United States v. Wilson , 185 F. App'x 6 ( 2006 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 05-2452
UNITED STATES,
Appellee,
v.
EASTON WILSON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Selya, Lynch and Howard,
Circuit Judges.
Robert M. Napolitano on brief for appellant.
Paula D. Silsby, United States Attorney, and Margaret D.
McGaughey, Appellate Chief, on brief for appellee.
June 22, 2006
Per Curiam. Easton Wilson pled guilty (without a plea
agreement) to five counts charging, inter alia, conspiring to
import cocaine and to distribute cocaine base, and possession with
intent to distribute cocaine base. Two of the counts (Counts II
and III) include references to drug quantities. He was sentenced
prior to the United States Supreme Court's decision in United
States v. Booker, 543 U.S. 220 (2005), but had raised in the
district court an objection to the federal sentencing guidelines
based on Apprendi v. New Jersey, 530 U.S. 466 (2000). Finding that
this had preserved a claim of Booker error and that the government
had failed to prove that the error was harmless beyond a reasonable
doubt, we affirmed the conviction but vacated the sentence and
remanded for re-sentencing under Booker's advisory guidelines
system. See United States v. Antonakopoulos, 399 F.3d 68, 76 (1st
Cir. 2005).
On remand, the sentencing court reiterated its findings from
the original sentencing and imposed the identical sentence of 320
months, at the middle of the applicable guideline sentencing
range.1 In this appeal, Wilson objects to the enhancements to his
sentence based upon fact-finding by the sentencing court. First,
he objects that the sentencing court's findings as to drug quantity
enhanced his sentence for Counts I and III above the statutory
maximum, in violation of Apprendi. Second, he argues that the
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The court imposed a sentence of 320 months on each of Counts
I, III and VI, and the statutory maximum of 240 months on Counts IV
and V.
sentencing court erred by enhancing his guideline sentence based on
judicial findings of fact with respect to: drug quantity, role in
the offense, presence of a firearm, and attribution to him of prior
criminal conduct under the alias "Anthony Brown," in violation of
Blakely v. Washington, 542 U.S. 296 (2004). Finally, Wilson
challenges his sentence under Booker, on the ground that it is
based upon an unreasonable assessment of the facts. For the
following reasons, none of these sentencing challenges is availing.
I. Apprendi Claims
In Booker, the Court reaffirmed its holding in Apprendi:
Any fact (other than a prior conviction) 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.
United States v. Booker, 543 U.S. 220, 244 (2005)(emphasis added).
Wilson's contention that the sentences imposed for Counts I and III
exceeded the default statutory maximum imprisonment terms for those
offenses is unfounded. Count I charged conspiracy to distribute
"50 or more grams of cocaine base" and Count III charged conspiracy
to import "5 or more kilograms of cocaine." Wilson entered an
unconditional plea to those charges and during the plea colloquy
admitted to the "Prosecution Version" of the facts, which included
the quantities charged in the indictment. The maximum statutory
imprisonment corresponding to those drug quantities is life. See 21
U.S.C. § 841(b)(1)(A)(iii) (Count I); id. § 960(b)(1)(B)(ii) (Count
III). Therefore, the sentences imposed did not "exceed[] the
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maximum authorized by the facts established by [Wilson's] plea of
guilty," Booker, 543 U.S. at 244, and there was no Apprendi error.
II. Blakely Claims
Wilson argues that his Sixth Amendment rights were violated
when the district court enhanced his guideline sentence based on
the following factual findings that were neither charged in the
indictment nor proved to a jury beyond a reasonable doubt: 1)
defendant's role in the offense as an "organizer or leader," 2) the
drug quantity used to arrive at a base offense level, 3) his
possession of a dangerous weapon, and 4) attribution to defendant
of prior criminal conduct committed under an alias.
Wilson claims that such judicial fact-finding violated
Blakely. "Blakely claims are now viewed through the lens of
[Booker]." Cirio-Muñoz v. United States, 404 F.3d 527, 532 (1st
Cir. 2005). "Under Booker, a judge may do such fact finding in
determining the Guidelines range. Nothing in Booker requires
submission of such facts to a jury so long as the Guidelines are
not mandatory." Antonakopoulos, 399 F.3d at 80; see United States
v. Yeje-Cabrera, 430 F.3d 1, 17 (1st Cir. 2005). Therefore, there
was no Blakely error in this case.
III. Booker Claim
Wilson claims his sentence is unreasonable because it is based
on clearly erroneous facts.
