United States v. Morgan

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals
For the First Circuit
No. 03-1768

UNITED STATES OF AMERICA,

Appellee,

v.

MICHAEL MORGAN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, U.S. District Judge]

Before

Selya, Circuit Judge,

Porfilio, * Senior Circuit Judge,

and Lynch, Circuit Judge.

John Nicholas Iannuzzi for appellant.
Mark E. Howard, Assistant United States Attorney, with
whom Thomas Colantuono, United States Attorney, was on the
brief for appellee.

September 2, 2004

*
Of the Tenth Circuit, sitting by designation.
 PORFILIO, Senior Circuit Judge. Michael Morgan

pled guilty to conspiracy to distribute in excess of 100

kilograms of marijuana in violation of 21 U.S.C. § 846 and

21 U.S.C. § 841(a)(1), while reserving the right to

challenge at his sentencing hearing the quantity of drugs

for which he was responsible. He now appeals the 40-month

sentence imposed on three principal grounds. Finding no

merit in this triumvirate, we affirm.

In November 2001, the government charged Morgan, a

Jamaican musician who became a United States citizen the

previous month, and Beverly Pryme, also Jamaican and the

mother of three of his children, with conspiracy to

distribute over 100 kg. of marijuana from January 1990 until

October 22, 2001. The indictment was the happenstance of

the 1999 arrest of Daniel Merritt for a domestic assault in

Merrimack, New Hampshire; he confessed to selling

approximately 262 pounds of marijuana supplied by Morgan, a

former college friend, and Pryme. Facing drug and tax

evasion charges, Merritt agreed to cooperate, a decision

which netted him a 27-month sentence.

To that end, in July 2001, Merritt bridged the two-

year hiatus since his arrest and twice telephoned Morgan,

recording the conversations. Later that month, Merritt met

Pryme for the first of two controlled buys, neither of which

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Pryme disclosed to Morgan who was traveling abroad some of

that time. Pryme was arrested during a third controlled

buy, and the two were subsequently indicted.

On December 4, 2001, Morgan proffered a statement

to the government. He described his early college dealings

with Merritt through 1998; his surprise to hear from Merritt

again in 2001; and his disagreement with Pryme for

continuing to supply larger quantities of marijuana from

suppliers in New York with whom Pryme was “intimate” but

called “murderers.” Morgan stated his primary sources were

“Big Dred,” “Mark,” and his brother, “Tender.”

On July 10, 2002, the government sent Morgan a

proposed plea agreement in which it agreed to drop two

counts in exchange for Morgan’s agreeing to plead guilty to

a conspiracy involving over 100 kg. of marijuana. Morgan

did not execute the agreement and attempted an amendment to

make the agreement “subject to a disclaimer” of the “weight

and scope.” With the plea agreement in limbo, the parties

submitted briefs to the district court addressing whether

Morgan could plead guilty to the offense but reserve for

sentencing the weight of drugs attributed to his

involvement.

On November 5, 2002, the government refused to meet

again with Morgan for safety valve consideration, explaining

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to his counsel the decision was “[i]n light of your client’s

continued insistence that he is not responsible for 100 or

more kilograms of marijuana.” On November 8, 2002, however,

the district court ruled on Morgan’s motion, holding that

under United States v. O’Campo, 973 F.2d 1015, 1026 (1st

Cir. 1992), “the base offense level of a co-conspirator at

sentencing should reflect only the quantity of drugs he

reasonably foresees [] is the object of the conspiracy to

distribute after he joins the conspiracy.” Then applying

Derman v. United States, 298 F.3d 34, 42-43 (1st Cir. 2002),

which addressed the duties of the judge and jury in a drug

conspiracy case, post-Apprendi v. New Jersey, 530 U.S. 466

(2000), the court concluded “defendant may enter a plea of

guilty to the conspiracy charged in count one and reserve

the right to contest at sentencing the quantity of drugs for

which he is to be held responsible under the law” contingent

upon his agreeing to additional conditions. 1

1
The conditions were:
(1) he must admit that the conspiracy as
a whole involved in excess of 100
kilograms of marijuana, while reserving
the right to contest at sentencing the
quantity of marijuana for which he can be
held legally accountable;
(2) he must acknowledge his understanding
that the maximum sentence for the
conspiracy charged is forty years and
that the maximum sentence he potentially
could be subject to is forty years;
(continued...)

