Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 14-1669
UNITED STATES OF AMERICA,
Appellee,
v.
PAUL FORD,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Lynch, Thompson, and Kayatta,
Circuit Judges.
Andrew Levchuk and Bulkley, Richardson & Gelinas on brief for
appellant.
Thomas E. Delahanty, II, United States Attorney, and Margaret
D. McGaughey, Assistant United States Attorney, on brief for
appellee.
August 19, 2015
THOMPSON, Circuit Judge.
Overview
As part of a plea bargain, Paul Ford pled guilty to two
felonies: conspiring — from 2006 to November 2011 — with James
F., Darlene, and James T. Ford (Paul's father, mother, and brother)
to manufacture 100 or more marijuana plants, and manufacturing —
in November 2011 — 50 or more marijuana plants on his own. See 21
U.S.C. §§ 841(a)(1), 846.1 The district court sentenced him to 46
months in prison — at the very bottom of the court-calculated
guidelines range — and he now appeals, claiming that the term
imposed is both procedurally and substantively unreasonable.
Because it is neither, we affirm, with these briefest of comments.2
1 "Grow" would be a better word than "manufacture," but the statute
uses "manufacture." See DeBartolo v. United States, 790 F.3d 775,
777 (7th Cir. 2015) (Posner, J.) (making that very point).
2 Four quick heads up:
First: Ford agreed to waive his appeal rights, but only if
the court sentenced him to a prison term "that does not exceed
twelve months and one day." Because the sentence exceeded that
limit, the government concedes that Ford's appeal waiver does not
apply. And so we decide this appeal on the merits. See United
States v. Serrano-Mercado, 784 F.3d 838, 841 n.1 (1st Cir. 2015)
(taking that tack in a similar situation).
Second: As is customary in cases like this, we pull the facts
from the plea agreement, the undisputed parts of the pre-sentence
investigation report, and the transcripts of the change-of-plea
and sentencing hearings. See, e.g., United States v. Romero-
Galindez, 782 F.3d 63, 65 n.1 (1st Cir. 2015).
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Procedural-Reasonableness Claims
Paul first complains about the amount of drugs the court
attributed to him, an amount that helped set the base offense level
for the guidelines range. The district court held him responsible
for at least 100 but less than 400 kilograms of marijuana. So
long as a preponderance of the evidence supports that finding, a
reasonable estimate will suffice. See, e.g., United States v.
Mills, 710 F.3d 5, 15 (1st Cir. 2013). And because he attacks the
court's factfinding, our review is for clear error, id. — i.e.,
meaning we will reverse only if the court was "wrong with the force
of a 5 week old, unrefrigerated, dead fish," see Toye v. O'Donnell
(In re O'Donnell), 728 F.3d 41, 46 (1st Cir. 2013) (quoting S
Indus., Inc. v. Centra 2000, Inc., 249 F.3d 625, 627 (7th Cir.
2001)).
Paul basically concedes responsibility for 96.435
kilograms of marijuana. He gets that number this way: he takes
28.942 kilograms seized from his parents' house (all the Fords
Third: Because there are four Fords — Paul, James F.,
Darlene, and James T. — we will use first names from here on (we
intend no disrespect).
Fourth: We review preserved challenges to both the procedural
and substantive reasonableness of a sentence for abuse of
discretion, though we assess the district court's factfinding for
clear error. See United States v. Razo, 782 F.3d 31, 36 (1st Cir.
2015).
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were there when agents executed a search warrant, by the way),
adds 5.493 kilograms taken during a consented-to search of his
house, and tacks on 62 kilograms based on drug ledgers — showing
income from October 2009 to October 2011 — seized from his parents'
house. As Paul sees things, the evidence left him 3.565 kilograms
short of the 100 kilogram threshold, which, the argument continues,
put him in a lower base offense level.
We see the things differently, and for a simple reason.
Record evidence shows that James F. told agents two important
things: first that he grew 11.25-13.5 pounds — or 5.103-6.123
kilograms — of marijuana about every 9 weeks, and second that he
was about to complete "harvest" number "38" when the Fords got
nabbed. Record evidence — James F.'s October 2011 email saying
Paul has been a "dependable worker" since moving into "Dana
Skinner's" house (we don't know who "Dana Skinner" is) and Paul's
November 2011 comments to agents that he had been living at Dana's
for 3-4 years — supportably shows that Paul was involved with the
Ford family conspiracy at least as far back as 2007 or 2008. So
putting all this together, taking, say, just one "harvest" of 5.103
kilograms (the lower number given by James F.) in 2007 or 2008
puts the kilogram tally at 101.538 (96.435 — the number Paul says
the "court could have and should have" stopped at — plus 5.103
equals 101.538).
