United States v. Eisom

United States Court of Appeals
For the First Circuit

No. 08-1893

UNITED STATES OF AMERICA,

Appellee,

v.

PHILJON EISOM,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Boudin, Selya and Lipez, Circuit Judges.

Christie M. Charles, by appointment of the court, on brief for
appellant.
Paula D. Silsby, United States Attorney, and Margaret D.
McGaughey, Appellate Chief, on brief for appellee.

November 5, 2009
 SELYA, Circuit Judge. Following the appellant's guilty

plea to a federal drug-trafficking charge, the district court

calculated the guideline sentencing range (GSR) to include as

relevant conduct amounts of drugs and cash independently seized by

local authorities in connection with an unrelated criminal

investigation. This single-issue sentencing appeal challenges the

court's relevant conduct determination. We conclude that the

appellant waived any objection to that determination and, in all

events, the determination was not clearly erroneous. Accordingly,

we affirm the sentence imposed below.

The facts are straightforward (although certain

inferences therefrom are disputed). The venue is Portland, Maine.

In June of 2007, the federal Drug Enforcement Administration (DEA)

received a tip from a cooperating source (CS-1) that defendant-

appellant Philjon Eisom was peddling crack cocaine. Under the

DEA's direction, CS-1 contacted the appellant on June 14 and

purchased 6.5 grams of crack.

Two weeks later, a different informant (CS-2) effected

another controlled buy, purchasing 10.8 grams of crack. In the

course of this transaction, the appellant told CS-2 that he had

more crack for sale and that he had made over $8,000 since setting

up shop in Portland.

On July 6, the plot thickened: CS-2 informed DEA agents

that he had agreed to buy two more ounces of crack from the

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appellant. The agents immediately arranged to surveil the site of

the planned transaction (near the appellant's home). While in

place, they observed local law enforcement officers arrest the

appellant as he left the apartment building in which he lived. A

search of the appellant's residence by the arresting officers,

pursuant to a warrant issued by a state court, resulted in the

seizure of 60 grams of powdered cocaine, 283.5 grams of crack

cocaine, and $11,500 in cash.

As matters turned out, the local authorities had been

investigating the appellant's mercantile activities, independent of

their federal counterparts. They proceeded to charge the appellant

with two counts of unlawful trafficking in scheduled drugs and one

count of aggravated trafficking.1 Me. Rev. Stat. Ann. tit. 17-A,

§§ 1103, 1105. The appellant pleaded guilty in the state court,

but sentencing was delayed.

On September 18, 2007, a federal grand jury returned a

one-count indictment charging the appellant with distributing, on

June 28 of that year, five grams or more of cocaine base (crack

cocaine) in violation of 21 U.S.C. § 841(a)(1). The charge arose

out of the appellant's sale of 10.8 grams of crack to CS-2.

After some preliminary skirmishing, not material here,

the appellant admitted his guilt with respect to the federal

1
The state also sought forfeiture of the cash and other
items, but the forfeiture count is immaterial here.

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charge. The district court directed the probation department to

prepare a presentence investigation report (PSI Report).

The PSI Report contained a recommendation that the

activity underlying the state charges be considered relevant

conduct, USSG §1B1.3(a)(2), in fixing the offense level for federal

sentencing purposes. This encompassed the drugs that had been

seized. In addition, noting that there was no indication of any

legitimate source for the cash seized and that the cash had been

found alongside the drugs, the probation officer included the cash

in the recommendation, converting it into its crack cocaine

equivalent for this purpose. Id. §2D1.1, cmt. (n.12); United

States v. Hall, 434 F.3d 42, 61 (1st Cir. 2006); United States v.

Gerante, 891 F.2d 364, 369 (1st Cir. 1989). To this end, the

probation officer used an average sale price of $88 per gram (based

on the transactions consummated between the appellant and the

persons cooperating in the federal probe). This conversion yielded

130.68 grams of crack. In order to avoid double-counting, the

probation officer subtracted from the cash's crack equivalent the

quantities involved in the two controlled buys.2 That left 113.38

grams of crack attributable to the appellant on account of the

seized cash.

