United States v. Pinkham

United States Court of Appeals
For the First Circuit

No. 17-1664

UNITED STATES OF AMERICA,

Appellee,

v.

DALE PINKHAM, SR.,

Defendant, Appellant.

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

[Hon. Jon Levy, U.S. District Judge]

Before

Lynch, Selya and Thompson,
Circuit Judges.

Lenore Glaser and Law Office of Lenore Glaser on brief for
appellant.
Halsey B. Frank, United States Attorney, and Benjamin M.
Block, Assistant United States Attorney, on brief for appellee.

July 18, 2018
 SELYA, Circuit Judge. Defendant-appellant Dale Pinkham,

Sr., challenges his 240-month incarcerative sentence. He strives

to convince us that the district court held him responsible for an

incorrect drug quantity and, in the bargain, improperly counted

two prior convictions when calculating his criminal history score.

We are not persuaded by either argument and, therefore, summarily

affirm his sentence.

I. BACKGROUND

Because this appeal follows the appellant's guilty plea,

we draw the facts from the change-of-plea colloquy, the uncontested

portions of the presentence investigation report (PSI Report), and

the record of the disposition hearing. See United States v.

Fields, 858 F.3d 24, 27 (1st Cir. 2017); United States v. Dietz,

950 F.2d 50, 51 (1st Cir. 1991).

The conviction and sentence sub judice stem from the

appellant's operation of what might be termed a family business:

a drug-trafficking conspiracy that involved his sons (Robert,

Raymond, and Dale, Jr.) and his romantic partner of 30 years

(Louise Cook). Beginning around 2012, the appellant ran this

conspiracy from his home in Gorham, Maine. During its embryonic

stages, the appellant typically obtained 10 to 20 grams of heroin

once every two months from a Boston-based supplier. Over time the

conspiracy matured, with the result that the appellant's purchases

increased in frequency, eventually becoming monthly occurrences.

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The amounts of heroin handled by the conspiracy escalated as well,

rising to roughly 200 to 400 grams per month.

Even apart from promoting drug use, the appellant's

criminal activities had a deleterious effect on the community in

which he lived. He encouraged his customers to commit burglaries

and bring him items that he prized. In this way, the appellant

amassed stockpiles of firearms, jewelry, tools, and electronic

gadgets.

These chickens ultimately came home to roost. On July

22, 2015, a federal grand jury sitting in the District of Maine

returned an indictment charging the appellant with a laundry list

of crimes. While the appellant was being held in pretrial

detention, he reached out to family members, soliciting them to

threaten potential witnesses.

In due season, the grand jury returned a superseding

indictment, which charged the appellant in 13 separate counts. Of

particular pertinence for present purposes, the superseding

indictment charged him with conspiracy to distribute heroin, see

21 U.S.C. §§ 841(a)(1), 846 (count one); conspiracy to possess

stolen firearms, see 18 U.S.C. §§ 371, 922(j) (count four); and

attempted witness tampering, see id. § 1512(a)(2) (count twelve).

The appellant initially maintained his innocence. On September 6,

2016, however, he reversed his course and entered a guilty plea,

pursuant to a plea agreement, to counts one, four, and twelve.

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The government agreed to dismiss the remaining 10 counts at

sentencing.

The PSI Report recommended that the appellant be held

responsible for 3.23 kilograms of heroin, which corresponded to a

base offense level of 32. See USSG §2D1.1(c)(4) (Drug Quantity

Table). Notwithstanding the appellant's protest that this figure

represented a "significant overestimate of the drug quantity

involved," the district court adopted the drug-quantity

calculation and — after making other adjustments not challenged

here — set the appellant's total offense level at 39. The court

also adopted the PSI Report's recommended criminal history score

of six and placed the appellant in criminal history category III.

Although these determinations yielded a guideline sentencing range

of 324 to 405 months, the court weighed the factors limned in

18 U.S.C. § 3553(a) and concluded that a below-the-range

incarcerative sentence of 240 months was sufficient to achieve the

purposes of sentencing. The court imposed such a downwardly

variant sentence, and this timely appeal followed.

