United States v. Mills

• Decision Date: 13 March 2013
• Docket Number: No. 11–1249.,11–1249.
• Citation: 710 F.3d 5
• Parties: UNITED STATES, Appellee, v. James MILLS, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

710 F.3d 5

UNITED STATES, Appellee,

v.James MILLS, Defendant, Appellant.

No. 11–1249.

United States Court of Appeals,First Circuit.

March 13, 2013.

Richard L. Hartley, with whom Law Office of Richard Hartley was on brief, for appellant.

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

Before LYNCH, Chief Judge, BOUDIN^* and THOMPSON, Circuit Judges.

THOMPSON, Circuit Judge.

Based on tips from three confidential informants—we refer to them collectively as CIs, and individually as CI–1, CI–2, and CI–3—federal agents in Maine suspected that James Mills had been smuggling oxycodone into the United States from Canada for some time, occasionally hiding the pills in condoms inserted into his rectum. Armed with this and other information, agents nabbed a suspiciously-acting Mills at the border on a return trip from Canada. One thing led to another and agents ended up handcuffing him to a hospital bed to monitor his impending bowel movement. Eventually he passed a condom that contained 104 80–milligram and 5 40–milligram oxycodone pills.

Mills later pled guilty to one count of importing oxycodone. See21 U.S.C. § 952(a). At sentencing, the district court assigned him a drug quantity equivalent to 2,637 80–milligram oxycodone pills based in part on uncharged conduct described by the CIs, seeU.S.S.G. § 1B1.3(a)(2), after having earlier denied his motion to force the government to disclose the CIs' names. Relying on this increased drug quantity rather than simply the 109 pills found in the condom, the court sentenced Mills to 108 months in prison, a sentence increase of seven years, Mills complains.

Mills now appeals, arguing that the court erred in denying his disclosure motion and in calculating the drug quantity. Having carefully considered his claims, we find no error and affirm.

BACKGROUND

A. The Events Surrounding Mills' Arrest

At approximately 6:45 p.m. on September 11, 2009, Mills entered the Lubec, Maine Port of Entry to the U.S. from Campobello Island, Canada. Tipped off by a confidential informant, law enforcement officers were awaiting Mills' arrival at the border. Upon his entry, Mills was directed for secondary inspection where Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) officers noticed he was acting nervous, avoiding eye contact, and breathing erratically. The officers asked Mills where he had been earlier; he responded he was on Campobello Island all day, but later changed his story after store receipts from St. John, New Brunswick were found in his vehicle. When the agents questioned him, Mills denied carrying pills, and a pat down and partial body search revealed none. After he refused to consent to an x-ray of his body, the agents took Mills to Calais Regional Hospital for a monitored bowel movement. Mills was handcuffed to a hospital bed and told he would stay handcuffed until he had to use the bathroom. Meanwhile, ICE officers sought a warrant and court order to conduct an x-ray and body cavity search.

The following morning at approximately 8:06 a.m., Mills agreed to an x-ray and the results indicated he had a foreign object in his alimentary canal. The ICE officers told Mills about the x-ray results and he agreed to pass the object; at approximately 8:59 a.m. Mills passed a condom that contained 104 80–milligram pills and 5 40–milligram pills. CBP officers processed the package as evidence and found the pills in Mills' possession totaled 8.5 grams of Canadian-manufactured OxyContin, a brand of the prescription drug oxycodone. ¹ A federal grand jury returned a one-count indictment charging Mills with knowingly and intentionally importing oxycodone into the U.S. on September 11, 2009, in violation of 21 U.S.C. § 952(a), and on January 7, 2010, he plead guilty as charged without a plea agreement.

B. The Recommended Sentence and Accompanying Evidence

At the sentencing stage, the only real issue concerned the proper quantity of oxycodone for which Mills was to be held responsible. Consequently, we relate only what is necessary to place that issue into proper perspective.

Using the then-current edition of the federal sentencing guidelines, the probation office prepared a pre-sentence report (PSR) that attributed to Mills not only the 8.5 grams of oxycodone he possessed when arrested but also an additional 295.4 grams of oxycodone under the guidelines' relevant conduct provision. See United States v. Marquez, 699 F.3d 556, 558 (1st Cir.2012) (explaining that “a defendant is responsible not only for the wrongdoing to which he pled or of which he was convicted, but also for ‘all acts and omissions ... that were part of the same course of conduct or common scheme or plan as the offense of conviction’ ”) (alteration in original) (quoting U.S.S.G. § 1B1.3(a)(2)). Here is how probation reached that number:

