United States v. Francis

Not for Publication in West's Federal Reporter

United States Court of Appeals
For the First Circuit

No. 16-1471

UNITED STATES OF AMERICA,

Appellee,

v.

KENDALL FRANCIS,

Defendant, Appellant.

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

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

Before

Howard, Chief Judge,
Stahl and Lynch, Circuit Judges.

Scott Katz and Scott Katz Law on brief for appellant.
Thomas E. Delahanty II, United States Attorney, and Renée M.
Bunker, Assistant United States Attorney, on brief for appellee.

June 7, 2017
 STAHL, Circuit Judge. Defendant-appellant Kendall

Francis pled guilty to one count of conspiracy to distribute heroin

and cocaine base in violation of 21 U.S.C. §§ 846, 841(a)(1), and

841(b)(1)(B), and was later sentenced to 108 months' imprisonment.

On appeal, Francis asserts that his sentence was procedurally

unreasonable because the district court relied on clearly

erroneous facts when calculating his United States Sentencing

Guidelines ("U.S.S.G." or "Guidelines") offense level and

sentencing range. Finding his arguments unpersuasive, we affirm.

I.

Because Francis appeals following a guilty plea, we draw

the facts from the plea agreement, the presentence report ("PSR"),

and the sentencing transcript. See United States v. King, 741

F.3d 305, 306 (1st Cir. 2014). Beginning in 2014, a multi-agency

investigation uncovered evidence that several individuals were

transporting narcotics from New York to Lewiston, Maine for resale.

As the investigation progressed, law enforcement concentrated on

Francis, nicknamed "Dew," and some of his possible associates,

including (among others) Christian Dent, Rebecca Thompson, Naquan

Eley, Randy Gosselin, and Corinthian Wright.1 These efforts led

investigators to Thompson and Dent's Lewiston apartment, located

1 We have affirmed Wright's sentence in a companion opinion
issued on the same date as this opinion. United States v. Wright,
No. 16-1508, ___ F. App'x ___ (1st Cir. June 7, 2017).

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at 53 Shawmut Street. Thompson informed law enforcement of this

apartment after she claimed, in an interview conducted while police

detained her on another matter, that Wright had "invested" in her

and her boyfriend Dent, had rented the apartment for them, and had

thereafter, along with her and Dent, sold cocaine and heroin from

the apartment. Thompson later testified that Francis and Eley

remained in, and sold drugs from, the 53 Shawmut Street apartment

even after she and Dent moved out.

Further investigatory efforts revealed that Wright had

also rented another nearby Lewiston apartment in November 2014, a

third-floor residence located at 174 Blake Street.2 The landlord

of that residence, meanwhile, identified Francis as having paid

him the December rent for that apartment. Investigators also

learned that two other nearby apartments had recently been vacated:

a fourth-floor apartment located at 174 Blake Street and a fourth-

floor apartment located at 172 Blake Street. These two apartments,

although located in separate buildings, were connected by an

exterior walkway.3

2 Statements from the property manager established that Wright
had changed the locks shortly after he began renting the apartment.
3Presumably based in part on Thompson's claims, investigators
searched the 53 Shawmut Street apartment on December 10, 2014.
They found no drugs or firearms in the apartment at that time.
However, the search did yield a key, which investigators later
learned opened both the third- and fourth-floor apartments at
174 Blake Street.

