United States Court of Appeals
For the First Circuit
No. 20-2063
UNITED STATES OF AMERICA,
Appellee,
v.
HANNAH PATCH,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Kayatta, Selya, and Barron,
Circuit Judges.
Ralph A. Jacobs for appellant.
Benjamin M. Block, Assistant United States Attorney, with
whom Donald E. Clark, Acting United States Attorney, was on brief,
for appellee.
August 16, 2021
SELYA, Circuit Judge. This sentencing appeal turns not
on what the record shows but, rather, on what the record fails to
show. The paucity of the evidence on the critical issue requires
us to vacate the defendant's sentence and remand for resentencing.
Inasmuch as this appeal trails in the wake of a guilty
plea, we draw the facts needed to put it into perspective from the
change-of-plea colloquy, the undisputed portions of the
presentence investigation report (PSI Report), and the sentencing
transcript. See United States v. Rivera-González, 776 F.3d 45, 47
(1st Cir. 2015); United States v. Del Valle-Rodríguez, 761 F.3d
171, 173 (1st Cir. 2014).
On February 8, 2019, a federal grand jury sitting in the
District of Maine charged defendant-appellant Hannah Patch, then
age 22, in a single count of a multi-count superseding indictment.
Specifically, the grand jury charged the defendant with
maintaining a drug involved premises in Springvale, Maine, during
the spring and summer of 2018. See 21 U.S.C. § 856(a)(2). The
government's evidence showed that the defendant had leased an
apartment as her place of residence and that, while living there,
she had allowed her boyfriend, Joshua Weldon, to use the apartment
as a base of operations for his drug-trafficking activities.
After some preliminary skirmishing, not relevant here,
the defendant pleaded guilty to the lone count lodged against her.
The defendant admitted the truth of the prosecution's version of
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the relevant events. Her admissions confirmed that, with her
knowledge, the drug-trafficking ring headed by her boyfriend had
stored and processed controlled substances at her apartment and
had distributed such substances from that location.
The district court proceeded to order the probation
department to prepare the PSI Report. When submitted, the PSI
Report disclosed that the defendant not only was aware of the drug-
related activities taking place in her home but also had
accompanied Weldon on several resupply trips to Lawrence,
Massachusetts. The probation department recommended a series of
guideline calculations, and the defendant objected to several of
those calculations.
The district court convened the disposition hearing on
October 20, 2020. One area of disagreement focused on USSG
§2D1.8(a). That guideline provides that the base offense level
(BOL) for the defendant's offense of conviction — maintaining a
drug involved premises, 21 U.S.C. § 856(a)(2) — shall be:
(a) Base Offense Level:
(1) The offense level from §2D1.1 applicable
to the underlying controlled substance
offense, except as provided below.
(2) If the defendant had no participation in
the underlying controlled substance offense
other than allowing use of the premises, the
offense level shall be 4 levels less than the
offense level from §2D1.1 applicable to the
underlying controlled substance offense, but
not greater than level 26.
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After hearing the parties, the court found that the defendant's
culpable "involvement was more than simply maintaining premises"
because "she was involved in the sense of maintaining the premises
and being present and being in the trips for resupply."
Consequently, the court found that the offense-level cap under
USSG §2D1.8(a)(2) did not apply.
With additional adjustments, none of which needs to be
recounted here, the court set the defendant's total offense level
at 23 and assigned her to criminal history category I. The court
then varied downward by two levels based on the youthful age at
which the defendant became romantically entangled with Weldon and
the effect of that relationship on her conduct. See USSG §5H1.1.
Following this downward variance, the defendant's total offense
level was 21, which — combined with her placement in criminal
history category I — yielded a guideline sentencing range (GSR) of
37-46 months. The court proceeded to sentence the defendant to a
below-the-range term of immurement of thirty-four months, to be
followed by a three-year term of supervised release. This timely
appeal ensued.
In this venue, the defendant assigns two claims of
sentencing error. First, she submits that the district court erred
by declining to apply the offense-level cap limned in section
2D1.8(a)(2). Second, she submits that the district court erred by
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applying a two-level enhancement under USSG §2D1.1(b)(12) because
the ongoing drug activity did not amount to a primary or principal
use of the apartment. See id., cmt. n.17 (explaining that
"[m]anufacturing or distributing a controlled substance need not
be the sole purpose for which the premises was maintained, but
must be one of the defendant's primary or principal uses for the
premises, rather than one of the defendant's incidental or
collateral uses").
These assignments of error implicate different standards
of review. The defendant's first assignment of error was raised
below and, therefore, is reviewed for abuse of discretion.1 See
Gall v. United States, 552 U.S. 38, 51 (2007); United States v.
Martin, 520 F.3d 87, 92 (1st Cir. 2008). In contrast, her second
assignment of error is raised for the first time on appeal. If
not waived (as the government contends), review is solely for plain
error. See United States v. Duarte, 246 F.3d 56, 60 (1st Cir.
