United States v. Bramley ( 2017 )

United States Court of Appeals
For the First Circuit
No. 15-2446
UNITED STATES OF AMERICA,
Appellee,
v.
DANIEL BRAMLEY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Kayatta, Circuit Judge,
Souter, Associate Justice,*
and Selya, Circuit Judge.
Jamesa J. Drake, with whom Drake Law, LLC was on brief, for
appellant.
Julia M. Lipez, Assistant United States Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief, for
appellee.
January 26, 2017
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* Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
SELYA, Circuit Judge. This sentencing appeal requires
us to explore the intersection between the right of a sentencing
judge to receive confidential advice from probation officers and
the right of a convicted defendant to know the nature of the
information upon which he is sentenced and to challenge its
relevancy and accuracy. Concluding, as we do, that the court below
did not plainly err by engaging in brief, off-the-record
conversations with a probation officer during the appellant's
sentencing, we affirm.
I. BACKGROUND
The relevant facts and travel of the case can be
succinctly summarized. Defendant-appellant Daniel Bramley, a
British national, came to the attention of federal authorities
during a Drug Enforcement Administration (DEA) wiretap
investigation into the operations of a drug-trafficking ring in
and around Portland, Maine. The investigation revealed the
ringleader to be one Robert Evon, and the DEA intercepted several
communications between Evon and the appellant in mid-2013. Among
other things, Evon requested that the appellant collect
"paperwork" from a coconspirator. The appellant complied,
retrieving a package that contained $25,000 in drug proceeds. He
later accompanied Evon to Scarborough, Maine; obtained twenty
pounds of marijuana; and peddled some of the marijuana in Vermont.
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As its investigation progressed, the DEA obtained
additional information from a cooperating witness (who turned out
to be none other than Evon himself). Cf. William Shakespeare, The
First Part of King Henry the Fourth act 2, sc. 2 (1597) ("A plague
upon it when thieves cannot be true one to another!"). We
highlight this additional information, mindful that the appellant
disputes much of it.
 Roughly ten years earlier, Evon procured sizeable
quantities of marijuana from the appellant on multiple
occasions.
 In 2012, the appellant — acting as a middleman —
connected Evon with a marijuana source in Staten Island, New
York.
 Either the same year or the next year, the appellant
arranged for Evon to obtain marijuana from yet another New
York source.
 Evon and the appellant subsequently met this second
supplier in San Francisco to acquire liquid LSD (which the
two men planned to sell in Vermont and Maine).
The DEA investigation reached its climax in March of
2014. At that time, a federal grand jury sitting in the District
of Maine indicted the appellant on charges of conspiracy to
distribute and possess with intent to distribute marijuana, see 21
U.S.C. §§ 841(a)(1), 846; unlawful use of a communication facility,
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see id. § 843(b); and related criminal forfeitures, see id. § 853.
After initially maintaining his innocence, the appellant entered
a guilty plea to the conspiracy count and, in the process,
acknowledged the prosecution's written version of events as true.
The other charges were dismissed.
The district court convened the disposition hearing on
November 6, 2015. Although the presentence investigation report
(the PSI Report) alleged that the appellant was responsible for
68.2 kilograms of marijuana and approximately 5,000 kilograms of
marijuana equivalent (or fifty milliliters of liquid LSD, see USSG
§2D1.1, cmt. n.8(D)), the appellant had not admitted to any
specific drug quantities. Given the absence of any such admission,
the sentencing court recognized — and the government agreed — that
the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S.
466 (2000), limited the maximum available sentence to sixty
months,1 see 21 U.S.C. § 841(b)(1)(D), notwithstanding that the
guideline sentencing range would otherwise have been 135 to 168
months.
1Apprendi guarantees a defendant the right to a jury finding
referable to each element or element-equivalent of the charged
offense. See 530 U.S. at 477, 484-85. The same reasoning extends
to facts admitted in a guilty plea. See United States v. Booker,
543 U.S. 220, 244 (2005) ("Any fact . . . which is necessary to
support a sentence exceeding the maximum authorized by the facts
established by a plea of guilty or a jury verdict must be admitted
by the defendant or proved to a jury beyond a reasonable doubt.").
