United States v. McDonald, 14–1957.

• Decision Date: 30 October 2015
• Docket Number: No. 14–1957.,14–1957.
• Citation: 804 F.3d 497
• Parties: UNITED STATES of America, Appellee, v. Nicholas McDONALD, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

804 F.3d 497

UNITED STATES of America, Appellee

v.Nicholas McDONALD, Defendant, Appellant.

No. 14–1957.

United States Court of Appeals, First Circuit.

Oct. 30, 2015.

George F. Gormley, with whom Stephen Super and George F. Gormley, P.C., were on brief, for appellant.

Margaret D. McGaughey, Assistant United States Attorney, with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellee.

Before TORRUELLA, LYNCH, and KAYATTA, Circuit Judges.

Opinion

LYNCH, Circuit Judge.

Nicholas McDonald was a heroin dealer in the Bangor area of Maine, obtaining his heroin on trips to Worcester, Massachusetts.

Eventually, when caught with 26.4 grams of heroin, he was charged both for the heroin and a gun in his possession. McDonald pleaded guilty in February 2014 to one count of possession with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1) and one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (subject to appealing the denial of his motion to suppress). The district court quite correctly denied his motion to suppress and, at sentencing, correctly found that he had tried to obstruct justice by trying to swallow a small bag of heroin.

A separate question on appeal has to do with the increase in his base offense level from 18 to 20, which was based not on the drugs he actually possessed but on relevant conduct concerning drugs he purportedly sold. That relevant conduct was based on untested accounts by a confidential informant (CI) who purportedly had accompanied him on his buying trips south and had been with him on several occasions as he sold drugs. That is, the Presentence Investigation Report (PSR) contained information from the CI, which came in the form of the CI's grand jury testimony and a statement made to the government. No law enforcement or other witness saw those sales. The CI did not testify, and so McDonald never had an opportunity to cross-examine her.

Still, we cannot say there was clear error in the district court's finding that this information met the requirements for relevant conduct and was sufficiently reliable to attribute to McDonald an additional quantity of drugs. There was no clear error in the court's finding that between 40 and 60 grams of heroin were involved, which supported a sentence of 75–months imprisonment on the drug count.

We point out that McDonald received a concurrent sentence of 75–months imprisonment on the firearm charge and will serve 75 months anyway, whatever the merits of the method used by the government to get an increased sentence on the drug charge.

I.

As to the motion to suppress, we recite the relevant facts as found by the district court, consistent with record support. United States v. Arnott, 758 F.3d 40, 41 (1st Cir.2014). As to the facts relevant to the sentencing appeal, we take the facts as set forth in the unchallenged portions of the PSR and the sentencing hearing. United States v. Innarelli, 524 F.3d 286, 288 (1st Cir.2008).

On April 5, 2013, Sergeant Roy Peary of the Penobscot County Sheriff's Department received an e-mail about suspicious pawning activity. The e-mail indicated that Kelly Jo Desmond, Jarod Brown, and another unidentified female were trying to pawn construction tools and electronics at a Newport, Maine pawnshop, but they could not provide a lot of information about the items. The group had an older, dark-colored Pontiac with a license plate beginning with “7450” and ending with undetermined letters.

That same day, Sergeant Peary learned of a burglary in Orrington, Maine. The complainant reported that construction tools had been stolen and said that he suspected his ex-girlfriend, Amy White, was involved. The complainant said that White struggled with drug addiction, knew about his tools, drove a maroon Pontiac Bonneville, and might be staying at a trailer park in Holden, Maine. He said that McDonald and Desmond lived in the trailer where he thought White was staying.

Sergeant Peary learned from the Maine Department of Motor Vehicles that White was the registered owner of a 1999 Pontiac Bonneville with the plate number “7450 TB” that was listed as being purple.¹ He called Holden Police Officer Chris Greeley and told him that he was investigating a burglary and suspicious pawning activity. Greeley knew of existing arrest warrants for McDonald and Desmond. He suspected that McDonald was staying at a trailer park in Holden because he had previously driven McDonald to a trailer there after he picked McDonald up along a roadway in February 2013. Additionally, around that time, the park owner told Greeley that McDonald was living there.

