Filed: Apr. 08, 2014
Latest Update: Mar. 02, 2020
Summary: 40 to 50 pounds.3, The district court's decision not to reduce the appellant's, offense level for acceptance of responsibility did not rest solely, on the secondary effect of its obstruction-of-justice finding.United States v. Caraballo, 552 F.3d 6, 11 (1st Cir.core function of a sentencing court.
United States Court of Appeals
For the First Circuit
No. 12-2458
UNITED STATES OF AMERICA,
Appellee,
v.
SEAMUS MAGUIRE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Howard, Selya and Thompson,
Circuit Judges.
Peter J. Cyr on brief for appellant.
Thomas E. Delahanty II, United States Attorney, and Renée M.
Bunker, Assistant United States Attorney, on brief for appellee.
April 7, 2014
SELYA, Circuit Judge. Defendant-appellant Seamus Maguire
pleaded guilty to a charge of possession of marijuana with intent
to distribute. The district court imposed a 60-month incarcerative
sentence — the maximum allowed under the statute of conviction.
See 21 U.S.C. § 841(b)(1)(D). Dismayed by the length of his
sentence, the appellant concocts a carefully contrived casserole of
claims of error. Finding this repast indigestible, we affirm.
I. BACKGROUND
"Where, as here, a sentencing appeal follows a guilty
plea, we glean the relevant facts from the change-of-plea colloquy,
the unchallenged portions of the presentence investigation report
(PSI Report), and the record of the disposition hearing." United
States v. Vargas, 560 F.3d 45, 47 (1st Cir. 2009). On the evening
of June 16, 2011, state and local law enforcement officers detained
the appellant and administered Miranda rights, see Miranda v.
Arizona,
384 U.S. 436, 471 (1966), after he was seen selling drugs
in Union, Maine. The appellant admitted that (in the surveilled
sale) he had sold 20 pounds of marijuana for roughly $29,000. He
likewise admitted that he recently had acquired around 600 pounds
of marijuana and sold 400 to 450 pounds of it to a customer in New
Hampshire. Moreover, the appellant acknowledged that he had 80 to
100 pounds of marijuana in a stash house in Portland, Maine, and he
offered to lead the officers to it.
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The officers accepted the appellant's invitation. En
route, the appellant rethought his original estimate and told the
officers that the amount of marijuana at the stash house was only
40 to 50 pounds. The officers retrieved the marijuana, which
weighed 42.2 pounds.
On September 14, 2011, a federal grand jury sitting in
the District of Maine indicted the appellant for, inter alia,
possession of marijuana with intent to distribute.1 See 21 U.S.C.
§ 841(a)(1). The indictment contemplated that 21 U.S.C.
§ 841(b)(1)(D), which stipulates a maximum sentence of 5 years for
distribution of up to 50 kilograms of marijuana, would apply.
The appellant moved to suppress the statements that he
had made following his arrest. At the suppression hearing before
a magistrate judge, the appellant testified that he had twice
requested an attorney during the stop, only to be ignored. He
further testified that he had cooperated in part because an officer
had threatened to arrest everyone he knew if he did not. Four law
enforcement officers testified to the contrary.
The magistrate judge found that the appellant had neither
asked for an attorney nor been subjected to threats. After
reviewing the credible evidence, the magistrate judge recommended
1
Although the indictment originally included additional
counts for distribution of marijuana and for forfeiture, those
counts were voluntarily dismissed and do not figure in this appeal.
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against suppression. The district judge accepted the magistrate
judge's findings and recommendations.2
After the denial of his motion to suppress, the appellant
entered a guilty plea. The change-of-plea hearing was
uncharacteristic: the district court found the appellant's demeanor
disrespectful and admonished him twice before eventually accepting
the change of plea.