Consequently, the court below could not lawfully impose a sentence
beyond the default statutory maximum of five years. See United
States v. Jiminez, 498 F.3d 82, 87 (1st Cir. 2007).
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The government argued for a sentence "near" the sixty-
month maximum, reasoning that the appellant's brushes with the law
were more extensive than his criminal history score suggested and
that he appeared to be a professional marijuana trafficker. Among
its supporting points, the government noted that the authorities
had twice seized large sums of cash ($33,000 and $100,000,
respectively) from the appellant in 2005.
Defense counsel rejoined that the appellant's past
peccadillos were remote in time and that his current medical
conditions (depression and diabetes) cried out for leniency.
Counsel also cited the appellant's immigration status, arguing for
a sentence of less than one year since a longer sentence could
expose the appellant to deportation. See 8 U.S.C.
§ 1227(a)(2)(A)(i). The appellant himself added a series of
denials: he denied selling LSD, introducing Evon to suppliers, and
knowingly transporting drug proceeds.
The sentencing court voiced concern about the
appellant's criminal history, particularly the unexplained chunks
of cash that had been found in his possession. Although the
appellant insisted that the cash came from lawful sources, the
court remained skeptical. When pressed, the appellant
acknowledged that at least some of the cash may have originated
from marijuana sales.
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The court continued the sentencing hearing to November
18 to allow the government an opportunity to rebut the appellant's
attempt to limit his involvement with Evon. When the hearing
resumed, the government offered wiretap records memorializing the
appellant's communications with Evon. The records revealed that
the appellant agreed to do Evon a favor by picking up "paperwork."
A DEA agent testified that "paperwork" is a common code word for
cash in drug-trafficking parlance and that the appellant and Evon
used the term to refer to cash. Faced with this evidence, the
appellant backtracked: he admitted that he "suspected [the
'paperwork'] was something not legit" and knew that the package
contained cash when he retrieved it.
The DEA agent also described text messages between Evon
and the appellant in which the two men discussed plans to sell
"blue bottles" at a forthcoming concert. The agent testified that
the DEA later seized the blue bottles and found them to contain
liquid LSD. Confronted with this testimony, the appellant insisted
that he only purchased LSD from Evon for personal use, not for
resale; but the court remained dubious given the quantity of LSD
involved and the appellant's text message to Evon stating "I have
blue bottles gone."
Toward the end of the resumed hearing, the judge took a
short recess and engaged in an off-the-record conversation with
the probation officer. This break in the action — to which the
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appellant did not object — lasted approximately five minutes.
Immediately thereafter, the court asked the parties to address the
government's contention that the appellant should be denied any
credit for acceptance of responsibility. See USSG §3E1.1(a). The
court told defense counsel that it did not "want to even consider
doing something unless you get an opportunity to address it."
Following arguments on this point, the court found that the
appellant had lied deliberately on at least two occasions during
the sentencing phase (about knowingly transporting drug proceeds
and about conspiring to sell LSD). Based on this discerned
prevarication, the court proceeded to find that the appellant had
not accepted responsibility and sentenced him to a fifty-month
term of immurement.
Before the imposition of sentence was completed, a
second off-the-record conversation took place between the court
and the probation officer. This conversation, which lasted a mere
ten seconds at sidebar, occurred while the court was considering
the monetary increments of the sentence. Once again, the appellant
did not object to the pause. In the end, the court imposed the
mandatory $100 special assessment, see 18 U.S.C. § 3013(a)(2)(A),
and waived any fine.
This timely appeal followed.
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II. ANALYSIS
This is a rifle-shot appeal, in which the appellant
(represented by new counsel) advances only a single claim of error.
He challenges the district court's actions in conversing off the
record with the probation officer during sentencing without ever
apprising him of the substance of those conversations. Because
the appellant interposed no contemporaneous objections to these
conversations, our review is for plain error. See United States
v. Mehanna, 735 F.3d 32, 52 (1st Cir. 2013); see also Fed. R. Crim.