II. ANALYSIS

As a general matter, we review challenges to a sentence

for abuse of discretion. See Gall v. United States, 552 U.S. 38,

51 (2007); United States v. Martin, 520 F.3d 87, 92 (1st Cir.

2008). This process "is characterized by a frank recognition of

the substantial discretion vested in a sentencing court." United

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States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013). If,

however, a particular claim of error is raised for the first time

on appeal, review is normally limited to the incidence of plain

error. See United States v. Duarte, 246 F.3d 56, 60 (1st Cir.

2001); see also Fed. R. Crim. P. 52(b). "The plain error hurdle

is high." United States v. Hunnewell, 891 F.2d 955, 956 (1st Cir.

1989). Where the plain error standard applies, an appellant must

demonstrate "(1) that an error occurred (2) which was clear or

obvious and which not only (3) affected the defendant's substantial

rights, but also (4) seriously impaired the fairness, integrity,

or public reputation of judicial proceedings." Duarte, 246 F.3d

at 60; see Rosales-Mireles v. United States, 138 S. Ct. 1897, 1904-

05 (2018). A party who claims plain error must carry the devoir

of persuasion as to all four of these elements. See United States

v. Bramley, 847 F.3d 1, 5 (1st Cir. 2017); United States v. Vega

Molina, 407 F.3d 511, 521 (1st Cir. 2005).

Against this backdrop, we turn to the appellant's twin

claims of sentencing error. We discuss them sequentially.

A. Drug Quantity.

To begin, the appellant challenges the drug quantity for

which he was held accountable. In confronting this challenge, we

are mindful that, in drug-trafficking cases, "a key datum in

constructing the defendant's sentence is the quantity of narcotics

attributable to him for sentencing purposes, a datum initially

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bounded by the sum of the charged conduct to which the defendant

pleads plus his relevant uncharged conduct." United States v.

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

v. Bradley, 917 F.2d 601, 604 (1st Cir. 1990)). The sentencing

court must derive the relevant drug quantity "from all acts 'that

were part of the same course of conduct or common scheme or plan

as the offense of conviction.'" Id. (quoting USSG §1B1.3(a)(2)).

The "essential inquiry" is not limited to what the defendant

actually knew but, rather, extends to "what acts were reasonably

foreseeable by him." Id.; see United States v. Colón-Solís, 354

F.3d 101, 103 (1st Cir. 2004). In a drug-conspiracy case, this

means that "each co-conspirator is responsible not only for the

drugs he actually handled but also for the full amount of drugs

that he could reasonably have anticipated would be within the ambit

of the conspiracy." United States v. Rivera-Rodríguez, 617 F.3d

581, 607 (1st Cir. 2010) (quoting United States v. Rodriguez, 525

F.3d 85, 107 (1st Cir. 2008)); see USSG §1B1.3(a)(1)(B).

At sentencing, the appellant argued that the court was

using an incorrect calculation of the amount of drugs handled by

the conspiracy. On appeal, the appellant makes the same bottom-

line argument, but he has shifted theories. Represented by new

counsel, he no longer posits that the district court committed an

arithmetical error. Instead, he argues that the court erred as a

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matter of law in including in its calculation drugs that he

personally consumed.

Hopscotching from one theory to another theory has

consequences. "A criminal defendant, dissatisfied with the

district court's rulings at sentencing yet persuaded that his

original arguments lacked merit, cannot switch horses mid-stream

in hopes of locating a swifter steed" and expect that his new

theory will be treated as a preserved claim of error. Dietz, 950

F.2d at 55. Under such circumstances, the new theory is treated

as an unpreserved claim of error, see id. at 54-55; Clauson v.

Smith, 823 F.2d 660, 666 (1st Cir. 1987); and although preserved

claims of legal error are reviewed de novo,1 see United States v.

