United States v. Pinkham ( 2018 )


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  •           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
    - 4 -
    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
    - 6 -
    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
    - 8 -
    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-
    - 9 -
    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
    - 10 -
    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
    - 11 -
    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
    .
    - 12 -
    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,
    - 13 -
    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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