United States v. Lino

United States Court of Appeals
For the First Circuit

No. 05-1665

UNITED STATES OF AMERICA,

Appellee,

v.

ERIC LINO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Selya, Lipez, and Howard, Circuit Judges.

Christopher R. Goddu, for appellant.
Randall E. Kromm, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, was on brief,
for appellee.

July 12, 2007
 HOWARD, Circuit Judge. Eric Lino was convicted of one

count of conspiring to distribute between 500 grams and five

kilograms of cocaine and one count of cocaine distribution, see 21

U.S.C. §§ 846 & 21 U.S.C. § 841(a)(1). He was sentenced to 144

months of imprisonment. Lino appeals only from the sentence, and

we limit our background discussion accordingly.

At trial, the evidence demonstrated that Lino was part of

a cocaine conspiracy that operated in southeastern Massachusetts

between June 2001 and June 2003. The government presented

testimony from three of Lino's associates that during the life of

the conspiracy each had provided Lino with transportation, so that

he could sell cocaine. There was evidence that Lino conducted

between nine and forty transactions per week. One witness

testified to having helped Lino in over one hundred transactions

and another stated that he had seen Lino participate in between

fifty and one hundred cocaine deals. The government also

introduced evidence of a series of cocaine sales that Lino made to

undercover law enforcement officers.

Prior to trial, the government filed an information

notifying Lino that it intended to seek an enhanced penalty based

on his October 2001 Massachusetts conviction for possession of

marijuana and cocaine with the intent to distribute. See 21 U.S.C.

§ 841(b)(1)(B). Section 841(b)(1)(B) provides for a mandatory

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minimum sentence of five years for conspiring to distribute at

least 500 grams and less than 5 kilograms of cocaine. But the

penalty increases to a sentence between ten years and life, if the

conviction occurred "after a prior conviction for a felony drug

offense has become final." Lino objected to the government's

reliance on the Massachusetts conviction to trigger this

enhancement on the ground that the Massachusetts conviction was

"part and parcel" of the overarching conspiracy charged in the

federal indictment and thus did not constitute the "distinct

criminal episode" necessary to trigger the enhancement.

The presentence report (PSR) concluded that the

enhancement applied. The PSR also relied on the Massachusetts

drug conviction to calculate Lino's criminal history, which, along

with other unrelated convictions, placed Lino into criminal history

category V. This history, coupled with an offense level of 30,

resulted in an advisory guidelines sentencing range (GSR) of 151 to

181 months.

Lino pursued several objections to the PSR before the

district court. He renewed his argument that the Massachusetts

drug conviction did not trigger the § 841(b)(1)(B) enhancement.

Lino also argued that, under U.S.S.G. § 5G1.3(b), he was entitled

to an adjustment in sentence for the time that he had already

served on his undischarged thirty-month sentence for the

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Massachusetts drug conviction.1 Finally, he requested a departure

or variance from the GSR on the ground that the GSR calculation

overstated the seriousness of his criminal history.

The district court rejected Lino's argument against

applying the enhancement. The court ruled that, under prevailing

precedent, Lino's Massachusetts drug conviction constituted a prior

felony drug conviction under § 841(b)(1)(B), even though the

conduct underlying the prior conviction occurred during the life of

the conspiracy. The court also rejected Lino's argument that his

sentence should be reduced to account for the incarceration he

served for the Massachusetts drug conviction. Finally, the court

concluded that a variance from the GSR was appropriate because the

GSR overvalued the seriousness of Lino's criminal history. The

court imposed a sentence of 144 months of imprisonment, seven

months below the bottom of the GSR.

On appeal, Lino challenges the district court's ruling

that his Massachusetts drug conviction was "a prior felony drug

conviction," triggering the sentencing enhancement under § 841

(b)(1)(B). As he argued before the district court, Lino contends

that where, as here, the prior felony drug conviction was based on

one of the transactions that comprised the overarching conspiracy

1
Lino's sentence was undischarged at the time of his federal
sentencing because he was not required to serve his state sentence
until his probation was revoked as a result of the federal
indictment.

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there is no basis for an enhancement because the prior conviction

does not constitute "a distinct criminal episode." As this

argument presents a question of statutory interpretation, we review

it de novo. See United States v. Leahy, 473 F.3d 401, 405 (1st

Cir. 2007).