2001).
We begin — and end — with the defendant's first
assignment of error. The district court calculated the drug weight
of the trafficked drugs, including an allowance for conversion of
cash found in a warrant-backed search of the apartment, to be
1The abuse-of-discretion standard is not one-dimensional.
Under that standard, "we review the sentencing court's findings of
fact for clear error and questions of law . . . de novo." United
States v. Rivera-Morales, 961 F.3d 1, 15 (1st Cir. 2020).
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4,365.84 kilograms of converted drug weight. This drug weight
ordinarily would call for a BOL of 32, see USSG §2D1.1(c)(4), for
a defendant who was guilty of maintaining a drug involved premises.
Withal, USSG §2D1.8(a), quoted above, bifurcates the calculation
of the BOL in such cases. Under subsection (a)(1), the BOL is
premised on the calculated drug weight of the drugs involved in
the underlying drug operation. If (a)(2) applies, however, the
BOL is capped at 26.
The essence of the defendant's claim is that she should
have received the benefit of the offense-level cap. She did not,
she contends, participate in the drug operation beyond simply
permitting her apartment to be used by the drug ring. The district
court rejected this contention, citing evidence in the record that
the defendant had accompanied Weldon on several automobile trips
from Springvale, Maine to Lawrence, Massachusetts to re-stock drug
inventory.
The central question on appeal reduces to whether the
record evidence, including reasonable inferences therefrom,
supports the district court's determination that the defendant,
above and beyond the provision of her apartment as a drug involved
premises, can be said to have participated in the drug operation.
See USSG §2D1.8(a)(2); see, e.g., United States v. Dengler, 695
F.3d 736, 739 (8th Cir. 2012). The courts of appeals are divided
as to which party bears the burden of proof on this issue. Compare
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In re Sealed Case, 552 F.3d 841, 846-47 (D.C. Cir. 2009) (placing
burden of proof on government) and United States v. Leasure, 319
F.3d 1092, 1096-98 (9th Cir. 2003) (same), with United States v.
Dickerson, 195 F.3d 1183, 1189-90 (10th Cir. 1999) (placing burden
of proof on defendant). Much depends on whether subsection (a)(1)
is viewed as an enhancement or, conversely, whether subsection
(a)(2) is viewed as a downward adjustment. See Leasure, 319 F.3d
at 1096; see also United States v. Ortiz, 966 F.2d 707, 717 (1st
Cir. 1992). This court has not spoken to the issue, and we need
not do so today: the government has conceded, for purposes of
this case, that it bears the burden of proving that the subsection
(a)(2) cap is not applicable, and we proceed with that concession
in hand.
Typically, we give the language used in guideline
provisions its plain and ordinary meaning. See United States v.
Brewster, 1 F.3d 51, 54 (1st Cir. 1993). In common parlance, the
word "participation" means "taking part with others in an
activity." Participation, Webster's Third New Int'l Dictionary
(1981). It follows that the government had the burden in this
case to prove by a preponderance of the evidence that the defendant
"took part with others" in the drug operation in some way other
than her mere provision of the apartment for drug involved
activity.
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On this question, the record evidence is thin. The only
evidence is that the defendant accompanied Weldon on a few
occasions when he drove from Maine to Massachusetts to pick up
drugs from his supplier. There is no evidence that her presence
on these jaunts furthered the drug operation: the record does not
show, say, that she drove the car, served as a lookout, or
interacted with the supplier. For aught that appears, she was
merely along for the ride as a passenger in the vehicle. Nor does
the record give any indication that her presence on these trips
differed in any way from her presence in the car on other (non-
drug-related) occasions, such as when she and Weldon drove together
on social outings, on trips to the supermarket, or the like. In
short, the record shows only that the defendant was present on the
resupply trips, and we think that mere presence at the scene of
criminal activity is insufficient to show participation. See
United States v. Hunt, 487 F.3d 347, 351 (6th Cir. 2007)
(enumerating possible forms of participation); cf. United States
v. Hyson, 721 F.2d 856, 862 (1st Cir. 1983) (reversing drug
conviction because evidence showed only mere presence).
To be sure, we previously have distinguished between
"mere presence" and "culpable presence" in the context of drug-
trafficking activities. See United States v. Paulino, 13 F.3d 20,
25 (1st Cir. 1994). Although mere presence will not suffice to
sustain criminal charges, "a defendant's presence at the point of
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a drug sale, taken in the light of attendant circumstances, can
constitute strong evidence of complicity." United States v.
