United States Court of Appeals
For the First Circuit
No. 03-1229
UNITED STATES,
Appellee,
v.
SCOTT A. BARBOUR,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U. S. District Judge]
Before
Selya, Circuit Judge,
John R. Gibson,* Senior Circuit Judge,
and Howard, Circuit Judge.
William Gray Schaffer, for appellant.
Margaret D. McGaughey, Appellate Chief, Assistant United
States Attorney, with whom Paula D. Silsby, United States Attorney,
was on brief, for appellee.
December 29, 2004
*
Hon. John R. Gibson, of the Eighth Circuit, sitting by
designation.
JOHN R. GIBSON, Senior Circuit Judge. Scott A. Barbour
appeals his conviction of one count of conspiracy to possess with
the intent to distribute and distribution of at least 500 grams of
cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(B)
(2000), and one count of conspiracy to possess with the intent to
distribute and distribution of at least fifty kilograms of
marijuana in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(C).
On appeal, Barbour raises four arguments: sentencing factor
manipulation, prosecutorial misconduct, improper jury instruction
on drug quantities, and errors in interpreting and applying
sentencing guidelines. We affirm.
Barbour was convicted in Texas in 1996 for wire fraud
arising from a telemarketing scheme and was sentenced to eighteen
months' imprisonment. After he served that term, his supervised
release was revoked in 1998, and he went back to prison until 1999.
He was again put on supervised release and required to live at a
halfway house in Maine. In late October of 1999, while Barbour was
still on supervised release, he moved from Maine to Texas, which
violated the terms of his supervised release. An arrest warrant
was issued two days later, but it was not served on Barbour until
October 2000. In the intervening period, he had established
residence and a fictitious identity ("Jon Kugler") in Houston,
Texas and had begun shipping marijuana to Barry May, who sold it to
Maine drug dealers. Barbour and his family left Houston in the
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late summer of 2000.
Following his arrest in October 2000, Barbour was
sentenced to an additional twelve months' imprisonment. On the
final day of his imprisonment, in October 2001, Barbour and May
were arrested and indicted for conspiracy to possess and distribute
cocaine and marijuana from January 1, 1999 through October 1, 2001.
A jury found Barbour guilty of both counts, and the district court
sentenced him to 420 months' imprisonment.
The issues raised by Barbour do not require that we deal
extensively with the trial record concerning the details of the
conspiracy.
I.
Barbour argues that the government's nine-month delay in
executing on an arrest warrant and twenty-one-month delay in
bringing conspiracy charges constituted impermissible sentencing
factor manipulation. He argues that Agent Baril and the Assistant
United States Attorney knew in early 2000 that Barbour was in
Houston using the alias "Jon Kugler," but they took no serious
action to execute on the November 1999 warrant until September 2000
when agents raided the house that he had been living in. Barbour
argues that Baril was motivated by improper personal animus in
delaying the arrest and charges to increase Barbour's potential
sentence. Barbour attempts to show Baril's personal animus toward
him through Baril's testimony that he was waiting for "the right
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moment" to arrest Barbour. Barbour argues that Baril waited to
arrest Barbour for no legitimate reason, but only to frustrate
Barbour and increase his sentence.
It is the defendant's burden to show sentencing factor
manipulation by a preponderance of the evidence. United States v.
Gibbens, 25 F.3d 28, 31-32 (1st Cir. 1994). We review the district
court's determination of whether manipulation occurred for clear
error. Id. at 32. A district court's determination is clearly
erroneous when, although there is evidence to support it, the
reviewing court is left with the "definite and firm conviction that
a mistake has been committed." United States v. Newton, 326 F.3d
253, 257 (1st Cir. 2003)(quoting Reich v. Newspapers of New
England, Inc., 44 F.3d 1060, 1080 (1st Cir. 1995)).
Sentencing factor manipulation occurs where law
enforcement agents venture outside the scope of legitimate
investigation and engage in extraordinary misconduct that
improperly enlarges the scope or scale of the crime. United States
v. Egemonye, 62 F.3d 425, 427 (1st Cir. 1995). A manipulation
claim can be established by showing that the agents overpowered the
free will of the defendant and caused him to commit a more serious
offense than he was predisposed to commit. United States v.
