United States v. Wright

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 16-1508
UNITED STATES OF AMERICA,
Appellee,
v.
CORINTHIAN WRIGHT,
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,
Stahl and Lynch, Circuit Judges.
Thomas J. O'Connor, Jr. on brief for appellant.
Richard W. Murphy, Acting United States Attorney, and Renée
M. Bunker, Assistant United States Attorney, on brief for appellee.
June 7, 2017
STAHL, Circuit Judge. Appellant Corinthian Wright pled
guilty to one count of conspiracy to distribute heroin and cocaine
base, as well as two substantive counts charging him with
possession with intent to distribute these controlled substances.
These violations ultimately netted Wright a 96-month prison
sentence, which he now challenges on appeal, alleging that the
district court procedurally erred in applying two sentencing
enhancements. We disagree and AFFIRM.
I. Facts & Background1
In early 2014, federal, state and local law enforcement
agencies began investigating individuals believed to be
transporting cocaine and heroin from New York to the Lewiston-
Auburn area in Maine for resale. The investigation included
surveillance, controlled purchases, and court-authorized wiretaps.
Several individuals were eventually identified as being involved
in this illicit enterprise, including defendant-appellant
Corinthian Wright (aka "Tanner"), Kendall Francis (aka "Dew"),
Christian Dent, Rebecca Thompson, Randy Gosselin, and Willie
Jackson.
It appears that Wright first arrived on the police's
radar in November 2014, when an intercepted phone call led
1
As this appeal follows a guilty plea, we recount the facts
as established by the plea agreement, the presentence report, and
the sentencing transcript. United States v. King, 741 F.3d 305,
306 (1st Cir. 2014).
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authorities to conclude that Dent was selling cocaine base out of
an apartment at 24 Laurel Avenue in Auburn, Maine, where he resided
with his girlfriend, Thompson. Acting pursuant to a search
warrant, agents searched this apartment and discovered and seized
a firearm hidden in the kitchen ceiling, 8.3 grams of heroin, and
211.4 grams of cocaine base. The two individuals present in the
apartment, one Jonathan Banyan and an unnamed juvenile, were taken
into custody. Serendipitously (at least for the police), though
neither Thompson nor Dent were present at the time of the search,
Thompson was detained that same day after police stopped her
vehicle due to an expired registration sticker.
In an interview with police at Androscoggin County Jail
in Auburn, Thompson fingered Wright as the individual who had
"invested" in her and her boyfriend, Dent, paying for a separate
apartment at 53 Shawmut Street in Lewiston, Maine, and arranging
for the transportation of powder cocaine from New York to Maine,
which they then "cooked" into cocaine base and sold out of the
apartment. In that same interview, she explained that Wright would
occasionally stay at their Shawmut Street apartment when he was in
Maine, and that he also had at his disposal several places in New
York where drugs were sold. In addition, Thompson said that she
had made several trips back and forth between New York and Maine
during which she transported drugs, and on one occasion, drove
Dent and Wright from New York to Maine, while each of them were
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carrying 100 grams of powder cocaine. In her subsequent grand
jury testimony, Thompson identified Banyan as a New York drug
dealer that she knew as "Joe Blood," and when asked what he was
doing in Maine, she testified that he was "kind of like a worker
for Tanner [Wright]," and that "he was coming up here for support
for Tanner." She further testified that Wright recruited two
individuals, "Rico" and "Dew" (Francis), to assist in the
distribution of drugs out of various apartments operated by the
conspiracy.
While Wright disputes this version of events and denies
that he ever "invested" in anyone,2 the police began to focus their
investigative efforts on Wright. These efforts ultimately led to
properties at 172 and 174 Blake Street in Lewiston. Although
separate properties, the third- and fourth-floor apartments at 172
Blake Street were connected by an exterior walkway to the
corresponding third- and fourth-floor apartments at 174 Blake
Street, and the properties apparently were managed by the same
company. According to witness statements and an interview with
the property manager, Wright rented the third-floor apartment at
174 Blake Street on November 10, 2014. Following this initial
rent payment, the landlord did not see Wright again, but accepted
2
Wright spends a good deal of time in his brief attacking
Thompson's credibility as a witness. However, credibility
determinations are best left for the district court, see United
States v. González-Vélez, 587 F.3d 494, 504 (1st Cir. 2009).
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a December rent payment for this same apartment from an individual
that he later identified as Francis.3
On December 17, 2014, agents apprehended a woman exiting
this same third-floor, 174 Blake Street apartment in possession of
heroin. The woman informed the authorities that she had obtained
the heroin from an individual that she knew as "Rocky" or "Rico."
