United States v. Magee

United States Court of Appeals
For the First Circuit

No. 15-1316

UNITED STATES OF AMERICA,

Appellee,

v.

RICHARD MAGEE,

Defendant, Appellant.

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

[Hon. George Z. Singal, U.S. District Judge]

Before

Torruella, Lynch, and Barron,
Circuit Judges.

Robert C. Andrews, with whom Robert C. Andrews Esquire P.C.
was 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.

August 17, 2016
 BARRON, Circuit Judge. Richard Magee pleaded guilty to

multiple drug charges and a felon in possession of a firearm

charge. He challenges both his conviction and his sentence.

Finding no errors, we affirm.

I.

On December 12, 2013, the government issued a twenty-

count indictment against Magee, Joshua Magee, and Craig Mercer.

The charges against Magee included one count of felon in possession

of a firearm, 18 U.S.C. §§ 922(g)(1), 924(a)(2), thirteen counts

of distributing cocaine (on dates that ranged from September 2011

to October 2013), 21 U.S.C. § 841(a)(1),1 one count of possession

with intent to distribute cocaine, id., and one count of conspiracy

to commit witness tampering, 18 U.S.C. § 1512(b)(1).

With respect to the distribution counts, the government

alleged that Magee had dealt cocaine to a confidential informant

in 2011, to David Jones in 2012 and 2013, and to Mercer in 2013.

The allegations as to the possession count stemmed from a search

of Magee's residence, which was conducted pursuant to a search

warrant, on October 4, 2013. During that search, police recovered

various items, including, among other things, firearms and

cocaine.

1 Seven of these counts involved the use of a communication
facility, a telephone, in furtherance of the offense. See 21
U.S.C. § 843(b).

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 On February 18, 2014, Magee moved for a so-called Franks

hearing in order to challenge the validity of the search warrant

that authorized the search of his home on October 4, 2013. See

Franks v. Delaware, 438 U.S. 154, 155-56 (1978) ("[W]here the

defendant makes a substantial preliminary showing that a false

statement knowingly and intentionally, or with reckless disregard

for the truth, was included by the affiant in the warrant

affidavit, and if the allegedly false statement is necessary to

the finding of probable cause, the Fourth Amendment requires that

a hearing be held at the defendant's request."). On July 11, 2014,

the District Court denied Magee's request for a Franks hearing.

On October 29, 2014, Magee pleaded guilty to one count

of felon in possession, three counts of distributing cocaine, and

one count of possession with intent to distribute cocaine. The

probation office put together a pre-sentence report ("PSR") that

included a calculation of the total drug quantity for which Magee

was responsible under the United States Sentencing Guidelines (the

"Guidelines"). The PSR calculated a total drug quantity of 1,220.1

grams of cocaine, which led to Magee's being assigned a base

offense level ("BOL") of 24. See U.S.S.G. §2D1.1(c)(8) (providing

that the defendant shall have a BOL of 24 if the offenses involved

at least 500 grams but less than two kilograms of cocaine).

The PSR assigned four criminal history points to Magee

and thus calculated a criminal history category of III. Three of

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the four criminal history points were assigned on the basis of a

1994 money laundering conviction, for which Magee was sentenced to

a term of imprisonment of 30 months and from which imprisonment

Magee was released on August 30, 1996.

The District Court adopted the PSR's calculation of the

Guidelines range -- which was 70-87 months, based on a BOL of 242

and a criminal history category of III -- and sentenced Magee to

a term of imprisonment of 70 months. The District Court sentenced

Magee to a term of supervised release of three years to run

concurrently on all counts.

In doing so, the District Court found that the PSR's

drug quantity calculation was "entirely correct" and "probably a

conservative estimate." The District Court also concluded that

Magee's criminal history category was correctly calculated.

This appeal followed.

II.

We start with Magee's challenge to his convictions for

felon in possession of a firearm and possession with intent to

distribute to cocaine. These challenges are based on the District

Court's denial of Magee's request for a Franks hearing.

2 The PSR calculated a total offense level of 25, after
applying a two-point dangerous weapon enhancement, a two-point
obstruction-of-justice enhancement, and a three-point acceptance-
of-responsibility reduction to Magee.

