   offender    from   the   table    in   this

subsection is greater than the offense level otherwise applicable,

the offense level from the table in this subsection shall apply."

It also mandates that "[a] career offender's criminal history

category in every case under this subsection shall be Category

VI."

           For    Davis's    offense,   the     career-offender       guideline

prescribed an offense level of 32.            See U.S.S.G. § 4B1.1(b)(3).

Because this was higher than the offense level otherwise applicable

-- 31 -- Davis received an enhancement for being a career offender.

After a three-level reduction for acceptance of responsibility,




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the PSR recommended a total offense level of 29.             Together with a

criminal   history   category     of   VI,     the     resulting   Guidelines

Sentencing Range (GSR) was 151-188 months of imprisonment.                  See

U.S.S.G. ch. 5, pt. A, sentencing table.

           At the sentencing hearing, the district court adopted

the PSR's recommendation over Davis's objections.             The judge also

found   that    Davis     qualified      for     the     criminal-livelihood

enhancement, but emphasized that "the same guideline range would

occur regardless of what [he found] on that topic."                Ultimately,

the district court sentenced Davis at the bottom of the GSR: 151

months of imprisonment.

                                   II.

           On   appeal,   Davis   argues       that    his   two   prior   drug

convictions under New York law do not constitute predicate offenses

under the Guidelines career-offender provision, U.S.S.G. § 4B1.1.

"Whether a prior conviction qualifies as a predicate offense under

U.S.S.G. § 4B1.1 is a question of law that we review de novo."

United States v. Almenas, 553 F.3d 27, 31 (1st Cir. 2009).

           Davis's first argument, that his conviction under N.Y.

Penal Law § 220.31 is not a "controlled substance offense" under

U.S.S.G. § 4B1.1, is foreclosed by this Court's precedent in United




                                  - 4 -
States v. Bryant, 571 F.3d 147 (1st Cir. 2009), and United States

v. Melvin, 628 F. App'x 774 (1st Cir. 2015).1

             Under     the   career-offender     provision,         a   "controlled

substance offense" includes any offense under state law that

"prohibits     the     manufacture,    import,      export,    distribution,    or

dispensing of a controlled substance," or "the possession of a

controlled substance" with "intent" to do the same.                       U.S.S.G.

§ 4B1.2(b).      And under N.Y. Penal Law § 220.31, a person commits

a   criminal    sale    in   the   fifth   degree    "when     he   knowingly   and

unlawfully sells a controlled substance," which includes "to sell,

exchange, give or dispose of to another, or to offer or agree to

do the same," id. § 220.00 (emphasis added).                   We held in Bryant

that a conviction for attempted criminal sale of a controlled

substance      under    §    220.39,   qualifies      as   a    career    offender

predicate.2     571 F.3d at 157-58; see also Melvin, 628 F. App'x at

776 n.3 & 777. The district court correctly concluded that Davis's




      1   In fact, the defendant's own briefing concedes that
"controlling First Circuit precedent is contrary to [this]
assertion[]."
      2   Although   Bryant   involved  a  different   statutory
provision, the wording of N.Y. Penal Law § 220.39 (at issue in
Bryant) and that of § 220.31 (at issue here) are identical, with
the exception that § 220.39 specifies a list of prohibited
controlled substances.     This listing has no impact on the
categorical analysis.


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conviction under N.Y. Penal Law § 220.31 qualifies as a predicate

for the career-offender enhancement.

          Davis's second argument, that a conviction for attempted

criminal sale of a controlled substance under N.Y. Penal Law § 110

does not qualify as a predicate offense, is also meritless.

Section 110 provides that "[a] person is guilty of an attempt to

commit a crime when, with intent to commit a crime, he engages in

conduct which tends to effect the commission of such crime."

Although the statutory language is broad, New York courts have

narrowly applied it only to conduct that "came 'dangerously near'

commission of the completed crime."       People v. Kassebaum, 744

N.E.2d 694, 698 (N.Y. 2001).   This standard is more stringent than

the Model Penal Code's "'substantial step' test."         People v.

Acosta, 609 N.E.2d 518, 521 (N.Y. 1993).

          Davis contends that allowing a conviction under N.Y.

Penal Law § 110 to qualify as a predicate offense stretches the

Guidelines' definition of a "controlled substance offense" too far

because   it   would   sweep    in     attempted   "offers-to-sell."

Specifically, he argues that "because the categorical analysis

must focus upon the elements of the inchoate crime of attempt, and

not the elements of the substantive criminal sale of a controlled

substance," an attempted offer-to-sell under § 110 comprises acts

that fall outside the definition of attempted possession with




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intent to distribute under § 4B1.2(b).       Davis asserts that to be

found guilty under § 110, the defendant need not even be in

possession of the controlled substance or have the ability to

proceed with the sale.

            We   disagree.   Davis   cites   no   authority   for   the

proposition that under the categorical approach, we are restricted

to examining elements of the inchoate crime, without reference to

the corollary substantive crime.     In fact, our precedent is to the

contrary.    See, e.g., United States v. Whindleton, 797 F.3d 105,

111 (1st Cir. 2015) ("[A]n offer to sell a controlled substance

-- like attempt to sell or a conspiracy to sell -- is necessarily

related to and connected with its ultimate goal, the distribution

of controlled substances." (emphasis added)).

            "[I]t is well established under New York law" that

conviction for offer to sell requires "a bona fide offer to sell

-- i.e., that defendant had both the intent and ability to proceed

with the sale."       Bryant, 571 F.3d at 158 (quoting People v.

Samuels, 780 N.E.2d 513, 515 (N.Y. 2002)).         And in Bryant, we

expressly held that conviction for attempted criminal sale of a

controlled substance under § 220.39 -- which includes offers-to-

sell -- qualifies as a career-offender predicate.     See id. at 157-

58.   We find no meaningful difference between a conviction for

attempted sale of a controlled substance under that provision and




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one under N.Y. Penal Law § 110 for the purposes of the categorical

analysis.

             That ends the matter.          The district court correctly

sentenced Davis under the career-offender guideline.

                                    III.

             Davis also alleges that the district court erred in

finding that he qualified for the criminal-livelihood enhancement

under U.S.S.G. § 4B1.3.        Not so.

             Because the district court correctly sentenced Davis as

a   career   offender,   the    criminal-livelihood    enhancement   under

U.S.S.G. § 2D1.1(b)(15)(E) had no impact on his final sentence.

Irrespective of that enhancement, Davis is subject to the offense

level set forth in § 4B1.1(b)(3) -- 32 -- and its corresponding

GSR: 151-188 months of imprisonment.          Any error, therefore, would

have been harmless.      See United States v. Gordon, 852 F.3d 126,

134 (1st Cir. 2017) (finding affirmance proper where error is

harmless).

             In any case, Davis's only rejoinder to the enhancement

-- that the district court did not consider the "costs of the

product sold or the amount of mark up the defendant, in fact,

received" -- is squarely foreclosed by our recent decision in

Gordon.   There, we expressly held that district courts could "rely




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exclusively on evidence of [the defendant's] gross income in

applying § 4B1.3 app. n.2(A)."    Id. at 131.

                                  IV.

          Accordingly, the district court's sentence is affirmed.




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