United States v. Pinkham ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-1664
UNITED STATES OF AMERICA,
Appellee,
v.
DALE PINKHAM, SR.,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Jon Levy, U.S. District Judge]
Before
Lynch, Selya and Thompson,
Circuit Judges.
Lenore Glaser and Law Office of Lenore Glaser on brief for
appellant.
Halsey B. Frank, United States Attorney, and Benjamin M.
Block, Assistant United States Attorney, on brief for appellee.
July 18, 2018
SELYA, Circuit Judge. Defendant-appellant Dale Pinkham,
Sr., challenges his 240-month incarcerative sentence. He strives
to convince us that the district court held him responsible for an
incorrect drug quantity and, in the bargain, improperly counted
two prior convictions when calculating his criminal history score.
We are not persuaded by either argument and, therefore, summarily
affirm his sentence.
I. BACKGROUND
Because this appeal follows the appellant's guilty plea,
we draw the facts from the change-of-plea colloquy, the uncontested
portions of the presentence investigation report (PSI Report), and
the record of the disposition hearing. See United States v.
Fields, 858 F.3d 24, 27 (1st Cir. 2017); United States v. Dietz,
950 F.2d 50, 51 (1st Cir. 1991).
The conviction and sentence sub judice stem from the
appellant's operation of what might be termed a family business:
a drug-trafficking conspiracy that involved his sons (Robert,
Raymond, and Dale, Jr.) and his romantic partner of 30 years
(Louise Cook). Beginning around 2012, the appellant ran this
conspiracy from his home in Gorham, Maine. During its embryonic
stages, the appellant typically obtained 10 to 20 grams of heroin
once every two months from a Boston-based supplier. Over time the
conspiracy matured, with the result that the appellant's purchases
increased in frequency, eventually becoming monthly occurrences.
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The amounts of heroin handled by the conspiracy escalated as well,
rising to roughly 200 to 400 grams per month.
Even apart from promoting drug use, the appellant's
criminal activities had a deleterious effect on the community in
which he lived. He encouraged his customers to commit burglaries
and bring him items that he prized. In this way, the appellant
amassed stockpiles of firearms, jewelry, tools, and electronic
gadgets.
These chickens ultimately came home to roost. On July
22, 2015, a federal grand jury sitting in the District of Maine
returned an indictment charging the appellant with a laundry list
of crimes. While the appellant was being held in pretrial
detention, he reached out to family members, soliciting them to
threaten potential witnesses.
In due season, the grand jury returned a superseding
indictment, which charged the appellant in 13 separate counts. Of
particular pertinence for present purposes, the superseding
indictment charged him with conspiracy to distribute heroin, see
21 U.S.C. §§ 841(a)(1), 846 (count one); conspiracy to possess
stolen firearms, see 18 U.S.C. §§ 371, 922(j) (count four); and
attempted witness tampering, see id. § 1512(a)(2) (count twelve).
The appellant initially maintained his innocence. On September 6,
2016, however, he reversed his course and entered a guilty plea,
pursuant to a plea agreement, to counts one, four, and twelve.
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The government agreed to dismiss the remaining 10 counts at
sentencing.
The PSI Report recommended that the appellant be held
responsible for 3.23 kilograms of heroin, which corresponded to a
base offense level of 32. See USSG §2D1.1(c)(4) (Drug Quantity
Table). Notwithstanding the appellant's protest that this figure
represented a "significant overestimate of the drug quantity
involved," the district court adopted the drug-quantity
calculation and — after making other adjustments not challenged
here — set the appellant's total offense level at 39. The court
also adopted the PSI Report's recommended criminal history score
of six and placed the appellant in criminal history category III.
Although these determinations yielded a guideline sentencing range
of 324 to 405 months, the court weighed the factors limned in
18 U.S.C. § 3553(a) and concluded that a below-the-range
incarcerative sentence of 240 months was sufficient to achieve the
purposes of sentencing. The court imposed such a downwardly
variant sentence, and this timely appeal followed.
