United States v. Vicente , 909 F.3d 20 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-2144
UNITED STATES OF AMERICA,
Appellee,
v.
MICHAEL VICENTE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Lynch, Stahl, and Barron,
Circuit Judges.
Mary A. Davis, on brief for appellant.
Halsey B. Frank, United States Attorney, with whom Kelly A.
Archung, Special Assistant United States Attorney, on brief, for
appellee.
November 20, 2018
STAHL, Circuit Judge. This is an appeal from a sentence
imposed following a criminal conviction. On June 1, 2017,
Appellant Michael Vicente ("Vicente") pleaded guilty to conspiracy
to distribute and possess with intent to distribute oxycodone in
violation of 21 U.S.C. §§ 841(a)(1) and 846. On appeal, Vicente
argues that the court improperly assigned points for a prior
sentence that should have been excluded as conduct that was "part
of the instant offense," U.S.S.G. § 4A1.2, namely his conviction
in state court for possession with intent to sell or dispense.
After review, we affirm.
I. Factual Background and Procedural History
"Because this appeal follows a guilty plea, we draw the
relevant facts from the plea agreement, the change-of-plea
colloquy, the undisputed portions of the presentence investigation
report ('PSR'), and the transcript of the disposition hearing."
United States v. O'Brien, 870 F.3d 11, 14 (1st Cir. 2017).
In 2015, the DEA and the Somerset County (Maine)
Sheriff's Office conducted an investigation into suspected drug
distribution by Maine residents Warren LaPrell and Raymond Ferris.
In connection with that investigation, officers executed a search
warrant at the apartment of a witness ("Witness 1") on April 16,
2015, that produced oxycodone pills, firearms, and other items
related to illegal drug sales. Following that search, Witness 1
identified Vicente as his source for the oxycodone. After first
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meeting Vicente in Maine, Witness 1 admitted that, for
approximately three years,1 he purchased pills for illegal resale
from Vicente both in Maine and in Connecticut. Witness 1 claimed
that he witnessed Vicente to be in possession of, "[a]t most,"
2,000 oxycodone pills in addition to the pills Witness 1 purchased
from him.2
Two other witnesses told the government that they had
traveled with Witness 1 to Connecticut on several occasions to
purchase oxycodone from Vicente. One witness reported that,
although he did not know the exact amount of oxycodone purchased
during these trips, he heard Witness 1 talk about purchasing 500
pills and estimated that Witness 1 obtained 200 30mg pills per
trip. This witness also spent $5,500 to $6,000 to buy oxycodone
from Vicente and, on one occasion, Vicente returned with him and
Witness 1 to Maine in possession of 1,000 pills.
On June 8, 2016, a single-count indictment in the United
States District Court for the District of Maine charged Vicente
with conspiracy to distribute and possess with intent to distribute
oxycodone. Vicente was arrested on September 7, 2016, in
Connecticut, and pleaded guilty to the sole count of the indictment
1
Witness 1 subsequently revised this estimate downwards to
"17 or 18 months."
2
The DEA was unable to identify Vicente's ultimate source
for the pills.
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on June 1, 2017. Following the plea, the Probation Office prepared
a PSR which recommended a total offense level of 333 and a criminal
history category of IV, resulting in a guidelines range of 188 to
235 months' imprisonment. As relevant here, the criminal history
calculation was based in part on a one-point increase for a prior
conviction in Connecticut state court in 2013 (the "2013
Conviction") and a two-point increase because Vicente committed
the instant offense while under probation from the 2013 Conviction.
