U.S. v. May, 02-2039.
| Decision Date | 04 September 2003 |
| Docket Number | No. 02-2039.,02-2039. |
| Citation | 343 F.3d 1 |
| Parties | UNITED STATES of America, Appellee, v. Barry S. MAY, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
Before BOUDIN, Chief Judge, TORRUELLA and HOWARD, Circuit Judges.
Thomas L. Goodwin, with whom Strike, Goodwin & O'Brien was on brief, for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D. Silsby, United States Attorney, was on brief, for appellee.
Defendant Barry S. May was charged with two conspiracy counts: involvement in a conspiracy to distribute cocaine and involvement in a conspiracy to distribute marijuana. May pled guilty to the marijuana count and as part of his plea agreement the cocaine count was dismissed. Now May appeals, arguing that the district court erroneously augmented his sentence when it found (1) a kilogram of cocaine attributable to May, (2) his co-conspirator used a dangerous weapon, (3) May had a leadership role in the offense, and (4) three misdemeanor convictions should be included as part of May's criminal history. After careful review, we affirm.
May and Scott Barbour began to obtain and distribute marijuana in Texas, Florida, and Maine in 1996. Over time, others joined in the marijuana distribution, with May heading the operation in Maine.
Typically, Barbour and others purchased marijuana in Texas and shipped it to May and others for distribution in Maine. May retained his share of the proceeds and forwarded the appropriate share to Barbour and others in Texas.
In February 2000, May aided Barbour in the collection of $10,000 in drug debts. At Barbour's trial, May testified that he went to Texas to collect a debt owed by two men for some marijuana they had "strong armed" from Barbour. May, co-conspirator Shane Hall, and Barbour got drunk and went to Hall's house, where Hall obtained a .38 caliber pistol; the three then went looking for the debtors.
In May 2000, Barbour sent May a package containing one kilogram of cocaine. No cocaine had previously been involved in the marijuana distribution conspiracy, and Barbour had not told May that cocaine was being sent on this occasion. According to May, the receipt of the cocaine was unexpected and unwanted; May had been treated in 1989-90 for cocaine addiction, and knew proximity to the drug posed a danger of relapse. When he realized Barbour had sent him cocaine, not marijuana, he communicated his anger to Barbour in Texas and to two other conspirators in Maine, Steven Case and Kevin Woodward. He told the three men that he wanted nothing to do with cocaine and that he was withdrawing from the marijuana conspiracy.
The kilogram of cocaine was divided into smaller quantities, and May gave seventeen ounces to Case, ten to Woodward, and retained seven ounces for himself. May established terms of payment for the cocaine. Fearing access to cocaine would cause him to return to his former drug habit, May later gave his seven ounces to Woodward.
May denied having anything to do with distributing the cocaine after its receipt and division. He also denied both paying for the cocaine and accepting payment for Barbour.
In spite of his statements to his co-conspirators, May did not immediately withdraw from the marijuana conspiracy. He continued to receive and distribute marijuana (but not cocaine) from Texas, primarily from one Todd Massey. As part of the ongoing conspiracy, there was a further shipment to Maine of forty-two ounces of cocaine, but this went directly to Case without May's knowledge or participation.
On October 16, 2001, a federal grand jury indicted May and Barbour on two counts of conspiracy. Count One alleged that between January 1, 1999 and October 1, 2001, May and Barbour conspired to distribute and to possess with intent to distribute at least 500 grams of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846 ("the cocaine count"). Count Two alleged that during the same time period May and Barbour conspired to distribute and to possess with intent to distribute more than fifty kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846 ("the marijuana count").
On January 2, 2002, May pled guilty to the marijuana count. The plea agreement provided that the maximum statutory sentence was twenty years' imprisonment under 21 U.S.C. § 841(b)(1)(C). The government agreed to move to dismiss the cocaine count after sentencing on the marijuana count. The plea agreement did not contain stipulations for sentencing guidelines calculations.