Connell, 960 F.2d 191, 196 (1st Cir. 1992).
A typical sentencing factor manipulation claim involves
undercover agents participating in criminal activity with the
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defendant and waiting to make an arrest for the sole purpose of
increasing the defendant's sentence by encouraging the commission
of a crime that the defendant was not predisposed to commit. See,
e.g., Egemonye, 62 F.3d at 427; Gibbens, 25 F.3d at 30-31. This is
not such a case because there was no pressure to commit a more
serious crime, no agent involvement in Barbour's crimes, and there
was a legitimate reason to delay Barbour's arrest.
Analysis of a sentencing factor manipulation claim
focuses primarily (though not exclusively) on the conduct and
motives of the government. Gibbens, 25 F.3d at 31. The government
has "broad latitude" in investigating crime and can lengthen an
investigation to explore the size, techniques and participants
involved in a criminal operation. Egemonye, 62 F.3d at 427-28.
The district court rejected Barbour's claim of sentencing
factor manipulation because agents did not encourage Barbour or
"lead him into new criminal conduct," and because it found there
was a legitimate reason to delay Barbour's arrest. The district
court described Barbour as the leader of an extremely large, five-
year drug conspiracy. The government identified at least eighteen
participants, most of whom communicated using false names and code
words. The participants frequently switched cell phones and land
lines. The method of drug transportation evolved from tackle boxes
to PVC pipes to Volkswagen vehicles to commercial shrink wrap
packaging. Barbour avoided police by moving from Maine to Texas,
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to New Hampshire, and to Florida, where he was arrested. During
the year before Barbour's 2001 arrest, Agent Baril identified five
additional participants in the conspiracy and obtained additional
telephone and shipping records. The agents in this case kept up
with the constantly changing size, techniques, and participants of
the conspiracy. This is exactly the type of investigative work
Egemonye considered within the legitimate scope of government
agents' authority. 62 F.3d at 427.
The record reveals no improper conduct on the part of the
agents during that investigation. There is no indication that
agents pressured or coerced Barbour to "achieve a new level of
crime." Id. No undercover agent bought drugs from, or sold drugs
to, Barbour. Agents had no contact with Barbour until his arrest.
The record reflects no improper law enforcement motive.
We have said that racial hostility or personal animus would be an
improper motive. Id. at 428. Even if Baril's comment about
waiting for the "right moment" could be interpreted as personal
animus, as Barbour argues, it is also amenable to an innocent
interpretation. Baril said he was waiting to be sure he had
sufficient evidence for a conviction. He was also waiting to
identify more of the conspirators and gather evidence against them.
A district court's choice between two or more reasonable
interpretations of the evidence cannot be called clearly erroneous.
Gibbens, 25 F.3d at 32. The district court did not err in
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rejecting Barbour's claim of sentencing factor manipulation.
II.
Barbour argues that the district court did not properly
instruct the jury on the government's burden to prove the drug
quantities from the indictment, as required by Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000). The district court instructed
the jury that it must find elements beyond a reasonable doubt, but
did not characterize the drug quantity determination as an element.
Barbour argues this error denied his Fifth and Sixth Amendment
rights to a jury verdict on the drug quantities.
The district court included the drug quantities in the
verdict form. The verdict form asked, "Did the cocaine conspiracy
involve, in total, at least 500 grams of cocaine?" The jury
checked the "yes" box. The verdict form asked, "Did the marijuana
conspiracy involve, in total," listing several quantities, with
instructions to check only one. The jury put a checkmark next to
"at least 50 kilograms of marijuana." The jury instructions stated
that if the jury found Barbour guilty, it must determine the drug
quantities involved, and stated seventeen times that the
government's burden of proof was beyond a reasonable doubt.
