United States v. Bramley, 15-2446

• Decision Date: 26 January 2017
• Docket Number: No. 15-2446,15-2446
• Citation: 847 F.3d 1
• Parties: UNITED STATES of America, Appellee, v. Daniel BRAMLEY, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

847 F.3d 1

UNITED STATES of America, Appellee,

v.Daniel BRAMLEY, Defendant, Appellant.

No. 15-2446

United States Court of Appeals, First Circuit.

January 26, 2017

Jamesa J. Drake , with whom Drake Law, LLC , Auburn, ME, was on brief, for appellant.

Julia M. Lipez , Assistant United States Attorney, with whom Thomas E. Delahanty II , United States Attorney, was on brief, for appellee.

Before Kayatta, Circuit Judge, Souter, Associate Justice,^* and Selya, Circuit Judge.

SELYA, Circuit Judge.

This sentencing appeal requires us to explore the intersection between the right of a sentencing judge to receive confidential advice from probation officers and the right of a convicted defendant to know the nature of the information upon which he is sentenced and to challenge its relevancy and accuracy. Concluding, as we do, that the court below did not plainly err by engaging in brief, off-the-record conversations with a probation officer during the appellant's sentencing, we affirm.

I. BACKGROUND

The relevant facts and travel of the case can be succinctly summarized. Defendant-appellant Daniel Bramley, a British national, came to the attention of federal authorities during a Drug Enforcement Administration (DEA) wiretap investigation into the operations of a drug-trafficking ring in and around Portland, Maine. The investigation revealed the ringleader to be one Robert Evon, and the DEA intercepted several communications between Evon and the appellant in mid–2013. Among other things, Evon requested that the appellant collect "paperwork" from a coconspirator. The appellant complied, retrieving a package that contained $25,000 in drug proceeds. He later accompanied Evon to Scarborough, Maine; obtained twenty pounds of marijuana; and peddled some of the marijuana in Vermont.

As its investigation progressed, the DEA obtained additional information from a cooperating witness (who turned out to be none other than Evon himself). Cf. William Shakespeare, The First Part of King Henry the Fourth act 2, sc. 2 (1597) ("A plague upon it when thieves cannot be true one to another!"). We highlight this additional information, mindful that the appellant disputes much of it.

• Roughly ten years earlier, Evon procured sizeable quantities of marijuana from the appellant on multiple occasions.

• In 2012, the appellant—acting as a middleman—connected Evon with a marijuana source in Staten Island, New York.

• Either the same year or the next year, the appellant arranged for Evon to obtain marijuana from yet another New York source.

• Evon and the appellant subsequently met this second supplier in San Francisco to acquire liquid LSD (which the two men planned to sell in Vermont and Maine).

The DEA investigation reached its climax in March of 2014. At that time, a federal grand jury sitting in the District of Maine indicted the appellant on charges of conspiracy to distribute and possess with intent to distribute marijuana, see 21 U.S.C. §§ 841(a)(1), 846 ; unlawful use of a communication facility, see id.§ 843(b); and related criminal forfeitures, see id.§ 853. After initially maintaining his innocence, the appellant entered a guilty plea to the conspiracy count and, in the process, acknowledged the prosecution's written version of events as true. The other charges were dismissed.

The district court convened the disposition hearing on November 6, 2015. Although the presentence investigation report (the PSI Report) alleged that the appellant was responsible for 68.2 kilograms of marijuana and approximately 5,000 kilograms of marijuana equivalent (or fifty milliliters of liquid LSD, see USSG § 2D1.1, cmt. n.8(D)), the appellant had not admitted to any specific drug quantities. Given the absence of any such admission, the sentencing court recognized—and the government agreed—that the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), limited the maximum available sentence to sixty months,¹ see 21 U.S.C. § 841(b)(1)(D), notwithstanding that the guideline sentencing range would otherwise have been 135 to 168 months.

The government argued for a sentence "near" the sixty-month maximum, reasoning that the appellant's brushes with the law were more extensive than his criminal history score suggested and that he appeared to be a professional marijuana trafficker. Among its supporting points, the government noted that the authorities had twice seized large sums of cash ($33,000 and $100,000, respectively) from the appellant in 2005.