Officer Greeley asked Maine Drug Enforcement Agency Task Force Agent Amy Nickerson to help him with the investigation. Nickerson was familiar with the trailer in question from having conducted surveillance on it. Nickerson also went to the burglary scene and spoke with the complainant. The complainant told Nickerson that White had told him that she had been driving McDonald to get drugs in Massachusetts.

Greeley, Nickerson, and Peary met at the Holden Police Department that evening. Agent Nickerson went to the address of the trailer and saw the Pontiac Bonneville parked there. Soon after, she saw the Bonneville leaving. She notified Greeley and Peary of this, and began to follow the car onto Route 1A. She could see two people in the car and observed that the car was driving at what she estimated was about ten miles per hour below the speed limit. Greeley, who was waiting at the Holden Police Department's exit onto Route 1A, began to drive behind the Bonneville. The vehicle was driving slowly, a line of cars had developed behind it, and its brake lights came on three times without any connection to traffic lights or signs.

When Greeley turned on his cruiser's lights to pull the car over, the Bonneville pulled to the side, and its passenger, who was later identified as McDonald, fled into the woods. Greeley and Nickerson detained the driver, who turned out to be White, and they saw construction tools in the back seat. McDonald was tracked down and apprehended.

Officers found a hypodermic needle, a bag of Pentedrone Hydrochloride,² a folding knife, $1,430 of cash, pepper spray, and two and a half Suboxone strips containing Pentedrone Hydrochloride on McDonald at the time of his arrest.

A search of the vehicle also revealed a safe. McDonald denied ownership of the safe, though it turned out to be his.

After being apprehended, McDonald was taken to Eastern Maine Medical Center because he was displaying signs of agitation, fear, and confusion. After being at the hospital for approximately two hours, he went to use the bathroom. After about ten minutes, he returned to his hospital bed and appeared to fall asleep. The officer supervising him saw a bag fall from the bed onto the floor. When the officer picked it up, McDonald got up, fought with the officer, grabbed the bag, and put it in his mouth. Ten people had to come to hold him down. The bag was dislodged, which contained 26.4 grams of heroin.

The next day, the police executed a search warrant for the safe and found a digital scale, packaging materials, and a loaded 9 millimeter handgun.

Apart from those items seized, a CI provided information to the government and later testified before a grand jury that between February 2013 and the time of McDonald's arrest, she helped McDonald sell heroin on a regular basis and she had gone with McDonald on trips to Massachusetts where McDonald would buy heroin and bring it back to Maine.

McDonald was indicted on June 13, 2013, on the two counts and on August 2, 2013, filed a motion to suppress the evidence obtained from the vehicle stop. The motion was denied on September 30, 2013. On March 4, 2014, McDonald entered a conditional plea to both counts, in which he reserved the right to appeal the denial of his motion to suppress.

At sentencing, the government asked for a sentence of 75–months imprisonment, and McDonald suggested a sentence of imprisonment between 55 and 60 months. McDonald was granted a two-level reduction (a “Holder reduction”) based on the then-proposed change in the United States Sentencing Guidelines to lower drug quantity calculations by two levels. The court discussed an obstruction of justice enhancement, at which point the government introduced McDonald's medical records. In response to McDonald's argument that his behavior was not willful, the government said that the records demonstrated that McDonald was “calm and cooperative” and in control of his behavior. The court applied the enhancement.

The court noted that the probation officer held McDonald accountable for 97.219 kilograms of marijuana equivalent³ based on the amounts found and the CI testimony, resulting in a base offense level of 24. The government, “[o]ut of an abundance of caution,” proposed a quantity of 62.388 kilograms of marijuana equivalent, resulting in a base offense level of 22. This amount included the 26.4 grams of heroin seized from McDonald, and, based on the CI's proffer and grand jury testimony, the additional grams of drugs involved in other transactions described by the CI. McDonald argued he could be held responsible for only the 26.4 grams of heroin seized from him because, he claimed, the remainder of the drug quantity was based on unreliable CI testimony. The court “accept[ed] the [CI's] testimony and statements that the defendant sold heroin in roughly the quantities urged by the government” but noted that if the CI was “off by as much as 25 percent in terms of her recollection, the defendant would still be in the offense level of 20.” Accordingly, the court concluded that McDonald “was involved in a drug quantity somewhere between 40 and 60 grams of heroin, or kilograms of marijuana equivalent” and applied a base offense level of 20.

The court added a two-level enhancement for possession of a firearm, the two-level increase for obstruction of justice, and a three-level...