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A. Drug Quantity
Wilson's main attack on the court's drug quantity finding is
that it includes "estimates." The record supports the statement in
the presentence investigation report (PSR) that it contains
"conservative estimate[s]" of the amount of drugs attributable to
Wilson in this case. As Wilson himself points out, where the
reported information provided no reliable method to determine the
drug quantities involved, no quantity was attributed. And where a
reported amount seemed higher than would be consistent with other
information obtained by the Probation Office, it was reduced
accordingly. These approaches support, rather than undercut, the
PSR's drug quantity calculation that was adopted by the sentencing
court. "[S]uch a determination need not be exact, but, rather, may
be approximate, as long as the approximation represents a reasoned
estimate." United States v. Santos, 357 F.3d 136, 141 (1st Cir.
2004). The sentencing court's factual finding as to drug quantity
was not clearly erroneous.
B. Role-in-the-Offense
The district court applied a four-level enhancement to
Wilson's offense level based on a finding that Wilson was "an
organizer or leader of a criminal activity that involved five or
more participants or was otherwise extensive." U.S.S.G. §
3B1.1(a). Wilson does not contest that there were five or more
participants involved in the conspiracy. His only argument is that
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"[t]he other participants had their own agendas for their roles in
the schemes. It is unfair to the Defendant and unreasonable to
suggest, but for [Wilson's] involvement these individuals would not
have formed a network."
The district court's finding that Wilson qualified as a leader
or organizer is adequately supported. The "Prosecution Version" of
the facts, which was expressly accepted as true by Wilson at his
guilty plea hearing, described Wilson's specific recruitment of
accomplices, exercise of control over others, and use of
decisionmaking authority. Wilson has failed to demonstrate that
the four-level enhancement was based on a clearly erroneous factual
assessment of his role in the offense. See United States v. Diaz-
Diaz, 433 F.3d 128, 138-39 (1st Cir. 2005) (affirming four-level
enhancement under clear error review where the evidence showed,
among other things, that defendant actively recruited other
participants and instructed others as to the best route for
transporting drugs).
C. Weapon
In calculating the guideline sentencing range, the district
court applied a two-level enhancement under U.S.S.G. § 2D1.1(b)(1),
for possession of a dangerous weapon. The court adopted the PSR's
finding that "a firearm was found in the defendant's bedroom during
the search conducted on April 12, 2003, in close proximity to a
significant quantity of both cocaine base and cash." Wilson does
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not contest the accuracy of that finding. Instead, he argues that
the government failed to point to any evidence of the use of a
firearm to advance any aspects of the drug trafficking. However,
"[u]nder our case law there is no requirement that the weapon have
been intended for use in perpetrating the drug offense, much less
that it have been used in furtherance of the offense." United
States v. Castillo, 979 F.2d 8, 10 (1st Cir. 1992).
D. Criminal History
On this appeal, Wilson's primary argument regarding criminal
history is that the district court erred in relying upon reports in
the PSR of Wilson's arrest on charges that are pending, and for
which he has not been convicted. No criminal history points were
assigned to the pending charges, and they therefore did not
influence the calculation of Wilson's criminal history category.
However, Wilson argues that the district court improperly took
those pending charges into account when deciding where within the
guideline range to sentence him.
At the original sentencing, the court made a reference to a
1998 arrest of Wilson in England when discussing his prospects for
rehabilitation. The PSR reported that as of January 2004, those
charges (related to possession with intent to distribute cocaine
base and heroin) were "pending" and that a warrant had issued for
failure to appear for trial, but that extradition was not sought.
Such pending charges may be considered in deciding whether to make
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an upward departure based on inadequacy of the criminal history
category. See § U.S.S.G. § 4A1.3(a)(2)(E). It follows that the
district court did not err in considering those charges in
determining where to sentence Wilson within the applicable
guideline range.
Wilson also objects, as he did at sentencing, to the district
court's use of his conviction for a 1992 offense committed under
the alias of Anthony Brown, for which he received one criminal
history point. In response to Wilson's objection to the PSR in
this regard, the Probation Office noted that the PSR reported with
respect to another 1992 Florida conviction that Wilson had
"acknowledged that he was using the license of Anthony Brown at
this time." At the original sentencing, the district court
recognized this as an area of dispute and made the following
finding: "I find based on the contents of the presentence
investigation report that the criminal conduct described to his
a/k/a is properly his and in fact it occurred." The district court
reiterated those findings at the re-sentencing hearing. Wilson has
failed to demonstrate that such findings were clearly erroneous.
The district court articulated its reasons, addressed the
defendant's arguments, considered the relevant criteria and the
sentence is entirely plausible. See United States v. Jimenez-
Beltre, 440 F.3d 514, 519 (1st Cir. 2006)(en banc). Wilson's
sentence is affirmed.
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