United States v. Corbett ( 2017 )

United States Court of Appeals
For the First Circuit
No. 16-1489
UNITED STATES OF AMERICA,
Appellee,
v.
DAMIEN CORBETT,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Torruella, Thompson, and Barron,
Circuit Judges.
Michael C. Bourbeau, with whom Victoria M. Bonilla-Argudo and
Bourbeau & Bonilla, LLP were on brief, for appellant.
Renée M. Bunker, Assistant United States Attorney, with whom
Richard W. Murphy, Acting United States Attorney, was on brief,
for appellee.
September 5, 2017
THOMPSON, Circuit Judge. The defendant, Damien Corbett,
raises three issues in this appeal from his conviction of
conspiracy to distribute and possess with intent to distribute
oxycodone and oxymorphone. Corbett first argues that the
government's evidence was insufficient. Somewhat relatedly, he
contends that the district court committed plain error in its
response to a question from the jury. Finally, he asserts that
the court erred in imposing a sentencing enhancement for the use
or attempted use of a minor in the commission of the offense, see
U.S.S.G. § 3B1.4. We affirm.
BACKSTORY1
Back in 2014, as part of a drug-trafficking
investigation in North Berwick, Maine, law-enforcement personnel
orchestrated several controlled buys of oxycodone pills2 from two
dealers, Taysha Gillis, who was then eighteen years old, and
Kenneth Gerrish. On December 16, 2014, Gillis and Gerrish were
arrested soon after the final controlled buy. Police also executed
a search warrant for Gillis's residence that same day and found
1 Because Corbett challenges the sufficiency of the evidence,
we recount the facts in the light most favorable to the government.
See United States v. Ponzo, 853 F.3d 558, 566 n.1 (1st Cir. 2017).
2 Oxycodone pills are sometimes referred to by their brand
name, Percocet.
- 2 -
over 550 oxycodone pills, over 350 oxymorphone pills,3 and thirty-
seven Suboxone pills4 in two safes in Gillis's bedroom closet.
Meanwhile, police questioned Gillis and Gerrish
separately. Gillis quickly came clean: She removed eighty-seven
oxycodone pills from her shirt and identified Corbett as her source
for the pills she was peddling.5 Armed with this knowledge, law
enforcement decided to set up a meeting between Gillis and Corbett.
Now in full-cooperation mode, Gillis — wearing a wire to
record the encounter and possessing $3,000 in government-supplied
prerecorded buy money — met with Corbett a few days after her
arrest; the ostensible purpose of this meeting was for Gillis to
pay Corbett money for pills that he had "fronted" her.6 The two
met inside Corbett's car.7 After some brief chitchat, Gillis and
3 Throughout the record, the oxymorphone pills are referred
to by their brand name, Opana.
4 Although the record is silent on this point, we have
previously explained that "Suboxone is a prescription medication
that is used to block the effect of withdrawal from opiate
addiction." United States v. Fleury, 842 F.3d 774, 777 n.1 (1st
Cir. 2016).
5Like Gillis, Gerrish also identified Corbett as the supplier
of the pills he was selling.
6 For those not hip to drug-dealing lingo, drugs are "fronted"
when a supplier gives them to a drug dealer on credit with the
understanding that the dealer will pay for them once he or she is
financially able to do so.
7 When Gillis entered Corbett's car, he was listening to a
talk show on the radio. Because Corbett kept the radio on for the
entirety of their meeting, the recording of what was said in the
car is unintelligible in some places. We piece together the
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Corbett discussed their mutual mistrust of Javier, the then-
boyfriend of Gillis's mother; Corbett had previously expressed his
concern to Gillis that Javier, as a Coast Guard employee, might
impede their pill-distribution scheme in some way. Because of
this concern, Gillis proposed that Corbett take back some Opanas
that she had been unable to sell: "I don't trust Javier either.
That's why I think you should get the Opanas really soon . . . ."
Corbett responded: "All right, I will. I will pick them up,
uh . . . tomorrow or the day after." Following this exchange, and
because Corbett was concerned that the pair's cellphones might be
tapped, he suggested that Gillis put both phones in her car so
that they could continue their conversation in his car. Gillis
complied with this directive and then returned to Corbett's car.
Later in the conversation, Gillis asked Corbett, "What
is it I owe you again?" When Corbett responded "Twenty-six fifty,"
Gillis pushed back, "I thought it was twenty[-]five sixty for some
reason." Corbett replied: "I have to think. It might be." Gillis
then offered to pay Corbett $2,560 and suggested that she had
"extra in case you wanted to give me anything else." Corbett
accepted the $2,560, and responded that he didn't have any
oxycodone pills to sell Gillis at the moment. Corbett then told
Gillis, "[T]omorrow I will come back," which she understood to
substance of the encounter from the intelligible portions of the
recording and Gillis's trial testimony.
