United States v. Coleman ( 2017 )

United States Court of Appeals
For the First Circuit
No. 15-2302
UNITED STATES OF AMERICA,
Appellee,
v.
ISAR COLEMAN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Howard, Chief Judge,
Torruella and Lynch, Circuit Judges.
Sarah A. Churchill and Nichols & Churchill, P.A., on brief
for appellant.
Renée M. Bunker, Assistant United States Attorney, and
Thomas E. Delahanty II, United States Attorney, on brief for
appellee.
April 14, 2017
TORRUELLA, Circuit Judge. Defendant-appellant Isar
Coleman ("Coleman") pleaded guilty to conspiracy to distribute and
possess with intent to distribute cocaine base, in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(C), 846. He was sentenced to a
forty-six-month term of imprisonment, at the lower end of his
United States Sentencing Guidelines ("U.S.S.G." or "Guidelines")
imprisonment range. Coleman now appeals, challenging the district
court's application of a two-level enhancement for possession of
a dangerous weapon under the U.S.S.G. § 2D1.1(b)(1), and the
substantive reasonableness of his sentence. After careful
consideration, we affirm.
I. Facts
In 2014, the Maine Drug Enforcement Agency began
investigating Coleman for illegal drug trafficking. As part of
the investigation, in October 2014, the agents intercepted various
phone calls between Coleman and another related defendant,
Christian Dent, in which Coleman ordered an "eight ball" (3.5
grams) of cocaine base from Dent for $250 and inquired about
"blues" (Oxycodone).
On November 26, 2014, the agents seized .3 grams of
cocaine base from a confidential source, who admitted to purchasing
the illegal substance from Coleman. Later, on December 8, 2014,
the agents listened to recorded calls between Coleman and the
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confidential source, in which they agreed to meet at Coleman's
location for the confidential source to purchase $50 to $100 of
cocaine base. Later that day, agents arrived at Coleman's location,
seized drugs, drug paraphernalia, and drug-related money, and
arrested Coleman, a resident, a female, and a juvenile. Coleman
informed the agents that the juvenile was going to sell the drugs
to the confidential source because Coleman was awaiting a re-
supply of cocaine base.
After Coleman's arrest, he told the agents about a drug-
trafficking scheme, and admitted, among other things, that a
related defendant, Tasheem Carter ("Carter"), from whom he
purchased three "eight balls" per month for $350 each "from April
through November," "traded guns for drugs." Coleman also admitted
that, while he was in an apartment with Carter, "Carter traded
drugs for a black handgun and that the transaction appeared to be
'second nature' for Carter." Coleman further admitted that on one
occasion Carter had been in a "feud" with a related defendant,
Sabree Branch, and "Carter bragged about shooting at Branch."
Finally, Coleman admitted that on one occasion, he was in an
apartment with Carter waiting for Branch to deliver what he
"assumed was a gun," but Branch was arrested right in front of the
apartment.1 This was the same apartment where Coleman was arrested
1 According to wiretapped calls, Carter was planning on purchasing
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and where the confidential source had bought cocaine base from
Coleman.
On January 15, 2015, a grand jury returned an indictment
charging Coleman with conspiracy to distribute and possess with
intent to distribute cocaine base, in violation of 18 U.S.C.
§§ 841(a)(1) and (b)(1)(C), 846. On June 15, 2015, Coleman pleaded
guilty, pursuant to a written plea agreement.2
At sentencing, the district court calculated a total
offense level of twenty-three, which resulted from a base offense
level of twenty-six pursuant to U.S.S.G. § 2D1.1; a two-level
enhancement for possession of a dangerous weapon, pursuant to
U.S.S.G. § 2D1.1(b)(1); a two-level reduction pursuant to U.S.S.G.
§ 5C1.2 for meeting the requirements of the safety valve provision;
and a three-level reduction pursuant to U.S.S.G. § 3E1.1(a) and
(b) due to Coleman's timely acceptance of responsibility. The
total offense level of twenty-three, combined with a criminal
history category I, yielded a guideline sentencing range ("GSR")
of 46-57 months of imprisonment. The district court then proceeded
to consider the relevant statutory factors under 18 U.S.C.
a firearm from Branch on November 28, 2014.
2 The plea agreement contained a waiver-of-appeal provision should
Coleman's incarcerative sentence not exceed thirty months, but the
provision is inapplicable here given the district court's
imposition of a forty-six month sentence.