The next day, police received a tip from the property manager who
had discovered firearms and what he believed to be narcotics in a
vacant apartment on the fourth floor of 172 Blake Street.4 Police
arrived and discovered four firearms, ten ounces of cocaine base,
personal effects, and an identification document belonging to
Francis.5 Subsequent forensic analysis revealed that Wright's
fingerprints were on two separate bags containing drugs that were
discovered in this apartment. The police also received the
property manager's permission to search the vacant fourth-floor
apartment across the walkway at 174 Blake Street, suspecting that
drug traffickers were using other vacant apartments in the building
3 Wright claims that an unnamed individual (he did not know
who) paid him $600 in an arms-length transaction to rent the
apartment, clean it, and then leave immediately.
4 According to an interview with an individual who had been
touring the property as a potential purchaser, the fourth-floor
apartment at 172 Blake Street had been vacant since November 20 or
25, 2014.
5 The parties stipulated that the identification document was
actually found by the property manager after the agents had
completed their search of the premises on December 18.
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to store drugs. In that apartment, they discovered two backpacks:
one containing personal effects and five ounces of heroin, and the
other containing personal effects and $8,077.51 in cash.
On February 12, 2015, police received a tip from an
informant that Wright was on his way from New York to Maine.
Police also learned that Wright was staying at an apartment at 99
Horton Street in Lewiston. The police conducted surveillance of
the house and observed several activities the police knew to be
indicative of drug dealing. For instance, agents saw Randy
Gosselin leave the apartment on several brief trips, sometimes
entering the passenger seat of a vehicle and driving approximately
100 feet before getting out and then returning to the house.
Additionally, authorities saw Willie Jackson leave the same
residence, after which he made a drug sale to an individual that
had previously provided credible information to law enforcement.
That same cooperating witness then informed law enforcement that
he had just purchased drugs from Jackson, and that "Tanner"
(Wright's nickname) had returned to Maine and was selling drugs.
Following information received from another informant that Wright
and Francis were inside the residence at 99 Horton Street (from
which the officers had just witnessed Jackson and Gosselin emerge
to make several drug sales), officers executed a search warrant
and arrested Wright, who was inside sleeping on an air mattress in
the kitchen. Francis, who was seated at a chair next to a table
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on which there was a digital scale and a box of sandwich baggies,
was found in possession of 135 grams of cocaine base and 40 grams
of heroin (with a combined street value of $30,000), while Wright
had $200 in his pocket.
Wright ultimately pled guilty to possession with intent
to distribute heroin and cocaine base, as well as conspiracy to
distribute both substances. At sentencing, the district court
found, over Wright's objection, that two enhancements applied.
First, the court found that Wright held a leadership role in the
conspiracy, because the government had shown by a preponderance of
the evidence that the conspiracy involved "five or more
participants" and that Wright had "recruit[ed] others" to come to
Maine to participate in the scheme. This resulted in a three-
level increase under U.S.S.G. § 3B1.1(b). Second, the district
court applied a two-level increase for "possession of a dangerous
weapon" under U.S.S.G. § 2D1.1(b)(1), attributing the four
firearms discovered in the fourth-floor apartment at 172 Blake
Street to Wright because the guns were discovered in close
proximity to bags of drugs containing Wright's fingerprints and to
an identification document belonging to a co-conspirator. Wright
re-asserted his objections.
With a base offense level of thirty, the three-level
role increase, the two-level firearm enhancement, and a three-
level reduction for acceptance-of-responsibility, the district
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court calculated Wright's total offense level as thirty-two. When
paired with a criminal history category of I, Wright's Guidelines
sentencing range ("GSR") was 121-151 months. The district court
ultimately sentenced Wright to a downward variant sentence of 96
months' imprisonment. Wright filed a timely appeal.
II. Discussion
A. Standard of Review
In challenges to the procedural and substantive aspects
of a criminal sentence, we employ a "multifaceted" abuse-of-
discretion standard that "review[s] factual findings for clear
error, arguments that the sentencing court erred in interpreting
or applying the guidelines de novo, and judgment calls for abuse
of discretion simpliciter." United States v. Serunjogi, 767 F.3d
132, 142 (1st Cir. 2014) (quoting United States v. Leahy, 668 F.3d
18, 21 (1st Cir. 2012)). Sentencing enhancements must be
supported by a preponderance of the evidence. United States v.
Burgos-Figueroa, 778 F.3d 319, 320 (1st Cir. 2015).
B. Role-in-the-Offense Enhancement
Wright first argues that he was not a manager or
supervisor of other individuals involved in the conspiracy, and
that the district court's contrary finding was in error. We are
not convinced. The three-level increase applies if a defendant
"was a manager or supervisor (but not an organizer or leader) and
the criminal activity involved five or more participants or was
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otherwise extensive." U.S.S.G. § 3B1.1(b). Here, as an initial
matter, we discern no error in the district court's finding that
the conspiracy in question involved five or more participants.