Barbour raises this Apprendi argument for the first time
on appeal; he did not object to the jury instructions at trial or
at sentencing. He asks that we excuse his failure to object
because the case that established that Apprendi errors may be
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raised at sentencing was decided after Barbour's sentencing.
United States v. Nelson-Rodriguez, 319 F.3d 12 (1st Cir.), cert.
denied, 539 U.S. 938 (2003). Because confusion existed, in
Nelson-Rodriguez we assumed that the defendants preserved their
objections if they objected either before the jury instructions
were given or at sentencing. Id. at 47-48. Barbour did neither,
so even if we made the same assumption for him, we would still
review for plain error. Id. at 47-49.
Under the plain error standard, we reverse only if a
"clear and obvious" error occurred. United States v. Perez-Ruiz,
353 F.3d 1, 9 (1st Cir. 2003) (quoting United States v. Duarte, 246
F.3d 56, 60 (1st Cir. 2001), cert. denied, 124 S. Ct. 2058 (2004)).
That error also must affect the defendant's substantial rights and
must seriously impair the fairness, integrity, or public reputation
of judicial proceedings. Id.
Any fact, other than a prior conviction, that increases
the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury and proved beyond a reasonable doubt.
Apprendi, 530 U.S. at 490. In Perez-Ruiz, we applied the Apprendi
rule to drug quantity determinations. 353 F.3d at 16.
Barbour interprets United States v. Goodine, 326 F.3d 26
(1st Cir. 2003), cert. denied, 124 S. Ct. 1600 (2004), as requiring
elements to be found beyond a reasonable doubt, but allowing
sentencing factors to be found by a preponderance of the evidence.
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In Goodine, the jury found certain drug quantities, but the judge
considered additional quantities in sentencing the defendant. Id.
at 27. We applied a preponderance of the evidence standard to the
quantities found by the judge and called them sentencing factors
rather than elements. Id. at 32. Goodine held that Apprendi was
not violated when the sentence imposed exceeded the guideline range
for the indicted amount but did not exceed the maximum statutory
penalty for the drug quantities found by the jury.
Where a fact finding, other than a prior conviction,
increases the statutory maximum, under Apprendi and Harris v.
United States, 536 U.S. 545, 550 (2002), the fact must be found by
the jury beyond a reasonable doubt. The Supreme Court explained
that if, because of the existence of a particular fact, the penalty
is to be increased beyond the statutory maximum, that fact must be
found by the jury regardless of whether it is a sentencing factor
or an element. Harris, 536 U.S. at 550.
The maximum sentence for convictions in which no
particular quantity was proved is twenty years for cocaine and five
years for marijuana. 21 U.S.C. § 841(b)(1)(C), (D) (2000). The
district court sentenced Barbour to 420 months, or thirty-five
years, which exceeds the twenty- and five-year statutory maximums
in the absence of a quantity determination. Under Harris and
Apprendi, before Barbour could be sentenced beyond the statutory
maximums based on quantity, the drug quantity must be found by the
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jury beyond a reasonable doubt. The question in this case is
whether, on the instructions given, the jury would have understood
that it had to find the drug quantities beyond a reasonable doubt.
We held that the jury had not been instructed that it
must find drug quantities beyond a reasonable doubt in United
States v. Perez-Ruiz and United States v. Nelson-Rodriguez. In
Perez-Ruiz, the judge read the quantities listed in the indictment
to the jury once and elsewhere stated that the jury must find
beyond a reasonable doubt that the indicted conspiracy existed.
353 F.3d at 16. We held that instructions did not forge the
necessary link between the concept of drug quantity and the beyond-
a-reasonable-doubt standard. In United States v. Nelson-Rodriguez,
the court provided a copy of the indictment, which listed the drug
quantities, to the jury, but the jury was asked to find only
whether there was the conspiracy as indicted, not whether the drug
amounts in the indictment were correct. 319 F.3d at 45. The
result was that the jury only found that the charged conspiracy
existed but did not determine the drug quantities. Id.
Here, in contrast, the jury was given three choices of
drug quantities - not all or nothing, but a multiple choice. The
jury was asked to specify drug type and quantity, and it did so.