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mean that he would pick up the Opanas the next day. After the
money switched hands, Gillis told Corbett that she still had some
Suboxone pills and did not want any more of those pills: "I'm
gonna like keep those and continue to try to get rid of the rest
of those but I don't want any more of those." Corbett responded,
"Alright." The conversation eventually ended, and Gillis left
Corbett's car.
At this point, multiple officers converged on the scene,
and Corbett was arrested. In a search of his vehicle, police found
the $2,560 in prerecorded buy money in the center console, as well
as an additional $3,843 underneath the seat. When questioned by
police, Corbett insisted that he and Gillis "were just talking."
Police asked Corbett about the money found in his car, and he
answered that it came from "a settlement";8 he did not mention that
Gillis had just paid him.
A federal grand jury indicted Corbett on one count of
conspiracy to distribute and possess with intent to distribute a
mixture or substance containing oxycodone and a mixture or
substance containing oxymorphone, in violation of 21 U.S.C. §§ 846
and 841(a)(1). The indictment alleged that the charged conspiracy
8 At the time of the interrogation, Corbett had recently
"received a sum of money" as part of an insurance settlement for
a fire loss.
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ran from "approximately June 2013 through and until December 16,
2014."
Both Gillis and Gerrish, among others, testified at
Corbett's trial.9 Gillis told the jury about the evolution of her
relationship with Corbett. She first came in contact with Corbett
through Facebook when she was thirteen years old. After "[m]aybe
a month or a couple of months" of communicating through Facebook,
the two met in person at the home of Gillis's friend. On that
occasion, Corbett gave Gillis some money and asked her "to get him
weed." Gillis left and did as Corbett instructed, but when she
returned with the goods, Corbett had already left the house; he
told Gillis to keep the newly purchased merchandise for herself.
Corbett and Gillis continued to occasionally see one another,
typically at Gillis's home. On one of these occasions, Corbett
provided the underage Gillis with alcohol.
Eventually, the relationship between Corbett and Gillis
entered the realm of oxycodone trafficking. It all started when
Corbett and Gillis decided to ask Gerrish if he could obtain
oxycodone pills from his father and sell them to Corbett.10 Gillis
9 By that point, Gerrish had pled guilty to conspiracy to
distribute oxycodone, and Gillis had pled guilty to conspiracy to
distribute both oxycodone and oxymorphone.
10 When asked "who brought up the idea," Gillis responded,
"Um, both of us [i.e., Corbett and Gillis]."
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asked Gerrish, and Gerrish obliged, obtaining the pills from his
dad and selling them to Corbett for a profit.
After this first exchange, Corbett told Gillis that he
could obtain oxycodone pills (from some unknown source who was not
Gerrish's father) for $22 per pill and that she could sell them
for a profit. Gillis agreed to that arrangement, and, about a
month later, Corbett fronted her the first delivery of pills. Over
the next two years until Gillis was arrested, Corbett continued to
deliver oxycodone pills for Gillis to distribute. The frequency
of the deliveries varied; sometimes they occurred on a weekly
basis, and sometimes monthly drop-offs were made. Corbett
continued to front Gillis pills on occasion. Gillis also testified
that Corbett set the price that she paid for the pills; she once
asked Corbett how many pills she'd have to purchase in order to
get a cheaper price, and Corbett responded, "Too many." And Gillis
never obtained a cheaper price from Corbett. In addition to
oxycodone, Corbett also supplied Gillis with "Suboxone, Opanas,
Dilaudid, [and other] pharmaceuticals."11
Gerrish also testified against Corbett. He told the
jury that he agreed with Gillis to sell oxycodone pills that he
would purchase from her. Gerrish also explained that he sometimes
11With respect to the oxymorphone pills in particular, about
two months before Gillis was arrested, Corbett told her that she
could make more profit selling oxymorphone pills than she could
selling oxycodone pills.
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was present when Corbett delivered pills to Gillis. On those
approximately five occasions, Gerrish saw Corbett hand Gillis "[a]
baggie with pills in it." On cross-examination, however, Gerrish
acknowledged that, when he was interrogated by police after his
arrest, he denied that he had seen any hand-to-hand exchange of
pills between Corbett and Gillis. He explained, "At that time I
denied a lot of things."
After the government rested its case, Corbett moved for
a judgment of acquittal under Rule 29(a) of the Federal Rules of
Criminal Procedure, arguing that the evidence was insufficient.