P. 52(b).
As we have made pellucid, "[t]he plain error hurdle is
high." United States v. Hunnewell, 891 F.2d 955, 956 (1st Cir.
1989). Review for plain error "entails four showings: (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." United States v. Duarte, 246 F.3d 56,
60 (1st Cir. 2001). The proponent of plain error must carry the
devoir of persuasion as to each of the four elements that
collectively comprise the plain error standard. See United States
v. Turbides-Leonardo, 468 F.3d 34, 39 (1st Cir. 2006); United
States v. Vega Molina, 407 F.3d 511, 521 (1st Cir. 2005). Given
the rigors of this standard, a reviewing court's power to set aside
trial court decisions due to plain error "should be employed
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sparingly." United States v. Padilla, 415 F.3d 211, 221 (1st Cir.
2005) (en banc); see United States v. Taylor, 54 F.3d 967, 973
(1st Cir. 1995).
The first two elements of the plain error standard, read
together, require us to determine whether the district court
committed a clear and obvious error when it engaged in ex parte
conversations with the probation officer during sentencing. We
begin with first principles: neither the Sixth Amendment right of
confrontation nor the Federal Rules of Evidence apply during the
sentencing phase of a federal criminal proceeding. See United
States v. Rodriguez, 336 F.3d 67, 71 (1st Cir. 2003). As a result,
a district court enjoys considerable discretion in determining
what information it will consider at sentencing. See id.
Though wide, this discretion is bounded by both Federal
Rule of Criminal Procedure 32 and the demands of due process.
These strictures require, at a minimum, that "a defendant . . . be
sentenced upon information which is not false or materially
incorrect." United States v. Curran, 926 F.2d 59, 61 (1st Cir.
1991); see United States v. Kenney, 756 F.3d 36, 49 (1st Cir.
2014); United States v. Berzon, 941 F.2d 8, 18 (1st Cir. 1991).
Rule 32 directs the probation office to prepare a PSI Report — a
report that must be compiled with an eye toward due process. See
Fed. R. Crim. P. 32(c)(1)(A); Curran, 926 F.2d at 61. PSI Reports
must be made available to the parties, and the parties must be
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given the opportunity to object to their contents. See Fed. R.
Crim. P. 32(e)-(f). In a similar vein, the sentencing guidelines
stipulate that "[w]hen any factor important to the sentencing
determination is reasonably in dispute, the parties shall be given
an adequate opportunity to present information to the court
regarding that factor." USSG §6A1.3(a). More broadly, we have
recognized that "a defendant must be provided with a meaningful
opportunity to comment on the factual information on which his or
her sentence is based." Berzon, 941 F.2d at 10.
In light of this legal framework, it is unsurprising
that our precedents are protective of a defendant's right to
disclosure of the information affecting a sentencing court's
decisional calculus. See, e.g., Curran, 926 F.2d at 63 (holding
that "a sentencing court, whenever it considers documents to which
Rule 32 does not apply, should either make clear that the document
is not being used for its factual content, or should disclose to
the defendant as much as was relied upon, in a timely manner, so
as to afford the defendant a fair opportunity to examine and
challenge it"). While a defendant is not entitled to every scrap
of information that may be relevant to his sentence, see, e.g.,
Fed. R. Crim. P. 32(d)(3) (directing probation officers to exclude
certain information from PSI Reports, such as sources of
confidential information and "information that, if disclosed,
might result in physical or other harm to the defendant or
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others"), we have expressed disapproval in several situations in
which the sentencing court did not give the defendant an adequate
opportunity to challenge the evidence against him. See, e.g.,
United States v. Zavala-Martí, 715 F.3d 44, 48-49, 55-56 (1st Cir.
2013) (finding sentencing process "inadequate" when district court
was briefed ex parte by a probation officer — though not the
probation officer assigned to defendant's case — about defendant's
alleged attempts at intimidation); United States v. Craven, 239
F.3d 91, 101-03 (1st Cir. 2001) (remanding for resentencing where
district court improperly relied on hour-long ex parte
conversation with court-appointed psychologist); Berzon, 941 F.2d
at 20-21 (remanding for explanation as to whether sentencing judge
had relied on testimony, unknown to defendant, emanating from a
different defendant's case).