II. ANALYSIS
As a general matter, we review challenges to a sentence
for abuse of discretion. See Gall v. United States, 552 U.S. 38,
51 (2007); United States v. Martin, 520 F.3d 87, 92 (1st Cir.
2008). This process "is characterized by a frank recognition of
the substantial discretion vested in a sentencing court." United
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States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013). If,
however, a particular claim of error is raised for the first time
on appeal, review is normally limited to the incidence of plain
error. See United States v. Duarte, 246 F.3d 56, 60 (1st Cir.
2001); see also Fed. R. Crim. P. 52(b). "The plain error hurdle
is high." United States v. Hunnewell, 891 F.2d 955, 956 (1st Cir.
1989). Where the plain error standard applies, an appellant must
demonstrate "(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." Duarte, 246 F.3d
at 60; see Rosales-Mireles v. United States, 138 S. Ct. 1897, 1904-
05 (2018). A party who claims plain error must carry the devoir
of persuasion as to all four of these elements. See United States
v. Bramley, 847 F.3d 1, 5 (1st Cir. 2017); United States v. Vega
Molina, 407 F.3d 511, 521 (1st Cir. 2005).
Against this backdrop, we turn to the appellant's twin
claims of sentencing error. We discuss them sequentially.
A. Drug Quantity.
To begin, the appellant challenges the drug quantity for
which he was held accountable. In confronting this challenge, we
are mindful that, in drug-trafficking cases, "a key datum in
constructing the defendant's sentence is the quantity of narcotics
attributable to him for sentencing purposes, a datum initially
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bounded by the sum of the charged conduct to which the defendant
pleads plus his relevant uncharged conduct." United States v.
Santos, 357 F.3d 136, 140 (1st Cir. 2004) (quoting United States
v. Bradley, 917 F.2d 601, 604 (1st Cir. 1990)). The sentencing
court must derive the relevant drug quantity "from all acts 'that
were part of the same course of conduct or common scheme or plan
as the offense of conviction.'" Id. (quoting USSG §1B1.3(a)(2)).
The "essential inquiry" is not limited to what the defendant
actually knew but, rather, extends to "what acts were reasonably
foreseeable by him." Id.; see United States v. Colón-Solís, 354
F.3d 101, 103 (1st Cir. 2004). In a drug-conspiracy case, this
means that "each co-conspirator is responsible not only for the
drugs he actually handled but also for the full amount of drugs
that he could reasonably have anticipated would be within the ambit
of the conspiracy." United States v. Rivera-Rodríguez, 617 F.3d
581, 607 (1st Cir. 2010) (quoting United States v. Rodriguez, 525
F.3d 85, 107 (1st Cir. 2008)); see USSG §1B1.3(a)(1)(B).
At sentencing, the appellant argued that the court was
using an incorrect calculation of the amount of drugs handled by
the conspiracy. On appeal, the appellant makes the same bottom-
line argument, but he has shifted theories. Represented by new
counsel, he no longer posits that the district court committed an
arithmetical error. Instead, he argues that the court erred as a
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matter of law in including in its calculation drugs that he
personally consumed.
Hopscotching from one theory to another theory has
consequences. "A criminal defendant, dissatisfied with the
district court's rulings at sentencing yet persuaded that his
original arguments lacked merit, cannot switch horses mid-stream
in hopes of locating a swifter steed" and expect that his new
theory will be treated as a preserved claim of error. Dietz, 950
F.2d at 55. Under such circumstances, the new theory is treated
as an unpreserved claim of error, see id. at 54-55; Clauson v.
Smith, 823 F.2d 660, 666 (1st Cir. 1987); and although preserved
claims of legal error are reviewed de novo,1 see United States v.