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 With this new information, law enforcement refocused

their efforts on the three Blake Street apartments. On

December 17, 2014, agents seized heroin from a female as she left

the third-floor apartment at 174 Blake Street. The next day, a

property manager told police that he had "found several firearms

and a large amount of narcotics" in the supposedly vacant fourth-

floor apartment at 172 Blake Street. Responding officers later

seized 272.4 net grams of cocaine base, four handguns, and various

personal effects from that apartment. Subsequent testing revealed

that Wright's fingerprints were on two plastic bags that contained

some of these drugs. The four firearms seized from this apartment

were found "in close proximity" to these bags. Officers found one

of the firearms, meanwhile, within two plastic bags, one of which

had Eley's fingerprint on it. The parties further stipulated that

the property manager later found a Maryland identification card in

the apartment. The identification card bore Francis's name and

listed his height as 5' 11".4

Following these discoveries, the landlord requested that

law enforcement also search the fourth-floor apartment at

174 Blake Street.5 There, officers found two backpacks. One

4Gosselin later told investigators that he had repeatedly
obtained drugs from one of the Blake Street apartments, and that
he had seen both Eley and Francis while engaging in these
transactions.
5
We note that although investigators, during the course of
these searches, recovered DNA and fingerprint samples from the

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backpack contained personal effects and 100.7 net grams of heroin,

while the other contained personal effects and $8,077.51 in cash.

Agents also recovered a cellular phone. Pursuant to a search

warrant, agents then seized a number of text messages from the

phone, including:

 An outgoing message, dated October 10, 2014,
stating, "My name is dew like mountain dew."

 An outgoing message, dated November 11, 2014,
stating, "i live in bmore but i work out of
state."

 An incoming message, dated September 1, 2014,
stating, "how tall are u," with a responsive
outgoing message stating, "5 11"."

Furthermore, investigators recovered a pair of

toothbrushes during these searches, one from the fourth-floor

172 Blake Street apartment and one from the fourth-floor 174 Blake

Street apartment. The DNA recovered from both toothbrushes

ultimately proved to be a match to Eley's DNA. The record

indicates, however, that these DNA samples were the only ones

recovered by investigators during the course of their searches.

On December 30, 2014, investigators learned that a gun

used in a violent crime was reportedly located at

53 Shawmut Street. The landlord of that apartment let agents into

the by-then vacant apartment, where a search revealed a loaded

fourth-floor apartments at 172 and 174 Blake Street, none matched
those of Francis.

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handgun hidden beneath the apartment's floorboards. As the

government concedes, however, the PSR noted no known connection

between this gun and Francis or Wright.6

The government then brought an indictment against

Francis, charging him with (1) conspiracy to distribute heroin and

more than 28 grams of cocaine base, 21 U.S.C. §§ 846, 841(a)(1),

841(b)(1)(B); (2) possession with intent to distribute more than

28 grams of cocaine base, 21 U.S.C. §§ 841(a)(1), (b)(1)(b); and

(3) possession with intent to distribute heroin, 21 U.S.C.

§§ 841(a)(1), (b)(1)(C). Francis pled guilty to the conspiracy

charge,7 and the PSR attributed to Francis the drugs and cash

seized from the fourth-floor apartments at 172 and 174 Blake

Street. In total, these amounts summed to 272.4 grams of cocaine

base, 100.7 grams of heroin, and $8,077.51. When combined with

the drugs and cash seized from the 99 Horton Street apartment, the

PSR attributed 392.1 grams of cocaine base, 143.1 grams of heroin,

6Because Francis's challenges only pertain to the drugs and
firearms recovered from the 53 Shawmut Street apartment and the
fourth-floor apartments at 172 and 174 Blake Street, we only
briefly describe the February 12, 2015 search of an apartment at
99 Horton Street in Lewiston, Maine. There, police seized -- and
the district court later attributed to Francis -- 119.7 net grams
of cocaine base, 42.4 net grams of heroin, and $2,351.00 from a
vest found on the back of the chair in which Francis was sitting
at the time of the search. Again, Francis does not dispute these
amounts or the district court's attribution of these amounts to
him at sentencing.
7The district court later dismissed Counts Two and Three of
the indictment on the government's motion.

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and $10,428.51 to Francis, which ultimately yielded a Guidelines

base offense level of thirty. The PSR also recommended a two-level

firearm enhancement based on the guns found near the drugs and

cash recovered from the fourth-floor apartment at 172 Blake Street,

as well as a three-level acceptance-of-responsibility reduction.