McCormick, 773 F.3d 357, 359 (1st Cir. 2014), forfeited claims are

reviewed only for plain error, see Puckett v. United States, 556

U.S. 129, 134-35 (2009). Here, as in Dietz, 950 F.2d at 55, the

appellant makes a "neoteric argument[]" that "bear[s] no

substantial relation" to his original argument. Our review,

therefore, is limited to plain error.

1 At sentencing, de novo review of preserved claims of legal
error is not inconsistent with the general precept that claims of
sentencing error are reviewed for abuse of discretion. See Gall,
552 U.S. at 51; Martin, 520 F.3d at 92. After all, a material
error of law is always an abuse of discretion. See United States
v. Sepúlveda-Hernández, 752 F.3d 22, 33 (1st Cir. 2014); United
States v. Snyder, 136 F.3d 65, 67 (1st Cir. 1998).

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 Plain error is plainly absent. It is settled law in

this circuit that when a defendant participates in a drug-

trafficking conspiracy, his "purchases for personal use are

relevant in determining the quantity of drugs that [he] knew were

distributed by the conspiracy." United States v. Demers, 842 F.3d

8, 13 (1st Cir. 2016) (quoting United States v. Innamorati, 996

F.2d 456, 492 (1st Cir. 1993)). Because the appellant took part

in such a conspiracy — indeed, he was its ringleader — whatever

drugs he himself consumed were properly included in his drug-

quantity tabulation.

In the last analysis, the appellant's argument derives

from his failure to appreciate the important distinction between

conspiracy cases and certain other drug cases. Some of our sister

circuits have ruled that drugs obtained for personal consumption

should be excluded from the drug-quantity calculus when the

defendant is accused only of possession with intent to distribute.

See, e.g., United States v. Gill, 348 F.3d 147, 153 (6th Cir.

2003); United States v. Williams, 247 F.3d 353, 358 (2d Cir. 2001);

United States v. Wyss, 147 F.3d 631, 632 (7th Cir. 1998). Such

cases rely on the distinction between possession with intent to

distribute and conspiracy. When a defendant is charged with the

former crime, the government must establish "that a defendant

possessed the drugs for distribution rather than for personal use."

United States v. Polanco, 634 F.3d 39, 43 (1st Cir. 2011). In the

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absence of a conspiracy, then, "the act of setting aside narcotics

for personal consumption" may reasonably be regarded as "exclusive

of any plan to distribute them." Williams, 247 F.3d at 358

(emphasis in original). By contrast, courts recognize that, in

conspiracy cases, drug quantity should not be reduced to account

for a defendant's personal drug use. See id.; Wyss, 147 F.3d at

632.

In a variation on this theme, the appellant also argues

that the rule of lenity requires that we discount the drugs he

personally consumed. We think not. In its classic formulation,

the rule of lenity applies when "reasonable doubt persists about

a statute's intended scope even after resort to 'the language and

structure, legislative history, and motivating policies' of the

statute." Moskal v. United States, 498 U.S. 103, 108 (1990)

(emphasis in original) (quoting Bifulco v. United States, 447 U.S.

381, 387 (1980)); see United States v. Stepanian, 570 F.3d 51, 57

(1st Cir. 2009).

We have indicated, however, that the rule of lenity is

not limited to instances of statutory ambiguity. The rule may

also apply in the context of the sentencing guidelines. Thus,

"[w]e have looked with favor on the application of this rule to a

sentencing guideline when 'substantial ambiguity as to the

guideline's meaning persists even after a court looks to its text,

structure, context, and purposes.'" United States v. Suárez-

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González, 760 F.3d 96, 101 (1st Cir. 2014) (quoting United States

v. Damon 595 F.3d 395, 401 (1st Cir. 2010)); see United States v.

Bowen, 127 F.3d 9, 14 (1st Cir. 1997).

The case at hand does not come within these contours.