It is not tenable to compare this case to Perez-Ruiz or Nelson-
Rodriguez, in each of which the jury was not permitted to specify
amount and was not alerted to the need to consider the amount in
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its own right. Here, the district court included the drug
quantities in the verdict form. The jury was instructed that if it
found Barbour guilty, it would also "have to answer one or more
questions concerning the quantity of the substance involved which
may affect the potential sentence." The jury instructions
contained seventeen references to the government’s beyond-a-
reasonable-doubt burden of proof. The jury was clearly instructed
that the defendant's guilt must be proven beyond a reasonable
doubt, and the drug quantity questions that immediately followed
connected that burden of proof to the drug quantity determination.
The instructions in this case contain a more precise finding of
drug quantity and contain a closer link between the burden of proof
and the jury's quantity determination than the instructions in
either Perez-Ruiz or Nelson-Rodriguez. The district court did not
commit plain error when it instructed the jury on the government's
burden of proof and included the drug quantities involved on the
verdict form.
III.
Barbour argues that the Assistant United States
Attorney's pervasive misconduct during the trial and the sentencing
undermined the accuracy of the fact-finding process and resulted in
a fundamentally unfair conviction and sentence. Only three of
Barbour's allegations of misconduct by the Assistant Attorney
warrant discussion: (1) whether the Attorney tampered with the
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proffer statements; (2) whether the Attorney improperly bolstered
the government's credibility; and (3) whether the Attorney made
improper remarks on Barbour's failure to testify during closing.
We review Barbour's claims of prosecutorial misconduct
for plain error because he failed to object at trial. United States
v. Roberts, 119 F.3d 1006, 1013-14 (1st Cir. 1997).
First, Barbour claims that the Assistant Attorney changed
facts in Baril's proffer reports, which rendered them inaccurate
and unreliable, and then used the reports during his impeachment of
Barry May. The proffer reports were investigative reports prepared
by agents of the Maine Drug Enforcement Agency after interviews
with cooperating witnesses. Barbour's brief argues that by
reviewing and revising proffer reports, the Attorney rendered them
unreliable and then injected the contents of the reports before the
jury without defense counsel being made aware of the tampering.
Barbour's only support for claiming the Assistant
Attorney changed facts is that some of the facts in the reports
differed from Baril's recollection1 or from another witness's
recollection. If the proffer reports do not coincide perfectly
with the witnesses' memories, that inconsistency does not establish
that the Attorney changed facts in Baril's proffer report. Baril
1
Baril remembered May telling him that packages weighed 20-50
pounds, but the proffer said "at least 50 pounds." Baril explained
that May gave several different quantity estimates for those
packages throughout his interview, and he averaged the quantity in
the proffer.
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said during the sentencing hearing that, during an interview, he
routinely tries to take notes verbatim and he types them into a
report as soon as possible. A copy of that report is sent to the
prosecutor, any agents who attended the interview, the witness, and
the defense attorney to be reviewed for accuracy. After the report
is written and signed, any corrections are made in a supplemental
report. Barbour received a copy of Baril's handwritten notes from
the interviews. The record does not establish plain error because
Barbour has not shown that the Assistant Attorney tampered with any
of the proffer reports.
Second, Barbour contends that the Assistant Attorney
improperly bolstered the government's credibility during the trial.
The Attorney periodically questioned witnesses about what they told
"us" or the "agents" in their proffer sessions. Barbour argues
that by identifying himself with the agents, the Attorney
improperly borrowed the prestige of those agents. Barbour argues
that the Attorney repeatedly mentioned that the witnesses told a
different story to government agents to imply that because the
agents worked for the government, their recollection was more
likely to be the truth than the witnesses' recollection. We are
persuaded by the government's explanation that the Attorney used
those words as context, to explain to the court and the witnesses
to which interviews he was referring. An assistant attorney's
cross-examination of a witness with an inconsistent statement would
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be of doubtful value if he were not permitted to delineate between
conversations by giving the witness more context. May participated
in several proffers and at one point during the trial, for
clarification, had to ask the Attorney, "Is this the proffer I did
with you?" There is no indication that the Attorney was attempting
to bolster the government's credibility with those references.
