United States v. Pinkham

• Decision Date: 18 July 2018
• Docket Number: No. 17-1664,17-1664
• Citation: 896 F.3d 133
• Parties: UNITED STATES of America, Appellee, v. Dale PINKHAM, Sr., Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

896 F.3d 133

UNITED STATES of America, Appellee,

v.Dale PINKHAM, Sr., Defendant, Appellant.

No. 17-1664

United States Court of Appeals, First Circuit.

July 18, 2018

Lenore Glaser and Law Office of Lenore Glaser, Boston, MA, on brief for appellant.

Halsey B. Frank, United States Attorney, and Benjamin M. Block, Assistant United States Attorney, on brief for appellee.

Before Lynch, Selya and Thompson, Circuit Judges.

SELYA, Circuit Judge.

Defendant-appellant Dale Pinkham, Sr., challenges his 240-month incarcerative sentence. He strives to convince us that the district court held him responsible for an incorrect drug quantity and, in the bargain, improperly counted two prior convictions when calculating his criminal history score. We are not persuaded by either argument and, therefore, summarily affirm his sentence.

I. BACKGROUND

Because this appeal follows the appellant's guilty plea, we draw the facts from the change-of-plea colloquy, the uncontested portions of the presentence investigation report (PSI Report), and the record of the disposition hearing. See United States v. Fields, 858 F.3d 24, 27 (1st Cir. 2017) ; United States v. Dietz, 950 F.2d 50, 51 (1st Cir. 1991).

The conviction and sentence sub judice stem from the appellant's operation of what might be termed a family business: a drug-trafficking conspiracy that involved his sons (Robert, Raymond, and Dale, Jr.) and his romantic partner of 30 years (Louise Cook). Beginning around 2012, the appellant ran this conspiracy from his home in Gorham, Maine. During its embryonic stages, the appellant typically obtained 10 to 20 grams of heroin once every two months from a Boston-based supplier. Over time the conspiracy matured, with the result that the appellant's purchases increased in frequency, eventually becoming monthly occurrences. The amounts of heroin handled by the conspiracy escalated as well, rising to roughly 200 to 400 grams per month.

Even apart from promoting drug use, the appellant's criminal activities had a deleterious effect on the community in which he lived. He encouraged his customers to commit burglaries and bring him items that he prized. In this way, the appellant amassed stockpiles of firearms, jewelry, tools, and electronic gadgets.

These chickens ultimately came home to roost. On July 22, 2015, a federal grand jury sitting in the District of Maine returned an indictment charging the appellant with a laundry list of crimes. While the appellant was being held in pretrial detention, he reached out to family members, soliciting them to threaten potential witnesses.

In due season, the grand jury returned a superseding indictment, which charged the appellant in 13 separate counts. Of particular pertinence for present purposes, the superseding indictment charged him with conspiracy to distribute heroin, see 21 U.S.C. §§ 841(a)(1), 846 (count one); conspiracy to possess stolen firearms, see 18 U.S.C. §§ 371, 922(j) (count four); and attempted witness tampering, see id. § 1512(a)(2) (count twelve). The appellant initially maintained his innocence. On September 6, 2016, however, he reversed his course and entered a guilty plea, pursuant to a plea agreement, to counts one, four, and twelve. The government agreed to dismiss the remaining 10 counts at sentencing.

The PSI Report recommended that the appellant be held responsible for 3.23 kilograms of heroin, which corresponded to a base offense level of 32. See USSG § 2D1.1(c)(4) (Drug Quantity Table). Notwithstanding the appellant's protest that this figure represented a "significant overestimate of the drug quantity involved," the district court adopted the drug-quantity calculation and—after making other adjustments not challenged here—set the appellant's total offense level at 39. The court also adopted the PSI Report's recommended criminal history score of six and placed the appellant in criminal history category III. Although these determinations yielded a guideline sentencing range of 324 to 405 months, the court weighed the factors limned in 18 U.S.C. § 3553(a) and concluded that a below-the-range incarcerative sentence of 240 months was sufficient to achieve the purposes of sentencing. The court imposed such a downwardly variant sentence, and this timely appeal followed.

