United States v. McDonald

United States Court of Appeals
For the First Circuit

No. 14-1957

UNITED STATES OF AMERICA,

Appellee,

v.

NICHOLAS MCDONALD,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

Torruella, Lynch, and Kayatta,
Circuit Judges.

George F. Gormley, with whom Stephen Super and George F.
Gormley, P.C., were on brief, for appellant.
Margaret D. McGaughey, Assistant United States Attorney, with
whom Thomas E. Delahanty II, United States Attorney, was on brief,
for appellee.

October 30, 2015
 LYNCH, Circuit Judge. Nicholas McDonald was a heroin

dealer in the Bangor area of Maine, obtaining his heroin on trips

to Worcester, Massachusetts. Eventually, when caught with 26.4

grams of heroin, he was charged both for the heroin and a gun in

his possession. McDonald pleaded guilty in February 2014 to one

count of possession with intent to distribute heroin in violation

of 21 U.S.C. § 841(a)(1) and one count of being a felon in

possession of a firearm in violation of 18 U.S.C. § 922(g)(1)

(subject to appealing the denial of his motion to suppress). The

district court quite correctly denied his motion to suppress and,

at sentencing, correctly found that he had tried to obstruct

justice by trying to swallow a small bag of heroin.

A separate question on appeal has to do with the increase

in his base offense level from 18 to 20, which was based not on

the drugs he actually possessed but on relevant conduct concerning

drugs he purportedly sold. That relevant conduct was based on

untested accounts by a confidential informant (CI) who purportedly

had accompanied him on his buying trips south and had been with

him on several occasions as he sold drugs. That is, the

Presentence Investigation Report (PSR) contained information from

the CI, which came in the form of the CI's grand jury testimony

and a statement made to the government. No law enforcement or

other witness saw those sales. The CI did not testify, and so

McDonald never had an opportunity to cross-examine her.

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 Still, we cannot say there was clear error in the

district court's finding that this information met the

requirements for relevant conduct and was sufficiently reliable to

attribute to McDonald an additional quantity of drugs. There was

no clear error in the court's finding that between 40 and 60 grams

of heroin were involved, which supported a sentence of 75-months

imprisonment on the drug count.

We point out that McDonald received a concurrent

sentence of 75-months imprisonment on the firearm charge and will

serve 75 months anyway, whatever the merits of the method used by

the government to get an increased sentence on the drug charge.

I.

As to the motion to suppress, we recite the relevant

facts as found by the district court, consistent with record

support. United States v. Arnott, 758 F.3d 40, 41 (1st Cir. 2014).

As to the facts relevant to the sentencing appeal, we take the

facts as set forth in the unchallenged portions of the PSR and the

sentencing hearing. United States v. Innarelli, 524 F.3d 286, 288

(1st Cir. 2008).

On April 5, 2013, Sergeant Roy Peary of the Penobscot

County Sheriff's Department received an e-mail about suspicious

pawning activity. The e-mail indicated that Kelly Jo Desmond,

Jarod Brown, and another unidentified female were trying to pawn

construction tools and electronics at a Newport, Maine pawnshop,

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but they could not provide a lot of information about the items.

The group had an older, dark-colored Pontiac with a license plate

beginning with "7450" and ending with undetermined letters.

That same day, Sergeant Peary learned of a burglary in

Orrington, Maine. The complainant reported that construction

tools had been stolen and said that he suspected his ex-girlfriend,

Amy White, was involved. The complainant said that White struggled

with drug addiction, knew about his tools, drove a maroon Pontiac

Bonneville, and might be staying at a trailer park in Holden,

Maine. He said that McDonald and Desmond lived in the trailer

where he thought White was staying.