McCormick, 773 F.3d 357, 359 (1st Cir. 2014), forfeited claims are
reviewed only for plain error, see Puckett v. United States, 556
U.S. 129, 134-35 (2009). Here, as in Dietz, 950 F.2d at 55, the
appellant makes a "neoteric argument[]" that "bear[s] no
substantial relation" to his original argument. Our review,
therefore, is limited to plain error.
1 At sentencing, de novo review of preserved claims of legal
error is not inconsistent with the general precept that claims of
sentencing error are reviewed for abuse of discretion. See Gall,
552 U.S. at 51; Martin, 520 F.3d at 92. After all, a material
error of law is always an abuse of discretion. See United States
v. Sepúlveda-Hernández, 752 F.3d 22, 33 (1st Cir. 2014); United
States v. Snyder, 136 F.3d 65, 67 (1st Cir. 1998).
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Plain error is plainly absent. It is settled law in
this circuit that when a defendant participates in a drug-
trafficking conspiracy, his "purchases for personal use are
relevant in determining the quantity of drugs that [he] knew were
distributed by the conspiracy." United States v. Demers, 842 F.3d
8, 13 (1st Cir. 2016) (quoting United States v. Innamorati, 996
F.2d 456, 492 (1st Cir. 1993)). Because the appellant took part
in such a conspiracy — indeed, he was its ringleader — whatever
drugs he himself consumed were properly included in his drug-
quantity tabulation.
In the last analysis, the appellant's argument derives
from his failure to appreciate the important distinction between
conspiracy cases and certain other drug cases. Some of our sister
circuits have ruled that drugs obtained for personal consumption
should be excluded from the drug-quantity calculus when the
defendant is accused only of possession with intent to distribute.
See, e.g., United States v. Gill, 348 F.3d 147, 153 (6th Cir.
2003); United States v. Williams, 247 F.3d 353, 358 (2d Cir. 2001);
United States v. Wyss, 147 F.3d 631, 632 (7th Cir. 1998). Such
cases rely on the distinction between possession with intent to
distribute and conspiracy. When a defendant is charged with the
former crime, the government must establish "that a defendant
possessed the drugs for distribution rather than for personal use."
United States v. Polanco, 634 F.3d 39, 43 (1st Cir. 2011). In the
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absence of a conspiracy, then, "the act of setting aside narcotics
for personal consumption" may reasonably be regarded as "exclusive
of any plan to distribute them." Williams, 247 F.3d at 358(emphasis in original). By contrast, courts recognize that, in
conspiracy cases, drug quantity should not be reduced to account
for a defendant's personal drug use. See id.; Wyss, 147 F.3d at
632.
In a variation on this theme, the appellant also argues
that the rule of lenity requires that we discount the drugs he
personally consumed. We think not. In its classic formulation,
the rule of lenity applies when "reasonable doubt persists about
a statute's intended scope even after resort to 'the language and
structure, legislative history, and motivating policies' of the
statute." Moskal v. United States, 498 U.S. 103, 108 (1990)
(emphasis in original) (quoting Bifulco v. United States, 447 U.S.
381, 387 (1980)); see United States v. Stepanian, 570 F.3d 51, 57
(1st Cir. 2009).
We have indicated, however, that the rule of lenity is
not limited to instances of statutory ambiguity. The rule may
also apply in the context of the sentencing guidelines. Thus,
"[w]e have looked with favor on the application of this rule to a
sentencing guideline when 'substantial ambiguity as to the
guideline's meaning persists even after a court looks to its text,
structure, context, and purposes.'" United States v. Suárez-
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González, 760 F.3d 96, 101 (1st Cir. 2014) (quoting United States
v. Damon 595 F.3d 395, 401 (1st Cir. 2010)); see United States v.
Bowen, 127 F.3d 9, 14 (1st Cir. 1997).
The case at hand does not come within these contours.
For the reasons already explained, the guidelines clearly support
inclusion of a defendant's purchase of drugs for personal
consumption in a conspiracy case. Consequently, the rule of lenity
does nothing to improve the appellant's position here.
