United States v. Gilley , 911 F.3d 42 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-2197
UNITED STATES OF AMERICA,
Appellee,
v.
MICKEY GILLEY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Nancy Torresen, U.S. District Judge]
Before
Thompson, Boudin, and Barron,
Circuit Judges.
Andrew Levchuk and Bulkley, Richardson and Gelinas, LLP on
brief for appellant.
Halsey B. Frank, United States Attorney, and Renée M. Bunker,
Assistant United States Attorney, Appellate Chief, on brief for
appellee.
December 19, 2018
BOUDIN, Circuit Judge. Mickey Gilley pled guilty
pursuant to a plea agreement to one count of distribution of heroin
and fentanyl. 21 U.S.C. § 841(a)(1), (b)(1)(C). The plea
agreement included a stipulated sentencing range of 132 to 180
months that bound the district court upon its acceptance of the
agreement. The district court accepted the agreement and sentenced
Gilley to 168 months. Gilley now appeals his sentence as
substantively unreasonable.
On September 20, 2016, Gilley and a friend traveled to
Portland, Maine, and bought $100 worth of heroin (approximately
one gram). Half was for Gilley and Gilley's girlfriend, K.W., to
share. During the drive back to Bath, Maine, where Gilley lived,
Gilley was in contact with K.W. and used some of the heroin.
After arriving at K.W.'s apartment, Gilley and K.W., who
had been drinking, used the heroin. Eventually, K.W. went to bed.
Approximately forty-five minutes later, Gilley lay down next to
K.W. and found her unresponsive. Gilley fell asleep.
Gilley awoke two hours later to find K.W. still
unresponsive. He rolled her over, and blood came out of her nose
and mouth. He "freaked out" and dumped water on her. Gilley
called his brother, Christopher, who told him to start CPR. After
calling Christopher, Gilley moved K.W. to the shower and let water
run on her. After Christopher arrived, Christopher called 911.
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Gilley left the apartment and took his and K.W.'s daughter to a
neighbor's apartment.
Gilley failed to immediately call 911 and left the
apartment after his brother arrived because Gilley was subject to
two sets of bail conditions that prohibited him from having contact
with K.W. Cell phone records indicate that about forty-five to
ninety minutes elapsed from the time Gilley started talking with
Christopher to the time Christopher called 911.
A medical examiner determined after an autopsy that K.W.
died of acute intoxication from the combined effects of fentanyl,
heroin, and ethanol. In grand jury testimony, Maine Drug
Enforcement Agency Agent Chad Carleton suggested that the heroin
was actually a mixture of heroin and fentanyl.
On July 26, 2017, Gilley was charged in a two-count
superseding indictment with distribution of heroin and fentanyl
resulting in death (Count 1) and distribution of heroin and
fentanyl (Count 2). 21 U.S.C. § 841(a)(1), (b)(1)(C).
On August 1, 2017, pursuant to a written plea agreement,
Gilley pled guilty to Count 2, while the government agreed to
dismiss Count 1, which carried a twenty-year statutory minimum
sentence. 21 U.S.C. § 841(b)(1)(C). For Count 2, the parties
agreed to recommend a sentence between 132 and 180 months, a
recommendation that bound the district court if the judge accepted
the plea agreement. Fed. R. Crim. P. 11(c)(1)(C).
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The agreement also contained a non-binding
recommendation that the court find that Gilley accepted
responsibility for the offense and that his offense level should
be reduced accordingly. Further, the parties stipulated that
Gilley distributed a mixture containing heroin and fentanyl to
K.W. and that K.W. died as a result of using the substance.
Finally, Gilley waived the right to appeal the guilty plea and a
sentence of imprisonment that did not exceed 156 months.
The Presentence Report ("PSR") held Gilley accountable
for one gram of a mixture containing heroin and fentanyl, giving
Gilley a base offense level of twelve. The PSR added two offense
levels for obstruction of justice and subtracted two offense levels
for Gilley's acceptance of responsibility.1 The total offense
level was twelve.