These calculations resulted in a total offense level of twenty-

nine, and a corresponding Guidelines sentencing range of 108-135

months' imprisonment.

Francis objected to the PSR's inclusion of the drugs and

cash from the Blake Street apartments. He also disputed the

application of the firearm enhancement, arguing that it should not

apply "based on the 'mere fact that [his] identification card was

found in an apartment where drugs and firearms were located.'"

Despite these overtures, the PSR remained unaltered. At

sentencing, the district court likewise rejected Francis's

challenges, adopted the PSR's recommendations, and sentenced

Francis to 108 months' imprisonment. This appeal followed.

II.

Francis levies two challenges directed at the procedural

reasonableness of his sentence. He first claims that the district

court incorrectly attributed the drug quantities recovered from

the fourth-floor apartments at 172 and 174 Blake Street to him

when, in fact, the government presented "almost no evidence linking

[him] with those units." For similar reasons, Francis also argues

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that the district court mistakenly added a two-level sentencing

enhancement for firearm possession based on the four firearms

recovered from the fourth-floor apartment at 172 Blake Street and

the one firearm recovered from the apartment at 53 Shawmut Street.

When assessing the procedural reasonableness of a

sentence, we apply a "multifaceted" abuse-of-discretion standard

that "review[s] factual findings for clear error, arguments that

the sentencing court erred in interpreting or applying the

guidelines de novo, and judgment calls for abuse of discretion

simpliciter." United States v. Serunjogi, 767 F.3d 132, 142

(1st Cir. 2014) (quoting United States v. Leahy, 668 F.3d 18, 21

(1st Cir. 2012)). Francis, however, acknowledges that his

challenges are limited to aspects of the district court's factual

findings, meaning our review is only for clear error. See, e.g.,

United States v. Miranda-Martinez, 790 F.3d 270, 276 (1st Cir.)

(reviewing a challenge to the factual findings that supported the

defendant's connection to a seized firearm in the context of a

drug trafficking conspiracy for clear error), cert. denied, 136 S.

Ct. 430 (2015); United States v. Trinidad-Acosta, 773 F.3d 298,

317 (1st Cir. 2014) (reviewing "individualized determinations of

drug quantities for clear error"). Under this lens, we find that

the record contains more than enough evidence to sustain both the

district court's drug quantity attribution and its firearms

enhancement application.

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 A. The Drug Quantity

To start, the district court supportably concluded that

there was sufficient evidence connecting Francis to the drugs and

proceeds recovered from the Blake Street apartments. Under clear

error review, a district court's determination regarding the drug

quantity attributable to a defendant "will be upheld 'so long as

the approximation represents a reasoned estimate of actual

quantity.'" United States v. Sepúlveda-Hernández, 752 F.3d 22, 35

(1st Cir. 2014) (quoting United States v. Cintrón-Echautegui,

604 F.3d 1, 6-7 (1st Cir. 2010)). These determinations "need only

be supported by a preponderance of the evidence." United States

v. González-Vélez, 587 F.3d 494, 502 (1st Cir. 2009).

Of course, "in a conspiracy case, the sentencing court

cannot automatically assign the conspiracy-wide amount to a

defendant. Rather, the sentencing court must make an

individualized finding as to drug amounts attributable to, or

foreseeable by, that defendant." Id. (internal citations and

quotation marks omitted). In this context, then, foreseeability

includes "not only . . . the drugs [Francis] actually handled but

also . . . the full amount of drugs that he could reasonably have

anticipated would be within the ambit of the conspiracy."

See United States v. Santos, 357 F.3d 136, 140 (1st Cir. 2004).