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 At the sentencing hearing, the government presented

three witnesses to prove the quantity of marijuana

attributable to Morgan under U.S.S.G. § 1B1.3 for purposes

of the court’s setting the base level of the offense. The

court also heard arguments on whether Morgan was entitled to

the two-level reduction under U.S.S.G. § 5C1.2, which

incorporates the safety valve statute, 18 U.S.C. § 3553(f),

and a two-level departure for substantial assistance under

U.S.S.G. § 5K1.1.

Daniel Merritt, questioned by both counsel and the

court, testified that Morgan sold him approximately 130

1
(...continued)
(3) he must acknowledge his understanding
that the court will make a determination
of the quantity of marijuana for which he
may be held legally accountable, and that
his base offense level under the . . .
Guidelines (“U.S.S.G.”) will be determined
by the quantity for which he is found to
be legally responsible; and
(4) he must acknowledge his understanding
that if the court determines the drug
quantity for which the defendant is
legally responsible is 100 kilograms or
more, he could be subject to a five year
mandatory minimum sentence unless U.S.S.G.
§ 5K1.1 (18 U.S.C. § 3553(e)) and/or
U.S.S.G. § 5C1.2(a)(5) (18 U.S.C. §
3553(f)) are found by the court to be
applicable, in which case the court in
the exercise of its discretion could
impose a sentence below the mandatory
minium if the court deemed such a
sentence to be appropriate under the
guidelines.

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pounds of marijuana, most of which he resold in small five

to twenty pound quantities. He added, however, he sold to

Daniel Scharn of Billerica, Massachusetts, the bulk of at

least 100 pounds. Beverly Pryme, who also identified

another source for the marijuana she sold Merritt, told the

court Morgan provided 75 to 80 pounds of marijuana to

Merritt. Finally, Patrol Sergeant Paul Poirier of the

Merrimack Police Department described his investigation and

surveillance that led to Pryme’s arrest and told the court

he believed Pryme “downplayed” the amount of marijuana

attributable to Morgan. Based on the evidence and arguments

of counsel, the court then stated:

As we all know from experience, evidence
concerning quantities is often comprised
of estimates, estimates as to quantities,
estimates as to the number of times
deliveries are made, and estimates as to
over what period of time those deliveries
were made. Evidence concerning quantities
depends also on memories, some of which
are good and some of which are not so
good. Therefore extrapolation is required
when such evidence is received, and in my
opinion the Court must be cautious when
extrapolating.

Applying the standards of U.S.S.G. § 1B1.3 to all of the

evidence “over the last few hours,” the court found between

80 and 100 kilograms of marijuana were attributable to

Morgan, resulting in a total offense level of 24.

Without elaboration, the court declined to give the

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two-level reduction under the fifth element of U.S.S.G. §

5C1.2. It also rejected Morgan’s motion under U.S.S.G. §

5K1.1. Morgan based his motion upon a presumption that the

plea agreement was revitalized when the court attributed

less than 100 kilograms of marijuana to him. 2 Observing

that Morgan’s truthfulness remained an issue throughout the

hearing and that the government’s position was not taken in

bad faith, the court concluded it would not “in effect force

a 5K1 motion on the government.” Morgan challenges both

conclusions in this appeal as well as the court’s refusal to

depart downward under U.S.S.G. § 5H1.6 in consideration of

his extraordinary family ties and responsibilities.