Sergeant Peary learned from the Maine Department of

Motor Vehicles that White was the registered owner of a 1999

Pontiac Bonneville with the plate number "7450 TB" that was listed

as being purple.1 He called Holden Police Officer Chris Greeley

and told him that he was investigating a burglary and suspicious

pawning activity. Greeley knew of existing arrest warrants for

McDonald and Desmond. He suspected that McDonald was staying at

a trailer park in Holden because he had previously driven McDonald

to a trailer there after he picked McDonald up along a roadway in

1 The vehicle identified in the e-mail Peary read was
described as dark-colored, older, and having faded and peeling
paint on the hood, and the burglary complainant described White's
Pontiac Bonneville as maroon. This may explain why the e-mail
described the car as "dark colored," while the Maine Department of
Motor Vehicles listed it as purple.

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February 2013. Additionally, around that time, the park owner

told Greeley that McDonald was living there.

Officer Greeley asked Maine Drug Enforcement Agency Task

Force Agent Amy Nickerson to help him with the investigation.

Nickerson was familiar with the trailer in question from having

conducted surveillance on it. Nickerson also went to the burglary

scene and spoke with the complainant. The complainant told

Nickerson that White had told him that she had been driving

McDonald to get drugs in Massachusetts.

Greeley, Nickerson, and Peary met at the Holden Police

Department that evening. Agent Nickerson went to the address of

the trailer and saw the Pontiac Bonneville parked there. Soon

after, she saw the Bonneville leaving. She notified Greeley and

Peary of this, and began to follow the car onto Route 1A. She

could see two people in the car and observed that the car was

driving at what she estimated was about ten miles per hour below

the speed limit. Greeley, who was waiting at the Holden Police

Department's exit onto Route 1A, began to drive behind the

Bonneville. The vehicle was driving slowly, a line of cars had

developed behind it, and its brake lights came on three times

without any connection to traffic lights or signs.

When Greeley turned on his cruiser's lights to pull the

car over, the Bonneville pulled to the side, and its passenger,

who was later identified as McDonald, fled into the woods. Greeley

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and Nickerson detained the driver, who turned out to be White, and

they saw construction tools in the back seat. McDonald was tracked

down and apprehended.

Officers found a hypodermic needle, a bag of Pentedrone

Hydrochloride,2 a folding knife, $1,430 of cash, pepper spray, and

two and a half Suboxone strips containing Pentedrone Hydrochloride

on McDonald at the time of his arrest.

A search of the vehicle also revealed a safe. McDonald

denied ownership of the safe, though it turned out to be his.

After being apprehended, McDonald was taken to Eastern

Maine Medical Center because he was displaying signs of agitation,

fear, and confusion. After being at the hospital for approximately

two hours, he went to use the bathroom. After about ten minutes,

he returned to his hospital bed and appeared to fall asleep. The

officer supervising him saw a bag fall from the bed onto the floor.

When the officer picked it up, McDonald got up, fought with the

officer, grabbed the bag, and put it in his mouth. Ten people had

to come to hold him down. The bag was dislodged, which contained

26.4 grams of heroin.

The next day, the police executed a search warrant for

the safe and found a digital scale, packaging materials, and a

loaded 9 millimeter handgun.

2 The PSR described "Pentedrone Hydrochloride [as a drug]
most closely related to Metheathinone."

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 Apart from those items seized, a CI provided information

to the government and later testified before a grand jury that

between February 2013 and the time of McDonald's arrest, she helped

McDonald sell heroin on a regular basis and she had gone with

McDonald on trips to Massachusetts where McDonald would buy heroin

and bring it back to Maine.

McDonald was indicted on June 13, 2013, on the two counts

and on August 2, 2013, filed a motion to suppress the evidence

obtained from the vehicle stop. The motion was denied on September

30, 2013. On March 4, 2014, McDonald entered a conditional plea

to both counts, in which he reserved the right to appeal the denial

of his motion to suppress.

At sentencing, the government asked for a sentence of

75-months imprisonment, and McDonald suggested a sentence of

imprisonment between 55 and 60 months. McDonald was granted a

two-level reduction (a "Holder reduction") based on the then-

proposed change in the United States Sentencing Guidelines to lower

drug quantity calculations by two levels. The court discussed an

obstruction of justice enhancement, at which point the government

introduced McDonald's medical records. In response to McDonald's

argument that his behavior was not willful, the government said

that the records demonstrated that McDonald was "calm and

cooperative" and in control of his behavior. The court applied

the enhancement.

