United States v. Stebbins, Jr.

Not for Publication in West's Federal Reporter

United States Court of Appeals
For the First Circuit

No. 11-2232

UNITED STATES,

Appellee,

v.

DOUGLAS STEBBINS, JR.,

Defendant, Appellant.

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

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

Before

Howard, Circuit Judge,
Souter,* Associate Justice,
and Stahl, Circuit Judge.

Matthew S. Erickson for appellant.
Margaret D. McGaughey, Assistant United States Attorney, with
whom Thomas E. Delahanty, United States Attorney, was on brief for
appellee.

May 1, 2013

*
Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
 SOUTER, Associate Justice. On his plea of guilty to one

count of possession of a firearm by a convicted felon, the district

court sentenced appellant, Douglas Stebbins, Jr., to 120 months of

imprisonment. We affirm the sentence.

I

During his plea colloquy, Stebbins gave only a limited

account of the conduct that led to his conviction. He agreed that

on January 28, 2008, police officers stopped his car in Holden,

Massachusetts, and that when they searched it, they found a

backpack with two firearms inside, a Walther .22 caliber pistol and

a Smith and Wesson .40 caliber pistol. The Walther had been bought

by William Wheeler, who had also procured eight additional guns for

Stebbins, for each of which Stebbins had supplied the cash and paid

Wheeler a fee of $80 to $100. Stebbins also agreed that he had

been convicted in 2005 of unlawful drug trafficking.

Stebbins’s presentence report (PSR) indicated that he had

been at Wheeler’s side in purchasing six other firearms in addition

to the ones he acknowledged in the colloquy. The report thus held

Stebbins accountable for sixteen weapons: the nine he admitted

getting with Wheeler, the six others, and the Smith and Wesson

pistol in Stebbins’s backpack. The report summarized wiretap

evidence that Stebbins was a long-time supplier of firearms to drug

dealers.

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 In the PSR, the probation officer recommended a base

offense level of 20, see U.S.S.G. § 2K2.1(a)(4)(A) (2010), a four-

level increase because the crime involved at least ten firearms,

id. § 2K2.1(b)(1)(B), another four-level increase because Stebbins

engaged in the trafficking of firearms, id. § 2K2.1(b)(5), and a

further four-level increase because Stebbins transferred the

firearms with reason to believe that they would be used in

connection with another felony, id. § 2K2.1(b)(6)(B). The report

also recommended a three-level reduction for acceptance of

responsibility under § 3E1.1. Based on the recommended offense

level of 29 and the Criminal History Category of IV, the PSR

calculated an advisory guidelines range of 121-to-151 months of

imprisonment. The statutory maximum sentence was 120 months.

Stebbins’s sole objection to the PSR went to the

trafficking enhancement under § 2K2.1(b)(5), which requires the

defendant to have had reason to believe that the recipient of a

firearm intended to use it unlawfully. When Stebbins denied any

such knowledge, the Government offered evidence supporting pending

drug and firearm charges in Massachusetts, arising out of the

conduct charged here, to show that he knew perfectly well how the

firearms would be used. In denying a motion to suppress in that

case, the Massachusetts Superior Court had found that Stebbins had

negotiated the exchange of firearms for cocaine or marijuana from

two individuals, Polydores and Kapulka, who were involved in other

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instances of drug trafficking. See Govt’s Addendum 29-31. At

sentencing, the district court admitted into evidence the

Massachusetts suppression decision, six indictments naming

Stebbins, Polydores, and Kapulka in drug and firearms conspiracies,

as well as other corroborative evidence. A federal agent also

testified that Wheeler had confessed to accepting money from

Stebbins to act as a straw purchaser. Finally, in support of a new

argument that the acceptance-of-responsibility reduction should no

longer apply, the government offered a Maine complaint against

Stebbins for post-arrest conduct of trafficking in prison

contraband, stemming from his attempts to smuggle drugs into prison

on the persons of his 6-year-old daughter and his girlfriend.

The district court applied the § 2K2.1(b)(5) enhancement,

finding that Stebbins knew or had reason to believe that Polydores

or Kapulka intended to use the firearms illegally. The court also

agreed with the Government’s argument that the § 3E1.1 reduction

for acceptance of responsibility should not apply because it was

“beyond argument” that Stebbins had failed to withdraw from

criminal conduct. J.A. 82. With an offense-level of 32 and a

Criminal History Category of IV, Stebbins’s advisory sentencing

range was 168-to-210 months.

Considering the 18 U.S.C. § 3553 factors, the court

explained that only three of the guns attributable to Stebbins had

been recovered, leaving society at serious risk from the thirteen.

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Although Stebbins had a tough youth, the court found it

“disturbing” that he continued to engage in crime, even while

awaiting sentencing. J.A. 83. The court imposed a 120-month

sentence.