The district court denied the motion. In his closing argument,
defense counsel attacked the credibility of both Gillis and
Gerrish. Gerrish, defense counsel stressed, had testified
inconsistently with what he initially told investigators about
observing pill exchanges between Corbett and Gillis. Defense
counsel painted Gillis as a liar who was seeking to falsely pin
the blame on Corbett in the hopes of receiving leniency for her
drug-dealing ways. Finally, defense counsel also emphasized that
police did not find any drugs on Corbett or in his car when they
arrested him.
In its final charge to the jury, the district court
instructed the jury on the elements of conspiracy, and told the
jurors that they should consider the testimony of the cooperating
witnesses, Gillis and Gerrish, "with caution" because "[t]hey may
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have had reason to make up stories or exaggerate what others did
because they wanted to help themselves." At the conclusion of its
instructions, the court asked counsel whether they had any
objections or additions to the instructions just delivered;
defense counsel responded that he did not.
During their deliberations, the jurors sent multiple
notes to the judge, two of which are relevant to this appeal. The
first note, which was submitted to the court approximately two-
and-a-half hours after deliberations began, asked: "Can you please
advise us regarding inability to reach a verdict? Both sides are
adamant." The court responded, "In response to your note, I advise
that you again review the evidence and my instructions and continue
to deliberate." Defense counsel informed the court that he had no
objection to this response.
The second note from the jurors read: "Does the
intention of the defendant to pick up the drugs ([O]panas) [from
Gillis's home] as evidenced in the audiotape fall within the scope
of the indictment charges?" (Asterisk omitted.) After the parties
initially disagreed on how to respond, the district court briefly
set forth his intended response. Both before and after the court
discussed its response, the judge told the parties, "I'm not wedded
to this." The court proposed the following response: "In response
to your note (Court Exhibit 6) and to answer your question, you
need to determine if the conspiracy charged in the indictment
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existed, what was the scope and purpose of that conspiracy, and if
the defendant willfully joined the conspiracy based on the evidence
of his own words or deeds." When the district court solicited the
parties' views on its proposed response, defense counsel stated,
"I think it restates the instruction already given, so I have no
problem."
The jury ultimately found Corbett guilty. The
presentence investigation report (PSR) recommended a two-level
enhancement under U.S.S.G. § 3B1.4 for Corbett's use of a minor,
Gillis, during the conspiracy. Corbett objected to this aspect of
the PSR. The district court applied the enhancement, accepting
the government's argument that the evidence showed that Corbett
had groomed12 Gillis to distribute drugs for him. The court
sentenced Corbett to a term of 100 months of imprisonment. Corbett
timely appealed.
ANALYSIS
A. Sufficiency of the Evidence
We first address Corbett's argument that the evidence
against him was insufficient. Because he preserved the issue by
filing a motion for judgment of acquittal, our review is de novo.
See United States v. Gonsalves, 859 F.3d 95, 110 (1st Cir. 2017).
12We'll discuss the district court's grooming conclusion in
more detail below, see infra Part C.
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In assessing a sufficiency-of-the-evidence claim, we
view the evidence in the light most favorable to the government,
draw all reasonable inferences in its favor, and ask whether a
rational factfinder could have found each element of the charged
offense beyond a reasonable doubt. See id. at 110-11; United
States v. Rivera-Ruperto, 846 F.3d 417, 432 (1st Cir. 2017).
Additionally, we "must defer all credibility judgments to the
jury," Gonsalves, 859 F.3d at 111 (quoting United States v.
O'Brien, 14 F.3d 703, 706 (1st Cir. 1994)), "drawing all
credibility choices in the government's favor," United States v.
Morosco, 822 F.3d 1, 7 (1st Cir. 2016), and disturbing "only those
evidentiary interpretations . . . that are unreasonable,
insupportable, or overly speculative," United States v. Serunjogi,
767 F.3d 132, 140 (1st Cir. 2014) (internal quotation marks
omitted) (quoting United States v. Hernandez, 218 F.3d 58, 64 (1st
Cir. 2000)). Given the manner in which we must view the evidence,
it's no surprise (and no secret) that a sufficiency challenge is
oftentimes a bit of a longshot. See Rivera-Ruperto, 846 F.3d at
432 (explaining that sufficiency claims are "rarely successful"
(quoting United States v. Moran, 984 F.2d 1299, 1300 (1st Cir.
1993))); Morosco, 822 F.3d at 7 (explaining that "[s]ufficiency
arguments seldom succeed"); United States v. Correa-Osorio, 784
F.3d 11, 26 (1st Cir. 2015) (explaining that "[s]ufficiency
challenges rarely succeed"); United States v. George, 761 F.3d 42,
- 11 -
48 (1st Cir. 2014) (explaining that "a sufficiency challenge is a
tough sell" (quoting United States v. Polanco, 634 F.3d 39, 45
(1st Cir. 2011))).