Withal, a sentencing court's communications with the
probation officer are fundamentally different from its
communications with third parties. A probation officer is simply
an extension of the court itself, cf. 18 U.S.C. § 3602(a)
(authorizing district courts to appoint probation officers), and
"functions as an arm of the court," United States v. Saxena, 229
F.3d 1, 5 n.1 (1st Cir. 2000).
This distinction underpinned our reasoning in United
States v. Fraza, 106 F.3d 1050, 1055-56 (1st Cir. 1997). There,
we found no error in a probation officer's interruption of a
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sentencing hearing in order to converse ex parte with the court.
See id. We observed that the probation officer's duty is to supply
the "judge with as much information as possible in order to enable
the judge to make an informed decision." Id. at 1056 (quoting
United States v. Belgard, 894 F.2d 1092, 1097 (9th Cir. 1990)).
The holding in Fraza is consistent with Rule 32 itself, which
authorizes certain confidential communications between the
probation officer and the sentencing court. See Fed. R. Crim. P.
32(e)(3). It is also consistent with the case law. See, e.g.,
United States v. Stanphill, 146 F.3d 1221, 1224 n.1 (10th Cir.
1998) (noting that ex parte communication between the court and
the "probation officer responsible for sentencing recommendations
is not improper per se").
This does not mean, though, that probation officers and
sentencing judges have a free pass to discuss everything and
anything off the record. To the contrary, factual information
relevant to sentencing must be disclosed to the defendant. See
United States v. Gonzales, 765 F.2d 1393, 1398 (9th Cir. 1985).
That principle is illustrated by the decision in United States v.
Christman, where the court vacated the defendant's sentence
because the sentencing judge had relied on ex parte communications
with probation and pretrial services officers conveying new
information, specifically, their belief that the "defendant had
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acted on his pedophilia and in fact had molested children." 509
F.3d 299, 300-01 (6th Cir. 2007).
This distinction — between new facts, on the one hand,
and advice, on the other hand — is consistent with our reasoning
in Craven. The psychologist's opinion there, communicated off the
record to the court and not disclosed to the defendant, was at a
far remove from sentencing advice provided by a probation officer.
Because the psychologist was supplying the court with new
information, we held that the psychologist's findings should have
been disclosed to the parties and subjected to their examination.
See Craven, 239 F.3d at 101 (holding that "a sentencing court may
not utilize an ex parte conversation with a court-appointed expert
as a means to acquire information critical to a sentencing
determination and then rely on that information in fashioning the
defendant's sentence").
The short of it is that a sentencing court has the right
to confer ex parte with a probation officer to seek advice or
analysis — but if the probation officer reveals new facts relevant
to the sentencing calculus, those facts cannot be relied upon by
the sentencing court unless and until they are disclosed to the
parties and subjected to whatever adversarial testing may be
appropriate.
In the case at hand, the contents of the conversations
are unknown — and that circumstance is the direct result of the
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appellant's failure to object. At any rate, nothing in the record
suggests that those conversations imported new facts into the
sentencing calculus. Thus, we cannot say that an error occurred.
What we can say, however, is that the existence of error was
neither clear nor obvious. Given that the appellant must carry
the burden of showing a clear and obvious error, see Turbides-
Leonardo, 468 F.3d at 39, his claim fails under the first two
elements of plain error review.
In all events, the fact that the record does not reliably
suggest the contents of the ex parte conversations defeats the
appellant's claim at the third step of the analysis. This step
requires that the claimed error must be shown to have affected the
appellant's substantial rights. See Duarte, 246 F.3d at 60.
Typically, this means that "the error must have been prejudicial"
such that it "affected the outcome of the district court
proceedings." United States v. Olano, 507 U.S. 725, 734 (1993).
In other words, the appellant must show a reasonable probability
that, but for the error, the outcome would have been different.