2
Although the federal indictment charged only the June 28
sale to CS-2, the appellant does not question that the drugs
involved in the June 14 sale to CS-1 are properly included as
relevant conduct.

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 Next, the probation officer combined the drugs purveyed

in the two controlled buys (17.3 grams of crack) and the contraband

seized during the search of the appellant's abode (283.5 grams of

crack cocaine, a hypothetical 113.38 grams of crack resulting from

the cash conversion, and 60 grams of cocaine powder) and attributed

that total to the appellant. Because two different types of

cocaine were involved, the probation officer followed the

Guidelines Manual and used a common denominator, converting both

types of cocaine into their marijuana equivalents. See USSG

§2D1.1, cmt. (n.10(D)(i)). This yielded an aggregate quantity of

8,295.6 kilograms of marijuana and a base offense level of 32. See

id. §2D1.1(c)(3); id. §2D1.1, cmt. (n.10(E)).

The probation officer then reduced the base offense level

by three levels for acceptance of responsibility. Id. §3E1.1. The

appellant's prior record placed him in criminal history category

IV,3 thus producing a GSR of 121-151 months. Id. ch. 5, pt. A

(sentencing table).

The district court discussed the PSI Report and other

sentencing issues with the prosecutor and defense counsel on June

11, 2008. The disposition hearing was held on July 10. Without

objection, the court adopted the various calculations adumbrated in

the PSI Report (including the relevant conduct recommendation);

3
No criminal history points were added to the appellant's
criminal history score for the pending state charges.

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found the GSR to be 121-151 months; departed downward based on the

appellant's substantial assistance to the authorities, id. §5K1.1;

and imposed a 108-month prison term. This timely appeal followed.

The appellant is represented on appeal by newly appointed

counsel. His brief makes a head-on challenge to the sentencing

court's relevant conduct determination. The government's first

line of defense is a claim that the appellant waived his right to

appeal that determination. We begin there.

The government's claim requires us to distinguish between

waiver and forfeiture. Waiver, on the one hand, is the intentional

relinquishment of a known right. United States v. Olano, 507 U.S.

725, 733 (1993); United States v. Rodriguez, 311 F.3d 435, 437 (1st

Cir. 2002). Forfeiture, on the other hand, occurs when a party

fails to make a timely assertion of a right. Olano, 507 U.S. at

733. At bottom, then, waiver implies an intention to forgo a known

right, whereas forfeiture implies something less deliberate — say,

oversight, inadvertence, or neglect in asserting a potential right.

United States v. Staples, 202 F.3d 992, 995 (7th Cir. 2000).

The consequences of trial-court-level waiver and

forfeiture differ with respect to subsequent attempts to appeal.

Typically, a waived claim is dead and buried; it cannot thereafter

be resurrected on appeal. See, e.g., United States v. Sumner, 265

F.3d 532, 537 (7th Cir. 2001); United States v. Taylor, 54 F.3d

967, 972 (1st Cir. 1995). A forfeited claim receives a reprieve;

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though it may be on life support, it can be pursued on appeal under

a hard-to-satisfy standard of review (plain error). See Olano, 507

U.S. at 733-34; Rodriguez, 311 F.3d at 437.

In this case, the appellant and his counsel received the

PSI Report well in advance of sentencing. They interposed a

written objection to the portion of the report that recommended the

inclusion, as relevant conduct, of the drugs and cash seized by

local authorities. See D. Me. R. 132. At the June 11 sentencing

conference, the lawyer advanced the same objection, stating that he

wished to object both to the inclusion in the PSI Report of the

"facts contained in Paragraphs 8 and 9," which describe the drugs

and cash seized by local authorities, and to "those facts being

used to determine [the appellant's] base offense level." Plainly,

then, the contours of the claim were known to the appellant and

identified to the court by him prior to sentencing.

At the disposition hearing, defense counsel unambiguously

withdrew this objection. The court sought to verify its

understanding that the recommendations contained in the PSI Report

(including the proposed relevant conduct determination) were no

longer disputed. Defense counsel replied: "That's correct." The

court then asked the appellant himself whether he approved of his

attorney's statement that the contents of the PSI Report were

undisputed. The appellant said that he did.