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Seeking a way around this conclusion, Paul principally
argues that the marijuana amount needed to reach the 100 kilogram
mark was not reasonably foreseeable to him. But the court held
him responsible for drugs he helped produce — after all, as the
court expressly noted, Paul unequivocally admitted at the change-
of-plea hearing that he and other coconspirators "planted, tended,
harvested, processed and packaged the marijuana" at his home and
his parents' (that concept was contained in the government's
version of events, to which he agreed). So the "reasonable
foreseeability" concept holds no sway here, because "[a] defendant
simply cannot be heard to complain that he could not reasonably
foresee acts that he himself engineered." United States v. Conley,
156 F.3d 78, 85 (1st Cir. 1998).
Paul next blasts the court for not giving him a 2-level
reduction in his offense level as a (supposed) "minor participant"
in the conspiracy. See USSG § 3B1.2(b) (2012 version). The
burden, though, is on him to prove by a preponderance of the
evidence that he is both less culpable than (a) most of those
involved in the conspiracy and (b) most of those who have done
similar crimes. See, e.g., United States v. Meléndez-Rivera, 782
F.3d 26, 28 (1st Cir. 2015).3 Absent a mistake of law — and we
3 See generally USSG § 3B1.2 cmts. 5 and 4 (explaining that a
"minor participant" is one who is "less culpable than most other
participants, but whose role [can]not be described as minimal,"
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see none here — we review for clear error, knowing that, given
this deferential standard, role-in-the-offense battles "will
almost always be won or lost in the district court." Id. (quoting
United States v. Garciani, 61 F.3d 70, 75 (1st Cir. 1995)).
Hoping to find clear error, Paul accuses the district
court of not comparing his part in the conspiracy with his
parents'. The charge falls flat, however. The sentencing
transcript shows that the court focused (for example) on how the
parents, and not Paul, sold the marijuana, while Paul — as he
himself acknowledged — grew and "took care of the marijuana."
Well, then, says Paul, he should have gotten a minor-role
adjustment because he was not as critical to the scheme as his
drug-peddling parents. But that is a false contrast, for as we
have said many times, one "need not be the key figure" in a criminal
plan "to be denied a mitigating role-in-the-offense adjustment."
Meléndez-Rivera, 782 F.3d at 29. Just as devastating to his
position is the fact that he makes no effort to show how he is
less culpable than the "mine-run" of wrongdoers "who have committed
similar crimes" — perhaps that is because we have routinely upheld
the denial of a minor-participant adjustment for defendants less
involved in drug conspiracies than Paul. See id. (highlighting
with "minimal" reserved for a "participant" who is "plainly among
the least culpable of those involved in the conduct of the group").
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cases affirming an adjustment denial where a defendant's only role
in the scheme was driving a truck with drugs, unloading drugs, or
standing guard).
Having found no procedural error in what the district
court did, we now check the sentence for substantive
reasonableness, keeping in mind that a sentence is substantively
reasonable if it reflects a plausible rationale and a defensible
result. United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008).
Substantive-Reasonableness Claims
Paul thinks his 46-month sentence (again, the lowest
term in the guidelines range) is far too long, for four reasons —
none of which we accept.
For starters Paul says that he should have caught a break
because "marijuana is now legal" in some states. But that argument
goes nowhere, because manufacturing marijuana is still a crime
under federal law. See 21 U.S.C. § 841(a)(1).
Next Paul faults the district court for considering
"previously dismissed charges" in perusing his criminal history —
criminal history is a sentencing factor under 18 U.S.C. § 3553(a).
But he does not back up his claim with any authority, nor does he
give us any meaningful discussion on this issue. So the claim is
waived. See, e.g., Ahmed v. Holder, 611 F.3d 90, 98 (1st Cir.
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2010) (stressing that "appellate arguments advanced in a
perfunctory manner, unaccompanied by citations to relevant
authority, are deemed waived"); see also United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990) (similar).
Also insubstantial is Paul's claim that the district
court jacked up his sentence because of firearms found in his
parents' home. Yes, probation did recommend a firearms enhancement
in calculating Paul's offense level. But the government did not
ask for that enhancement. Undaunted, Paul identifies this comment
from the district court at sentencing as the best indication that
the firearms still influenced the sentence:
Although there were firearms at the defendant's parents'
residence, the court — the government has agreed not to
press the firearms enhancement as the defendant — the
court knows the defendant has pleaded guilty and it saves
the government the expense and turmoil at trial.
But neither this nor any other statement by the court leaves us
with "a definite and firm conviction" (the usual abuse-of-
discretion standard) that the enhancement played any role improper
in Paul's sentence. See generally United States v. Joubert, 778
F.3d 247, 253 (1st Cir. 2015) (internal quotation marks omitted)
(defining abuse of discretion).
Last but not least, we can make quick work of Paul's
final contention — that "the district court spent entirely too
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much time" talking about "the Ford family's 'bizarre' dynamic."
True, the court did spotlight Paul's "unusual family" — mentioning
(for example) how his "growing up" with marijuana being the family
business's stock-in-trade makes it "not surprising that [he]
thought it was normal to follow [his] parents' footsteps." But
the court made these comments in the context of discussing Paul's
drug history and what sentence might deter him — both legitimate
§ 3553(a) factors. See, e.g., United States v. Tavares, 705 F.3d
4, 32 (1st Cir. 2013). Within wide limits, it is up to the district
court to decide how much weight to give each relevant § 3553(a)
factor in a particular case. See United States v. Maguire, 752
F.3d 1, 7 (1st Cir. 2014); United States v. Clogston, 662 F.3d
588, 592-93 (1st Cir. 2011). And unfortunately for Paul, in
attacking his within-guidelines sentence he has not offered the
required "powerful mitigating reasons" needed to convince us that
the court unreasonably balanced those factors here — which makes
his ultimate claim a no-go too. See Clogston, 662 F.3d at 592-93
(internal quotation marks omitted).
The bottom line then is that Paul's substantive-
reasonableness arguments — like his procedural-reasonableness ones
— fail because we find no abuse of discretion.
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Final Words
Our work over, we affirm Paul's sentence.
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