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§ 3553(a). Specifically, the district court stated that it had
"listened carefully" to defense counsel's statements and Coleman's
"sincere" allocution, and had read the revised Presentence Report
and Coleman's sentencing memorandum, "as well as all the other
written materials." The sentencing court also took notice of
Coleman's "very difficult childhood." However, the sentencing
court stated that these factors needed to be balanced with others,
such as the seriousness of the offense, the significant quantity
of drugs involved, the severe effects to other people, and the
presence of a juvenile when Coleman was arrested. The district
court ultimately sentenced Coleman to forty-six months of
imprisonment to be followed by three years of supervised release.
On appeal, Coleman challenges both the procedural and
substantive reasonableness of his sentence. He submits that the
district court procedurally erred in calculating his GSR by
applying a two-level enhancement for possession of a dangerous
weapon under U.S.S.G. § 2D1.1(b)(1), and that the district court
abused its discretion by imposing a sentence at the lower end of
his GSR -- rather than below it -- because it should have weighed
some factors differently in crafting his sentence.
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II. Discussion
We review "the reasonableness of a sentence 'under a
[bifurcated] deferential abuse-of-discretion standard,'" United
States v. Battle, 637 F.3d 44, 50 (1st Cir. 2011) (quoting Gall v.
United States, 552 U.S. 38, 41 (2007)), by which "we first
determine whether the sentence imposed is procedurally reasonable
and then determine whether it is substantively reasonable."
United States v. Clogston, 662 F.3d 588, 590 (1st Cir. 2011). A
sentence is procedurally reasonable if the district court
committed no procedural sentencing errors, such as "failing to
calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the
section 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence -- including an explanation for any deviation from the
Guidelines range." United States v. Trinidad-Acosta, 773 F.3d
298, 309 (1st Cir. 2014). This assessment of the procedural
reasonableness of a sentence, in turn, is done by applying a
multifaceted analysis, by which "[w]e review factual findings for
clear error, arguments that the sentencing court erred in
interpreting or applying the guidelines de novo, and judgment calls
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for abuse of discretion simpliciter." Id. (quoting United States
v. Serunjogi, 767 F.3d 132, 142 (1st Cir. 2014)).
Once we determine that the district court committed no
significant procedural errors, we proceed to "consider the
substantive reasonableness of the sentence imposed under an abuse-
of-discretion standard." Id. At this point, "[t]he linchpin of
a reasonable sentence is a plausible sentencing rationale and a
defensible result." Id. (quoting United States v. Ramos, 763 F.3d
45, 58 (1st Cir. 2014)).
A. The Procedural Reasonableness of Coleman's Sentence
Coleman first submits that the district court erred in
applying the two-level enhancement for possession of a dangerous
weapon under U.S.S.G. § 2D1.1(b)(1). Coleman argues that he pleaded
guilty to a conspiracy that lasted only one day, December 8, 2014,
and since no evidence linked firearms to that specific day, an
enhancement under § 2D1.1(b)(1) was improper. Since Coleman
preserved this first submission, we review the district court's
interpretation or application of the guidelines de novo, and its
factual findings for clear error. United States v. Cotto-Negrón,
845 F.3d 434, 437 (1st Cir. 2017).
A two-level increase in the offense level applies "[i]f
a dangerous weapon (including a firearm) was possessed," U.S.S.G.
§ 2D1.1(b)(1), "unless it is clearly improbable that the weapon
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was connected with the offense," id. at § 2D1.1 cmt. n.11(A). To
determine the applicability of this enhancement, the district
court may consider all relevant conduct. Id. at § 1B1.3(a)(1)(A)-
(B). Since the court may consider all relevant conduct, it follows
that the court's assessment is not "limited to the charged
conspiracy." See, e.g., United States v. Shippley, 690 F.3d 1192,
1200 (10th Cir. 2012) (noting that "a § 2D1.1(b)(1) enhancement
applies if a dangerous weapon was present or possessed during
uncharged drug trafficking activity that constitutes relevant
conduct under § 1B1.3" (citing United States v. Roederer, 11 F.3d
973, 982 (10th Cir. 1993))); see also United States v. Mitchell,
528 F. App'x 800, 806 (10th Cir. 2013) (holding that the
§ 2D1.1(b)(1) enhancement is not "limited to the charged
conspiracy") (emphasis in original). Further, we have held that
"[f]or this enhancement to attach, a defendant need not be caught
red-handed: the enhancement applies not only where a defendant
himself possessed a firearm but also where it was reasonably
foreseeable to the defendant that firearms would be possessed by
others during the conspiracy." United States v. Burgos-Figueroa,
778 F.3d 319, 321 (1st Cir. 2015). The Government bears the
initial burden of establishing the nexus between the firearm and
the offense conduct. United States v. Corcimiglia, 967 F.2d 724,
728 (1st Cir. 1992). Once this nexus has been established, "[t]he
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burden then falls on [the] defendant to come forward with evidence
demonstrating the existence of special circumstances that would
render it 'clearly improbable' that the weapon's presence has a
connection to the [offense]." Id.Here, even though no evidence linked firearms to
December 8, 2014, it was reasonably foreseeable to Coleman, and in
fact he knew, that firearms were present or possessed by others
during drug trafficking activity that constitutes relevant
conduct. The record reveals that Coleman admitted that, during
the time that he was held accountable for the drug-trafficking
conspiracy, one of his co-conspirators and drug suppliers, Carter,
traded guns for drugs. Coleman also admitted that he was in an
apartment with Carter when a related defendant, Branch, was
scheduled to deliver what he "assumed was a gun." Thus, Coleman's
own admissions established his knowledge that others possessed
firearms during the conspiracy. Under these circumstances, the
district court did not clearly err in finding that Coleman "both
knew of and could reasonably foresee his co-conspirators'
possession of firearms." United States v. Casas, 356 F.3d 104,
129 (1st Cir. 2004). The government having established the nexus
between the firearm and the relevant offense conduct, Coleman
failed to prove that the connection between the weapon's presence
and the offense was clearly improbable.