See Padilla, 415 F.3d at 220-21. Such a showing demands some level
of certainty and particularity. See Jones v. United States, 527
U.S. 373, 394-95 (1999) ("Where the effect of an alleged error is
so uncertain, a defendant cannot meet his burden of showing that
the error actually affected his substantial rights.").
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Here, the appellant has not shown a reasonable
probability that the outcome of his sentencing proceeding would
have been different but for the two off-the-record conversations
between the sentencing judge and the probation officer. On this
empty record, there is simply no basis for concluding that the
conversations involved new facts or raised new matters. While the
appellant repeatedly urges us to consider the possibility that the
probation officer's discussions with the sentencing judge may have
been improper and prejudicial, that would entail a fruitless
exercise in speculation and surmise. Where, as here, an appellant
forgoes a timely objection that would have shed light on the nature
of the conversations, he is in a woefully weak position to insist
that we indulge in such speculation.
We add, moreover, that what indications there are in the
record point in a contrary direction: the longer of the challenged
conversations2 seems likely to have dealt with acceptance of
responsibility (a matter fully aired at the sentencing hearing);
and the sentencing judge, immediately after this conversation,
2 We focus on the longer conversation because, as a practical
matter, the shorter of the two off-the-record conversations is
virtually irrelevant. It lasted a mere ten seconds, and it took
place after the court already had imposed the fifty-month sentence.
The conversation preceded only the imposition of the special
assessment (which was mandatory, see 18 U.S.C. § 3013(a)(2)(A))
and the decision not to impose a fine (which was favorable to the
appellant). Seen in this light, the second conversation could
not, by any stretch of even the most fertile imagination, have
affected the appellant's substantial rights.
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made clear that he did not "want to even consider doing something
unless [defense counsel] get[s] an opportunity to address it."
The fact that the judge took pains to enumerate the materials upon
which he was basing his decision also argues against an assumption
that the probation officer gave him new, undisclosed information.
The judge specifically mentioned the PSI Report, the submitted
evidence, letters received and placed on file, statements from
counsel, and the appellant's allocution. This recitation strongly
suggests that the judge was aware of the appellant's right to be
informed about facts and arguments that might impact his sentence
and did not base his sentencing decision on subterranean facts.
If more is needed — and we doubt that it is — nothing
about the challenged sentence in any way indicates a hidden agenda.
The sentence itself is below what the government requested and is
amply justified by fully disclosed facts, including the
appellant's extensive involvement in marijuana-trafficking
activities and his repeated shading of the truth during the
sentencing proceeding. On this record, there is simply no way in
which the challenged conversations, bereft as they are of any
semblance of certainty or particularity because their content is
wholly unknown, can plausibly be found to have affected the
appellant's substantial rights. See Jones, 527 U.S. at 394-95;
see also Padilla, 415 F.3d at 221 (noting that it was "nearly
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impossible" to find prejudice from alleged delegation error
without having to compare "two unknown variables").
For the sake of completeness, we comment briefly on the
last element of the plain error analysis: whether the error (if
one existed) "seriously impaired the fairness, integrity, or
public reputation of judicial proceedings." Duarte, 246 F.3d at
60. Because a probation officer is an extension of the sentencing
court itself and the court is allowed to consult the officer off
the record for many purposes and in many circumstances, brief ex
parte conversations such as the ones that transpired here,
unaccompanied by any showing of prejudice, cannot fairly be said
to sully the public perception of judicial proceedings. Cf. Fraza,
106 F.3d at 1056 (noting expectation that probation officer will
"exercise his independent judgment as to the application of the
guidelines" and finding no error in ex parte discussions between
judge and probation officer during sentencing hearing).
Consequently, the appellant has not satisfied his burden with
respect to the last element of the plain error standard.
We need go no further. In this case, all roads lead to
Rome. The appellant's sole claim of error engenders plain error
review, and that standard presents a high hurdle that the appellant
cannot vault. His claim fails to demonstrate any of the four
elements needed for a finding of plain error.
Affirmed.
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