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 The court noted that the probation officer held McDonald

accountable for 97.219 kilograms of marijuana equivalent3 based on

the amounts found and the CI testimony, resulting in a base offense

level of 24. The government, "[o]ut of an abundance of caution,"

proposed a quantity of 62.388 kilograms of marijuana equivalent,

resulting in a base offense level of 22. This amount included the

26.4 grams of heroin seized from McDonald, and, based on the CI's

proffer and grand jury testimony, the additional grams of drugs

involved in other transactions described by the CI. McDonald

argued he could be held responsible for only the 26.4 grams of

heroin seized from him because, he claimed, the remainder of the

drug quantity was based on unreliable CI testimony. The court

"accept[ed] the [CI's] testimony and statements that the defendant

sold heroin in roughly the quantities urged by the government" but

noted that if the CI was "off by as much as 25 percent in terms of

her recollection, the defendant would still be in the offense level

of 20." Accordingly, the court concluded that McDonald "was

involved in a drug quantity somewhere between 40 and 60 grams of

heroin, or kilograms of marijuana equivalent" and applied a base

offense level of 20.

3 Because two drugs were involved, the heroin was
calculated as a marijuana equivalent: 1 gram of heroin is
equivalent to 1 kilogram of marijuana.

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 The court added a two-level enhancement for possession

of a firearm, the two-level increase for obstruction of justice,

and a three-level reduction for acceptance of responsibility,

resulting in a total offense level of 21. McDonald's criminal

history, which included sixteen prior convictions -- thirteen of

which were scored and many of which were associated with drugs --

placed him at a criminal history category of VI. With the two-

level "Holder reduction" the guideline range was 63 to 78 months.

The court sentenced him to 75-months imprisonment for each count,

to be served concurrently, which accounted for the three months

McDonald had already spent in state custody. This appeal followed.

II.

McDonald first challenges the denial of the motion to

suppress. He argues that because he did not break any law by

traveling below the speed limit or slowing down at different

points, the information the officers had did not amount to

reasonable suspicion. This argument fails.

Police may stop and briefly detain an individual for

investigative purposes if they have a reasonable suspicion of

criminal activity. United States v. Dapolito, 713 F.3d 141, 147

(1st Cir. 2013). Because reasonable suspicion requires a

particularized and objective basis for suspecting an individual of

criminal activity, courts "view the circumstances through the lens

of a reasonable police officer," looking to the totality of the

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circumstances to determine whether reasonable suspicion existed.

Id. at 148. When reviewing a district court's decision on a

suppression motion, we review its factual findings and credibility

determinations for clear error, while we review its legal

conclusions de novo. Id. at 147. "Absent an error of law, we

will uphold a refusal to suppress evidence as long as the refusal

is supported by some reasonable view of the record." United States

v. Lee, 317 F.3d 26, 29–30 (1st Cir. 2003).

The district court had a reasonable basis to deny the

motion to suppress. Ample evidence supported a suspicion of legal

wrongdoing when the police pulled over White's car. Specifically,

the officers had knowledge that the burglary complainant

associated White with the burglary; that White struggled with drug-

dependency, and "drug seekers often resort to property crime to

support their habits"; that White was associated with Desmond, who

was associated with the suspicious pawning activity and had tried

to pawn goods that were similar to those taken in the burglary;

that White's car was likely used in connection with the pawning

activity; that because the pawn dealer did not accept all of the

goods, some of them may have remained in White's car; that White's

car was at a trailer that was associated with Desmond; and that

the car was driving in an overly cautious manner with a "suspicious

application of [its] brakes." Further, Officer Greeley testified

that he believed the car was driving in this manner in preparation

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to stop so that someone could flee. Altogether, that suffices.