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 To be entitled to a Franks hearing, the defendant must

make "two substantial preliminary showings." United States v.

McLellan, 792 F.3d 200, 208 (1st Cir. 2015) (quoting United States

v. Rigaud, 684 F.3d 169, 173 (1st Cir. 2012)). First, the

defendant must show that a false statement or omission in the

affidavit that supported the warrant in question "was made

knowingly and intentionally or with reckless disregard for the

truth." Id. (quoting Rigaud, 684 F.3d at 173). Second, the

defendant must show that the "falsehood or omission [must have

been necessary] to the finding of probable cause" -- that is, the

falsehood or omission must be material. Id. (alteration in

original) (quoting Rigaud, 684 F.3d at 173). "In the case of an

omission, this means establishing that the inclusion of the omitted

information 'would have led to a negative finding by the magistrate

on probable cause.'" Id. (quoting Rigaud, 684 F.3d at 173 n.5).

A failure to make either of these two showings is fatal to the

defendant's challenge. Id.3

3 Magee contends that the District Court relied on materials
provided by the government in deciding Magee's Franks motion. Some
courts have held that, in evaluating a Franks motion, courts must
limit their review to the materials that the defendant submits.
See, e.g., United States v. McMurtrey, 704 F.3d 502, 510 (7th Cir.
2013). In United States v. Graf, 784 F.3d 1 (1st Cir. 2015), we
assumed without deciding that courts were so limited and concluded,
on the basis of the evidence submitted by the defendant, that the
defendant failed to make a substantial preliminary showing of
falsehood. Id. at 7. We likewise assume without deciding whether
courts are limited to evaluating the materials submitted by the

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 We begin by reciting the pertinent aspects of the

affidavit that supported the search warrant, which was put together

by Drug Enforcement Administration ("DEA") Agent Bourque. The

affidavit states that in 2011, a confidential informant ("CI")

engaged in a controlled buy of cocaine from Magee and that the CI

told agents that Magee was involved in distributing kilogram

quantity amounts of cocaine. The affidavit then states that agents

intercepted phone conversations between Magee and Jones, which led

Agent Bourque to believe that Magee was distributing personal-use

amounts of cocaine to Jones. In particular, the affidavit

describes a conversation in which Jones requested the "killer

shit" -- which Agent Bourque interpreted to be a coded reference

to cocaine -- that Magee gave him "the other day in the bathroom,"

to which Magee responded that he "ke[pt] [that stuff] at home" and

that he would "pull some out for Jones tomorrow" (i.e., September

20, 2013).

The affidavit also describes a series of intercepted

phone conversations that took place on September 20, 2013. In

those conversations, Magee and Jones discussed meeting up at

Ruski's, a restaurant in Portland, Maine. According to the

affidavit, Agent Bourque interpreted these conversations as

defendant in ruling on a Franks motion. As we explain, if we
consider the affidavit alone, Magee has failed to demonstrate that
the omitted information was material. McLellan, 792 F.3d at 208.

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attempts to establish a time and place for a cocaine transaction.

In one of these conversations, the affidavit states, Magee asked

Jones, who was at Ruski's at the time, to tell "Craig," who was

also at Ruski's at the time, to wait for him there.

The affidavit next states that agents observed Jones

arrive at Magee's house, go inside for a short time, and then

depart. According to the affidavit, agents then observed Magee

leave his residence in a car. Paragraph 14 of the affidavit

provides in relevant part:

Agents followed Magee to Ruski's where agents observed
Magee exit his vehicle carrying something under his arm.
Magee approach [sic] a gold Saturn later found to belong
to Craig Mercer. Magee was observed opening the driver's
door and bending over into the interior. Agents observed
Magee move around the interior, stand up and approach
Mercer and speak to him on the street. After meeting
with Magee, Mercer departed. A short time later, police
stopped Mercer's vehicle. A subsequent search of the
vehicle led to the discovery of approximately two ounces
of [cocaine]."