I. Drug Quantity for Sentencing and Safety Valve Purposes

Morgan characterizes the court’s finding between 80

to 100 kilograms attributable to his role in the conspiracy

as “judicial confirmation” that he did not participate in

the “full 131.59 kilo conspiracy” and as proof of his

truthfulness for purposes of applying the safety valve and

substantial assistance reductions to his sentence. We deal

with each contention in turn.

2
The court adopted the presentence report’s
recommendation for a 3-level decrease in Morgan’s offense
level based on his acceptance of responsibility under
U.S.S.G. § 3E1.1.

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 A. Drug Quantity

As oft-written, “[w]e review the sentencing court’s

factual findings, which must be supported by a preponderance

of the evidence, for clear error.” United States v. Lopez,

299 F.3d 84, 87 (1st Cir. 2002), citing United States v.

Damon, 127 F.3d 139, 141 (1st Cir. 1997). That

“preponderance,” United States v. Marks, 365 F.3d 101, 105

(1st Cir. 2004), simply requires the government to present

enough information, free from the strictures of the rules of

evidence which do not apply to sentencing hearings,

“provided that the information has sufficient indicia of

reliability to support its probable accuracy,” Lopez, 299

F.3d at 89; Fed. R. Evid. 1101(d)(3), to make it more likely

than not that the fact to be proved is true. We then will

“treat[] with deference” the district court’s determination

which we will reverse “only if, after reviewing all the

evidence, we are left with the definite and firm conviction

that a mistake has been committed.” Lopez, 299 F.3d at 87

(citation omitted).

Despite Morgan’s persistently conflating the

inquiries on drug weight and the vindication of his

truthfulness in testifying about his involvement in the

conspiracy, we must untangle the two issues. While the

testimony at the sentencing hearing established at most

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approximately 135 pounds to be attributed to Morgan’s

participation in the conspiracy, the presentence report more

fully documented additional quantities from recipients,

particularly Scharn and Stanbury, whom, the government

conceded, it perhaps “should have been more diligent” in

calling to testify “to get over 100 kilos.” 3 Nevertheless,

the district court also had benefit of the background facts

from the presentence report, which we, too, utilize in our

review for clear error. See id. at 86, citing United States

v. Brady, 168 F.3d 574, 576 (1st Cir. 1999). The pandect on

sentencing and the standard of review we must follow require

no more. Assessing the credibility of the witnesses against

the background facts in the presentence report, the district

court did not err in concluding Morgan was responsible for

80 to 100 kilograms of marijuana involved in the conspiracy,

resulting in a base offense level of 24.

3
Although underscoring the evidence Pryme and Merritt
agreed not to disclose certain marijuana sales to Morgan and
his extensive absence from the country to pursue his music
career, these facts in the presentence report support the
court’s decision to attribute certain amounts of marijuana
to Morgan in the first instance. That evidence does not
cast doubt, however, on the ultimate quantity attributable
to the conspiracy as a whole.

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 B. Safety Valve and Substantial Assistance

On the “battleground” of the fifth element of 18

U.S.C. § 3553(f), 4 United States v. Matos, 328 F.3d 34, 38

(1st Cir. 2003), Morgan contends the district court failed

to make its own independent determination of whether he met

4
18 U.S.C. § 3553(f) provides the five criteria to
impose a sentence “without regard to any statutory minimum
sentence”:
(1) the defendant does not have more than
1 criminal history point, as determined
under the sentencing guidelines;
(2) the defendant did not use violence or
credible threats of violence or possess a
firearm or other dangerous weapon (or
induce another participant to do so) in
connection with the offense;
(3) the offense did not result in death
or serious bodily injury to any person;
(4) the defendant was not an organizer,
leader, manager, or supervisor of others
in the offense, as determined under the
sentencing guidelines and was not engaged
in a continuing criminal enterprise, as
defined in section 408 of the Controlled
Substances Act; and
(5) not later than the time of the
sentencing hearing, the defendant has
truthfully provided to the Government all
information and evidence the defendant has
concerning the offense or offenses that
were part of the same course of conduct
or of a common scheme or plan, but the
fact that the defendant has no relevant
or useful other information to provide or
that the Government is already aware of
the information shall not preclude a
determination by the court that the
defendant has complied with this
requirement.