The Assistant Attorney also said, "So I guess the agents
got that wrong" when confronting May with an inconsistent
statement. Even if the isolated question indirectly implied that
the government was more credible than the witness, the question
still does not rise to the level of plain error in this case.
Third, Barbour claims that the Assistant Attorney made
two improper comments during closing argument about Barbour's
failure to testify.
Comments by a prosecutor on a defendant's failure to
testify violate the Fifth Amendment guarantee against self-
incrimination. Griffin v. California, 380 U.S. 609, 615 (1965).
This court looks at whether the prosecutor's language shows a
manifest intention to comment on the defendant's failure to testify
and whether the jury would naturally and necessarily understand it
to be a comment on the defendant's failure to testify. United
States v. Wihbey, 75 F.3d 761, 769 (1st Cir. 1996).
In this case, the Assistant Attorney said, "But if you
want to really find out what went on, go to the people on the
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inside . . . [t]hose are the only people who laid it out for you."
The government contends that the Attorney meant that the
conspirators were credible witnesses because their information came
from their position inside the conspiracy. That interpretation
fails to explain why he said they were "the only people who laid it
out for you." The Attorney's intention could have been to comment
only on the credibility of his witnesses, but this last phrase
raises the possibility he was commenting on Barbour's failure to
testify or present witnesses. But it seems more likely that he was
comparing the insiders to the other witnesses who testified.
The Assistant Attorney's second comment referred to one
of Barbour's taped phone conversations. He said, "The best witness
in this case I submit to you is Mr. Panasonic. . . . Mr. Panasonic
allowed you to listen to this defendant." That comment may also be
open to more than one interpretation. Perhaps the Attorney was
suggesting only that the taped evidence was the best, most
objective evidence in the trial. In closing, the Attorney
explained that "Mr. Panasonic has nothing to gain or lose. Mr.
Panasonic has not been impeached one iota." On the other hand,
"this allowed you to listen to this defendant" arguably might be
interpreted as a reminder to the jury that Barbour did not take the
stand to explain the taped conversations and as a reminder that the
prosecution was the only party who made it possible for the jury to
listen to the defendant.
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Assuming, arguendo, that the Assistant Attorney's
comments are each capable of at least two possible interpretations,
one impermissible and one innocent, it would not profit Barbour
here. In these situations we have cautioned, "A court should not
lightly infer that a prosecutor intends an ambiguous remark to have
its most damaging meaning." Wihbey, 75 F.3d at 770 (citations
omitted). Nor should we assume the jury will draw from the
comments the most damaging meaning. United States v. Newton, 327
F.3d 17, 27 (1st Cir.), cert. denied, 124 S. Ct. 338 (2003).
Wihbey reviewed two comments similar to those in Barbour's case.
First, the prosecutor mistakenly named the defendants among those
who testified; he then said, "You've heard from all of those
witnesses except for obviously the two Defendants. . ." Id. at
768. The court agreed that the prosecutor was trying to correct
his earlier mistake and the jury would understand his statement as
a correction. Id. at 770. Second, the prosecutor stated that
defense counsel could not "explain away" a conversation that
another witness testified about. Id. at 769. The court
categorized that statement as a "how-does-counsel-explain" Griffin
violation, but held it was not plain error, stating that the
comment did not seriously affect the fairness and integrity of the
proceedings for two reasons. Id. at 770-71. First, the jury was
instructed on the defendant's right to not testify and on the
government's burden of proof, and second, the evidence against the
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defendant was strong, even if not overwhelming. Id.