Documents offered by the government showed that Mills crossed the border from Canada into Maine 231 times between January and September 2009. They also showed that Mills converted $369,203 of U.S. currency into Canadian currency between May 2008 and September 2009. For each transaction Mills had to disclose where the cash had come from. And he claimed that the funds were payment for his work as a sea urchin diver and carpenter, for example. But the amounts he exchanged were significantly greater and inconsistent with the “legitimate” earnings he reported to probation. Also, Mills had given the names of two people who had supposedly provided him with money on the up and up, and both of them denied ever doing so, probation noted. Critically, once Mills learned about the currency exchange records, he changed his story, saying in a recorded jailhouse conversation with his girlfriend that he had been exchanging the cash for someone else and getting free drugs for his trouble. Critically too, one CI reported that Mills routinely smuggled 100 pills at a time into the U.S. in his rectum, and another said pretty much the thing.

Using the street value of oxycodone, $100 a pill, and the $369,203 in currency exchanges, probation then calculated Mills had smuggled at least 3,692 80–milligram oxycodone pills or 295.4 grams of actual oxycodone prior to his arrest. See id. at 561 (noting that “[e]xtrapolation is a common and permissible way of attributing drugs to a defendant”). The sentencing guidelines provide a formula for converting drugs into equivalent units of marijuana for sentencing purposes: 1 gram of oxycodone is equivalent to 6,700 grams of marijuana. SeeU.S.S.G. § 2D1.1 cmt. n.10(E) (since recodified as cmt. n.8(D)). So 295.4 grams of oxycodone amounted to 1,979 kilograms of marijuana equivalent, which, when combined with the 8.5 grams of oxycodone Mills smuggled on September 11, brought his marijuana equivalent to 2,036 kilograms. The base offense level for at least 1,000 kilograms but less than 3,000 kilograms of marijuana is 32. SeeU.S.S.G. § 2D1.1(c)(4). Probation suggested a 3–level decrease for acceptance of responsibility, seeU.S.S.G. § 3E1.1, and another 2–level decrease if he satisfied the test for “safety valve” relief, seeU.S.S.G. § 5C1.2—to be eligible a defendant, among other things, must by the time of sentencing truthfully provide “the [g]overnment all information and evidence [he] has concerning the offense or offenses that were part of the same course of conduct,” id.§ 5C1.2(a)(5). That would give him a total offense level of 27, which, when paired with his criminal history category of I, would yield a sentencing range of 70 to 87 months in prison.

The government also asked the court to hold Mills responsible for 295.4 grams of oxycodone under the relevant conduct rubric, using the same math as probation. To avoid double counting, the government's drug-quantity estimate did not include the oxycodone seized from him on September 11. The government presented six exhibits to back up its argument. Exhibit 1 was a summary spreadsheet of records obtained from the Royal Canadian Mounted Police (RCMP) documenting Mills' 108 currency exchanges involving a total of $369,203, which he made during the 16 months before his arrest. The last documented transaction in the currency exchange records was only two days before his capture, and he made other cash exchanges on September 2, 4, and 7. Exhibit 6 was a compilation of records that supported Exhibit 1.

Exhibit 2 was the ICE report of CI–1, who reported seeing Mills with between 50 and 100 oxycodone tablets at least once a week between spring 2006 and spring 2007. CI–1 stated Mills would go to St. Andrews, New Brunswick, Canada to purchase the pills and then smuggle them into the U.S. for sale (other evidence showed) in Washington County, Maine.

Exhibit 3 was a report from the RCMP summarizing the statements of CI–2. CI–2 said Mills would first collect money from prospective U.S. buyers, convert that moneyfrom U.S. currency to Canadian currency, acquire pills from his supplier, and then return to Maine by crossing at the Lubec Port of Entry. According to CI–2, Mills would smuggle about 100 pills at a time into the U.S. internally, via his rectum.

Exhibit 4 was an ICE report regarding an investigation that began in September 2008, after an undercover agent of the Maine Drug Enforcement Agency purchased OxyContin from CI–3. CI–3, an admitted oxycodone addict, named Mills as his or her supplier. According to CI–3, Mills would get money from his clients prior to purchasing the pills in Canada, and would then smuggle the pills by taping them to his groin area or having his girlfriend smuggle them internally. CI–3 further stated Mills would bring the pills into the U.S. by making two trips each week with 100 to 200 pills per trip. Exhibit 5 was the proffer report of CI–3, which reiterated many of the statements CI–3 made in Exhibit 4. In this proffer, CI–3 noted the pills Mills smuggled were Canadian brand OxyContin because...