U.S.S.G. § 5C1.2 mirrors these requirements.

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the only contested element of the safety valve provision,

that he provide all information and evidence of the offense.

That void in the court’s determination cannot be filled with

the government’s generally subjective belief of his lack of

candor, Morgan asserts.

We disagree. Although on its face the court’s

summary statement denying safety valve relief appears to

provide scant satisfaction of the specific factual findings

of which our precedent speaks, 5 Matos, 328 F.3d at 40, the

full record of the sentencing hearing surely amplifies the

conclusion. During several interchanges, the court

commented on Morgan’s lack of candor in downplaying his role

in the conspiracy and in offering all of the information the

government sought. Asking its own questions and listening

to the witnesses’ testimony as well as counsels’ arguments

involving credibility, the court then made the “independent

determination” U.S.S.G. § 5C1.2 requires. United States v.

White, 119 F.3d 70, 73 (1st Cir. 1997).

We review de novo interpretations of the safety

valve provision under § 3553(f) and the guideline, U.S.S.G.

§ 5C1.2, while “[o]n the other hand, we review for clear

error the factual findings relating to whether a defendant

5
The court stated,“[t]he Court declines to give that
two-point reduction on the grounds [] the requirements of
the fifth prong under 5C1.2 have not been met.”

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has qualified for the ‘safety valve’ provisions.” Id. at 73

n.6. Under this standard, we cannot say the court erred in

denying relief.

Indeed, the court’s dissatisfaction with Morgan’s

candor surfaced again when it rejected Morgan’s argument

under § 5K1.1, stating that Morgan’s truthfulness “has been

an issue throughout this hearing.” Concluding no plea

agreement was ever struck, the court properly gave effect to

the government’s decision not to request a downward

departure for substantial assistance under U.S.S.G. § 5K1.1.

Although Morgan here insists the government’s plea agreement

became effective upon the court’s concluding he did not

participate in the total amount of marijuana involved in the

conspiracy, his argument is fatuous. Assuming we have

jurisdiction to entertain the question - a matter on which

we take no view - the district court did not err in refusing

to depart under U.S.S.G. § 5K1.1.

II. Downward Departure.

Morgan contends the district court abused its

discretion in failing to grant a downward departure to

reflect the extraordinary family circumstances his

incarceration and Pryme’s imminent deportation would visit

on his three children. We lack jurisdiction to entertain

this issue.

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 As we have enumerated in United States v. Dewire,

271 F.3d 333, 337 (1st Cir. 2001), a discretionary refusal

to depart is not appealable if the district court correctly

applied the guidelines, see United States v. Saldana, 109

F.3d 100, 102 (1st Cir. 1997); correctly applied the law,

see United States v. Lauzon, 938 F.2d 326, 330 (1st Cir.

1991); and did not mistakenly believe it lacked the

discretion to depart, see United States v. Snyder, 235 F.3d

42, 51 (1st Cir. 2000). Here, the court, recognizing the

“unfortunate fact of life” that both parents may face

imprisonment, expressly declined to depart under U.S.S.G. §

5H1.6. The issue, then, is not properly before us.

Thus, the district court did not err in determining

the drug quantity attributable to Morgan, rejecting a

departure for his substantial assistance, and refusing to

apply a safety valve departure under 18 U.S.C. § 3553(f).

III. Post-Argument Claim.

Following oral argument, Morgan submitted letters

under Fed. R. App. P. 28(j) seeking additional review of his

sentencing in light of Blakely v. Washington, ___ U.S. ___,

124 S. Ct. 2531 (2004). Our precedent forecloses this

issue.