Even if the Assistant Attorney intended the comments to
be a reference to Barbour's failure to testify, or if the jury
believed them to be, the comments did not likely affect the outcome
of the trial. The potential influence of those comments on the
jury was mitigated by the jury instructions, which stated that the
defendant had no obligation to testify and repeated the
government's beyond-a-reasonable-doubt burden seventeen times. The
evidence of Barbour's guilt was strong, although the specific drug
quantities and length of the conspiracy were disputed. If the
comments were objectionable, Barbour did not object, and the
comments do not rise to the level of plain error. See, e.g.,
United States v. Moran, No. 03-2148, 2004 WL 2900357 (1st Cir. Dec.
15, 2004).
IV.
Barbour argues that in sentencing him, the district court
erred in its determination of drug quantities, possession of a
weapon, criminal history, and obstruction of justice.
Barbour first argues that the district court erred in
attributing to him drug quantities that were outside the scope of
the charged conspiracy. In reviewing a district court's
application of sentencing guidelines, we review the guideline's
legal meaning and scope de novo. United States v. Caraballo, 200
F.3d 20, 24 (1st Cir. 1999). We review the court's fact-finding
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for clear error, giving due deference to the court's application of
the guidelines to the facts. Id.
Under the sentencing guidelines, a defendant may be held
accountable for drug quantities involved in his "relevant conduct."
This includes acts committed during the commission of the offense,
in preparation, in the course of attempting to avoid detection, or,
in some situations, conduct that was part of the same course of
conduct or common scheme or plan as the offense of conviction.
U.S.S.G. § 1B1.3 (2003). The background section of 1B1.3
authorizes judges to look at conduct beyond the crimes charged in
the indictment: "Conduct that is not formally charged or is not an
element of the offense of conviction may enter into the
determination of the applicable guideline sentencing range."
U.S.S.G. § 1B1.3, comment: backg'd. In the context of controlled
substances, the background states that "quantities and types of
drugs not specified in the count of conviction are to be included
in determining the offense level" if they fit within the definition
of relevant conduct. Id.
Barbour's argument is that the government should have
charged four separate conspiracies rather than charging a single
(1999-2001) conspiracy, and the court should have viewed Barbour's
activity before 1999 as a separate conspiracy. The government
provided evidence to support the theory of a single evolving drug
conspiracy rather than several discrete and separate conspiracies.
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The district court made a factual finding that Barbour was the
leader of one single drug conspiracy from 1996 to 2001. We cannot
say this finding, which was supported by the record, was clearly
erroneous. Barbour's conduct can still be relevant, though it may
be outside the time frame of the charged conspiracy. The district
court's finding of a single conspiracy from 1996-2001 supports the
inclusion of the drug quantities as part of the same course of
conduct or common scheme or plan as the offense of conviction. The
district court made no legal error in its application of the
guidelines. Because Barbour's involvement as early as 1996 is
supported by the record, the district court did not err in
attributing the drug quantities to Barbour as part of his relevant
conduct.
Barbour also argues that the court relied on "unreliable"
or "inaccurate" information in attributing to him 360 pounds of
marijuana and one kilogram and forty-two ounces of cocaine.
Barbour claims the marijuana could only have been part of the
conspiracy in 1999, but the district court attributed it to Barbour
in 1996. The district court relied on John Ross's testimony, a co-
conspirator, whom the court found credible for determining drug
quantities, even though he was unable to recall the dates of the
drug transactions. Barbour does not claim that the marijuana was
counted twice. Whether the transaction occurred in 1996 or 1999
makes little difference because the district court found the
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conspiracy lasted from 1996-2001.
Barry May and Steven Case testified about Barbour's
involvement with the cocaine. May testified that he received a
kilogram of cocaine in May 2000. He said "they all were involved
with it," but that it was either Barbour or Shane Hall who actually
sent the cocaine to him. May took some of the cocaine to Kevin
Woodward's house to be divided. Case testified that in May 2000,
he saw almost a full kilo of cocaine at May's house, and that May
told him that Barbour took some of it when he packaged the kilo.
Case also testified that Barbour sent him another forty-two ounces
of cocaine around the time that Barbour was leaving Texas.
The district court was only required to find by a
preponderance of the evidence that these drug quantities were part
of Barbour's relevant conduct. United States v. Laboy, 351 F.3d
578, 582 (1st Cir. 2003). The record supports each drug quantity
determination, and we find no clear error in the district court's
application of the guidelines to the facts.