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 We have stated that "[a] party who identifies an issue

and then explicitly withdraws it, has waived the issue."

Rodriguez, 311 F.3d at 437. This is precisely what happened here.

In this respect, the case is very similar to United States v.

Redding, 104 F.3d 96 (7th Cir. 1996). There, the defendant

initially objected to a proposed criminal history calculation

during presentence discussions, yet failed to object at the

disposition hearing. When the defendant then tried to attack the

criminal history calculation on appeal, the Seventh Circuit held

that he had waived the objection. Id. at 99.

So it is here. We hold that any objection to the

inclusion of the seized drugs and cash as relevant conduct for

purposes of setting the appellant's offense level was waived and,

consequently, cannot now be deployed as a basis for appeal.

We hasten to add that, even if preserved, the appellant's

claim of error would prove unavailing. We explain below.

In order to go beyond the conduct involved in the offense

of conviction and include other (uncharged) conduct in the

calculation of a defendant's offense level, that uncharged conduct

must be relevant to the charged conduct. USSG §1B1.3. Where, as

here, the offense of conviction is "of a character for which [USSG]

§3D1.2(d) would require grouping of multiple counts," uncharged

conduct is relevant if the government proves by a preponderance of

the evidence that such uncharged conduct is part of the same course

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of conduct or common scheme or plan as the charged conduct. Id.;

see United States v. Blanco, 888 F.2d 907, 909 (1st Cir. 1989).

A district court's determination of the scope of a

particular scheme, plan, or course of conduct "represents a

practical, real-world assessment of probabilities, based on the

totality of proven circumstances." United States v. Sklar, 920

F.2d 107, 111 (1st Cir. 1990). Once the court finds that uncharged

conduct is part of a common course of conduct, scheme, or plan,

that finding is reviewed under the deferential clear-error

standard. Id. at 110-11.

The relevant conduct guideline can find fertile soil in

drug-trafficking cases. Under that guideline, drug quantities not

charged as part of the offense of conviction may be included in

determining the defendant's offense level as long as those

uncharged quantities are supportably found to be part of a common

course of conduct, scheme, or plan that includes the offense of

conviction. USSG §1B1.3(a)(2); see United States v. Bryant, 571

F.3d 147, 159 (1st Cir. 2009); Sklar, 920 F.2d at 110. A single

course of conduct is present if multiple offenses "are sufficiently

connected or related to each other as to warrant the conclusion

that they are part of a single . . . ongoing series of offenses."

USSG §1B1.3, cmt. (n.9(B)). In much the same vein, multiple

offenses may be deemed part of a common scheme or plan if they are

substantially connected by one or more salient factors, such as a

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common purpose. Id. §1B1.3, cmt. (n.9(A)). Factors to be

considered include (but are not limited to) the nature of the

offenses, their timing, their commonalities, and the existence or

non-existence of overarching patterns. See, e.g., Bryant, 571 F.3d

at 159-60; United States v. Jaca-Nazario, 521 F.3d 50, 55-56 (1st

Cir. 2008).

In the case at hand, these factors coalesce to support

the district court's relevant conduct determination. First, the

charged and uncharged acts are of the same nature; crack cocaine,

a drug of choice in both instances, was distributed on June 28 and

was possessed in such a quantity on July 6 that the intent to

distribute can readily be inferred.

Second, the compressed time frame during which the events

transpired is telling. The controlled buy that forms the predicate

for the federal indictment took place on June 28, 2007. That was

within two weeks of when local authorities searched the appellant's

abode and seized the above-described contraband. This timing

strongly supports a conclusion that all the drugs, and the cash,

were part of the same course of conduct. See, e.g., United States

v. Santos-Batista, 239 F.3d 16, 22 (1st Cir. 2001); United States

v. Graciani, 61 F.3d 70, 74 (1st Cir. 1995).