Finally, the affidavit describes a set of intercepted

phone conversations between Magee and Jones that took place after

the events on September 20, 2013. During these calls, Jones told

Magee that he had the $400 that he owed him and that he wanted

more of the "crazy shit." Magee at one point told Jones that his

friend, "Chemical Craig," got arrested with "two O's on him," and

that he planned to bail the friend out, though that would mean

"another 2G's, plus bail." Agent Bourque interpreted "another

2G's" to be a reference to the loss of revenue that Magee sustained

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from having supplied two ounces of cocaine -- "two O's" -- to

Mercer, or "Chemical Craig."

Magee contends that Paragraph 14 of the affidavit

contains materially false omissions.4 Specifically, Magee contends

that the paragraph omits that agents observed Magee give the

"something" that he was "carrying" "under his arm" to a bartender

in Ruski's and not to Mercer. And Magee contends that the

paragraph omits that agents did not actually observe Magee place

anything into Mercer's car.

The District Court concluded that the first omission

"[did] leave the troubling false impression that [Magee] left the

package [i.e., the 'something'] in the Saturn," but that the second

omission was not misleading. In any event, the District Court

concluded, the omissions were not material because "[e]ven had

[the omitted information] been included, the court could have found

probable cause to believe that [Magee] supplied cocaine to Mercer."

We agree.

The District Court reached its conclusion about the

materiality of the omitted information by pointing to Agent

4 Magee contends that the District Court erroneously treated
his claim regarding Paragraph 14 as a false statement claim rather
than a false omission claim. We see no basis for this contention,
as the District Court clearly understood Magee's claim to be one
of omission. See United States v. Richard Magee, No. 2:13-cr-176-
GZS, ECF No. 205: 7 (D. Me. 2014) ("The omission of the fact that
[Magee] left the package he was carrying with the bartender . . . ."
(emphasis added)).

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Bourque's description of the intercepted calls that took place

between Magee and Jones prior to and including September 20 (and

particularly the reference to "Craig"), the agents' observations

of Magee and Mercer at Ruski's (including the omitted fact), and

the discovery of cocaine in the Saturn shortly after the Ruski's

encounter. But there is another fact in the affidavit that

directly bears on the question of materiality -- specifically, the

affidavit's description of the call in which Magee told Jones that

his friend "Chemical Craig" got "busted" with "two O's" on him.

That fact, when combined with the other facts that the District

Court identified, and when taking into account the omitted

information, established probable cause to believe that Magee

supplied cocaine to Mercer on September 20. United States v.

Gomez, 716 F.3d 1, 8 (1st Cir. 2013) ("The agents reasonably

believed that Pena would purchase a kilogram of cocaine at this

meeting based on the code used by Pena [which involved reference

to cocaine as 'girl'] and the conversations with Individual No. 1,

with whom he arranged the meeting over the phone to get the

cocaine, and Individual No. 2, to whom Pena intended to sell the

drugs."). As the omitted information did not even vitiate probable

cause to believe that Magee supplied cocaine to Mercer on September

20, we cannot say that the omitted information vitiated probable

cause to believe that cocaine would be found in Magee's home,

especially given the other evidence that Magee dealt cocaine and

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that Magee stored cocaine at his home. Thus, the District Court

did not clearly err in concluding that the omitted information was

not material. See United States v. Parcels of Land, 903 F.2d 36,

46 (1st Cir. 1990).5

III.

We now turn to Magee's challenges to his sentence. None

are persuasive.

A.

Magee initially appears to challenge, as he did below,

the District Court's determination regarding the drug quantity

attributable to Magee. The District Court found that Magee was

responsible for distributing or possessing with intent to

5 Magee contends that the District Court ought to have
determined whether the affidavit was sufficient absent the "stale"
information from 2011 concerning Magee's dealings with the CI. We
have held that for crimes of an ongoing nature, it is appropriate
for an affidavit to contain some information that is a few years
old, especially when that information simply serves to corroborate
more recent information. See United States v. Morales-Aldahondo,
524 F.3d 115, 119 (1st Cir. 2008) ("When evaluating a claim of
staleness, we do not measure the timeliness of information simply
by counting the number of days that have elapsed. Instead, we
must assess the nature of the information, the nature and
characteristics of the suspected criminal activity, and the likely
endurance of the information." (citation omitted)); United States
v. Reiner, 500 F.3d 10, 15 (1st Cir. 2007) (concluding that it was
appropriate for court to consider evidence that was two to three
years old given ongoing nature of the crime and recent evidence of
criminal activity); United States v. Feliz, 182 F.3d 82, 87 (1st
Cir. 1999) (concluding that information regarding three-month-old
drug transactions was not stale given ongoing nature of defendant's
drug trafficking activity (citing United States v. Greany, 929
F.2d 523, 525 (9th Cir. 1991) (concluding that two year-old
information relating to marijuana operation was not stale))).