II. ANALYSIS

As a general matter, we review challenges to a sentence for abuse of discretion. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) ; United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008). This process "is characterized by a frank recognition of the substantial discretion vested in a sentencing court." United States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013). If, however, a particular claim of error is raised for the first time on appeal, review is normally limited to the incidence of plain error. See United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001) ; see also Fed. R. Crim. P. 52(b). "The plain error hurdle is high." United States v. Hunnewell, 891 F.2d 955, 956 (1st Cir. 1989). Where the plain error standard applies, an appellant must demonstrate "(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." Duarte, 246 F.3d at 60 ; see Rosales-Mireles v. United States, ––– U.S. ––––, 138 S.Ct. 1897, 1904-05, ––– L.Ed.2d –––– (2018). A party who claims plain error must carry the devoir of persuasion as to all four of these elements. See United States v. Bramley, 847 F.3d 1, 5 (1st Cir. 2017) ; United States v. Vega Molina, 407 F.3d 511, 521 (1st Cir. 2005).

Against this backdrop, we turn to the appellant's twin claims of sentencing error. We discuss them sequentially.

A. Drug Quantity.

To begin, the appellant challenges the drug quantity for which he was held accountable. In confronting this challenge, we are mindful that, in drug-trafficking cases, "a key datum in constructing the defendant's sentence is the quantity of narcotics attributable to him for sentencing purposes, a datum initially bounded by the sum of the charged conduct to which the defendant pleads plus his relevant uncharged conduct." United States v. Santos, 357 F.3d 136, 140 (1st Cir. 2004) (quoting United States v. Bradley, 917 F.2d 601, 604 (1st Cir. 1990) ). The sentencing court must derive the relevant drug quantity "from all acts ‘that were part of the same course of conduct or common scheme or plan as the offense of conviction.’ " Id. (quoting USSG § 1B1.3(a)(2) ). The "essential inquiry" is not limited to what the defendant actually knew but, rather, extends to "what acts were reasonably foreseeable by him." Id.; see United States v. Colón-Solís, 354 F.3d 101, 103 (1st Cir. 2004). In a drug-conspiracy case, this means that "each co-conspirator is responsible not only for the drugs he actually handled but also for the full amount of drugs that he could reasonably have anticipated would be within the ambit of the conspiracy." United States v. Rivera-Rodríguez, 617 F.3d 581, 607 (1st Cir. 2010) (quoting United States v. Rodriguez, 525 F.3d 85, 107 (1st Cir. 2008) ); see USSG § 1B1.3(a)(1)(B).

At sentencing, the appellant argued that the court was using an incorrect calculation of the amount of drugs handled by the conspiracy. On appeal, the appellant makes the same bottom-line argument, but he has shifted theories. Represented by new counsel, he no longer posits that the district court committed an arithmetical error. Instead, he argues that the court erred as a matter of law in including in its calculation drugs that he personally consumed.

Hopscotching from one theory to another theory has consequences. "A criminal defendant, dissatisfied with the district court's rulings at sentencing yet persuaded that his original arguments lacked merit, cannot switch horses mid-stream in hopes of locating a swifter steed" and expect that his new theory will be treated as a preserved claim of error. Dietz, 950 F.2d at 55. Under such circumstances, the new theory is treated as an unpreserved claim of error, see id. at 54-55 ; Clauson v. Smith, 823 F.2d 660, 666 (1st Cir. 1987) ; and although preserved claims of legal error are reviewed de novo,¹ see United States v. McCormick, 773 F.3d 357, 359 (1st Cir. 2014), forfeited claims are reviewed only for plain error, see Puckett v. United States, 556 U.S. 129, 134-35, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). Here, as in Dietz, 950 F.2d at 55, the appellant makes a "neoteric argument[ ]" that "bear[s] no substantial relation" to his original argument. Our review, therefore, is limited to plain error.

Plain error is plainly absent. It is settled law in this circuit that when a defendant participates in a drug-trafficking conspiracy, his "purchases for personal use are relevant in determining the quantity of drugs that [he] knew were distributed by the conspiracy." United States v. Demers, 842 F.3d 8, 13 (1st Cir. 2016) (quoting United States v. Innamorati, 996 F.2d 456, 492 (1st Cir. 1993) ). Because the appellant took part in such a conspiracy—indeed, he was its ringleader—whatever drugs he himself consumed were properly included in his drug-quantity tabulation.

In the last analysis, the appellant's argument derives from his failure to appreciate the important distinction between conspiracy cases and certain other drug cases. Some of our sister circuits have ruled that drugs obtained for personal consumption should be excluded from the drug-quantity calculus when the defendant is accused only of possession with intent to distribute. See, e.g., United States v. Gill, 348 F.3d 147, 153 (6th Cir. 2003) ; United States v. Williams, 247 F.3d 353, 358 (2d Cir. 2001) ; United States v. Wyss, 147 F.3d 631, 632 (7th Cir. 1998). Such cases rely on the distinction between possession with intent to distribute and conspiracy. When a defendant is charged with the former crime, the government must establish "that a...