Prior to sentencing, the parties stipulated that the quantity of marijuana attributable to May as relevant offense conduct was between 700 and 1,000 kilograms, corresponding to an offense level of thirty. The parties disagreed as to whether any cocaine should be counted as relevant offense conduct, whether there should be a deadly weapon enhancement, and whether three misdemeanors should be included in the criminal history calculation. These questions were submitted to the district court for determination at the sentencing hearing.1
The district court accepted the stipulation of the parties regarding marijuana quantity, and attributed one kilogram of cocaine to May as relevant offense conduct.2 This attribution resulted in raising the base offense level from level thirty to level thirty-two. The district court imposed upward adjustments of four levels for role in the offense and two levels for possession of a firearm, and a downward adjustment of three levels for acceptance of responsibility, resulting in an adjusted offense level of thirty-five. May's criminal history category was determined to be Category III, based on the inclusion of, among other past offenses, convictions for the misdemeanors of terrorizing, assault, and criminal mischief. Offense level thirty-five and criminal history Category III combined to produce a guidelines range of 210-262 months.
Upon the government's § 5K1.1 motion for downward departure, the district court departed downward and sentenced May to 174 months' imprisonment, to be followed by three years of supervised release. May now appeals the sentence.
May argues the sentencing court erred in several respects. First, May argues that the drug quantity determination was erroneous because the kilogram of cocaine should not have been attributed to him as relevant offense conduct. Second, May questions the enhancement for a co-conspirator's possession of a deadly weapon, claiming that such possession is not always reasonably foreseeable during an attempt to collect a drug-related debt. Third, May posits that the district court erred in finding May to be a leader or organizer. Finally, May believes the district court erred in including three misdemeanors as part of his criminal history. We address each argument in turn.3
Under the United States Sentencing Guidelines, a court is to consider all relevant conduct in determining the quantity of drugs for which a defendant is responsible. U.S.S.G. § 1B1.3. A preponderance of the evidence standard applies to the determination of drug quantity, United States v. Caba, 241 F.3d 98, 101 (1st Cir.2001), and a sentencing court's drug quantity determination is a factual matter that will not be disturbed on appeal unless it is clearly erroneous. United States v. Innamorati, 996 F.2d 456, 489 (1st Cir.1993).
A defendant may be held "responsible for drug quantities which [he himself] sold, transported or negotiated" as part of a conspiracy. United States v. Miranda-Santiago, 96 F.3d 517, 524 (1st Cir.1996). In addition, a defendant is accountable for "reasonably foreseeable quantities of contraband." U.S.S.G. § 1B1.3, cmt. n. 2. In this case, the sentencing court found May responsible for a kilogram of cocaine not because May had any "reason to foresee the cocaine was going to turn up" but rather because he was "effectively in joint possession, constructive possession of that cocaine." The court remarked on May's failure to act after receiving the cocaine, stating:
You could have left right then. You could have turned it in. You didn't do any of that. Instead, you stayed. You went with it and were there to see it broken up and ultimately, went into the distribution channels. And you were effectively in joint possession, constructive possession of the cocaine at the time, and you are responsible for it.
The court's conclusion regarding May's joint and constructive possession of the cocaine is well-supported by the record. According to May's own statement at his sentencing hearing, he was present when Woodward and Case divided the kilogram of cocaine into smaller amounts for further distribution. Further, May personally distributed cocaine to Case and Woodward, and had seven ounces in his own possession for a period of time. See United States v. Georgacarakos, 988 F.2d 1289, 1296 (1st Cir.1993) (); see also United States v. Batista-Polanco, 927 F.2d 14, 18-19 (1st Cir.1991) (). Certainly, by personally transferring control of the cocaine to others and by having an amount of the drug in his own possession however briefly, May was "directly involved" with the drug, which suffices to hold him accountable for the contraband. See U.S.S.G. § 1B1.3, cmt. n.2.
Moreover, the delivery of the kilogram of cocaine alone would have sufficed to render the cocaine relevant conduct to May. See United States v. Young, 78 F.3d 758, 763 n. 5 (1st Cir.1996) (). May, Barbour, Woodward, and Case were all members of the same...
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