According to the PSR, Gilley's fourteen prior
convictions resulted in five criminal history points, yielding a
criminal history category ("CHC") of III. His past criminal
conduct included incidents of domestic violence against K.W. and
1 The PSR relied on three facts to justify the obstruction-
of-justice enhancement: First, Gilley called his brother, rather
than 911, when he found K.W. unresponsive; second, due to his bail
conditions, Gilley concealed that he was at K.W.'s apartment; and
third, officers found no evidence of drugs or drug paraphernalia
in K.W.'s apartment, although Gilley admitted he and K.W. used
drugs that evening, suggesting evidence was removed from the
apartment. At the same time, the PSR concluded that Gilley's
pleading guilty and expressing remorse warranted the reduction for
acceptance of responsibility.
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witness-tampering and victim-contact charges based on Gilley's
discouraging K.W. from contacting the police after domestic-
violence incidents.
Given a total offense level of twelve and a CHC of III,
the PSR recommended an imprisonment range of fifteen to twenty-
one months. It further said departure from the range might be
warranted because death resulted from the offense, U.S.S.G. §
5K2.1, and to reflect the actual seriousness of the offense based
on Gilley's conduct underlying the dismissed charge, id. § 5K2.21.
Defense counsel argued that the district court should
consider the range stipulated in the plea agreement and sentence
Gilley to 132 months in prison, the range's lower bound. Counsel
explained that Gilley and K.W. were heroin addicts who had relapsed
shortly before this incident; K.W. chose to engage with Gilley and
use drugs; and Gilley, who used the same batch of heroin, was
unaware the heroin was mixed with fentanyl. Counsel cited state
and federal cases to show that a 132-month term represented an
appropriate sentence.
The government argued for a sentence of 180 months, the
top of the stipulated range. The government stressed Gilley's
prior acts of domestic violence, his contact with K.W. in breach
of his then-existing bail conditions, his criminal conduct on that
occasion, and his failure to call 911 when finding K.W. non-
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responsive. The government opposed the PSR's recommended
obstruction-of-justice enhancement.
At sentencing on December 5, 2017, the district court
accepted the binding plea agreement. The court declined to apply
the obstruction-of-justice enhancement, and it computed a total
offense level of ten and CHC of III, yielding a guidelines range
of ten to sixteen months. The court recognized that the plea
agreement's stipulated range was "considerably higher" than the
guidelines range, but in exchange, the government had agreed to
dismiss the Count 1 charge that carried a twenty-year mandatory
minimum.
The court sentenced Gilley to 168 months in prison, a
sentence that fell within the range stipulated in the plea
agreement (132 to 180 months) as well as between the defense
counsel's recommendation (132 months) and the government's
recommendation (180 months). Gilley now claims that the sentence
is substantively unreasonable.
At the outset, the government says that our jurisdiction
is "questionable," given that the district court imposed an
imprisonment term within the range stipulated in the plea bargain.
The government suggests that section 3742(c), which governs
appellate review of Rule 11(c)(1)(C) plea agreements, may bar our
review of Gilley's sentence: "In the case of a plea agreement
that includes a specific sentence under [Rule 11(c)(1)(C)] . . .
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a defendant may not [make certain arguments on appeal] unless the
sentence imposed is greater than the sentence set forth in such
agreement . . . ." 18 U.S.C. § 3742(c).2 Because the district
court imposed a sentence within the range stipulated in Gilley's
Rule 11(c)(1)(C) plea agreement, the government contends that
Gilley may not appeal--and so this court may not review--his
sentence.
Gilley's plea agreement included a waiver of the right
to appeal "[a] sentence of imprisonment that does not exceed 156
months," and the colloquy during Gilley's change-of-plea hearing
implied that Gilley retained a right to appeal any sentence greater
than 156 months. The sentence imposed exceeded this limit. Even
if we are mistaken that Gilley retained the right to appeal under
these circumstances, the mistake will prove harmless because the
appeal is itself without merit.
Gilley's sole claim on appeal is that the district
court's 168-month sentence is substantively unreasonable. At
sentencing, defense counsel failed to object to the sentence
imposed by the district court. Whether our review is for plain
error or abuse of discretion, a matter of some debate, United
2 Federal Rule of Criminal Procedure 11 has been reorganized.
Fed. R. Crim. P. 11 advisory committee's note to 2002 amendment.
Section 3742(c) refers to Rule 11(e)(1)(C), which is now Rule
11(c)(1)(C), the basis for Gilley's plea agreement.
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States v. Millán-Román, 854 F.3d 75, 80–81 (1st Cir. 2017),
Gilley's sentence is substantively reasonable.