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distribute 1,220.1 grams of cocaine, consistent with the PSR's

drug quantity calculation. On that basis, the District Court

calculated a BOL of 24, which applies if the defendant was

responsible for between 500 grams and two kilograms of cocaine.

See U.S.S.G. §2D1.1(c)(8). In doing so, the District Court

attributed over 1,000 grams of cocaine to Magee as relevant

uncharged conduct. See United States v. Cortés-Cabán, 691 F.3d 1,

26 (1st Cir. 2012) ("[T]he quantity of drugs attributable to a

defendant for sentencing purposes is based on both the charged

conduct and the relevant uncharged conduct."); United States v.

St. Hill, 768 F.3d 33, 36 (1st Cir. 2014) (providing that "relevant

[uncharged] conduct" in the context of drug offenses includes

offenses that are "part of the same course of conduct or common

scheme or plan as the offenses of conviction" (citing U.S.S.G.

§1B1.3(a)(2))). Among the transactions that were characterized as

relevant uncharged conduct were transactions in which Magee

allegedly dealt large, distribution-level amounts of cocaine to a

person by the name of Michael Paul between 2010 and 2012.

Magee contends that it was error to attribute the Paul

drug quantities -- which amounted to 850.50 grams of cocaine -- to

him because the underlying Paul transactions precede the offenses

of conviction by about two years and involve large, distribution-

level amounts of cocaine rather than the small, personal-level

amounts of cocaine that characterize the offenses of conviction.

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See generally U.S.S.G. §1B1.3(a)(2). Magee also contends that

Paul's drug quantity testimony is too unreliable to credit as a

general matter, given Paul's admitted memory problems.

But the District Court found that the PSR's drug quantity

calculation was correct based on Paul's drug quantity testimony

"and the other evidence . . . [it] cited." That "other evidence"

included an intercepted call in which Magee discussed drug quantity

with Jones ("Call 3869"). The government argued below that Call

3869 itself was sufficient to establish that Magee was responsible

for 1,000 grams of cocaine and thus that a BOL of 24 was warranted.6

On appeal, the government again contends that Call 3869

independently establishes that Magee dealt in 1,000 gram

quantities of cocaine and thus that the District Court did not err

in calculating a BOL of 24 for Magee. The government further

contends that Magee, by virtue of his failure to address Call 3869,

6Call 3869, which took place on August 23, 2013, provides in
relevant part:
Magee: Sounds good brother but in the meantime if you
need something you know what, I go once a week only and
I'm [. . .] usually only good for a day.
Jones: Yeah I know. [. . .]
Magee: Come back with fucking a thousand and they are
gone in fucking two hours you know?
Jones: Yeah, I'm not looking for anything bigger than
that . . .
A DEA agent testified that the reference to "a thousand" was a
coded reference to 1,000 grams of cocaine.

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waived any challenge to the District Court's drug quantity and BOL

determinations.