Cf. United States v. Arthur, 764 F.3d 92, 98 (1st Cir. 2014) ("We

think it virtually unarguable that a reasonably prudent police

officer, standing in [the officer's] shoes and knowing what [he]

knew, would have harbored such a suspicion."); see also United

States v. Arvizu, 534 U.S. 266, 274 (2002) (explaining that factors

that seem to be "innocent" by themselves can together amount to

reasonable suspicion).

III.

Next, McDonald argues that the district court erred in

the amount of drugs it attributed to McDonald at sentencing. His

argument appears to have two components: first, that the drug

transactions the CI described do not constitute relevant conduct,

which he argues for the first time on appeal; and second, that the

CI's testimony was unreliable.

Under the Sentencing Guidelines, "a defendant may be

held responsible for drug quantities involved in his 'relevant

conduct,'" even if the quantities were not involved in the offense

of conviction. United States v. Laboy, 351 F.3d 578, 582 (1st

Cir. 2003) (quoting U.S.S.G. § 1B1.3). If the sentencing court

finds by a preponderance of the evidence, see United States v.

Huddleston, 194 F.3d 214, 224 (1st Cir. 1999), that a defendant

engaged in the "same course of conduct or common scheme or plan"

involving additional drugs, it can attribute the amount of those

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drugs involved to the defendant. See United States v. Blanco, 888

F.2d 907, 909 (1st Cir. 1989) (quoting U.S.S.G. § 1B1.3(a)(2))

(emphasis in original omitted). A "sentencing court's finding

that drugs other than those specified in the indictment were part

of the same common scheme or course of conduct is entitled to

considerable deference," and "[a]bsent mistake of law, we review

such conclusions only for clear error." United States v. Wood,

924 F.2d 399, 403 (1st Cir. 1991). Because McDonald raises the

argument that the transactions described do not constitute

relevant conduct for the first time on appeal, we review this part

of his argument for plain error. See United States v. Correa-

Osorio, 784 F.3d 11, 17 (1st Cir. 2015) (explaining that the plain

error standard requires the appellant to prove "(1) an error, (2)

that is clear or obvious, (3) which affects his substantial rights

(i.e., the error made him worse off), and which (4) seriously

impugns the fairness, integrity, or public reputation of the

proceeding," id. at 18).

There was no plain error with the district court's

finding that the transactions described by the CI were relevant.

McDonald pleaded guilty to possession with intent to distribute

heroin, and he expressly said that he "does not dispute his guilt."

The district court did not plainly err in finding that multiple

drug transactions between February 2013 and McDonald's arrest in

April 2013 were part of the same course of conduct or common scheme

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or plan, and so qualified as relevant conduct. As the CI

explained, over this two-to-three month period that covered the

lead up to the offense of conviction, McDonald's activity as a

drug dealer took him to Worcester by car to pick up heroin on

multiple occasions, returning to Maine to sell it, and then

returning to Worcester to restock, all with the assistance of the

same person.4 In Wood, we found no clear error in the district

court's conclusion that three transactions were part of the same

scheme notwithstanding the defendant's argument that "the sources

[of the drugs] varied, his involvement varied and the methods for

transporting the cocaine from New York to Maine varied." 924 F.2d

at 403–04;5 see also David v. United States, 134 F.3d 470, 477 (1st

4 The district court did not identify whether it
considered the transactions described by the CI as part of the
same "course of conduct" or part of a "common scheme or plan."
See U.S.S.G. § 1B1.3 cmt. n.9(B) ("Offenses that do not qualify as
part of a common scheme or plan may nonetheless qualify as part of
the same course of conduct if they are sufficiently connected or
related to each other as to warrant the conclusion that they are
part of a single episode, spree, or ongoing series of offenses.");
United States v. St. Hill, 768 F.3d 33, 36–37 (1st Cir. 2014)
(distinguishing between the two but acknowledging that "the
phrases are sometimes used interchangeably," id. at 37). At the
very least, it was not plain error for the district court to find
the drug transactions were part of the same course of conduct given
both the conviction and transactions involved heroin dealing
employing a common source, a common re-supply routine, and the
same source of transportation. "[I]f the conduct was relevant
conduct as part of the 'same course of conduct,' it matters not
whether it was also part of a common scheme or plan." Id. at 37.