The district court convened the disposition hearing on
November 19, 2012. The court set the base offense level (BOL) at
26, attributing 462.2 pounds (209.65 kilograms) of marijuana to the
appellant. The court then found that the appellant had perjured
himself at the suppression hearing and adjusted the BOL upward by
two levels for obstruction of justice. See USSG §3C1.1. The court
then declined to credit the appellant for acceptance of
responsibility, see id. §3E1.1, noting both the appellant's
perjurious testimony and his flippancy during the change-of-plea
colloquy. Finally, the court placed the appellant in criminal
history category I.
These calculations yielded a guideline sentencing range
(GSR) of 78 to 97 months. However, the maximum sentence allowable
under the statute of conviction was only 60 months. See 21 U.S.C.
§ 841(b)(1)(D). When the bottom of a properly calculated GSR
2
For ease in exposition, we adopt an institutional
perspective and hereinafter refrain from distinguishing between the
district judge and the magistrate judge.
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exceeds the maximum sentence allowable under the statute of
conviction, the latter becomes the guideline sentence. See USSG
§5G1.1(a). Cognizant of this principle, the court imposed a 60-
month incarcerative term. This timely appeal followed.
II. ANALYSIS
The appellant assigns error to the sentencing court's
drug-quantity calculation, its obstruction-of-justice enhancement,
its refusal to reduce the offense level for acceptance of
responsibility, its eschewal of either a downward variance or
departure, and its choice of a 60-month sentence. We address these
assignments of error sequentially.
A. Drug Quantity.
In drug-trafficking cases, the amount of drugs
attributable to a defendant is an important datum, which bears
heavily on his likely sentence. Here, the district court found the
appellant responsible for 462.2 pounds (209.65 kilograms) of
marijuana. It predicated this finding on the appellant's own
statements to the police, summing the weights that the appellant
admitted to selling on the day of the arrest (20 pounds), the
marijuana seized at the stash house (42.2 pounds), and his low-end
estimate of what he had sold to the New Hampshire customer (400
pounds).
We review a sentencing court's factual findings,
including its findings as to drug quantity, for clear error. See
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United States v. Platte, 577 F.3d 387, 392 (1st Cir. 2009). Absent
an error of law — and none is apparent here — a sentencing court
does not clearly err in making a drug-quantity determination "so
long as the approximation represents a reasoned estimate of the
actual quantity." United States v. Cintrón-Echautegui,
604 F.3d 1,
6-7 (1st Cir. 2010).
The appellant's challenge to the district court's drug-
quantity determination is a bit of a paradox: he faults the court
for its reliance on the statements that he himself freely made when
he was arrested. Embracing language from one of our prior
decisions, the appellant says his account was "too thin or too
improbable or too likely to be mere boasting" to warrant the
court's imprimatur. United States v. Marquez, 699 F.3d 556, 560
(1st Cir. 2012). In support, the appellant avers that his original
over-estimation of the amount of marijuana at the stash house,
coupled with his fear of harm to his family, indicate that his
statements were unreliable.
We start with the unremarkable proposition that a
defendant's voluntary statements, made after receiving Miranda
warnings, can be used against him and that, in the ordinary course,
such statements can constitute strong evidence of his guilt. See,
e.g., Miranda, 384 U.S. at 469. This case falls within that
unremarkable proposition, not within any long-odds exception to it.
The court below, which saw and heard the appellant and the other
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witnesses at first hand, concluded that there were enough badges of
reliability to render the appellant's day-of-arrest estimates
trustworthy.
This conclusion is entirely supportable. For one thing,
the appellant made his statements after he had been arrested, thus
minimizing any incentive to exaggerate. For another thing, the
appellant apparently cooperated willingly with the officers. There
were, the court found, no threats of harm to the appellant's
family. Finally, the pricing structure of the appellant's avowed
sale to his New Hampshire customer (400 to 450 pounds of marijuana
for around $600,000) corresponded to the pricing structure of his
surveilled sale (20 pounds of marijuana for roughly $29,000).
To say more on this topic would be pointless. The
district court's drug-quantity determination was not clearly
erroneous but, rather, echoed the appellant's own statements —
statements that bore the hallmarks of reliability. Consequently,
the appellant is hoist with his own petard.