Although it is central to this appeal, details of the
2013 Conviction are sparse. The PSR states that Vicente was
arrested on October 16, 2012, and charged in superior court in
Waterbury, Connecticut with two counts: (1) possession with intent
to sell/dispense; and (2) sale of a hallucinogen/narcotic. The
PSR further provides that, on July 31, 2013, Vicente received a
five-year suspended sentence along with three years' probation for
the first of those counts. The PSR goes on:
There is no further information regarding this
offense at this time as the Probation Office
is awaiting criminal history records from the
District of Connecticut. It is unknown if the
defendant had attorney representation in this
3 The level was primarily established by Vicente's admission
that he sold between 200 and 400 30 mg oxycodone pills per week
for 17 to 18 months which, once converted to its marijuana
equivalent, translated to a base offense level of 30. The PSR
recommended four-point and two-point enhancements, respectively,
for acting as an organizer or leader of the conspiracy and engaging
in the conduct as a livelihood, and a three-point reduction for
acceptance of responsibility, resulting in a total offense level
of 33.
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matter. The defendant was also charged with
the Sale of Hallucinogen/Narcotic but had this
count Nolle Prossed.
During sentencing, the district court inquired about the 2013
Conviction. Vicente stated:
It was kind of a weird case because we had the
prescriptions -- I was pulled over with
Matthew Summa,[4] we had the prescriptions []
that were prescribed to us in the vehicle,
they found it in between the seats and the
bottle was broken, but the name on the
prescriptions was the prescription that
belonged to us. So it wasn't like making a
sale with it.
During the sentencing hearing, the district court also made mention
of the 2013 Conviction when discussing the fact that Vicente began
taking part in the instant offense before he was sentenced for his
Connecticut crime and continued while on probation from that crime.
There was no discussion by either party of the legal basis for
characterizing the 2013 Conviction as a "prior sentence" under the
sentencing guidelines.
At sentencing, neither party objected to the criminal
history calculation.5 The district court imposed a guidelines
4 Summa was not named as a co-conspirator or accomplice in
the present case.
5 At the parties' urging, the court did not impose
enhancements for either Vicente's role in the criminal activity
under Section 3B1.1(a) or for engaging in the criminal conduct as
a livelihood under Section 2D1.1(b)(5)(E), both of which were
proposed by the PSR. This resulted in an offense level of 27 and,
when combined with Vicente's criminal history category, a
guidelines range of 100 to 125 months' incarceration.
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sentence of 100 months' incarceration. This timely appeal
followed.
II. Discussion
The sole issue raised by this appeal is whether the
district court erred in concluding that the 2013 Conviction
constitutes a "prior sentence" under Section 4A1.2 of the
Sentencing Guidelines. Vicente contends that the conduct
underlying that conviction was "part of the instant offense," and
so is not a qualifying prior sentence, because his conduct of
possessing prescription drugs with intent to sell and his base of
operations (i.e. Waterbury, Connecticut) align with the present
charge. He further asserts that his purpose and modus operandi
—— to obtain prescription drugs and sell them for profit —— was
the same.
There is no dispute that Vicente failed to raise this
point below, and so our review is for plain error. See United
States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir. 2015). To
prevail under this rigorous standard, an appellant must establish
"(1) that an error occurred (2) which was clear or obvious and
which not only (3) affected [his] substantial rights, but also (4)
seriously impaired the fairness, integrity, or public reputation
of judicial proceedings." United States v. Duarte, 246 F.3d 56,
60 (1st Cir. 2001). As to the third prong of this analysis,
"[w]hen a defendant is sentenced under an incorrect Guidelines
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range . . . the error itself can, and most often will, be sufficient
to show a reasonable probability of a different outcome absent the
error." Molina-Martinez v. United States, __ U.S. __, 136 S. Ct.
1338, 1345 (2016).
Section 4A1.1 of the Federal Sentencing Guidelines
Manual dictates the allocation of criminal history points to a
defendant, the sum of which determines the defendant's criminal
history category. Points are added for, inter alia, "prior
sentence[s]," defined in relevant part as "any sentence previously
imposed . . . for conduct not part of the instant offense."6
U.S.S.G. § 4A1.2(a)(1) (emphasis added). The Sentencing
Guidelines define conduct that is "part of the instant offense" as
"conduct that is relevant conduct to the instant offense under the
provisions of [Section] 1B1.3 (Relevant Conduct)." Id. § 4A1.2
cmt. n.1.