5 In Wood, the court found that a fourth transaction
involving the defendant's wife about which the defendant was
unaware was not part of a common scheme or plan. 924 F.3d at 404.

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Cir. 1998) (finding that "[a]lthough the petitioner's drug

trafficking resulted in two separate charged conspiracies, the

framing of the charges cannot obscure the fact that, throughout

the cocaine trafficking described in the indictment, the

petitioner and his principal accomplices remained at the center of

an ongoing enterprise devoted to a single purpose . . . [because]

the petitioner never deviated from his main business: the

acquisition, distribution, and sale of cocaine in a specific

region").

McDonald's claim that the CI was unreliable because of

inconsistencies between her proffer and grand jury testimony and

because she wanted to save herself from incarceration time also

fails. The PSR and district court identified at least four ways

in which the CI's testimony was corroborated by external evidence.

First, the CI said that McDonald had a safe and a gun, and the

officers indeed found a safe and a gun, which are both tools of

drug trafficking. Second, McDonald engaged in recorded jailhouse

calls, where he made a statement that he was "coming off . . .

five, six grams a day," and tried to get someone to lie if asked

about the contents of the safe. Third, McDonald's criminal record

included sixteen prior convictions, several of which were drug

related. These convictions provided a reason to believe that

McDonald was involved in drug trafficking on a regular basis.

Fourth, McDonald was unemployed and receiving $678 a month in

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disability payments, yet he admitted that his drug addiction cost

him approximately $1,000 per week. The district court noted that

McDonald "had $1,430 in currency on his person at the time of his

arrest with no sign of legitimate gainful employment." The

district court did not clearly err in concluding that McDonald's

"need to fund [his] own drug habit and the apparent inability of

[McDonald] to obtain that kind of money through legitimate means"

was consistent with McDonald's dealing drugs, and thereby

corroborated the CI's testimony.

Further, the district court accounted for the

possibility that "the [CI's] memory is not perfect" by reducing

the amount of drugs it attributed to McDonald based on the CI's

testimony. And this conservative estimate was even lower than the

already conservative estimate in the PSR: when there was a

divergence between the proffer and grand jury testimony, the PSR

considered the smaller amount. Cf. United States v. Ramírez-

Negrón, 751 F.3d 42, 53–54 (1st Cir. 2014) (finding no clear error

in the district court's drug quantity calculation when it "was

based on the most lenient assumptions toward [the defendant] that

the record allowed," id. at 53). We cannot say the district court

clearly erred in the drug quantity it attributed to McDonald.

IV.

Finally, McDonald challenges the district court's

imposition of an obstruction of justice enhancement. He primarily

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argues that because he was "seriously impaired" at the time, he

could not have willfully obstructed justice. He also argues that

the enhancement should not apply because he did not materially

hinder the investigation. These arguments too fail.

The Sentencing Guidelines provide, in relevant part, for

a two-level enhancement for obstruction of justice "[i]f . . . the

defendant willfully obstructed or impeded, or attempted to

obstruct or impede, the administration of justice with respect to

the investigation, prosecution, or sentencing of the instant

offense of conviction." U.S.S.G. § 3C1.1(1). A sentencing court's

"factbound determination that an obstruction of justice occurred"

can be based on "any evidence that it reasonably deems reliable."

United States v. Quirion, 714 F.3d 77, 79 (1st Cir. 2013). We

review the district court's imposition of an obstruction of justice

enhancement for clear error and set aside the district court's

determination "only if a review of the record leaves us 'with the

definite and firm conviction that a mistake has been committed.'"

Id. at 79–80 (quoting United States v. U.S. Gypsum Co., 333 U.S.