The government needs to prove three elements beyond a
reasonable doubt to secure a conviction for conspiracy under § 846:
"(1) a conspiracy existed; (2) the defendant had knowledge of the
conspiracy; and (3) the defendant knowingly and voluntarily
participated in the conspiracy." Rivera-Ruperto, 846 F.3d at 432
(quoting United States v. Maryea, 704 F.3d 55, 73 (1st Cir. 2013)).
The third element requires the government to show that the
defendant "intended to join the conspiracy and that he intended
for its goals to be accomplished." United States v. Paz-Alvarez,
799 F.3d 12, 25 (1st Cir. 2015). Viewing the evidence in the
requisite verdict-friendly manner, the government's evidence in
this case was plainly sufficient.
Sufficient evidence was presented to show that the
charged conspiracy existed. See Rivera-Ruperto, 846 F.3d at 432.
Based on the testimony of Gillis and Gerrish, a rational juror
could have concluded that an oxycodone-distribution conspiracy
existed where Corbett would supply the oxycodone to Gillis, who
would then sell the pills to others, including Gerrish.
Additionally, Gillis testified that, about two months before her
arrest, Corbett told her that she could make more of a profit
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selling oxymorphone pills, Gillis "agreed to see if [she] could
sell them," and she sold "1 or 2" oxymorphone pills.
The testimony of these two witnesses also amply supports
the second and third elements of the charged conspiracy — that
Corbett knew of the conspiracy and knowingly and voluntarily
participated in it. See id. Gillis testified that Corbett was
her source for the oxycodone and oxymorphone pills. And she
testified that, over a two-year period, Corbett continued to
deliver oxycodone pills to her on either a weekly or a monthly
basis and that the average number of pills Corbett delivered each
time increased during the course of the conspiracy. Gillis also
told the jury that Corbett supplied her with oxymorphone pills on
one occasion. Like Gillis, Gerrish told the jury about the times
he witnessed Corbett delivering pills to Gillis. Finally, Gillis
testified that Corbett fronted some of the pills that he delivered
to her. See United States v. Bedini, 861 F.3d 10, 15 (1st Cir.
2017) (explaining that fronting drugs can constitute "an act of
trust that assume[s] an ongoing enterprise with a standing
objective" (quoting United States v. Ortiz-Islas, 829 F.3d 19, 25
(1st Cir. 2016))).
Corbett's knowing and voluntary participation in this
conspiracy was also established by Gillis's testimony about what
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transpired during the recorded conversation in the car.13 When
Gillis asked Corbett to pick up oxymorphone pills from her, he
agreed to do so. Additionally, after a brief exchange about the
precise dollar figure, Corbett accepted $2,560 from Gillis for a
debt that Gillis owed him, and Gillis told the jury that this debt
was for oxycodone pills that Corbett had previously fronted her.
Finally, Corbett's conduct during the conversation with Gillis
betrayed a fear of being overheard while talking to her about the
conspiracy; he played his car radio loudly throughout the
conversation, and, worried that their cellphones might be tapped,
he instructed Gillis to put the phones in her car so that they
could safely talk in his car. Cf. George, 761 F.3d at 51
(explaining, when considering evidence that defendant expressed
over the phone his unwillingness to engage in illegal activity,
13 Even if we accept Corbett's position that no conspiracy
existed at the time of the recorded conversation because both of
Corbett's coconspirators were cooperating with law enforcement,
the recorded conversation (and Gillis's testimony about it) was
still admissible. See United States v. Fanfan, 468 F.3d 7, 11-12
(1st Cir. 2006) (explaining that evidence of recorded conversation
between defendant and coconspirator who had, unbeknownst to
defendant, been arrested and was cooperating with law enforcement
at time of conversation was admissible in conspiracy prosecution);
cf. Ortiz-Islas, 829 F.3d at 27 (affirming admission of evidence
of post-indictment sting-drug transaction because evidence "'was
closely linked in time to the alleged conspiracy and proved the
identities and relationships of the conspirators'" and "evidence
of the final, faux deal merely illuminated what had been going on
among the relevant parties for over a year, a course of conduct
that was firmly shown through overwhelming evidence including co-
conspirators' testimony" (quoting United States v. Niemi, 579 F.3d
123, 128 (1st Cir. 2009))).
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that "a logical jury could also conclude that [defendant] did not
like talking shop over the phone and so sprinkled in words
suggesting his unwillingness to do anything illegal just in case
the police were listening in").