Blakely recently held that a Washington state court

judge violated the sixth amendment right to a jury trial

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when he sentenced a defendant who pled guilty to kidnaping

to a far longer prison term than the standard statutory

maximum for this offense, based on the judge's own finding

of the statutory aggravated circumstance that the defendant

acted with “deliberate cruelty.” This fact was “neither

admitted by [the defendant] nor found by a jury.” Id. at

2537. Blakely could potentially affect the trial court’s

sentence in the present case, which was based partially on

its own finding holding Morgan responsible for between 80

and 100 kilograms of marijuana as the amount that he could

reasonably foresee within the scope of the criminal

operation. Blakely raises the possibility that this fact

should not have been decided by the judge, but instead

needed to have been determined by a jury or admitted by the

defendant.

Morgan never raised this Blakely issue at the trial

court, in his original briefs to this court, or in oral

argument. Instead, he presented the issue to this court for

this first time after oral argument.

When an argument has been waived, no review is

possible, unless the court engages in the rare exercise of

its power to excuse waiver. But when an argument has merely

been forfeited, plain error review may be available. See

United States v. Mitchell, 807 F.3d 800, 807 (1st Cir.

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1996). Waiver is the intentional relinquishment or

abandonment of a right; forfeiture is generally defined as

the mere failure to raise an issue in a timely manner. See

United States v. Olano, 505 U.S. 725, 733 (1993); United

States v. Rodriguez, 311 F.3d 433, 437 (1st Cir. 2002).

The question now is whether plain error review is

available in this situation. When a party merely fails to

raise an issue in proceedings below but does raise the issue

on appeal, we will still review that issue for plain error.

See, e.g., United States v. Thurston, 358 F.3d 51, 63 (1st

Cir. 2004); United States v. Matos, 328 F.3d 34, 43 (1st

Cir. 2003). But this case is a bit different; Morgan

neither raised the issue below nor initially in this court.

The normal rule is that new issues cannot be raised at all

in a rule 28(j) filing, see United States v. Nason, 9 F.3d

155, 163 (1st Cir. 1993). A more difficult question is

whether such a rule is appropriate where a party is raising

a new issue in response to a potentially crucial Supreme

Court decision that issued only after briefing and oral

argument were completed. After Apprendi was issued, several

defendants filed rule 28(j) letters with this court: we

agreed to consider the Apprendi issue, but only on plain

error review. See United States v. Baltas, 236 F.3d 27, 41-

42 (1st Cir. 2001); United States v. LaFreniere, 236 F.3d

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41, 48-50 (1st Cir. 2001).

We need not definitively resolve whether plain

error review would be available in this case, because even

assuming arguendo that it is, Morgan's Blakely argument

could not prevail using such a standard.

In the post-Apprendi world, this court adopted a

rule that any such error in sentencing should be held

harmless so long as the evidence for the trial judge’s

factual findings is overwhelming and no reasonable jury

could have disagreed with them. See Sustache-Rivera v.

United States, 221 F.3d 8, 18-19 (1st Cir. 2000). This rule

does not apply to the present case. The judge’s

determination was surely reasonable, but given the

convoluted state of the evidence presented at the sentencing

hearing, we cannot say the court’s findings were compelled

by the evidence.

Plain error review is extremely deferential; errors

will be corrected only if “(1) . . . an error occurred (2)

which was clear or obvious and which not only (3) affected

[his] 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); see Olano, 505 U.S. at 732-37. Under existing

(post-Apprendi, pre-Blakely) First Circuit precedent, the

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judge is empowered in a conspiracy case to determine the

exact amount of drugs that a defendant reasonably foresaw,

so long as his sentence is no greater than that which could

be imposed based on the total quantity of drugs that the

jury had found for the conspiracy as a whole. See Derman,

298 F.3d 34, 42-43. Because the trial judge acted in

accordance with circuit precedent, we cannot say plain error

occurred, and we need not proceed further.

Affirmed.

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