Section 1B1.3, in turn, contains multiple subsections
defining relevant conduct. Most pertinent here, as to certain
offenses,7 relevant conduct includes "all acts and omissions . . .
6 As relevant here, the application notes to that section
indicate that "a sentence imposed after the defendant's
commencement of the instant offense, but prior to sentencing on
the instant offense, is a prior sentence if it was for conduct
other than conduct that was part of the instant offense." Id.
§ 4A1.2 cmt. n.1.
7 Section 1B1.3(a)(2) applies to offenses "of a character for
which [Section] 3D1.2(d) would require grouping of multiple
counts." U.S.S.G. § 1B1.3(a)(2). Under Section 3D1.2(d), multiple
counts should be "grouped," or aggregated for purposes of
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that were part of the same course of conduct or common scheme or
plan as the offense of conviction."8 Id. § 1B1.3(a)(2). In
elaborating on the criteria for finding that multiple offenses
constitute a common scheme or plan, the guidelines explain that
the offenses must "be substantially connected to each other by at
least one common factor, such as common victims, common
accomplices, common purpose, or similar modus operandi." Id.
determining offense conduct, when the offense level for those
counts is "determined largely" based on, inter alia, "the quantity
of a substance involved." Id. § 3D1.2(d). That section explicitly
includes drug offenses. See id.; see also United States v.
Gerante, 891 F.2d 364, 369 (1st Cir. 1989). Vicente claims that
the offenses here require grouping, and the government does not
contest the point.
8
Vicente also argues that another section, Section
1B1.3(a)(1)(A) ("[A]ll acts and omissions committed . . . or
willfully caused by the defendant . . . that occurred during the
commission of the offense of conviction . . . ."), separately
applies to his case. However, the plain language of Section
1B1.3(a)(2) indicates that where the instant offense requires
grouping of multiple counts, the analysis of conduct described in
Section 1B1.3(a)(1) is collapsed into Section 1B1.3(a)(2).
U.S.S.G. § 1B1.3(a)(2) (stating that the relevant conduct defined
by that section includes "all acts and omissions described in
subdivision[] (1)(A) . . . that were part of the same course of
conduct or common scheme or plan as the offense of conviction");
see also United States v. Kulick, 629 F.3d 165, 170 (3rd Cir. 2010)
("[I]f both sections could apply to the facts of a case, we must
apply Section (a)(2)."); but cf. United States v. Hodge, 805 F.3d
675, 682 (6th Cir. 2015) (finding conduct to be relevant under
both subsections (a)(1) and (a)(2)). Even if the court were to
separately analyze the 2013 Conviction under Section
1B1.3(a)(1)(A), however, there would be no evident basis to
conclude that the offense underlying that conviction "occurred
during the commission of the offense of conviction," as it predates
the charged conspiracy by nearly eight months.
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§ 1B1.3(a)(2) cmt. n.5(B)(i). Further, as described by the
Sentencing Guidelines,
[o]ffenses that do not qualify as part of a
common scheme or plan may nonetheless qualify
as part of the same course of conduct if they
are sufficiently connected or related to each
other as to warrant the conclusion that they
are part of a single episode, spree, or
ongoing series of offenses. Factors that are
appropriate to [that] determination . . .
include the degree of similarity of the
offenses, the regularity (repetitions) of the
offenses, and the time interval between the
offenses. When one of the above factors is
absent, a stronger presence of at least one of
the other factors is required.
Id. § 1B1.3 cmt. n.5(B)(ii).
"[T]he term 'same course of conduct' is analytically
distinct from the term 'common scheme or plan.'" United States v.