Here, the district court did not clearly err in

concluding that a preponderance of the evidence established that

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members of the conspiracy used the Blake Street apartments to

further their drug distribution efforts and that Francis

reasonably could have foreseen that the drugs and proceeds

recovered from these apartments were within the scope of and in

furtherance of that conspiracy. First, Thompson's statements and

testimony regarding the conspiracy's operations out of the

53 Shawmut Street apartment, and the apparent abandonment of its

operations at that apartment (with the exception of the gun

recovered during the December 30th search), established Francis's

connection to the conspiracy's drug distribution efforts in

Lewiston, Maine.8 See United States v. Díaz-Arias, 717 F.3d 1,

26-27 (1st Cir. 2013) (noting that courts may consider third-party

proffer statements for sentencing purposes). Second, the record

contains ample evidence connecting the conspiracy, generally, and

Francis, specifically, to the Blake Street apartments. The

landlord identified Wright and Francis as having paid, on separate

occasions, the rent for the third-floor apartment at 174 Blake

Street, and Gosselin's testimony indicated that Eley and Francis

distributed drugs out of that apartment. The key found in the

53 Shawmut Street apartment, meanwhile, opened both the third- and

fourth-floor apartments at 174 Blake Street, the latter of which

8 The record also contains evidence that "[m]ultiple
cooperation sources . . . identified . . . Wright and Francis as
being among the people selling drugs from the . . . 53 Shawmut
Street [apartment]."

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was directly connected via an external walkway to the fourth-floor

apartment at 172 Blake Street. The property manager similarly

recovered an identification card bearing Francis's descriptive

information from the fourth-floor apartment at 172 Blake Street,

and police found a cellular phone in the fourth-floor apartment at

174 Blake Street containing text messages that suggested Francis

owned the device. From this evidence, the district court was

entitled to infer from "the whole of the record," United States v.

Doe, 741 F.3d 217, 235 (1st Cir. 2013) (quoting United States v.

Bernier, 660 F.3d 543, 545 (1st Cir. 2011)), that Francis "was

aware of the capacity at which the conspiracy was operating and,

thus, that the drug amount handled by the conspiracy was reasonably

foreseeable to him," Trinidad-Acosta, 773 F.3d at 317.

Francis attacks each of these factual findings, claiming

that none definitively establishes his connection, as opposed to

his co-conspirators' connection, to the fourth-floor apartments at

172 and 174 Blake Street. To start, Francis emphasizes that the

DNA and fingerprint evidence recovered from the Blake Street

apartments only links Wright and Eley to those locations. Francis

also asserts that because a property manager purportedly found the

identification card after law enforcement had finished their

search of the 172 Blake Street apartment, there is no "meaningful"

link between him, the identification card, and that apartment. In

a similar vein, Francis further argues that the text messages

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recovered from the cellular phone all relate to non-drug-related

matters and were dated "more than a month before the cell phone

found its way into the 174 Blake Street apartment." Finally,

Francis stresses that the key found at the 53 Shawmut Street

apartment "adds little given that Wright . . . and others were

also linked to [that] apartment."

We disagree. Francis's arguments essentially "boil down

to griping about the quality of the evidence at the sentencing

hearing," Doe, 741 F.3d at 235, and suggesting that the district

court's drug quantity attribution is not supported by any direct

evidence. Regarding the former, it is well-established that

"[w]hen faced with conflicting facts relating to drug quantity, a

district court is at liberty to make judgments about credibility

and reliability." United States v. Demers, 842 F.3d 8, 13

(1st Cir. 2016). As to the latter, it is likewise clear that a

fact-finder is entitled to rely on circumstantial evidence in

drawing conclusions regarding drug quantity. See United States v.

Hall, 434 F.3d 42, 61 (1st Cir. 2006).

