          United States Court of Appeals
                     For the First Circuit

No. 14-1783

                         UNITED STATES,

                            Appellee,

                               v.

                          JAMES MELVIN,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Nathaniel M. Gorton, U.S. District Judge]


                             Before

                      Howard, Chief Judge,
                Lynch and Lipez, Circuit Judges.


     Richard B. Klibaner, for appellant.
     Randall E. Kromm, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.

                        October 23, 2015
            LYNCH, Circuit Judge. In a previous appeal in this case,

we vacated James Melvin's conviction for possession of cocaine

base with intent to distribute.         United States v. Melvin, 730 F.3d

29, 40 (1st Cir. 2013).       We remanded for a new trial on the basis

of a non-harmless trial error.       Id.     On retrial, Melvin was again

found    guilty   of   possession   of    cocaine     base   with   intent   to

distribute and sentenced to 168 months of imprisonment and six

years of supervised release. On appeal, he challenges his sentence

on the ground that he was erroneously sentenced as a career

offender pursuant to U.S.S.G. § 4B1.1(a).              He brings additional

claims of trial and sentencing error in a supplemental pro se

brief.    We affirm his sentence and conviction.

                                     I.

            Evidence at Melvin's second trial was sufficient to

satisfy a jury that, on February 19, 2010, he sold approximately

11.5 grams of cocaine base to a government informant.                The jury

returned a guilty verdict on March 27, 2014.

            The presentence report (PSR) calculated Melvin's base

offense level at 20, based on the quantity of cocaine base.

U.S.S.G.    §   2D1.1(a)(5)   (2013).       Because    no    adjustments   were

applied, the total offense level was also 20.           However, because of

his "two prior felony convictions of . . . a controlled substance

offense," the PSR recommended a career offender offense level of

34.     U.S.S.G. § 4B1.1(a), (b)(2).        Melvin objected to his career


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offender status on the basis that he only had one predicate

offense.   He conceded that a 2005 conviction in the Southern

District of New York qualified as a predicate controlled substance

offense, but he argued that he had no other qualifying prior

conviction.   The probation officer responded that a 1998 New York

state conviction for "Criminal Sale of a Cntr. Subst. 3rd Degree"

was the second predicate offense.1

           At the sentencing hearing on July 8, 2014, the district

court overruled Melvin's objection.      It found that this court's

decision in United States v. Bryant, 571 F.3d 147 (1st Cir. 2009),

and an unpublished Second Circuit opinion in United States v.

Spells, 267 F. App'x 93 (2d Cir. 2008), foreclosed his argument.

The district court applied an offense level of 34 and a criminal

history category of VI, which yielded a guideline sentencing range

of 262 to 327 months, and imposed a below-guideline sentence of

168 months.   This appeal followed.

                                II.

           Melvin challenges the district court's reliance on his

1998 New York state conviction to categorize him as a career

offender for sentencing purposes.     Reviewing this question of law




     1 Although the PSR did not identify the statute of conviction
by section number, both parties agree that the conviction was under
New York Penal Law § 220.39, which defines the offense as
"knowingly and unlawfully sell[ing] . . . a narcotic drug."


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

we reject this challenge for two independent reasons.2

A.   Law of the Circuit Doctrine

           Melvin's challenge is foreclosed by our earlier panel

decision   in   Bryant.   There,    we     held   that   a   New   York    state

conviction for "attempted criminal sale of a controlled substance"3

was a controlled substance offense for the purpose of determining

career offender status.    Bryant, 571 F.3d at 156–58.

           Under the law of the circuit doctrine, we are "bound by

a prior panel decision, absent any intervening authority."                United

States v. Mouscardy, 722 F.3d 68, 77 (1st Cir. 2013) (quoting

United States v. Grupee, 682 F.3d 143, 149 (1st Cir. 2012)).                Even

an argument that an earlier panel "fundamentally misinterpreted"

then-existing precedent does not allow us to overturn prior panel

precedent; rather, "[o]nly the Supreme Court or an en banc court


     2 The government also makes a third argument: that the law of
the case doctrine forecloses Melvin's challenge to his career
offender status because he had the opportunity and incentive to
raise the issue in his first appeal but failed to do so. However,
the government did not raise this argument before the district
court. Because our affirmance is supported by two other grounds,
we do not decide whether this argument was waived or whether the
law of the case doctrine forecloses Melvin's appeal.