II

Stebbins raises four challenges to his sentence.

A

He first contends that the district court should have

reduced his sentence under U.S.S.G. § 5G1.3(b) to account for his

incarceration for 30 months on the related state drug and firearm

charges prior to sentencing in this case. But we find no mention

of any such request in the district court record, and since

Stebbins does not argue here that he adequately preserved the

claim, see Reply Br. 1-3, our review is only for plain error, see

United States v. Olano, 507 U.S. 725, 732 (1993). To prove plain

error, Stebbins bears the burden of showing an error that was

plain, Johnson v. United States, 520 U.S. 461, 467 (1997), and we

need not get to the point of subtlety to see that there was nothing

plain, even if we were to assume Stebbins is correct in claiming an

error in failing to apply § 5G1.3(b). It provides that if

a term of imprisonment resulted from another
offense that is relevant conduct to the
instant offense . . . and that was the basis
for an increase in the offense level for the
instant offense . . . the court shall adjust
the sentence for any period of imprisonment
already served on the undischarged term of
imprisonment if the court determines that such

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 period of imprisonment will not be credited to
the federal sentence by the Bureau of Prisons.

U.S.S.G. § 5G1.3(b). Stebbins does not contest the Government’s

position that Ҥ5G1.3 applies only when the defendant being

sentenced on federal charges is already serving a sentence imposed

by another court.” Reply Br. 1 (quoting Appellee’s Br. 31). And

at the time of his sentencing in this case, Stebbins was merely

detained on pending state charges in Massachusetts; he was not

serving an undischarged “term of imprisonment.” Given the text of

the Guideline, it could not have been plainly erroneous for the

district court to refuse credit against his federal sentence for

Stebbins’s time served in pretrial detention in Massachusetts. At

least one court of appeals had reached the same conclusion as the

district court did here. See United States v. Rollins, 552 F.3d

739, 742 (8th Cir. 2009) (holding that § 5G1.3(b) “does not apply”

where the “district court sentenced [the defendant] before the

state court sentenced him”).

Thus understood, the guideline speaks in harmony with the

provision of 18 U.S.C. § 3585(b), that “[a] defendant shall be

given credit toward the service of a term of imprisonment for any

time he has spent in official detention prior to the date the

sentence commences . . . that has not been credited against another

sentence.” While “§ 3585(b) does not authorize a district court to

compute the credit at sentencing,” United States v. Wilson, 503

U.S. 329, 334 (1992), the Bureau of Prisons has authority to

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provide it as an administrative remedy, see 28 C.F.R. § 542.10,

.11(a), subject to ultimate judicial review by habeas petition

under 28 U.S.C. § 2241, Rogers v. United States, 180 F.3d 349, 358

(1st Cir. 1999). We, of course, express no opinion on the question

of ultimate entitlement to administrative relief.

B

Stebbins next contests the district court’s denial of an

offense-level reduction for acceptance of responsibility under

§ 3E1.1, which provides for a two-level reduction “[i]f the

defendant clearly demonstrates acceptance of responsibility for his

offense” and an additional reduction of one level on the

government’s motion if the defendant has “timely notif[ied]

authorities of his intention to enter a plea of guilty.” The

“clear-error standard [governs review of] . . . a sentencing

court’s factbound determination that a defendant has not accepted

responsibility,” United States v. Jordan, 549 F.3d 57, 60 (1st

Cir. 2008), and we will reverse only if we are “left with a

definite and firm conviction that a mistake has been committed,”

Brown v. Plata, 131 S. Ct 1910, 1930 (2011) (internal quotation

marks and citation omitted).

Stebbins’s central contention is that the district court

erred in “weigh[ing] only Mr. Stebbins’[s] new State charges in

denying a reduction” and in failing to give proper weight to his

timely guilty plea, Appellant’s Br. 13, but the record belies the

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claim. The district court noted that the PSR recommended the

reduction because Stebbins pleaded guilty and admitted that he

“screwed up,” J.A. 80, and then explained how the evidence of the

drug-trafficking crime that Stebbins allegedly committed in prison

after the preparation of the PSR militated against the favorable

treatment:

The defendant is here because he was engaged
in a conspiracy to illegally possess firearms
to trade them for drugs, and his possession of
firearms to begin with was illegal. If he is
still trafficking in drugs while in prison or
attempting to traffic in drugs while in prison
while awaiting sentence for a crime . . . the
context of which is trafficking in drugs, it
is apparent and I think beyond argument that
he has not yet gotten the message about the
need to stop dealing in drugs and engaging in
criminal activity generally.

J.A. 82.