Defense counsel rejoined that the appellant's past peccadillos were remote in time and that his current medical conditions (depression and diabetes) cried out for leniency. Counsel also cited the appellant's immigration status, arguing for a sentence of less than one year since a longer sentence could expose the appellant to deportation. See 8 U.S.C. § 1227(a)(2)(A)(i). The appellant himself added a series of denials: he denied selling LSD, introducing Evon to suppliers, and knowingly transporting drug proceeds.

The sentencing court voiced concern about the appellant's criminal history, particularly the unexplained chunks of cash that had been found in his possession. Although the appellant insisted that the cash came from lawful sources, the court remained skeptical. When pressed, the appellant acknowledged that at least some of the cash may have originated from marijuana sales.

The court continued the sentencing hearing to November 18 to allow the government an opportunity to rebut the appellant's attempt to limit his involvement with Evon. When the hearing resumed, the government offered wiretap records memorializing the appellant's communications with Evon. The records revealed that the appellant agreed to do Evon a favor by picking up "paperwork." A DEA agent testified that "paperwork" is a common code word for cash in drug-trafficking parlance and that the appellant and Evon used the term to refer to cash. Faced with this evidence, the appellant backtracked: he admitted that he "suspected [the ‘paperwork’] was something not legit" and knew that the package contained cash when he retrieved it.

The DEA agent also described text messages between Evon and the appellant in which the two men discussed plans to sell "blue bottles" at a forthcoming concert. The agent testified that the DEA later seized the blue bottles and found them to contain liquid LSD. Confronted with this testimony, the appellant insisted that he only purchased LSD from Evon for personal use, not for resale; but the court remained dubious given the quantity of LSD involved and the appellant's text message to Evon stating "I have blue bottles gone."

Toward the end of the resumed hearing, the judge took a short recess and engaged in an off-the-record conversation with the probation officer. This break in the action—to which the appellant did not object—lasted approximately five minutes. Immediately thereafter, the court asked the parties to address the government's contention that the appellant should be denied any credit for acceptance of responsibility.

See USSG § 3E1.1(a). The court told defense counsel that it did not "want to even consider doing something unless you get an opportunity to address it." Following arguments on this point, the court found that the appellant had lied deliberately on at least two occasions during the sentencing phase (about knowingly transporting drug proceeds and about conspiring to sell LSD). Based on this discerned prevarication, the court proceeded to find that the appellant had not accepted responsibility and sentenced him to a fifty-month term of immurement.

Before the imposition of sentence was completed, a second off-the-record conversation took place between the court and the probation officer. This conversation, which lasted a mere ten seconds at sidebar, occurred while the court was considering the monetary increments of the sentence. Once again, the appellant did not object to the pause. In the end, the court imposed the mandatory $100 special assessment, see 18 U.S.C. § 3013(a)(2)(A), and waived any fine.

This timely appeal followed.

II. ANALYSIS

This is a rifle-shot appeal, in which the appellant (represented by new counsel) advances only a single claim of error. He challenges the district court's actions in conversing off the record with the probation officer during sentencing without ever apprising him of the substance of those conversations. Because the appellant interposed no contemporaneous objections to these conversations, our review is for plain error. See United States v. Mehanna, 735 F.3d 32, 52 (1st Cir. 2013) ; see also Fed. R. Crim. P. 52(b).

As we have made pellucid, "[t]he plain error hurdle is high." United States v. Hunnewell, 891 F.2d 955, 956 (1st Cir. 1989). Review for plain error "entails four showings: (1) that an error occurred (2) which was clear or obvious and which not only (3) affected the defendant's 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). The proponent of plain error must carry the devoir of persuasion as to each of the four elements that collectively comprise the plain error standard. See United States v. Turbides–Leonardo, 468 F.3d 34, 39 (1st Cir. 2006) ; United States v. Vega Molina, 407 F.3d 511, 521 (1st Cir. 2005). Given the rigors of this standard, a reviewing court's power to set aside trial court decisions due to plain error "should be employed sparingly." United States v. Padilla, 415 F.3d 211, 221 (1st Cir. 2005) (en banc); see United States v. Taylor, 54 F.3d 967, 973 (1st Cir. 1995).

The first two elements of the plain error standard, read together, require us to determine whether the district court committed a clear and obvious error when it engaged in ex parte conversations with the probation officer during sentencing. We begin with first principles: neither the Sixth Amendment right of...