Perhaps in recognition of the testimony of these
witnesses, Corbett appears to concede that, if the jury believed
Gillis and Gerrish, the evidence was sufficient. But wait, he
says: "The jur[ors] could not have unanimously agreed on their
credibility," he tells us, "because [of] the notes to the court
sent out during deliberations." Corbett appears to support this
argument with the following reasoning. The first note, in which
the jurors indicated that they were at an impasse in their
deliberations, suggested that at least some jurors were not
convinced beyond a reasonable doubt that Corbett was guilty of the
charged pill-peddling conspiracy. The second note showed that the
once-divided jurors were now focusing on the audio recording of
the December 19 meeting with Gillis and Corbett. Weaving these
two strands together, Corbett insists that the jurors must have
found him guilty of a conspiracy solely based on the recorded
conversation, which occurred at a time when Gillis was acting as
a government agent and, therefore, could not be a conspirator as
a matter of law. This line of argument, although creative, cannot
carry the day.
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Corbett places far more weight on the juror notes than
they can reasonably bear. The second note tells us only that,
when the jurors wrote the note, they were then focusing on the
recorded conversation. Contrary to Corbett's position, that note
in no way suggests that the jurors had rejected all of the other
evidence in the case and had discredited the testimony of Gillis
and Gerrish. Similarly, the first note suggests only that, when
the jurors wrote that note after less than three hours of
deliberations, they were not yet all on the same page with respect
to Corbett's guilt or innocence. As was true for the second note,
nothing in the first note suggests that the jurors in the end
rejected the testimony of Gillis and Gerrish. Therefore, we reject
Corbett's argument that the two juror notes demonstrate that the
jury found these two witnesses to be not credible.
Perhaps as a fallback to his primary insufficiency
argument, Corbett also offers discrete reasons why the testimony
of both Gillis and Gerrish was, in his view, suspect. Both
witnesses, he points out, began cooperating only after they had
both been caught red-handed with a cache of pills. Additionally,
Corbett highlights the about-face in Gerrish's story; although he
initially told police that he had not observed any hand-to-hand
exchange of drugs between Corbett and Gillis, he testified at trial
that he had, in fact, seen such exchanges. And Gillis was no
saint, either, Corbett insists. He emphasizes that, even after
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Corbett was removed from the picture on account of his arrest,
Gillis went right back to her drug-dealing ways, and this time
heroin replaced oxycodone as the hot commodity.
Although these seeds of doubt might have stood some
chance of finding fertile ground in closing argument before a jury,
they have no chance of survival in the arid climate that is
appellate sufficiency-of-the-evidence review. As we have
explained, credibility determinations are for the jury, not this
court, to make, see Gonsalves, 859 F.3d at 111, and our review
must "resolve all credibility disputes in favor of the verdict,"
United States v. Gaw, 817 F.3d 1, 4 (1st Cir. 2016). Corbett made
these credibility arguments to the jury, but the jury found him
guilty nonetheless. See Gonsalves, 859 F.3d at 111 (emphasizing
this point while rejecting "hopeless" witness-credibility
argument). We cannot say that it was unreasonable or insupportable
to credit the testimony of Gerrish and Gillis. See Serunjogi, 767
F.3d at 140.
In a last-ditch effort to stem the tide, Corbett stresses
that he was never found in possession of any drugs and never
expressed the intent to sell drugs in the recorded conversation
with Gillis. But the government was not required to produce such
smoking-gun evidence to secure Corbett's conviction. See Paz-
Alvarez, 799 F.3d at 25 ("There are many ways to show that a
defendant intended to join and advance a conspiracy, even where
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the defendant never actually handled the drugs."). As explained
above, the testimony of Gerrish and Gillis amply supported the
guilty verdict. Therefore, Corbett's sufficiency challenge must
fail.
B. Court's Response to Second Juror Note
Corbett next argues that the district court erred in its
response to the jurors' question about whether Corbett's
expression in the recorded conversation of an intent to pick up
the oxymorphone fell within the scope of the conspiracy. As
Corbett sees things, the court's response incorrectly suggested to
the jurors that they could consider Corbett's words or actions in
his conversation with Gillis — who by then was a government agent
with whom Corbett could not conspire as a matter of law — as
evidence of the existence of the charged conspiracy.
Recognizing that he failed to raise the issue below,
Corbett suggests that we must review this claim under the daunting
plain-error standard of review. Not so fast, says the government:
When defense counsel told the district court "I have no problem"
with the proposed response, he affirmatively waived — rather than
merely failed to preserve — this issue. We start (and end) our
analysis with the question of waiver.