That ends this aspect of the matter. We hold that the
appellant's newly emergent drug-quantity claim is futile.
B. Criminal History Score.
This brings us to the appellant's claim that the
sentencing court miscalculated his criminal history score, thus
boosting him into the wrong criminal history category (CHC). To
lend perspective, we start with some general comments about the
computation and effect of a defendant's criminal history score. A
defendant's guideline sentencing range is a product of two
integers: his total offense level and his CHC. See United States
v. Serrano-Mercado, 784 F.3d 838, 840 (1st Cir. 2015); United
States v. Emery, 991 F.2d 907, 909 (1st Cir. 1993). The CHC, in
turn, is derived from a defendant's criminal history score. See
United States v. Sanchez, 354 F.3d 70, 81 (1st Cir. 2004). For
instance, a defendant who has a criminal history score of four,
five, or six falls into CHC III, whereas a defendant who has a
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criminal history score of two or three falls into CHC II. See
USSG Ch. 5, Pt. A (Sentencing Table). The lower a defendant's
CHC, the lower his guideline sentencing range ordinarily will be.
See id.; see also Serrano-Mercado, 784 F.3d at 840.
Although prior convictions normally count toward a
defendant's criminal history score, the guidelines exempt some
misdemeanors and petty offenses from this computation. See USSG
§4A1.2(c); see also United States v. Maldonado, 614 F.3d 14, 16
(1st Cir. 2010). Attempting to invoke such an exemption, the
appellant cites USSG §4A1.2(c)(2), which excludes from a
defendant's criminal history score sentences for certain
enumerated offenses (and offenses similar to them). This litany
includes "minor traffic infractions (e.g., speeding)." USSG
§4A1.2(c)(2).
The appellant's claim that the sentencing court erred in
compiling his criminal history score has two sub-parts. Each sub-
part focuses on a different prior conviction: the first sub-part
relates to a 2003 conviction for driving without a valid driver's
license. See Fla. Stat. § 322.03(1). When constructing the
appellant's criminal history score, the district court treated
this conviction as similar to an offense enumerated in section
4A1.2(c)(1): "[d]riving without a license or with a revoked or
suspended license." Noting that the appellant had received a
60-day jail sentence for driving without a valid driver's license
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and concluding that the conditions for exemption under section
4A1.2(c)(1) were therefore not met,2 the court assigned two
criminal history points to this conviction.
The appellant assigns error, contending that the
district court should have excluded this conviction from his
criminal history score pursuant to section 4A1.2(c)(2) because it
was similar to a minor traffic infraction, such as speeding. Since
this contention is raised for the first time on appeal, our review
is for plain error. See Duarte, 246 F.3d at 60. We discern none.
In sorting out whether a subsection of section 4A1.2(c)
applies, an inquiring court must focus on factors such as "a
comparison of punishments imposed for the listed and unlisted
offenses," "the perceived seriousness of the offense as indicated
by the level of punishment," "the elements of the offense," "the
level of culpability involved," and "the degree to which the
commission of the offense indicates a likelihood of recurring
criminal conduct." USSG §4A1.2, cmt. n.12(A). The defendant bears
2 Under USSG §4A1.2(c)(1), a prior conviction is excluded from
a defendant's criminal history score if three conditions are met:
(1) the sentence imposed for the prior conviction was for one
year's probation or less and/or less than 30 days' imprisonment;
(2) the prior conviction was for an offense that is dissimilar to
the offense for which the defendant is currently being prosecuted;
and (3) the prior conviction was for an offense that is either
enumerated in section 4A1.2(c)(1) or is similar to such an offense.
See Maldonado, 614 F.3d at 16.
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the burden of establishing that an exemption pertains. See United
States v. Garcia-Sandobal, 703 F.3d 1278, 1284 (11th Cir. 2013).