Although the district court's 168-month sentence is
within the range stipulated in the plea agreement, Gilley claims
the court should have sentenced him to the stipulated range's lower
bound. To this end, Gilley argues that the district court
overlooked, or failed to give sufficient weight to, a number of
considerations.
First, Gilley says that the district court ignored
K.W.'s own contributions to her death. Indeed, the district court
did not expressly point to K.W.'s culpability as a mitigating
factor. A district court, however, "is not required to address
frontally every argument advanced by the parties . . . ." United
States v. Turbides-Leonardo, 468 F.3d 34, 40 (1st Cir. 2006). And
the implicit premise of Gilley's argument is mistaken: K.W.'s
contribution does not necessarily make Gilley's conduct any more
tolerable.
The court, properly, focused on Gilley's culpability.
The court acknowledged Gilley was "not a big drug dealer" and
"didn't have any reason to believe . . . [the heroin] had fentanyl
in it" but faulted Gilley for choices wholly within his control:
his failure to call 911 and his failure to obey his bail
conditions.
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Second, Gilley attempts to downplay his failure to call
911, explaining that "[t]here is . . . no evidence in the record
to show that a prompt call to 911 would have saved K.W." Yet the
aggravating nature of Gilley's failure to call is not simply the
possibility that the call could have saved K.W.; rather, it is
that the failure to call is evidence that Gilley valued his
immediate liberty over K.W.'s life.
Third, Gilley claims the district court erred in making
"the history of domestic abuse such an important factor" because
"no nexus" exists between the domestic violence and K.W.'s death.
The court, however, made the nexus plain at sentencing: The fact
that Gilley failed to call 911, placing his liberty ahead of K.W.'s
life, was, in the court's words, "somewhat predictable" given
Gilley's history of abusing K.W.
The significant weight the court assigned the history of
domestic abuse, chiefly within its discretion, United States v.
Clogston, 662 F.3d 588, 593 (1st Cir. 2011), was supported by the
court's conclusion that Gilley "controlled and abused" K.W., a
factual determination this court reviews for clear error. United
States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013).
Gilley's phone calls urging K.W. to hide her injuries from the
police when he was in jail facing domestic-violence charges are a
further aggravation.
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Fourth, Gilley asserts the court ignored letters from
Gilley's family and friends that spoke to his positive attributes
and reports from professional treatment providers that concluded
Gilley represents a good candidate for rehabilitation. But this
claim contradicts the court's express statement that it
considered, among other things, the letters on Gilley's behalf,
the parties' sentencing memoranda, and the parties' arguments at
the sentencing hearing.
Further, the 168-month sentence, although severe, was
less than the government's recommended sentence and below the top
of the range that bound the court. The court had no obligation to
accept the parties' request, and the judge could easily have chosen
to impose a stiffer sentence. We can comfortably conclude the
district court, in opting for a less-than-maximum sentence,
considered these mitigating factors.
Fifth, Gilley argues that the district court violated
the parsimony principle--the overarching sentencing requirement
that courts impose sentences sufficient, but not greater than
necessary, to comply with the purposes of sentencing. In
particular, Gilley claims the district court took "insufficient
note" of "similar" federal and state cases in which, in Gilley's
view, "substantially less severe sentences had been imposed for
similar conduct."
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To the contrary, the district court not only noted the
cases Gilley offered as analogues but also explicitly
distinguished those cases from Gilley's case. Recognizing that
144 months represented the highest sentence in the allegedly
comparable cases, the court pointed out that those cases did not
have "the overlay of domestic violence" present in Gilley's case.
Aside from offering comparable cases, Gilley asserts
that the district court violated the parsimony principle because
the three additional years "will do nothing to protect the public,"
and Gilley has already demonstrated genuine remorse and began his
rehabilitation. This argument, however, ignores other sentencing
purposes--such as reflecting the seriousness of the offense,
providing just punishment, and affording adequate deterrence--that
section 3553 demands a district court consider. 18 U.S.C. §
3553(a)(2).
In sum, Gilley's arguments boil down to a disagreement
with the weight the court assigned particular factors, a task which
is "largely within the [sentencing] court's informed discretion."
Clogston, 662 F.3d at 593. Here, the history of abuse, the failure
to seek timely help, and the callous selfishness of Gilley's
behavior amply justify the sentence imposed.
Affirmed.
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