A litigant waives a claim when he or she "'intentionally
relinquishes or abandons' a known right." United States v. Walker,
538 F.3d 21, 23 (1st Cir. 2008) (quoting United States v.
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Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002)); see also United
States v. Torres-Rosario, 658 F.3d 110, 115-16 (1st Cir. 2011).
The distinction between waiver and forfeiture is critical:
Although a forfeited claim will be reviewed for plain error, "a
waived issue ordinarily cannot be resurrected on appeal." Walker,
538 F.3d at 23 (quoting Rodriguez, 311 F.3d at 437).
In this case, we agree with the government that Corbett
waived any challenge to the district court's response to the second
juror note. Before the district court responded to the note, the
court twice told the parties that it was not at all "wedded" to
the language proposed. Despite this clear invitation from the
district court to propose alternative responses, defense counsel,
when given the opportunity to voice Corbett's position, stated, "I
think it restates the instruction already given, so I have no
problem." (Emphasis added.)
We have explained that, "when the 'subject matter [is]
unmistakably on the table, and the defense's silence is reasonably
understood only as signifying agreement that there was nothing
objectionable,' the issue is waived on appeal." United States v.
Soto, 799 F.3d 68, 96 (1st Cir. 2015) (quoting United States v.
Christi, 682 F.3d 138, 142 (1st Cir. 2012)). Here, the district
court unmistakably placed the issue of how to respond to the second
juror note on the table, and Corbett's counsel was not merely
silent, but affirmatively stated that he had "no problem" with the
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court's proposed response. This amounts to waiver. See id.
(holding that challenge to district court's instruction was waived
where "the district court informed [defendants] exactly how it was
planning to instruct the jury . . . and sought their feedback,
twice asking if they were okay with those specific instructions"
and counsel for one defendant "affirmatively stated there was no
objection" while counsel for other defendants "remained silent";
"[g]iven the judge's invitation to speak up with any disagreement,
these reactions can only be interpreted as signifying approval
with the instructions as previewed"); United States v. Hansen, 434
F.3d 92, 101 (1st Cir. 2006) (holding that challenge to district
court's failure to give multiple-conspiracy instruction was waived
where defense counsel "not only failed to object to the court's
omission of his proposed multiple conspiracy instruction, but also
affirmatively stated 'I am content' after the district court
instructed the jury"); id. at 105-06 (holding that challenge to
district court's handling of note from juror about privacy concerns
was waived because, when district court proposed a curative
instruction, "defense counsel responded, 'Something along those
lines, Judge, fine'").14 So we say no more about this issue.
14We recognize that we can, "as a matter solely of [our]
discretion," forgive waiver in "the rare case." United States v.
Walker, 665 F.3d 212, 227 (1st Cir. 2011); see also Torres-Rosario,
658 F.3d at 116 ("[C]ourts may excuse waivers and disregard
stipulations where justice so requires."). Corbett has made no
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C. Enhancement for the Use of a Minor
Corbett's final contention on appeal is that the
district court erred in imposing a guideline enhancement under
U.S.S.G. § 3B1.4 for Corbett's use or attempted use of a minor.
Convinced that Gillis's foray into the world of drug dealing both
predated her friendship with Corbett and continued after Corbett
was arrested, he insists that Gillis was "predisposed to commit
the offense and was not an 'unwary innocent.'"
The government must prove sentencing enhancements by a
preponderance of the evidence. Walker, 665 F.3d at 232. We review
the district court's interpretation of the meaning and scope of a
sentencing guideline de novo, while the court's factfinding is
reviewed for clear error, with "due deference to the court's
application of the guidelines to the facts." United States v.
Vega-Rivera, No. 15-2467, 2017 WL 3276789, at *3 (1st Cir. Aug. 2,
2017); see also Walker, 665 F.3d at 232.
The guidelines call for a two-level increase in the
offense level "[i]f the defendant used or attempted to use a person
less than eighteen years of age to commit the offense or assist in
avoiding detection of, or apprehension for, the offense." U.S.S.G.
§ 3B1.4 (2015). The commentary for this enhancement provides that
"'[u]sed or attempted to use' includes directing, commanding,
argument that this is such a case, and we see no reason to excuse
his waiver.
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encouraging, intimidating, counseling, training, procuring,
recruiting, or soliciting." Id. cmt. n.1.