In his briefing to this Court, Magee did not address

Call 3869. At oral argument, moreover, Magee conceded that the

District Court's drug quantity and BOL determinations were

adequately supported. Magee clarified that the purpose of his

objection to Paul's drug quantity testimony was to contest the

District Court's criminal history calculation, and not the

District Court's drug quantity and BOL calculations.7 Under these

7 Magee contends that the District Court erred in considering
Michael Paul's drug quantity testimony for an additional reason.
Specifically, Magee contends that Paul's testimony was tainted by
his interactions with a DEA agent by the name of Paul Wolf -- who
allegedly was under investigation by the DEA on account of his
relationship to Magee -- and that the prosecutor committed
misconduct in having Paul testify about drug quantity. But the
only case upon which Magee relies for the proposition that
prosecutorial misconduct occurred, United States v. Berzon, 941
F.2d 8 (1st Cir. 1991), did not involve a claim of prosecutorial
misconduct at all, see id. at 17-21. Rather, the issue in that
case was whether the trial judge, in sentencing the defendant,
relied upon certain evidence on which the defendant did not have
an opportunity to comment. See id. Here, Magee was aware of all
the information upon which the District Court relied at sentencing
and was aware of the potential issues regarding Wolf and Paul prior
to the prosecutor's introduction of Paul as a witness. We thus do
not perceive any basis for concluding that prosecutorial
misconduct, of the kind that Magee alleges, occurred. In any
event, as Magee concedes, the District Court's drug quantity and
BOL determinations were independently supported by Call 3869, and
so any error in the consideration of Paul's testimony was harmless.
See United States v. Hernández, 218 F.3d 58, 71 (1st Cir. 2000)
(finding that any error in the district court's attribution of
"all 3,017 kilograms" of cocaine to the defendant was harmless, as
the sentencing range was not affected by the purported error); see
also infra note 8.

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circumstances, we conclude that Magee has waived any challenge to

the District Court's drug quantity and BOL determinations. See

United States v. Taveras, 118 F. App'x 516, 517-18 (1st Cir. 2004)

(affirming district court's drug quantity calculation, which was

based on the testimony of a certain individual, because the

defendant conceded that the individual's "testimony, if taken at

face value, supports the disputed drug-quantity finding" and

because the district court did not err in crediting that

testimony).

B.

Magee also challenges the District Court's criminal

history calculation. That calculation yielded a criminal history

category of III for Magee and was based in large part on the

inclusion of Magee's 1994 money laundering conviction.

In calculating Magee's criminal history category, the

District Court found that the "instant" offense commenced in August

2011 because "relevant" uncharged conduct, see U.S.S.G. §1B1.3,

occurred in August 2011. See id. §4A1.2(e)(1) ("Any prior sentence

of imprisonment exceeding one year and one month that was imposed

within fifteen years of the defendant's commencement of the instant

offense is counted. Also count any prior sentence of imprisonment

exceeding one year and one month, whenever imposed, that resulted

in the defendant being incarcerated during any part of such

fifteen-year period."); id. §4A1.2 cmt. 8 (providing that "the

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term 'commencement of the instant offense' includes any relevant

conduct" (citing id. §1B1.3)). For this reason, the District Court

concluded that Magee's 1994 money laundering conviction could be

counted for purposes of calculating Magee's criminal history

category, as that conviction resulted in a 30-month sentence of

imprisonment from which Magee was released on August 30, 1996

(i.e., within the 15-year "applicable time period" for counting

such convictions). Id. §4A1.2(e)(1).

Magee contends, as he did below, that the District Court

erred in finding that the "instant" offense commenced in August

2011. Magee contends that the instant offense actually commenced

in 2013. Magee thus contends that the 1994 conviction fell outside

the applicable 15-year time period. On this view, Magee should

have been assigned a criminal history category of I rather than a

criminal history category of III.

But the problem for Magee is that in sentencing him, the

District Court emphasized the seriousness of Magee's prior

offenses, noted that Magee "dodged a bullet" in 2006 when a drug

trafficking charge against him was dismissed, and stated:

In this case my view is that, regardless of whether the
defendant is looking at a criminal history category of
II with a 63 to 78 range or a III with a 70 to 87 range,
the sentence should be the same. I'm going to order a
sentence of 70 months, which is the low end of the
guideline range at III and a 70 months, which would have
been a middle of the guideline range at a criminal
history category of II. I think that's the appropriate
sentence.

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The District Court further stated that it "certainly wouldn't go

down two [levels]" because a criminal history category of I was

not "appropriate," when trial counsel clarified that her argument

had been that Magee should have been assigned a criminal history

category of I. And when the government subsequently asked the

District Court to clarify that it would sentence Magee to 70 months

even under a criminal history category of I, the District Court

responded affirmatively.

Because the District Court made clear that it would have

sentenced Magee to 70 months regardless of whether Magee's criminal

history category was I, II, or III, any error in the calculation

of Magee's criminal history was harmless. See United States v.