The interpretive question presented is whether a drug

distribution felony that took place during the course of an ongoing

conspiracy is a "prior felony drug conviction" for purposes of the

§ 841(b)(1)(B) enhancement where the conspiracy continued after the

prior conviction. We considered this question in United States v.

De Jesus Mateo, 373 F.3d 70, 74 (1st Cir. 2004). There, we

observed that "prior felony drug convictions will be counted

separately for purposes of 21 U.S.C. § 841(b) only when they

represent distinct criminal episodes." Id. But we further

explained that "an ongoing course of criminal conduct such as

narcotics trafficking may involve many such criminal episodes, each

a discrete occurrence. The fact that all are related, part of a

series, or part of a continuous course of criminal dealing, does

not necessarily render them a single criminal episode." Id.

(quoting United States v. Martinez-Medina, 279 F.3d 105, 123 (1st

Cir. 2002)). A prior drug conviction constitutes a "distinct

criminal episode" sufficient to trigger the enhancement so long as

the defendant continued to participate in drug activity after the

conviction became final. See also United States v. Martino, 294

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F.3d 346, 350-51 (2d Cir. 2002); United States v. Howard, 115 F.3d

1151, 1158 (4th Cir. 1997); United States v. Hansley, 54 F.3d 709,

717 (11th Cir. 1995); United States v. Garcia, 32 F.3d 1017, 1019

(7th Cir. 1994).

Thus, in De Jesus Mateo, the prior felony drug

convictions, which occurred in 1991, were distinct criminal

episodes because the evidence established the defendant's

participation in the conspiracy through 1997. The same analysis

applies here. Lino pleaded guilty to drug distribution in

Massachusetts state court in October 2001, but continued to engage

in the drug conspiracy until his arrest in 2003. Accordingly, the

district court correctly applied circuit precedent in concluding

that Lino's prior Massachusetts drug felony conviction triggered

the § 841(b)(1)(B) enhancement.

Nevertheless, Lino argues that we should overrule De

Jesus Mateo. As a panel of this court, absent unusual

circumstances not present here, we may not do so. See United

States v. Allen, 469 F.3d 11, 17-18 (1st Cir. 2006). That aside,

we continue to think that De Jesus Mateo was properly decided. Our

approach of focusing on the defendant's continued participation in

the conspiracy after being convicted of a drug felony is consistent

with furthering the sentencing enhancement's purpose of punishing

recidivism. See Martino, 204 F.3d at 351. Indeed, if the rule

advocated by Lino were adopted, we would "insulate the very career

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criminals the [enhancement] is designed to reach -- those

continuously engaged in criminal conduct." Martinez-Medina, 279

F.3d at 123. This we are quite unwilling to do.2

Next, Lino contends that the district court erred in

declining to credit him with time he had already served on his

undischarged sentence for his Massachusetts drug conviction under

U.S.S.G. § 5G1.3(b). Section 5G1.3(b) of the November 2003

Guidelines (the version under which Lino was sentenced) provides:

If . . . a term of imprisonment resulted from
another offense that is relevant conduct to the
instant offense of conviction . . . and . . .
was the basis for an increase in the offense
level for the instant offense under Chapter Two

2
Lino also claims that the sentencing enhancement could not be
applied to him because the prior conviction was not pleaded in his
indictment. This argument was not raised below and thus is subject
to plain error review, which requires Lino to show a clear error
that affected his substantial rights and that undermined the
fairness integrity, or public reputation of the judicial
proceeding. See United States v. Gilman, 478 F.3d 440, 445 (1st
Cir. 2007). We have repeatedly rejected this very argument and do
so again here. See, e.g., United States v. Ivery, 427 F.3d 69, 75
(1st Cir. 2005).
Lino further contends that the enhancement was erroneously
applied because the judge improperly usurped the jury's function of
deciding whether there, in fact, had been a prior drug conviction
and whether that conviction met the criteria for a "felony drug
offense" and a "distinct criminal episode." This argument too was
not raised before the district court and is thus reviewed for plain
error. We bypass the merits because Lino has made no argument that
he was prejudiced by the judge making the findings relevant to the
enhancement, and, moreover, the materials in the record concerning
the prior conviction demonstrate that these issues were not open to
any real dispute. Thus, relief under the plain error standard is
unavailable. See Johnson v. United States, 520 U.S. 461, 470
(1997) (denying plain error relief where trial judge committed
clear error by removing an issue from jury consideration because
there was no showing of prejudice).