Under Florida law, driving without a valid license is
generally considered comparable to driving while one's license is
suspended, revoked, canceled, or disqualified. See Roedel v.
State, 773 So. 2d 1280, 1281 (Fla. Dist. Ct. App. 2000) (noting
similarity). All of these offenses are misdemeanors of the second
degree, which are punishable by a jail sentence of up to sixty
days and/or a fine of up to $500. See Fla. Stat. §§ 322.03(1),
322.34(2), 322.39(2), 775.082(4)(b), 775.083(1)(e). Seen in this
light, the district court's selection of driving with a suspended,
revoked, canceled, or disqualified license as the most appropriate
analog to driving without a valid license appears eminently
reasonable. Conversely, the appellant's suggested comparator —
speeding — appears to be dissimilar in important respects; that
offense is treated as a "noncriminal traffic infraction," and is
punishable only by a fine of up to $500. Id. §§ 316.183(7),
775.082(5), 775.083(1)(e). Although the commentary to section
4A1.2(c) directs us to look beyond the statutory elements and to
consider the underlying facts of a defendant's prior conviction,
see USSG §4A1.2, cmt. n.12(A); see also Maldonado, 614 F.3d at 18-
19, the appellant has failed to point to anything in the state-
court record that would blunt the force of the district court's
comparison — and it is his burden to do so, see Garcia-Sandobal,
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703 F.3d at 1284; cf. United States v. Gray, 177 F.3d 86, 90 (1st
Cir. 1999) ("Because a defendant stands in the best position to
offer a first-hand account of the details of his own past legal
proceedings, his silence can be deafening."). The known facts
militate against the appellant's comparison; he was given a
statutory maximum sentence of sixty days, which undermines the
appellant's efforts to downplay the severity of his past offense.
In a last-ditch effort to tip the balance, the appellant
conclusorily suggests that the rule of lenity counsels in favor of
his interpretation. Given the plain language of the relevant
Florida statutes, though, the appellant has wholly failed to sow
any reasonable degree of doubt regarding their import. See Moskal,
498 U.S. at 108. It follows that the rule of lenity is of no
solace to him.
Nothing more need be said. The short of it is that no
error, plain or otherwise, mars the inclusion of two points for
the appellant's conviction for driving without a valid driver's
license in his criminal history score.
The second sub-part of the appellant's attack on his
criminal history score relates to the district court's inclusion
of one criminal history point for his 2008 Florida conviction for
failing to send his child to school. See Fla. Stat. § 1003.27(2).
He argues that this conviction comes within the sweep of section
4A1.2(c)(2), which instructs that "juvenile status offenses and
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truancy" are "never counted" toward a defendant's criminal history
score.
Here, however, the appellant's claim does not even get
out of the starting gate. In his brief, the appellant provides
only a cursory reference to guideline commentary,3 without making
even the slightest effort to explain its relevance. He cites no
other authority and musters nothing that even remotely resembles
a developed argument. Such bare terrain is familiar territory.
We have stated, time and time again, that "issues
adverted to in a perfunctory manner, unaccompanied by some effort
at developed argumentation, are deemed waived." United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990). Since the appellant has
mentioned his truancy-related argument in only "the most skeletal
way," without any coherent structure or substance, we deem his
argument abandoned. Id.; see Rodríguez v. Mun'y of San Juan, 659
F.3d 168, 175-76 (1st Cir. 2011); United States v. DeCologero, 530
F.3d 36, 60 (1st Cir. 2008).
III. CONCLUSION
We need go no further. For the reasons elucidated above,
the appellant's sentence is summarily
Affirmed. See 1st Cir. R. 27.0(c).
3 The appellant refers to USSG §4A1.1, cmt. n.3. This comment
deals in part with sentences committed before a defendant's 18th
birthday. See id. Since the appellant was well over the age of
18 when he committed the offense of failing to send a child to
school, any relevance that the commentary may have is a mystery.
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