Barbour additionally argues that the district court did
not have sufficient evidence for the weapon enhancement. Witnesses
May and Hall testified that Barbour was among a group who went to
collect a debt in Houston. The group started from a bar and
dropped by Hall's house to get a gun. Hall went inside and
returned with a gun, and the group went to collect a drug debt from
Case. Barbour admitted they went looking for Case to "rough him
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up."
We upheld a weapon enhancement against May for the same
incident. United States v. May, 343 F.3d 1, 7 (1st Cir. 2003). In
May, we said that in a conspiracy case, the government must show
that one of the defendant's co-conspirators "possessed a weapon
during the offense." May, 343 F.3d at 7 (quoting Nelson-Rodriguez,
319 F.3d at 59). Then the burden shifts to the defendant to show
the connection between the gun and the drug conspiracy was "clearly
improbable." Id. Here, the government showed that Hall, a co-
conspirator, took a gun with him on the group expedition to collect
on a drug debt owed to Barbour and the other conspirators. Barbour
failed to provide evidence that the connection between the drug
conspiracy and the gun was "clearly improbable." We affirm the
enhancement.
Barbour argues that the district court sentenced him from
the wrong criminal history category because the government failed
to establish that he was represented by counsel for his previous
convictions.
Once the government establishes the existence of a prior
conviction, the burden shifts to the defendant to show that the
earlier conviction was constitutionally infirm or otherwise
inappropriate for consideration. United States v. Gray, 177 F.3d
86, 89 (1st Cir. 1999). For his lack of representation claim,
Barbour must have established both that he was uncounseled and that
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he did not waive his right to counsel. Id. at 90. The Presentence
Investigation Report, which can be used to satisfy the government's
"modest" burden, id. at 89, detailed fifteen of Barbour's prior
convictions. Barbour provided state records of his criminal
history; some of those records indicate that Barbour was
represented and some of them are silent as to representation.
Even if we were to assume those records establish a lack
of representation, they still do not show whether Barbour waived
his right to counsel. Id. We have said that as the person in the
best position to offer details about his own criminal history, a
defendant's silence at sentencing can be "deafening." Id. at 90.
Here, Barbour testified at sentencing, but failed to testify about
whether he was represented in connection with his prior
convictions, thus failing to establish the necessary element of
failure to waive counsel. The district court did not err in its
criminal history determination.
A lengthy discussion of Barbour's challenge to the
obstruction of justice enhancement is not necessary. The record is
replete with references to support the district court's conclusion.
For the first time after oral arguments, Barbour
submitted a letter under Fed. R. App. P. 28(j), calling our
attention to Blakely v. Washington, 124 S. Ct. 2531 (2004).
Although Blakely stated that it expressed no opinion on the
validity of the federal sentencing guidelines, its rationale casts
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doubt on their constitutionality, and the Supreme Court has taken
the question under advisement. United States v. Del Rosario, 388
F.3d 1 (1st Cir. 2004).
A party cannot normally raise a new issue in a Rule 28(j)
filing. United States v. Morgan, 384 F.3d 1, 8 (1st Cir. 2004).
A more difficult question is whether this rule should apply when a
party is raising a new issue in response to a Supreme Court
decision that was issued only after briefing and oral argument.
Id. If Barbour merely failed to raise the argument, we can still
review for plain error, but if Barbour waived the argument, no
review is available. See id. If we assume, in Barbour's favor,
that plain error review is available, Barbour's argument does not
prevail.
We review the district court's determinations in light of
the existing precedent at that time. The district court sentenced
Barbour on February 5, 2003, which was more than one year before
the Supreme Court decided Blakely. We cannot say that the district
court's application of the sentencing guidelines, which occurred
before Blakely cast doubt on their constitutionality, was plain
error. See, e.g., Del Rosario, 388F.3d at 14-15; Morgan, 384 F.3d
at 8.
Barbour's conviction and sentence are affirmed.
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