To that effect, we believe that the circumstantial and

other record evidence in this case "safely insulates the challenged

finding from clear-error attack." See United States v. Sklar,

920 F.2d 107, 114 (1st Cir. 1990) (affirming the drug quantity

attributed to a defendant where, as in this case, the defendant

did not "suggest[] any serious methodologic flaw in the district

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court's calculation"). The text messages, identification card,

and key form compelling pieces of evidence from which the district

court could "plausibl[y] extrapolat[e]" that Francis was connected

to the Blake Street apartments and the drugs and proceeds seized

therefrom. See Cintrón-Echautegui, 604 F.3d at 7; see also United

States v. Dunston, 851 F.3d 91, 101-02 (1st Cir. 2017) ("[W]here

there is more than one plausible view of the circumstances, the

sentencing court's choice among supportable alternatives cannot be

clearly erroneous." (alteration in original) (internal quotation

marks omitted) (quoting United States v. Ruiz, 905 F.2d 499, 508

(1st Cir. 1990))). "Far from leaving us with the unyielding

feeling that a mistake has been made," the district court's

well-reasoned analysis of the PSR and other record evidence

"strikes us as eminently reasonable." Doe, 741 F.3d at 238. We

therefore affirm the district court's attribution of the drugs and

proceeds recovered from the Blake Street apartments to Francis.

B. The Firearm Enhancement

Francis reiterates many of the arguments discussed above

in an effort to impugn the district court's application of the

Guidelines's sentencing enhancement for firearm possession,

claiming that "there was essentially no evidence linking" him to

the fourth-floor apartment at 172 Blake Street. Again, we

disagree.

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 "The Sentencing Guidelines apply a two-level enhancement

to the base offense if the defendant possessed a firearm in

connection with the convicted offense." Trinidad-Acosta, 773 F.3d

at 320 (citing U.S.S.G. § 2D1.1(b)(1)). Because this case involves

a conspiracy, Francis need not "have possessed the weapon h[im]self

or even to have known about it" in order for the enhancement to

apply. See United States v. Greig, 717 F.3d 212, 219 (1st Cir.

2013). Instead, the government need only prove, by a preponderance

of the evidence, that it was "reasonably foreseeable that a

co-conspirator would possess a weapon in furtherance of the

criminal activity." Id. If the government establishes that the

defendant or a co-conspirator "possessed a weapon during the

offense, the defendant may avoid application of the enhancement if

he can show that it is 'clearly improbable that the weapon was

connected with the offense.'" Miranda-Martinez, 790 F.3d at 276

(quoting U.S.S.G. § 2D1.1 cmt. 11(A)).9

As noted above, the district court's finding that

members of the conspiracy, including Francis, used the vacant Blake

Street apartments, connected to each other via an external walkway,

to store drugs and guns during the relevant time period was not

9 The government argues that Francis failed to address the
"clearly improbable" element in his brief and, consequently, has
waived any challenge to that aspect of the district court's
sentencing decision. Given that the issue is easily resolvable on
the merits, we decline to decide the waiver issue.

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clearly erroneous. Francis could also reasonably foresee that one

of his co-conspirators would procure and store firearms in

furtherance of the criminal conspiracy, especially where, as here,

investigators found the firearms in close proximity to the

recovered drugs. See, e.g., id. (stating that we have "often

observed that 'firearms are common tools' in drug trafficking

conspiracies involving large amounts of drugs" (quoting United

States v. Bianco, 922 F.2d 910, 912 (1st Cir. 1991))); United

States v. Thongsophaporn, 503 F.3d 51, 59 (1st Cir. 2007) (noting

that the presence of a gun at a drug distribution location "may

allow" courts to "infer[] that the weapon was present for the

protection of the drug operation" (quoting United States v.

Corcimiglia, 967 F.2d 724, 727 (1st Cir. 1992))). Therefore, it

was not clearly improbable that the firearms recovered from the

fourth-floor apartment at 172 Blake Street were connected with the

drug conspiracy and, consequently, Francis.10

III.

For these reasons, Francis's sentence is AFFIRMED.

10Because we rest our conclusion on the evidence connecting
Francis to the firearms recovered from the Blake Street apartments,
we need not address Francis's connection to the firearm recovered
from the 53 Shawmut Street apartment.

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