B. Obstruction of Justice.
We turn next to the enhancement for obstruction of
justice. Once again, our review is for clear error. United States
v. Akitoye, 923 F.2d 221, 229 (1st Cir. 1991).
The sentencing guidelines empower the district court to
enhance a defendant's offense level by two levels if the defendant
"willfully obstructed or impeded, or attempted to obstruct or
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impede, the administration of justice." USSG §3C1.1. Such an
enhancement may be based on a finding that the defendant committed
perjury during the course of the case. See Akitoye, 923 F.2d at
228. But an enhancement for obstruction of justice based on
perjury requires something more than a simple asymmetry in the
testimony in the case. See
id. at 228-29. For a sentencing court
to impose such an obstruction-of-justice enhancement, the court
must independently find by a fair preponderance of the evidence
that the defendant deliberately lied about a material matter. See
United States v. Shinderman,
515 F.3d 5, 19 (1st Cir. 2008).
The obstruction-of-justice enhancement in this case was
based on the appellant's testimony at the suppression hearing. But
the appellant contends that the district court never found as a
fact that he had willfully lied. Elevating semantics to an art
form, the appellant suggests instead that the court merely found
the officers' contradictory testimony more credible.
The record belies this suggestion. The court carefully
considered the appellant's tale of ominous threats and ignored
entreaties for counsel. The court rejected this tale as
apocryphal. In doing so, the court remarked the contradictory and
implausible nature of the appellant's testimony and found that he
had deliberately perjured himself.
We need not tarry. The appellant's testimony about
invoking his right to an attorney and being threatened by the
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officers was flatly contradicted by four other witnesses. The
court's finding that the appellant prevaricated, as opposed to
misunderstanding, is hard to fault. After all, there is very
little room for ambiguity: the requests for counsel and the threats
were either made or they were not. In these circumstances, the
perjury finding is rock-solid. See United States v. Gobbi, 471
F.3d 302, 314-15 (1st Cir. 2006) (upholding perjury finding
"[g]iving due heed to both the trial judge's unique coign of
vantage and the deferential standard of review").
C. Acceptance of Responsibility.
The appellant's lament with respect to acceptance of
responsibility is two-fold. First, he asseverates that the
sentencing court's obstruction-of-justice enhancement was
unwarranted and that, therefore, the court's epibolic refusal to
credit him for acceptance of responsibility was erroneous. This
asseveration is simply a rehashing of a claim previously rejected,
see supra Part II.B, and falls of its own weight.
The second branch of the appellant's challenge starts
with the valid premise that even if a defendant's sentence is
enhanced for obstruction of justice, he still may receive a
downward adjustment for acceptance of responsibility. Although
practice has proven such largesse to be hen's-teeth rare, the
appellant nonetheless insists that he qualifies for it.
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The baseline rule, of course, is that "[c]onduct
resulting in an enhancement [for obstruction of justice] ordinarily
indicates that the defendant has not accepted responsibility."
USSG §3E1.1, comment. (n.4). Yet the sentencing guidelines
explicitly confirm that there may be "extraordinary cases" in which
adjustments for both obstruction of justice and acceptance of
responsibility can coexist. Id. In such instances, the defendant
has the burden of proving that an adjustment for acceptance of
responsibility is warranted. See United States v. Gonzales,
12
F.3d 298, 300 (1st Cir. 1993). A district court's denial of such
a claim is reviewed for clear error. See
id.
The appellant points to a host of factors that, in his
view, make his case extraordinary. These include his on-the-spot
admission of his role in the surveilled drug sale, his divulgement
of the existence and location of the stash house, his consent to
the search of that structure and to the seizure of contraband from
it, his guilty plea, his compliance with the terms of his pretrial
release, and his avowals of contrition. These factors, he exhorts,
merit a reduction for acceptance of responsibility.