The district court appropriately applied this
enhancement in this case. Before the conspiracy even began,
Corbett gave Gillis, who was then about thirteen years old, some
money and asked her to obtain some marijuana for him. After she
did as instructed, Corbett told Gillis that she could keep the
marijuana that he had paid for. On another occasion, Corbett
provided alcohol to the underage Gillis. The district court
supportably found that each of these instances were examples of
Corbett's "long process of grooming" Gillis "to become a dealer
for him." In other words, the district court found that Corbett's
conduct on these occasions — which began when Gillis was a young
girl — were attempts to encourage, recruit, or solicit her. See
id. cmt. n.1; see also United States v. Hardy, 393 F. App'x 205,
207 (5th Cir. 2010) (per curiam) (affirming application of
enhancement where defendant "cultivated a relationship with 16-
year-old J.M., providing her with free methamphetamine"; minor
later brought one of her friends to defendant's home to purchase
methamphetamine; friend "eventually became a user and distributor
of [defendant]'s methamphetamine").
In addition to grooming Gillis, the evidence shows that
Corbett used Gillis as a seller in this pill-trafficking conspiracy
when she was a minor. Gillis, who was eighteen years old when she
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was arrested, testified that Corbett delivered large quantities of
oxycodone pills to her for approximately two years prior to her
arrest. See United States v. Acosta, 534 F.3d 574, 588 (7th Cir.
2008) ("Distributing drugs directly to minors for further
distribution qualifies as the type of personal use of a minor
warranting application of the use-of-a-minor enhancement under
§ 3B1.4."); cf. United States v. Mott, 26 F. App'x 8, 9-10 (1st
Cir. 2001) (per curiam) (affirming application of enhancement
where defendant in conspiracy case allowed minor to sell drugs out
of defendant's apartment; "[defendant] was aware that [minor] was
selling drugs from the apartment and agreed to it"). Moreover,
notwithstanding Corbett's assertion to the contrary, this is a
case where the defendant encouraged the minor's drug activity:
Corbett encouraged Gillis to sell pills by fronting them to her
throughout the two-year conspiracy with the understanding that she
would pay him for the pills once they were sold. See United States
v. Garcia, 497 F.3d 964, 971 (9th Cir. 2007) (affirming district
court's application of enhancement where defendant, among other
things, encouraged minor by fronting her methamphetamine to sell);
United States v. Caster, 24 F. App'x 864, 867 (10th Cir. 2001)
(similar); cf. Ortiz-Islas, 829 F.3d at 26 (explaining that
defendant's willingness to front drugs to coconspirator shows "the
importance of sustaining a regular course of business").
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Corbett argues that "[t]he guideline enhancement for
using or attempting to use a minor who is already engaged in the
drug business and predisposed to continue in the business[] is not
warranted." We are immediately skeptical of this argument. For
starters, we see nothing in the text of the enhancement to support
the troubling notion that a minor could ever be deemed to be so
predisposed to criminal conduct that an adult who then encourages
that conduct is not subject to the enhancement. Instead, § 3B1.4
reaches defendants who "used or attempted to use" any "person less
than eighteen years of age" — without regard to the minor's
propensity to obey or disobey the criminal laws. Additionally,
none of the cases Corbett cites support his predisposition
argument. Cf. United States v. Rose, 496 F.3d 209, 214 (2d Cir.
2007) (rejecting argument that "§ 3B1.4 applies only if the minor
is vulnerable, child-like in appearance, or predisposed against
crime" and explaining that "[t]he fact that the minor was a large,
seventeen-and-a-half year old drug dealer who participated eagerly
in the [armed-robbery and kidnapping] crimes does not make § 3B1.4
inapplicable"). Finally, in addition to the lack of support in
the enhancement's text or in the case law, Corbett's predisposition
argument also seems inconsistent with the purpose behind the
enhancement: to protect minors. See United States v. McClain,
252 F.3d 1279, 1286 (11th Cir. 2001) ("The unambiguous legislative
design of section 3B1.4 is to protect minors as a class . . . .").
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Reserving that protection only for law-abiding minors and
withholding it from the minors who need it most would seem to
frustrate that clear purpose.
But we need not definitively decide whether a minor's
predisposition towards crime can ever foreclose application of the
enhancement because the component parts of Corbett's
predisposition argument in this case are either factually
unsupported or undeveloped. As we understand it, Corbett's effort
to paint Gillis as predisposed to deal drugs is based on two
assertions. First, Corbett asserts that Gillis "was selling drugs
before any relationship with the defendant" got underway. Second,
Corbett notes that "Gillis also continued her drug use and drug
sales" after Corbett was out of the picture. Each assertion is
fatally flawed in the circumstances of this case.
The first assertion is factually infirm: Corbett does
not point us to any evidence in this record to support his claim
that Gillis was selling drugs before she met him. Perhaps Corbett
intends to refer to the time when, at Corbett's direction, Gillis
acquired marijuana for him with money he had given her. But
Gillis's acquisition of marijuana from some unknown source is not
evidence that Gillis was selling drugs before she met Corbett.