364, 395 (1948)).

We find no clear error in the district court's

determination that an obstruction of justice occurred. McDonald

concealed drugs for two hours at the hospital, and when the drugs

fell onto the floor, he attempted to swallow them and became

physically combative with the people trying to restrain him. His

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argument that he did not willfully obstruct justice fails. The

district court noted that at 10 p.m., two hours prior to the time

the heroin fell from McDonald's hospital bed, the nurse's note

described him as "calm and cooperative." As the district court

explained, "it was two hours after the arrest. The defendant knew

all along that he had drugs . . . . The defendant may have acted

irrationally when the drugs fell on the floor, but he had plenty

of time, namely, two hours, to consider what he was going to do

with the drugs that were near his body."6 Cf. United States v.

Bedford, 446 F.3d 1320, 1326 (10th Cir. 2006) ("The conduct

demonstrates his determination to conceal the evidence from the

police. It reflects a deliberate action rather than . . .

spontaneous or reflexive conduct . . . ."); United States v.

Massey, 443 F.3d 814, 819 (11th Cir. 2006) (finding no clear error

in the district court's obstruction of justice enhancement when

the defendant "entered the hospital with three objects [containing

heroin] inside her body[,] . . . [w]hile at the hospital, she hid

two of the objects in her pillow[, and] . . . [w]ith the exception

of a few violent outbursts early in her hospital stay, [the

defendant] appeared lucid and deliberate").

6 McDonald's assertion that he was concealing the drugs
for later use rather than to obstruct justice does not help his
argument. Even if this were true, by concealing drugs for later
use, McDonald ipso facto willfully obstructed justice given his
awareness that the drugs he was hiding were pertinent to the
government's investigation.

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 Finally, McDonald's argument that his conduct did not

hinder the investigation or prosecution is misplaced. As the

district court explained, the provision of the Sentencing

Guidelines that refers to a "material hindrance" does not apply in

McDonald's case. Application Note 4(D) of U.S.S.G. § 3C1.1

provides that, if the destruction or attempt to conceal evidence

"that is material to an official investigation . . . occurred

contemporaneously with arrest . . . it shall not, standing alone,
be sufficient to warrant an adjustment for obstruction unless it

results in a material hindrance to the official investigation or

prosecution of the instant offense or the sentencing of the

offender." U.S.S.G. § 3C1.1 cmt. n.4(D) (emphasis added). Because

McDonald's actions at the hospital took place at least two hours

after his arrest, this note does not apply, and whether his actions

resulted in a material hindrance to the investigation does not

affect the analysis. The district court rejected McDonald's

argument that his attempt to swallow the heroin was contemporaneous

with his arrest. McDonald does not dispute this finding, so any

challenge to it is waived. See United States v. Zannino, 895 F.2d

1, 17 (1st Cir. 1990).

V.

For the reasons set forth above, we affirm McDonald's

conviction and sentence.

- Concurring Opinion Follows -

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 TORRUELLA, Circuit Judge, concurring. I join the

court's opinion because our precedent establishes that a

sentencing court may attribute additional drug amounts to a

defendant, to which the criminal defendant has not pled and in

addition to the drug amounts specified in the indictment, if the

narcotics are part of the same course of conduct or a common scheme

or plan as the charged conduct. See United States v. Blanco, 888

F.2d 907, 909 (1st Cir. 1989). "For two or more offenses to

constitute part of a common scheme or plan, they must be

substantially connected to each other by at least one common

factor, such as victims, common accomplices, common purpose, or

similar modus operandi." United States v. Santos Batista, 239

F.3d 16, 21 (1st Cir. 2001) (citing U.S.S.G. § 1B1.3, cmt. n.9).

Despite our precedent, I find this general practice troubling as

it routinely results in significant sentence increases based on

uncharged, untried, and unpled to behavior. I fear that our

continued acceptance of this practice improperly prejudices

criminal defendants and downgrades the quality of our judicial

system.

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