Sepulveda, 15 F.3d 1161, 1173 (1st Cir. 1993). By way of
illustration, we have ruled that, when a defendant was a passenger
in a car during a drug transaction, evidence that he participated
in a conversation between the seller and the buyer while sitting
in the car supported a finding of complicity. See Ortiz, 966 F.2d
at 712-13. This is so, we said, because it reasonably can be
assumed that "criminals rarely welcome innocent persons as
witnesses to serious crimes and rarely seek to perpetrate felonies
before larger-than-necessary audiences." Id. at 712.
Here, however, the Ortiz inference is of no assistance.
After all, the defendant is not a person claiming to be innocent
of any knowledge of drug activities. She admittedly made her
apartment available for use by the drug ring. The only question
is whether she participated in any other or further way to advance
the business of the drug operation. So the Ortiz inference — which
might have helped to prove that Weldon would not have taken her on
the trips if she was unaware of its purpose — tells us nothing
about whether the defendant "otherwise participated" in the drug
operation. Without the benefit of the Ortiz inference, the record
evinces no actions by the defendant and no interactions between
her and her boyfriend from which a court reasonably can infer
participation. Because the attendant circumstances do not differ
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from those surrounding an innocent car ride, there is no basis to
find, by preponderant evidence, that her presence was anything
other than innocent.
In addition to the ride alongs, the district court also
noted that the defendant "certainly was aware of what was going
on" and "was involved in the sense of maintaining the premises and
being present." But knowledge, like mere presence, is insufficient
to show participation in the drug operation. See Altamirano v.
Gonzales, 427 F.3d 586, 591-92 (9th Cir. 2005) (concluding that
presence in an automobile, without more, is not a sufficient
affirmative act to constitute participation in criminal conduct
even if passenger is aware of criminal conduct by others). After
all, evidence that a defendant had knowledge of criminal activity
does not supplant the need for evidence that she took some steps
to assist in that activity. See United States v. Luciano-Mosquera,
63 F.3d 1142, 1151 (1st Cir. 1995).
This is not a case in which some other person's actions
can be imputed to the defendant. The core requirement of section
2D1.8(a) is that a defendant can be denied the safe harbor of
subsection (a)(2) only if she personally participated in the drug
operation in some way, apart from providing her apartment for the
drug ring's use. To construe the participation requirement more
broadly would render subsection (a)(2) meaningless because — in
any case in which a conviction is obtained under 21 U.S.C.
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§ 856(a)(2) — there will always be some use of the premises by
some person implicated in the drug operation.
The sockdolager here is that the government has conceded
that it had the burden of proving that subsection (a)(2) does not
apply. The Supreme Court has made it pellucid that "if the
evidence is evenly balanced, the party that bears the
burden . . . must lose." Dir., Off. of Workers' Comp. Programs,
Dep't of Lab. v. Greenwich Collieries, 512 U.S. 267, 272 (1994).
This principle applies with undiminished force in criminal
proceedings. See, e.g., Kirkland v. United States, 687 F.3d 878,
890 (7th Cir. 2012) (setting aside sentence enhancement based on
"ambiguous record" where government bore burden of proof); United
States v. Johnson, 648 F.3d 273, 278-79 (5th Cir. 2011) (concluding
that because record on crucial issue was unclear and because
government bore burden of proof on that issue, defendant's sentence
had to be vacated); Jake v. Herschberger, 173 F.3d 1059, 1067-68
(7th Cir. 1999) (determining, in habeas context, that "record [was]
unclear one way or the other" on particular issue, that government
bore burden of proof on that issue, and that, therefore, habeas
petitioner must prevail).
This is an even stronger case for the defendant. The
record, shorn of guesswork and speculation, simply does not permit
a reasoned determination that the defendant participated in the
drug operation within the meaning of USSG §2D1.8(a)(2). Given
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such lack of evidence, the party bearing the burden of proving the
existence of an occurrence surely cannot prevail. It follows that
the district court's decision that the offense-level cap did not
apply cannot stand.
In view of this holding, we see no reason to reach the
defendant's second assignment of error. The applicability of the
offense-level cap will — as the parties have recognized — make the
section 2D1.1(b)(12) enhancement moot. Given that reality, no
useful purpose would be served by us either attempting to resolve
the waiver question or plunging into the applicability vel non of
the enhancement.
We need go no further. The Supreme Court has left no doubt that
a properly calculated guideline range is the starting point for most sentences
imposed — as was this one — under the advisory sentencing guidelines. See
Molina-Martinez v. United States, 136 S. Ct. 1338, 1345 (2016); see also
Rosales-Mireles v. United States, 138 S. Ct. 1897, 1907-08 (2018). The
sentencing error that we have identified resulted in an increased BOL, which
led in turn to a miscalculated GSR. Accordingly, the defendant's sentence
must be vacated and the case remanded for resentencing. Even if the sentence
imposed is within or below a properly calculated GSR, that circumstance alone
is insufficient to avoid the need for resentencing. See Molina-Martinez,
136 S. Ct. at 1345.
Vacated and remanded.
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