At a minimum, the government clearly proved that the
conspiracy involved Wright, Dent, Thompson, Francis, Gosselin, and
Jackson. Testimony from Thompson and other cooperating witnesses,
as well as wiretapped phone conversations between Dent and Wright,
showed that Wright and Dent were involved in drug trafficking,
with Wright complaining on one call that he had invested nearly
three thousand dollars to set up the drug dealing operation at one
of the houses in the Auburn-Lewiston area and was irritated that
he had not seen his share of profits. Additionally, police
surveillance and testimony from cooperating witnesses both
provided sufficient evidence that Jackson, Gosselin, and Francis
were selling cocaine base out of the 99 Horton Street apartment on
February 12, 2015, the day that Wright and his co-conspirators
were arrested.
In his brief, Wright argues that the events in question
made out two separate, distinct conspiracies. The first, he
argues, involved himself, Dent and Thompson, but then a falling
out between himself and Dent led the two to part ways, and
thereafter he was involved in a second, distinct conspiracy with
Francis and others at the time he was arrested on February 12,
2015. He also argues that he was merely a "drug retailer and a
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supplier to others acting as free agents," and that he took no
actions to direct the sales of drugs to customers.
However, as we have observed, "[w]hether a set of crimes
can be attributed to one conspiracy is a question of fact, the
resolution of which typically depends on evidence of common
purpose, interdependence among the elements of the plan, and
overlap among the participants." United States v. Monteiro, 417
F.3d 208, 212–13 (1st Cir. 2005) (internal citations omitted).
Given the applicable standard of review for factual determinations
made by the district court, we cannot conclude that the district
court clearly erred in refusing to credit Wright's version of
events. Wright's effort to bifurcate the criminal activities in
this case into two separate conspiracies seems to be, in
particular, "plucked out of thin air," with "nothing other than
the appellant's ipse dixit" to support it. United States v.
Demers, 842 F.3d 8, 13 (1st Cir. 2016). Furthermore, even if his
version of events is a plausible one, we have held that "where
there is more than one plausible view of the circumstances, the
sentencing court's choice among supportable alternatives cannot be
clearly erroneous." United States v. Dunston, 851 F.3d 91, 101–
02 (1st Cir. 2017) (quoting United States v. Ruiz, 905 F.2d 499,
508 (1st Cir. 1990)).
The district court's finding that Wright exercised a
managerial or supervisory role over others involved in the
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conspiracy is also supported by the record. Intercepted phone
calls between Wright and Dent confirm that Wright had invested
money up front for other conspirators to have an apartment out of
which to operate, and to have drugs to sell. According to
Thompson, when she and Dent were homeless, Wright offered to pay
for their apartment in Maine and financed the initial purchase of
200 grams of cocaine to get the operation moving.6 See United
States v. Savarese, 686 F.3d 1, 20 (1st Cir. 2012) (noting that
the recruitment of others into the conspiracy can suffice to
establish that a defendant exercised a "managerial" function).
Additionally, the strong evidence that Wright rented the third-
floor, 174 Blake Street apartment for use as a drug sale point
suggests that he was acting in a managerial role, helping to
finance and make arrangements for the continued operation and
prosperity of the criminal enterprise. See United States v.
Ahrendt, 560 F.3d 69, 77 (1st Cir. 2009) (concluding that the
defendant had "some authority within the conspiracy in that he
rented the apartment where drugs were processed, packaged and
sold").
6 We note that district courts are well within their rights
to consider third-party proffer statements (like Thompson's in
this case) for sentencing purposes, see United States v. Díaz-
Arias, 717 F.3d 1, 26-27 (1st Cir. 2013) (concluding that use of
third-party proffer statements at sentencing is appropriate).
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Furthermore, though Wright argues that Dent was above
him in the pecking order and that he "wasn't the boss of anyone,"
surveillance of the house at 99 Horton Street on February 12, 2015,
and testimony from both Gosselin and from other sources of
information who procured drugs that day show that Gosselin and
Jackson were making hand-to-hand drug transactions at Wright's
behest, and the enhancement applies when "the defendant 'exercised
control over, organized, or was otherwise responsible for
superintending the activities of' at least one other participant
in a criminal activity on at least one occasion." United States
v. Ofray-Campos, 534 F.3d 1, 40 (1st Cir. 2008) (quoting United
States v. García-Morales, 382 F.3d 12, 19 (1st Cir. 2004)); see
also United States v. Casas, 356 F.3d 104, 129 (1st Cir. 2004)
(noting that "the mere fact that" the defendant "was subordinate
to" another conspirator "does not establish, without more, that
[he] was not an organizer or leader of the conspiracy"), order
clarified sub nom. United States v. Cunningham, 359 F.3d 627 (1st
Cir. 2004).