Far from being clearly erroneous, the decision was

perfectly consistent with our cases. As then-Chief Judge Breyer

wrote, a district court “could reasonably conclude that the

[defendant’s] later conduct (such as his use of marijuana in

violation of bail conditions explicitly forbidding drug use) showed

that [he] lacked ‘authentic remorse.’” United States v. O’Neil,

936 F.2d 599, 601 (1st Cir. 1991). Likewise, in Jordan, we

explained that “[c]riminal conduct, whatever its nature, is a

powerful indicium of a lack of contrition.” 549 F.3d at 61. The

reduction was properly denied.

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 C

Stebbins’s third argument is that the district court

wrongly imposed the four-level enhancement authorized by U.S.S.G.

§ 2K2.1(b)(5), “[i]f the defendant engaged in the trafficking of

firearms.” Application Note 13 to that provision states that

“Subsection (b)(5) applies . . . if the defendant . . . transferred

. . . firearms to another individual . . . and . . . had reason to

believe that such conduct would result in the . . . transfer . . .

of a firearm to an individual . . . who intended to use or dispose

of the firearm unlawfully.”

We have said before that a court need not find “specific

knowledge of any specific felonious plans” for the provision to

apply and that the enquiry into a defendant’s belief may rest on

“plausible inferences” from “circumstantial evidence.” United

States v. Marceau, 554 F.3d 24, 32 (1st Cir. 2009). Here, the

district court found the enhancement in order because “the

defendant knew or had reason to believe that Mr. Polydores and/or

Mr. Kapulka intended to dispose of the firearms illegally.” J.A.

70. That finding stands unless Stebbins can show it was clear

error. See Marceau, 554 F.3d at 29.

The district court cited five reasons to conclude as it

did. See J.A. 70-73. First, the type of guns intended to be

transferred were easily concealed handguns, which are tools of the

drug trade. Second, Stebbins came into possession of them

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illegally through a straw buyer. Third, the two firearms Stebbins

possessed were the latest in a series of guns illegally purchased

by Wheeler as a straw man. Fourth, as shown by the findings of the

Massachusetts trial judge, Stebbins was involved in a conspiracy to

obtain guns in Maine and to exchange them for drugs in

Massachusetts. Fifth, one of the firearms Stebbins had previously

sold to Polydores was in turn sold by him to a confidential

informant with its serial number removed, and Stebbins was arrested

with a grinder in his car. The court found that Stebbins “had the

grinder in his motor vehicle to allow him to grind off the serial

numbers of the two firearms to avoid tracing to the Wheeler

purchase . . . and to the unraveling of the entire conspiracy.”

J.A. 73.

Applying the enhancement was not clear error: by no means

are we “left with a definite and firm conviction” that the district

court was mistaken in finding that Stebbins had reason to believe

that Polydores or Kapulka would use the firearms illegally. Brown,

131 S. Ct at 1930 (internal quotation marks and citation omitted).

Indeed, the district court’s fourth or fifth reason alone would

have been sufficient, for the court explained, “the defendant was

planning to give these firearms to people he knew were drug

dealers,” which is “evidence that he knew or had reason to believe

that these recipients would improperly dispose of them.” J.A. 71.

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 D

Finally, Stebbins argues that his sentence was

substantively unreasonable overall, a claim we review for abuse of

discretion. See United States v. Tavares, 705 F.3d 4, 24 (1st Cir.

2013). “A sentence is not substantively unreasonable merely

because the reviewing court would have sentenced the defendant

differently.” United States v. Flores-Machicote, 706 F.3d 16, 25

(1st Cir. 2013). Rather, “the linchpin of a reasonable sentence is

a plausible sentencing rationale and a defensible result.” United

States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008).

Here, Stebbins’s advisory guidelines range was 168-to-210

months’ imprisonment, and he received a 120-month sentence. To be

sure, his sentence fell below the guidelines range of necessity, as

Congress capped sentences for violating 18 U.S.C. § 922(g)(1) at

120 months. See 18 U.S.C. § 924(a)(2). But that constraint does

not tell a district court to ignore the Sentencing Commission’s

judgment in setting sentencing ranges that reflect the severity of

criminal conduct. On the contrary, in deciding on a sentence, a

district court must take the applicable range into account, as well

as the considerations set out in 18 U.S.C. § 3553(a).

The district court reasonably did so here. The court

flagged Stebbins’s pernicious conduct in enlisting Wheeler, a drug

addict, to act as a straw in buying fifteen guns (all but three of

which were apparently circulating) for Stebbins to possess

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unlawfully. Since Stebbins disavowed any drug addiction of his

own, the implication was that his acquisition of the firearms was

driven by profit to be had from selling to violent criminals.

Added to all that, the district court noted Stebbins’s recent

recidivism and lack of contrition. All told, these facts justified

the weighty sentence. There was no abuse of discretion.

III

The sentence is affirmed.

It is so ordered.

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