We doubt that these factors, taken in cumulation, are
sufficient to make the appellant's case extraordinary and, thus, to
overcome the secondary effect of the warrantable finding that he
had obstructed justice. But we need not go so far. We are not a
nisi prius court, and the enumerated factors surely do not pack a
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sufficient punch to render the sentencing court's adverse
assessment of them clearly erroneous.3 Cf. United States v. Royer,
895 F.2d 28, 29 (1st Cir. 1990) ("Whether a defendant clearly
demonstrates a recognition and affirmative acceptance of personal
responsibility is a fact-dominated issue, and . . . will not be
overturned unless clearly erroneous." (internal quotation marks
omitted)).
D. Variance/Departure.
Under the advisory guidelines, discretionary refusals to
vary or depart are open to reasonableness review in accordance with
an abuse of discretion standard. See United States v. Anon.
Defendant, 629 F.3d 68, 74 (1st Cir. 2010); United States v.
Martin,
520 F.3d 87, 92 (1st Cir. 2008).
In this regard, the appellant reproves the district court
for failing to make an individualized assessment of the case as
required by Gall v. United States, 552 U.S. 38, 49-50 (2007). In
his view, such an assessment would have prompted the court to vary
or depart downward based on his ill health (including a diagnosis
3
The district court's decision not to reduce the appellant's
offense level for acceptance of responsibility did not rest solely
on the secondary effect of its obstruction-of-justice finding.
Given what we already have said, however, we need not catalog the
court's other findings.
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of Burkitt's lymphoma and past surgeries).4 See 18 U.S.C.
§ 3553(a); USSG §1B1.1(c).
While health is a relevant factor in determining whether
either a variance or a departure is indicated, the court below did
not overlook this factor. To the contrary, the court specifically
acknowledged both the appellant's medical condition and the
seriousness of that condition. The court determined, however, that
there was no evidence that the federal prison system could not deal
appropriately with the appellant's medical problems. In a wry
aside, the court noted (correctly, we think) that the appellant's
large-scale marijuana operation did not seem to have been impaired
by his failing health.
We discern no hint of unreasonableness. The record makes
manifest that the district court weighed all of the relevant
factors and explained its denial of a downward departure in a
series of well-reasoned statements. There was no abuse of
discretion.
Variances — like departures — are discretionary. See
United States v. Caraballo, 552 F.3d 6, 11 (1st Cir. 2008). A
district court's decision to eschew a variance is reviewed
deferentially, and that deference is especially great where, as
here, the defendant is complaining about a sentence that is below
4
In arguing for a downward variance or departure, the
appellant pays scant heed to the fact that, due to a statutory cap,
the sentence that he received was well below the bottom of the GSR.
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the bottom of a properly calculated GSR. See United States v.
Floyd, 740 F.3d 22, 39-40 (1st Cir. 2014).
Refined to bare essence, the appellant's claim of
entitlement to a variance is nothing more than a plaint that the
sentencing court attached too little weight to factors such as his
medical condition. But deciding how much weight should be given to
particular factors in a specific case is, within broad limits, the
core function of a sentencing court. Here, the district court did
not exceed those limits. It stated explicitly that it had
considered all of the relevant factors, including those enumerated
in 18 U.S.C. § 3553(a). The court expressly referenced a number of
specific factors, including the appellant's medical condition.
In deciding not to vary downward more than was required
by the architecture of the statute of conviction, the court reached
a sensible result and articulated a plausible rationale in support
of that result. See United States v. Carrasco-de-Jesús, 589 F.3d
22, 30 (1st Cir. 2009). The court's denial of a further downward
variance was, therefore, comfortably within the scope of its
discretion.
E. Length of Term.
In mounting his final argument, the appellant states only
that the sentence he received was "improper." This naked
conclusion is insufficient to put the reasonableness of his
sentence into play. "It is not enough merely to mention a possible
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argument in the most skeletal way, leaving the court to do
counsel's work." United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990).
III. CONCLUSION
We need go no further. For the reasons elucidated above,
we affirm the appellant's sentence.
Affirmed.
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