Romero-Galindez, 782 F.3d 63, 70-71 (1st Cir. 2015) (concluding

that alleged error in calculation of criminal history was harmless

where the sentencing judge "made it apparent that [defendant's]

criminal history category did not affect the ultimate sentence

imposed," indicated that "he would not have gone for the even more

permissive sentence imposed by the supposedly correct [criminal

history category]" favored by defendant, and suggested that he

"might not have found [the defendant's criminal history category]

to accurately reflect [defendant's] criminal history"). And the

harmlessness of the error is so clear that we reject Magee's

challenge on that basis, even though the government did not press

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a harmless error argument on appeal. See United States v. Rose,

104 F.3d 1408, 1414-15 (1st Cir. 1997) (concluding that appellate

courts may "consider the issue of harmlessness sua sponte" and

suggesting that sua sponte disposition is especially appropriate

if, among other things, the harmlessness is certain and reversal

would "result in protracted, costly, and ultimately futile

proceedings in the district court" (quoting United States v.

Giovannetti, 928 F.2d 225, 227 (7th Cir. 1991) (per curiam))).8

IV.

For the reasons given, we affirm.

-Concurring Opinion Follows-

8
We also conclude that the sentence imposed in this case was
substantively reasonable, given the significant, ongoing nature of
Magee's drug and weapons activities. United States v. Tavares,
705 F.3d 4, 27 (1st Cir. 2013) ("[E]ven if we are satisfied that
an error did not affect the district court's determination of the
sentence, we still must review the sentence for substantive
reasonableness [before we conclude that remand is not
warranted].").

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 TORRUELLA, Circuit Judge. (Concurring). Although I

join the court's opinion finding that Magee waived any challenge

to the district court's drug quantity calculation, I write

separately to note my continuing disagreement with the

government's practice of charging relatively minor crimes, while

using section 1B1.3(a) of the Sentencing Guidelines (allowing for

consideration of "relevant [uncharged] conduct") to argue for

significantly enhanced terms of imprisonment. United States v.

St. Hill, 768 F.3d 33, 36 (1st Cir. 2014). As I argued in St.

Hill, it is constitutionally suspect to drastically increase a

defendant's sentence based on conduct that was neither proven

beyond a reasonable doubt nor to which the defendant plead guilty.

768 F.3d at 39-42 (Torruella, J., concurring).

This case provides the perfect example of how egregious

this enhancement may be. Magee pled guilty to four drug charges,

encompassing conduct that had a total cocaine amount of 40.8 grams

(three separate sales of 3.5 grams plus 29.3 grams seized in his

home). This, along with his criminal history, would have resulted

in a sentencing range of, at most, 18 to 24 months' imprisonment.

U.S.S.G. § D1.1(c)(14) (providing an offense level of 12 when the

cocaine amount is less than 50 grams).9 Instead, when relevant

9Combined with the two-point dangerous-weapon enhancement,
two-point obstruction-of-justice enhancement and three-point
acceptance-of-responsibility reduction this produces a total

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related conduct was taken into consideration, Magee was sentenced

based on a significantly larger amount of cocaine (1,220.1 grams,

supra, at 10-11). This resulted in a sentencing range of 70 to 87

months' imprisonment. In other words, Magee's sentence was

enhanced by a minimum of almost four years (nearly quadrupling his

total sentence) on the basis of conduct that was neither part of

his guilty plea nor proven beyond a reasonable doubt. If the

government wishes to hold Magee accountable for distributing

1,220.1 grams of cocaine then it should charge him with offenses

that contain a corresponding amount of cocaine.10 Nevertheless,

because Magee appeared to waive this issue I join the majority's

opinion.

offense level of 13. Supra note 2, at 4. If we assume, as the
district court appeared to do, a criminal history category of, at
most, III, this produces the sentencing range of 18 to 24 months'
imprisonment. See U.S.S.G. at Sentencing Table.
10 As the government stated in its brief: After taking the
quantities included in the charges into account "only 350
additional grams of cocaine were needed to put the quantity within
the range of 500 grams to 2 kilograms" for which the government
wanted to hold him accountable. Put differently, this means that
less than a third of the minimum amount required for a base offense
level of 24 was included in the indictment.

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