     3 Although the decision in Bryant did not identify the statute
of offense by section number, the parties agree that it was the
same as the statute at issue here: New York Penal Law § 220.39.
The New York state decision relied on by Bryant also makes clear
that the conviction at issue was under § 220.39. See Bryant, 571
F.3d at 158 (citing People v. Samuels, 780 N.E.2d 513, 515 (N.Y.
2002)).


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can overturn prior panel precedent in ordinary circumstances."

United States v. Holloway, 499 F.3d 114, 118 (1st Cir. 2007).

             Melvin argues that Bryant does not control because it

found New York Penal Law § 220.39 to be a predicate offense only

under one prong of the definition of a controlled substance

offense, and he is challenging the applicability of the other

prong. That argument is meritless. A controlled substance offense

is defined as:

      an offense under federal or state law, punishable by
      imprisonment for a term exceeding one year, that
      prohibits   [1]   the  manufacture,   import,   export,
      distribution, or dispensing of a controlled substance
      (or a counterfeit substance) or [2] the possession of a
      controlled substance (or a counterfeit substance) with
      intent to manufacture, import, export, distribute, or
      dispense.

U.S.S.G. § 4B1.2(b). Because that definition employs a disjunctive

construction, the government need only show that § 220.39 is a

controlled      substance    offense    under    either       prong    of    U.S.S.G.

§   4B1.2(b).      Because    Bryant    establishes         that   §   220.39    is   a

controlled      substance    offense     under        the    second     prong,    the

possession clause, Bryant disposes of this appeal notwithstanding

Melvin's arguments about the inapplicability of the other prong.

             Melvin   also    challenges        the     reasoning       of    Bryant.

However, he does not point to any intervening authority that

requires us to reconsider Bryant and instead suggests that Bryant




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was incorrect when decided.   Because that is not sufficient to

defeat the law of the circuit doctrine, Bryant controls.4

B.   Controlled Substance Offense

          Even if Melvin could overcome the law of the circuit

doctrine, we still affirm because we conclude, independently of

Bryant, that a conviction under New York Penal Law § 220.39 is a

controlled substance offense for the purpose of determining career

offender status under U.S.S.G. § 4B1.1.

          In Bryant, we relied on the second prong of U.S.S.G.

§ 4B1.2(b), the possession clause, to find that a conviction under

§ 220.39 was a controlled substance offense.   571 F.3d at 156–58.

Melvin argues that Bryant's reasoning was in error.

          Whatever the merits of Melvin's argument, we leave his

sentence undisturbed because a conviction under § 220.39 is a

controlled substance offense, in any event, under the first prong

of § 4B1.2(b): "distribution . . . of a controlled substance."5




     4 Melvin also argues, for the first time in his reply brief,
that Bryant should not apply because his § 220.39 conviction
predates the line of New York state cases on which Bryant relied.
See Bryant, 571 F.3d at 158 (citing Samuels, 99 N.Y.2d at 23–24).
However, we do not consider arguments raised for the first time in
a reply brief.   See, e.g., Román-Oliveras v. Puerto Rico Elec.
Power Auth. (PREPA), 797 F.3d 83, 85 n.1 (1st Cir. 2015).

     5 We apply the categorical approach, under which the question
is whether § 220.39 encompasses only conduct that qualifies as a
controlled substance offense. See Taylor v. United States, 495
U.S. 575, 600–02 (1990); United States v. Dávila-Félix, 667 F.3d
47, 55–56 (1st Cir. 2011).


                              - 6 -
Melvin    argues   that      New   York    defines   a     sale   of   a   controlled

substance to include a mere "offer" to sell, see N.Y. Penal Law

§   220.00(1),     and   a   mere   offer     to   sell    does   not      qualify    as

distribution.       However, under Application Note 1 of U.S.S.G.

§ 4B1.2, a controlled substance offense "include[s] the offense[]

of . . . attempting to commit such offense[]."                     A defendant is

guilty of attempted distribution if he (1) had the intent to commit

the crime and (2) took a substantial step toward its commission.