Similarly, Corbett references the time when "Gillis and . . .
Gerrish, with the assistance of Gerrish's father, provided
oxycodone to [Corbett]." But the evidence shows only that Gillis
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reached out to Gerrish to obtain the pills, that Gerrish did so,
and that it was Gerrish, and not Gillis, who sold them to Corbett
for a profit. Thus, this evidence similarly does not support
Corbett's argument that Gillis was selling drugs before her
relationship with him began. Indeed, the district court
supportably found that these prior exchanges between Corbett and
Gillis were evidence of Corbett recruiting and grooming Gillis to
be part of his oxycodone-peddling plan.
The second assertion — that Gillis continued to use and
sell drugs — suffers a flaw of Corbett's own making: He hasn't
pointed us to any authority that suggests that a minor's later
conduct that is unrelated to the charged offense is relevant to
the inquiry of whether the enhancement is appropriate.15 And it's
not apparent to us from the plain text of the enhancement that
such conduct matters one iota; the enhancement, after all, focuses
on whether the defendant used or attempted to use a minor "to
commit the offense or assist in avoiding detection of, or
15The only case Corbett cites is a Supreme Court case that
discusses predisposition in the context of the defense of
entrapment. See United States v. Russell, 411 U.S. 423, 428-36
(1973). But he makes no effort to explain why the principles of
this entrapment case — which was decided more than twenty years
before the enhancement became effective, see U.S.S.G. § 3B1.4,
cmt. hist. n. (indicating that enhancement first became effective
in 1995) — should have any bearing on the issue before us, and
"[d]eveloping a sustained argument out of . . . legal precedents
is the job of the appellant, not the reviewing court, as we have
previously warned." Town of Norwood v. Fed. Energy Regulatory
Comm'n, 202 F.3d 392, 405 (1st Cir. 2000).
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apprehension for, the offense." U.S.S.G. § 3B1.4 (2015) (emphases
added). In any event, given Corbett's failure to meaningfully
develop this argument or support it with any authority, we need
not definitively decide this point. See United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in a
perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived.").
Undeterred, Corbett takes another tack at avoiding the
enhancement: Emphasizing that Gillis sold the pills "on her own
at a profit," Corbett argues that Corbett and Gillis were, at best,
partners in this pill-peddling enterprise. And, citing a pair of
out-of-circuit cases, he insists that the enhancement requires
"something more than a 'partner' type relationship" like what we
have here. (Citing United States v. Parker, 241 F.3d 1114 (9th
Cir. 2001); United States v. Butler, 207 F.3d 839 (6th Cir. 2000).)
We are unpersuaded.
Unlike Parker and Butler, this is not a case where the
minor was an equal partner of the defendant. See Parker, 241 F.3d
at 1120-21 (finding enhancement inapplicable where there was no
evidence "that the defendant acted affirmatively to involve the
minor in the [bank] robbery, beyond merely acting as his partner");
Butler, 207 F.3d at 849 & n.3 (finding enhancement inapplicable
where "[t]he facts, at best, show only that [twenty-year-old
defendant] and [seventeen-year-old minor] possessed equal
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authority in their commission of the [bank robbery]").16 Corbett,
as Gillis testified, was her sole supplier of oxycodone pills.
See Acosta, 534 F.3d at 588. Gillis had no say in the price that
she paid for the pills; Corbett set the price at $22 per pill.
Additionally, he fronted her pills on multiple occasions,
encouraging her to accept pills she "could not pay for" with the
understanding that she would "pay for [them] the next time." In
short, the record belies Corbett's characterization of his
relationship with Gillis as an equal partnership.
We therefore reject Corbett's challenge to the district
court's application of the use-of-a-minor enhancement.
CONCLUSION
For these reasons, we affirm Corbett's conviction and
sentence.
16 We note that there's a circuit split on whether the
enhancement must be based on a defendant's own affirmative actions
or whether it can be applied based on a coconspirator's reasonably
foreseeable use of a minor, see United States v. Acosta, 474 F.3d
999, 1002 (7th Cir. 2007) (collecting cases), and that this court
has already weighed in on this debate, see United States v.
Patrick, 248 F.3d 11, 27-28 (1st Cir. 2001) (holding that, in
conspiracy case, defendant's "sentence could be enhanced based on
his co-conspirator's reasonably foreseeable use of juveniles to
further the [organization]'s activities"). We need not concern
ourselves with this nuance, however, because the question of the
enhancement's applicability on these facts concerns only Corbett's
actions.
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