For the reasons already explained, the guidelines clearly support

inclusion of a defendant's purchase of drugs for personal

consumption in a conspiracy case. Consequently, the rule of lenity

does nothing to improve the appellant's position here.

That ends this aspect of the matter. We hold that the

appellant's newly emergent drug-quantity claim is futile.

B. Criminal History Score.

This brings us to the appellant's claim that the

sentencing court miscalculated his criminal history score, thus

boosting him into the wrong criminal history category (CHC). To

lend perspective, we start with some general comments about the

computation and effect of a defendant's criminal history score. A

defendant's guideline sentencing range is a product of two

integers: his total offense level and his CHC. See United States

v. Serrano-Mercado, 784 F.3d 838, 840 (1st Cir. 2015); United

States v. Emery, 991 F.2d 907, 909 (1st Cir. 1993). The CHC, in

turn, is derived from a defendant's criminal history score. See

United States v. Sanchez, 354 F.3d 70, 81 (1st Cir. 2004). For

instance, a defendant who has a criminal history score of four,

five, or six falls into CHC III, whereas a defendant who has a

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criminal history score of two or three falls into CHC II. See

USSG Ch. 5, Pt. A (Sentencing Table). The lower a defendant's

CHC, the lower his guideline sentencing range ordinarily will be.

See id.; see also Serrano-Mercado, 784 F.3d at 840.

Although prior convictions normally count toward a

defendant's criminal history score, the guidelines exempt some

misdemeanors and petty offenses from this computation. See USSG

§4A1.2(c); see also United States v. Maldonado, 614 F.3d 14, 16

(1st Cir. 2010). Attempting to invoke such an exemption, the

appellant cites USSG §4A1.2(c)(2), which excludes from a

defendant's criminal history score sentences for certain

enumerated offenses (and offenses similar to them). This litany

includes "minor traffic infractions (e.g., speeding)." USSG

§4A1.2(c)(2).

The appellant's claim that the sentencing court erred in

compiling his criminal history score has two sub-parts. Each sub-

part focuses on a different prior conviction: the first sub-part

relates to a 2003 conviction for driving without a valid driver's

license. See Fla. Stat. § 322.03(1). When constructing the

appellant's criminal history score, the district court treated

this conviction as similar to an offense enumerated in section

4A1.2(c)(1): "[d]riving without a license or with a revoked or

suspended license." Noting that the appellant had received a

60-day jail sentence for driving without a valid driver's license

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and concluding that the conditions for exemption under section

4A1.2(c)(1) were therefore not met,2 the court assigned two

criminal history points to this conviction.

The appellant assigns error, contending that the

district court should have excluded this conviction from his

criminal history score pursuant to section 4A1.2(c)(2) because it

was similar to a minor traffic infraction, such as speeding. Since

this contention is raised for the first time on appeal, our review

is for plain error. See Duarte, 246 F.3d at 60. We discern none.

In sorting out whether a subsection of section 4A1.2(c)

applies, an inquiring court must focus on factors such as "a

comparison of punishments imposed for the listed and unlisted

offenses," "the perceived seriousness of the offense as indicated

by the level of punishment," "the elements of the offense," "the

level of culpability involved," and "the degree to which the

commission of the offense indicates a likelihood of recurring

criminal conduct." USSG §4A1.2, cmt. n.12(A). The defendant bears

2 Under USSG §4A1.2(c)(1), a prior conviction is excluded from
a defendant's criminal history score if three conditions are met:
(1) the sentence imposed for the prior conviction was for one
year's probation or less and/or less than 30 days' imprisonment;
(2) the prior conviction was for an offense that is dissimilar to
the offense for which the defendant is currently being prosecuted;
and (3) the prior conviction was for an offense that is either
enumerated in section 4A1.2(c)(1) or is similar to such an offense.
See Maldonado, 614 F.3d at 16.

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the burden of establishing that an exemption pertains. See United

States v. Garcia-Sandobal, 703 F.3d 1278, 1284 (11th Cir. 2013).