Bryant, 571 F.3d 147, 160 n.13 (1st Cir. 2009). The former concept
focuses on "whether the defendant repeats the same type of criminal
activity over time." Id. (quoting United States v. Adams, 303
F. App'x 926, 927 (2d Cir. 2008) (unpublished)). The "common
scheme or plan" prong, on the other hand, looks to whether the
"acts [are] 'connected together' by common participants or by an
overall scheme." United States v. Sanders, 982 F.2d 4, 9
(1st Cir. 1992) (quoting United States v. Perdomo, 927 F.2d 111,
115 (2d Cir. 1991)).
Assessment of whether either of these prongs is met "is
necessarily a fact-specific inquiry that involves more than just
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a consideration of the elements of the two offenses. Factors such
as the temporal and geographical proximity of the two offenses,
common victims, and a common criminal plan or intent also must be
considered." United States v. Collazo-Aponte, 216 F.3d 163, 203
(1st Cir. 2000), vacated on other grounds, Collazo-Aponte v. United
States, 532 U.S. 1036 (2001) (internal quotation marks omitted).
In conducting this inquiry, we are mindful of the "important
limiting principle that not every drug transaction undertaken by
every drug trafficker is necessarily linked in a meaningful sense."
Bryant, 571 F.3d at 160 (internal quotation marks omitted).
The record here provides insufficient reason to conclude
that the 2013 Conviction satisfies either prong of Section
1B1.3(a)(2). The few facts that may be gleaned from the PSR
indicate only that Vicente was arrested while in possession of
prescription medications in Connecticut with an individual not
named as a co-conspirator in the instant case. This obviously
differs from the "scheme or plan" at issue in the present charge,
which involved a large scale interstate trafficking conspiracy to
move drugs from Connecticut to Maine, and we can discern no
"substantial connection" between the crimes on those facts. See
U.S.S.G. § 1B1.3 cmt. n.5(B)(i) ("For two or more offenses to
constitute part of a common scheme or plan, they must be
substantially connected to each other by at least one common
factor, such as common victims, common accomplices, common
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purpose, or similar modus operandi."). The factual distinctions
between those crimes also undercut any suggestion that they are
part of the same course of conduct. The varying quantities in the
two charges in particular underscores the difference, as the record
indicates that the quantity of pills found in between his car seats
in 2012 (a "bottle," in Vicente's account) pales in comparison to
the amount of pills possessed by Vicente throughout the instant
offense, which evidently numbered in the thousands. Moreover,
Vicente himself distinguished the conduct underlying the 2013
Conviction from the distribution scheme charged here, stating that
it "wasn't like making a sale with [the pills]." From this, we
cannot see how the record supports a finding that the crimes were
part of a "single course of conduct, scheme, or plan," United
States v. Sklar, 920 F.2d 107, 111 (1st Cir. 1990); indeed, the
available facts seem to us to point in just the opposite direction.
Vicente asserts additional facts in his brief, including
claims that the drugs in question were the same as those in this
case, came from the same source, and were meant for distribution.
He points to no support for these allegations and so they cannot
be meaningfully evaluated for veracity or relation to the offense
of conviction. Even taken as true, however, the additional,
completely unsupported facts advanced by Vicente in his brief are
insufficient to show error, let alone plain error, in the district
court's determination that the state offense was not relevant to
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the federal conspiracy. Accordingly, we find no error and thus no
basis to conclude that the district court erred in treating the
2013 Conviction as a prior sentence for purposes of determining
Vicente's criminal history category.9
III. Conclusion
For the foregoing reasons, we AFFIRM the sentence
imposed on the appellant.
9 Vicente also challenges the addition of two points under
Section 4A1.1(d) for committing the offense while under a criminal
justice sentence, namely the probation resulting from the 2013
Conviction. This challenge fails for the reasons set forth above.
The Guidelines define "a 'criminal justice sentence' [as] a
sentence countable under § 4A1.2 . . . ." U.S.S.G. § 4A1.1 cmt.
n.4. Because the 2013 Conviction was properly considered under
Section 4A1.2, the imposition of two points for committing the
crime while under a "criminal justice sentence" pursuant to Section
4A1.1(d) was also proper.
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