Third, on the very day that the search occurred, a

cooperating source in the federal investigation was scheduled to

purchase crack from the appellant. It is a logical (perhaps

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inevitable) inference that the two ounces of crack that CS-2 had

arranged to buy were to come from the stash seized in the search.

Fourth, during the controlled buy that constitutes the

offense of conviction, the appellant told CS-2 that he had more

crack for sale and that he had made $8,200 from peddling drugs in

Portland. These statements are indicative of an ongoing operation.

That indication is reinforced by two admissions. For one thing,

the appellant made clear that he was keeping a running tally of his

drug-trafficking profits. Cf. Hall, 434 F.3d at 61 (holding that

sentencing court did not err by using defendant's overall drug

profits as a basis for estimating drug quantity under relevant

conduct guideline). For another thing, the appellant said that he

was supporting himself and his family by dealing in drugs.

That ends this aspect of the matter. The similar nature

of the crimes, their closeness in time, the appellant's statements,

and the other circumstances permit the common-sense inference that

the seized contraband was part and parcel of the same illicit

course of conduct as the offense of conviction.

In an effort to undermine this inference, the appellant

argues that there was no direct evidence linking the seized

contraband to the drugs sold to CS-2. That may be so — but a

relevant conduct determination may be grounded in circumstantial

evidence. See Sklar, 920 F.2d at 111; cf. id. (remarking that "It

is the rare narcotics trafficker who authors a formal business plan

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or keeps meticulously detailed inventory records."). Here, a

reasonable factfinder reasonably could infer from the totality of

the circumstances that a single course of conduct encompassed the

whole of the appellant's drug-trafficking activities in the

Portland area.

The appellant also notes that the seized contraband was

used to ground a separate state court prosecution. This fact, he

insists, requires its exclusion in the federal sentencing calculus.

We disagree.

An application note to the relevant conduct guideline is

instructive. That note provides an example that is strikingly

similar to the facts of this case: a hypothetical defendant engages

in two cocaine sales, and is charged by state authorities for the

first and by federal authorities for the second. The application

note concludes that, under the relevant conduct guideline, the

cocaine sale associated with the state charge can be considered

relevant conduct vis-à-vis the federal charge as long as the two

offenses arise out of a common scheme, plan, or course of conduct.

See USSG §1B1.3, cmt. (n.8). The case law is to the same effect.

See United States v. Maken, 510 F.3d 654, 657 (6th Cir. 2007);

United States v. Johnson, 324 F.3d 875, 877-78 (7th Cir. 2003);

United States v. Kenyon, 7 F.3d 783, 787 (8th Cir. 1993).

We hold, therefore, that prosecution of conduct by a

separate sovereign in a separate proceeding does not, without more,

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disqualify that conduct from inclusion in a federal court's

sentencing calculus pursuant to the relevant conduct guideline.4

The appellant makes other arguments, most of which are

related in one way or another to his arguments discussed above.

These other arguments are meritless, and we reject them out of

hand. It suffices to say that the record supports a conclusion

that the drugs sold during the offense of conviction and the drugs

and cash seized were part of a single course of continuous drug-

trafficking activity. See, e.g., Sklar, 920 F.2d at 111; United

States v. Gooden, 892 F.2d 725, 729 (8th Cir. 1989). It follows

that the district court did not clearly err in formulating its

relevant conduct determination.

We need go no further. For the reasons elucidated above,

we affirm the sentence imposed by the district court.

Affirmed.

4
We caution that a different rule might apply if a defendant
had committed a state offense and served a state-imposed sentence
for it prior to committing the (federal) offense of conviction.
See USSG §1B1.3, cmt. (n.8) ("For the purposes of subsection
(a)(2), offense conduct associated with a sentence that was imposed
prior to the acts or omissions constituting the instant federal
offense (the offense of conviction) is not considered as part of
the same course of conduct or common scheme or plan as the offense
of conviction."); see also United States v. Hernandez, 330 F.3d
964, 987 (7th Cir. 2003) (determining that conduct underlying
previous state court conviction should not be considered relevant
conduct because that offense and the offense of conviction were
separated by an intervening sentence). That is not the situation
here.

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