Under Florida law, driving without a valid license is

generally considered comparable to driving while one's license is

suspended, revoked, canceled, or disqualified. See Roedel v.

State, 773 So. 2d 1280, 1281 (Fla. Dist. Ct. App. 2000) (noting

similarity). All of these offenses are misdemeanors of the second

degree, which are punishable by a jail sentence of up to sixty

days and/or a fine of up to $500. See Fla. Stat. §§ 322.03(1),

322.34(2), 322.39(2), 775.082(4)(b), 775.083(1)(e). Seen in this

light, the district court's selection of driving with a suspended,

revoked, canceled, or disqualified license as the most appropriate

analog to driving without a valid license appears eminently

reasonable. Conversely, the appellant's suggested comparator —

speeding — appears to be dissimilar in important respects; that

offense is treated as a "noncriminal traffic infraction," and is

punishable only by a fine of up to $500. Id. §§ 316.183(7),

775.082(5), 775.083(1)(e). Although the commentary to section

4A1.2(c) directs us to look beyond the statutory elements and to

consider the underlying facts of a defendant's prior conviction,

see USSG §4A1.2, cmt. n.12(A); see also Maldonado, 614 F.3d at 18-

19, the appellant has failed to point to anything in the state-

court record that would blunt the force of the district court's

comparison — and it is his burden to do so, see Garcia-Sandobal,

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703 F.3d at 1284; cf. United States v. Gray, 177 F.3d 86, 90 (1st

Cir. 1999) ("Because a defendant stands in the best position to

offer a first-hand account of the details of his own past legal

proceedings, his silence can be deafening."). The known facts

militate against the appellant's comparison; he was given a

statutory maximum sentence of sixty days, which undermines the

appellant's efforts to downplay the severity of his past offense.

In a last-ditch effort to tip the balance, the appellant

conclusorily suggests that the rule of lenity counsels in favor of

his interpretation. Given the plain language of the relevant

Florida statutes, though, the appellant has wholly failed to sow

any reasonable degree of doubt regarding their import. See Moskal,

498 U.S. at 108. It follows that the rule of lenity is of no

solace to him.

Nothing more need be said. The short of it is that no

error, plain or otherwise, mars the inclusion of two points for

the appellant's conviction for driving without a valid driver's

license in his criminal history score.

The second sub-part of the appellant's attack on his

criminal history score relates to the district court's inclusion

of one criminal history point for his 2008 Florida conviction for

failing to send his child to school. See Fla. Stat. § 1003.27(2).

He argues that this conviction comes within the sweep of section

4A1.2(c)(2), which instructs that "juvenile status offenses and

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truancy" are "never counted" toward a defendant's criminal history

score.

Here, however, the appellant's claim does not even get

out of the starting gate. In his brief, the appellant provides

only a cursory reference to guideline commentary,3 without making

even the slightest effort to explain its relevance. He cites no

other authority and musters nothing that even remotely resembles

a developed argument. Such bare terrain is familiar territory.

We have stated, time and time again, that "issues

adverted to in a perfunctory manner, unaccompanied by some effort

at developed argumentation, are deemed waived." United States v.

Zannino, 895 F.2d 1, 17 (1st Cir. 1990). Since the appellant has

mentioned his truancy-related argument in only "the most skeletal

way," without any coherent structure or substance, we deem his

argument abandoned. Id.; see Rodríguez v. Mun'y of San Juan, 659

F.3d 168, 175-76 (1st Cir. 2011); United States v. DeCologero, 530

F.3d 36, 60 (1st Cir. 2008).
III. CONCLUSION

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

the appellant's sentence is summarily

Affirmed. See 1st Cir. R. 27.0(c).

3 The appellant refers to USSG §4A1.1, cmt. n.3. This comment
deals in part with sentences committed before a defendant's 18th
birthday. See id. Since the appellant was well over the age of
18 when he committed the offense of failing to send a child to
school, any relevance that the commentary may have is a mystery.

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