United States v. Piesak, 521 F.3d 41, 44 (1st Cir. 2008).                             A

conviction under § 220.39 under an offer-to-sell theory would

require proof of a bona fide offer to sell with intent to proceed

with the sale and the ability to do so.                  See Bryant, 571 F.3d at

158 (citing People v. Samuels, 780 N.E.2d 513, 515 (N.Y. 2002)).

A bona fide offer comprises both the intent and substantial step

necessary to constitute an attempted distribution of a controlled

substance.6      Cf. Pascual v. Holder, 723 F.3d 156, 158–59 (2d Cir.

2013) (per curiam) (holding that New York Penal Law § 220.39 is

analogous to the federal crime of attempted distribution and thus

qualifies     as   an    aggravated       felony   under    the   Immigration        and

Nationality Act); Berroa v. Att'y Gen. of U.S., 523 F. App'x 913,

917–18 (3d Cir. 2013) (per curiam) (same); United States v. Evans,




      6In so deciding, we answer a question explicitly left open
in our recent decision in United States v. Whindleton, 797 F.3d
105, 111 n.5 (1st Cir. 2015).


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699 F.3d 858, 868 (6th Cir. 2012) (holding, with respect to an

Ohio drug conviction, that "[a]n offer to sell a controlled

substance is an act perpetrated in furtherance of a sale, typically

as part of the negotiation for the price and quantity, and it is

therefore a substantial step in attempting to consummate a sale").

Under the distribution prong of U.S.S.G. § 4B1.2(b), New York Penal

Law § 220.39 is categorically a controlled substance offense that

can trigger career offender status for sentencing purposes.

                                   III.

            In his pro se supplemental brief, Melvin claims a number

of trial and sentencing errors.

            First, Melvin argues that the district court erred in

denying his motion for a mistrial on the basis that the jury saw

him in handcuffs.    The government denied there was any such event.

Even if the event had taken place, "exposure of the jury to a

defendant in shackles does not necessarily require a mistrial."

United States v. Pina, 844 F.2d 1, 8 (1st Cir. 1988).              Although

Melvin alleged that he made eye contact with one juror, that juror,

when   questioned   by   the   district    court,   did   not   substantiate

Melvin's allegation and stated that he recalled nothing out of the

ordinary.   These circumstances do not establish "the kind of clear

prejudice that would render the court's denial of his motion for

a mistrial a manifest abuse of discretion."               United States v.




                                   - 8 -
Trinidad-Acosta, 773 F.3d 298, 306 (1st Cir. 2014) (quoting United

States v. Dunbar, 553 F.3d 48, 58 (1st Cir. 2009)).

             Second, Melvin argues that the district court erred in

allowing evidence of his 2007 drug conviction in cross examination.

A   felony   conviction   can   be    admitted   to   attack   a   criminal

defendant's credibility "if the probative value of the evidence

outweighs its prejudicial effect to that defendant." Fed. R. Evid.

609(a)(1)(B).     We find no abuse of discretion in the district

court's decision to admit this evidence.7

             Third, Melvin challenges his designation as a career

offender for the purposes of sentencing.         These arguments largely

repeat those in his initial brief submitted through counsel and

are addressed above.       His argument that the career offender

guideline violates the double jeopardy clause has been previously

rejected.    See Witte v. United States, 515 U.S. 389, 400 (1995).




      7As a general matter, informing the jury of a past felony
conviction creates a risk of prejudice, and that risk is heightened
where the crime of conviction is similar to the crime with which
the defendant is charged. See United States v. Brito, 427 F.3d
53, 64 (1st Cir. 2005) ("[C]onvictions for dissimilar crimes are
customarily thought to be less prejudicial than convictions for
similar crimes (which may run a risk of implying a propensity to
commit the crime)."). It is well established, however, that prior
convictions for drug distribution bear on character for
truthfulness, see United States v. Barrow, 448 F.3d 37, 44 (1st
Cir. 2006); Brito, 427 F.3d at 64, and the district court did not
abuse its discretion here in determining that the probative value
of that conviction outweighed its prejudicial effect.


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                     IV.

For the reasons stated, we affirm.




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