In short, we find no error, clear or otherwise, in the
district court's finding that the conspiracy consisted of five or
more participants and that Wright was a "manager or supervisor"
for purposes of the role enhancement.
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C. Firearm Enhancement
Wright also challenges the district court's application
of a two-level enhancement for the use or possession of a firearm
in the commission of the offense, which the court applied as a
result of the four firearms found in the fourth-floor apartment at
172 Blake Street. He argues that he was not aware of any firearms
being used by any other members of the conspiracy, and that he
left Maine on November 10, 2014, after cleaning the third-floor
apartment at 174 Blake Street, and only returned on February 12,
2015, the day he was arrested. Because he was not present during
the window of time when the guns would have been placed in the
vacant apartment, and because "the government put forth no evidence
establishing specifically who stashed the guns and drugs at 172
Blake Street," Wright argues that they cannot be attributed to him
for purposes of the sentencing enhancement.
The problem with Wright's argument is that in conspiracy
cases, the government need not show that the defendant himself
possessed or was even aware of the existence of the weapon; rather
"it just must be reasonably foreseeable that a co-conspirator would
possess a weapon in furtherance of the criminal activity." United
States v. Miranda-Martinez, 790 F.3d 270, 276 (1st Cir. 2015)
(quoting United States v. Greig, 717 F.3d 212, 219 (1st Cir.
2013)), cert. denied 136 S. Ct. 430 (2015). We find that this
test is satisfied in the instant case, particularly when our review
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of the district court's factual finding in this respect is for
clear error. See id. (reviewing for clear error the district
court's finding that it was "foreseeable that dangerous weapons,
including firearms, would be possessed during the drug trafficking
conspiracy").
The district court's finding that the conspiracy was
using several vacant apartments in the same property (which are
connected by external walkways) to store guns and drugs during the
operative period of time is supported by a preponderance of the
evidence. The relevant inquiry, therefore, is not whether Wright
himself possessed the firearms in question or knew that they were
in the apartment at 172 Blake Street; rather, the question is
whether it would be "reasonably foreseeable" to Wright that one of
his co-conspirators would procure and store firearms in
furtherance of the criminal conspiracy, namely, to protect the
drugs against potential robberies or rival crews or for
intimidation against individuals owing money to the conspirators.
Our cases have regularly allowed for this type of
inference in situations where weapons are discovered in close
proximity to drugs. See, e.g., Miranda-Martinez, 790 F.3d at 276
(noting that "we have often observed that 'firearms are common
tools' in drug trafficking conspiracies involving large amounts of
drugs such as the two in which [the defendant] admits he
participated" (quoting United States v. Bianco, 922 F.2d 910, 912
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(1st Cir. 1991))); United States v. Corcimiglia, 967 F.2d 724, 727
(1st Cir. 1992) (observing that the court "has recognized that the
mere presence of a firearm in the same residence which is used as
a site for drug transactions may allow a sentencing court to make
the inference that the weapon was present for the protection of
the drug operation"). We have no difficulty applying this
principle to the case at hand.
Since the government established that at least one co-
conspirator "possessed a weapon during the offense," Wright can
only avoid application of the sentencing enhancement if he can
show that "it is clearly improbable that the [firearms]" possessed
were "connected to the drug conspiracies." Miranda-Martinez, 790
F.3d at 276 (quoting U.S.S.G. § 2D1.1, cmt. 11). Wright has not
made such a showing, and we therefore affirm the application of
the firearms enhancement.
D. Substantive Reasonableness
Finally, we address and dispose of Wright's argument
that his sentence is substantively unreasonable. Wright's only
contention on this point is that the district court sentenced him
to a term of imprisonment that was twenty percent below the low-
end of the calculated GSR (a 96 month sentence rather than the
lower-end range of 121 months), but that this GSR calculation was
erroneous becuase the two sentencing enhancements discussed above
were improperly applied. Had those enhancements not been applied,
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Wright argues, his ultimate sentence of 96 months would have been
in excess of the properly-calculated GSR range, and would thus be
unreasonable. However, since we have already concluded that the
enhancements were properly applied, and since Wright offers no
other argument for the proposition that his below-guidelines
sentence is substantively unreasonable, we reject this challenge.
III. Conclusion
For the aforementioned reasons, we find no error in the
district court's sentencing decision and we AFFIRM.
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