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We thus conclude that the district court did not clearly
err in applying the two-level enhancement under U.S.S.G.
§ 2D1.1(b)(1), and that its sentence is procedurally reasonable.
B. The Substantive Reasonableness of Coleman's Sentence
Because we find no procedural error, we turn to consider
whether Coleman's sentence was substantively reasonable. See
United States v. Rossignol, 780 F.3d 475, 477 (1st Cir. 2015).
After reviewing the record, and considering the totality of the
circumstances, we conclude that his sentence is substantively
reasonable.
Coleman submits that his sentence was substantively
unreasonable because "[t]here are other factors that a sentencing
court can consider in determining whether a variance from the
Guideline range is appropriate," such as "cooperation," difficult
upbringing, and "[t]he disparity between the treatment of cocaine
base and cocaine powder." The Government contends that Coleman
failed to preserve this claim below, and that we must therefore
review it under the plain error standard. But, because we conclude
that Coleman's challenge fails even under the more favorable abuse-
of-discretion standard, Gall, 552 U.S. at 46, we need not decide
whether Coleman forfeited this claim below. See United States v.
Arsenault, 833 F.3d 24, 29 (1st Cir. 2016) (noting that the law in
our circuit is unsettled as to whether we review a substantive
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reasonableness challenge for abuse of discretion or for plain error
where the defendant fails to object below).
Once the GSR has been properly calculated, "sentencing
becomes a judgment call," United States v. Martin, 520 F.3d 87, 92
(1st Cir. 2008), and it may be constructed "based on a complex of
factors whose interplay and precise weight cannot even be precisely
described." Id. (quoting United States v. Vega-Santiago, 519 F.3d
1, 4 (1st Cir. 2008) (en banc)). Indeed, "[t]here is no one
reasonable sentence in any given case but, rather, a universe of
reasonable sentencing outcomes." Clogston, 662 F.3d at 592 (citing
Martin, 520 F.3d at 92). Where, as here, a defendant is sentenced
within the applicable GSR, he carries "a heavy burden." Trinidad-
Acosta, 773 F.3d at 310 (quoting United States v. Pelletier, 469
F.3d 194, 204 (1st Cir. 2006)). Coleman, however, has not carried
his burden.
He concedes that the sentencing court received evidence
of his "upbringing and the domestic violence he was a victim of
when he was a child," and "heard argument about the disparity in
the Guideline calculations that still exist for cocaine base."
Nothing on the record suggests that the sentencing court did not
consider these factors pressed by Coleman. Indeed, the record
reflects that the sentencing court did take into account Coleman's
history and characteristics, including his "very difficult
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childhood," and the defense counsel's "arguments about powder
versus crack." Also, the court noted that it could "consider
cooperation even if it [did] not result in a 5K1 motion from the
Government." Furthermore, the record reveals that the sentencing
court also considered all of the other § 3553(a) sentencing
factors. Where, as here, the district court states that it has
considered all of the § 3553(a) factors, "[s]uch a statement 'is
entitled to some weight.'" Clogston, 662 F.3d at 592 (quoting
United States v. Dávila-González, 595 F.3d 42, 49 (1st Cir. 2010)).
We discern no abuse of discretion in the sentencing court's
weighing of the § 3553(a) factors.
III. Conclusion
The district court did not clearly err by applying the
two-level enhancement for the possession of a dangerous weapon
under U.S.S.G. § 2D1.1(b)(1), and thus Coleman's GSR was properly
calculated. After correctly calculating the total offense level
and GSR, it imposed a within-the-Guidelines sentence. Because
Coleman's sentence is both procedurally and substantively
reasonable, we affirm.
Affirmed.
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