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 (Offense Conduct) or Chapter Three
(Adjustments), the sentence for the instant
offense shall be imposed as follows: the court
shall adjust the sentence for any period of
imprisonment already served on the undischarged
term of imprisonment if the court determined
that such period of imprisonment will not be
credited to the federal sentence by the Bureau
of Prisons.

Thus, § 5G1.3(b) provides for an adjustment in sentence only where

the undischarged sentence was (1) for a crime that constitutes

relevant conduct for the instant offense and (2) was the basis for

an increase in the offense level for the instant offense under

Chapters Two or Three of the Guidelines. United States v. Lozano,

486 F.3d 446, 448-49 (8th Cir. 2007) (stating that both conditions

must be met to trigger an adjustment under § 5G1.3(b)(1)).

The second precondition is not met here. An adjustment

under § 5G1.3(b) is not triggered "by the mere fact [that] the

federal conspiracy charged encompassed a time period during which

the state offense occurred," where the state offense had no effect

on the defendant's offense level for the federal conviction.

United States v. Hurley, 439 F.3d 955, 957 (8th Cir. 2006). Lino

concedes that "the crime for which [he] was serving a state

sentence [did] not result in an increase to his offense level."

Thus, the district court correctly concluded that Lino was not

entitled to an adjustment under § 5G1.3(b).

Lino argues, however, that he is entitled to the

adjustment because the Massachusetts drug offense was used to

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increase his criminal history category. In so doing, he relies on

United States v. Caraballo, 200 F.3d 20, 27 (1st Cir. 1999), where

we stated that U.S.S.G. §5G1.3(b) was triggered by a prior offense

that was relevant conduct to the instant offense and increased the

defendant's offense level or criminal history category. This

reliance is misplaced. In Caraballo, we were interpreting the

version of § 5G1.3(b) in existence prior to its amendment in 2003.

That version provided for an adjustment where the earlier offense

had "been fully taken into account" in the determination of the

instant offense. The meaning "of fully taken into account" had

divided the courts of appeals, compare, e.g., United States v.

Garcia-Hernandez, 237 F.3d 105, 109 (2d Cir. 2000), with, e.g.,

United States v. Fuentes, 107 F.3d 1515, 1524 (11th Cir. 1997).

Caraballo provided our interpretation of this ambiguous language.

But in 2003, the Sentencing Commission amended the

Guidelines to resolve this ambiguity. See U.S.S.G. Appx. C, Amend.

660 (2003). As explained above, under the new version of

§5G1.3(b), the prior offense must have increased the defendant's

offense level for the instant offense under Chapter Two or Chapter

Three of the Guidelines. The defendant's criminal history category

is provided for under Chapter Four of the Guidelines, and thus an

increase in the criminal history category is not a basis for

triggering a § 5G1.3(b) adjustment.

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 Finally, Lino contends that the sentence imposed was

unreasonable because the district court failed to appreciate the

advisory nature of the guidelines and did not consider whether to

vary from the GSR to account for the time that he already served in

Massachusetts custody for his prior drug conviction.

This argument fails. The district court stated several

times throughout the sentencing hearing that the guidelines were

advisory. It also closely followed the procedure for imposing

sentence under the advisory guidelines regime set forth in United

States v. Jimenez-Beltre, 440 F.3d 514, 519 (1st Cir. 2006) (en

banc), by calculating the GSR, then "determin[ing] whether the

factors identified by either side warrant[ed] an ultimate sentence

above or below the" GSR.

The district court imposed a sentence below the GSR based

on its conclusion that the GSR overstated the seriousness of Lino's

criminal history. Lino never argued to the district court that a

larger variance was warranted to account for the time served in

state custody; he made this argument only as it pertained to the

calculation of the GSR. District judges are not mindreaders; the

party seeking a variance must state clearly the reasons supporting

the request. Id. Lino did not do so and thus cannot complain now.

Moreover, after the district court pronounced sentence,

Lino's counsel observed that the federal sentence of 144 months,

added to the Massachusetts sentence of thirty-months, resulted in

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a total prison term near the top of the GSR. The district court

stated that it would not change the sentence on this basis. To the

extent that this was intended to be an argument for a further

variance from the GSR based on Lino's sentence for the

Massachusetts drug conviction -- a doubtful proposition -- the

district court reasonably rejected it.

Affirmed.

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