United States v. May

United States Court of Appeals
For the First Circuit

No. 02-2039

UNITED STATES OF AMERICA,

Appellee,

v.

BARRY S. MAY,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

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

Before

Boudin, Chief Judge,

Torruella and Howard, Circuit Judges.

Thomas L. Goodwin, with whom Strike, Goodwin & O'Brien was on
brief, for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief, for appellee.

September 4, 2003
 TORRUELLA, Circuit Judge. Defendant Barry S. May was

charged with two conspiracy counts: involvement in a conspiracy to

distribute cocaine and involvement in a conspiracy to distribute

marijuana. May pled guilty to the marijuana count and as part of

his plea agreement the cocaine count was dismissed. Now May

appeals, arguing that the district court erroneously augmented his

sentence when it found (1) a kilogram of cocaine attributable to

May, (2) his co-conspirator used a dangerous weapon, (3) May had

a leadership role in the offense, and (3) three misdemeanor

convictions should be included as part of May's criminal history.

After careful review, we affirm.

I. Background

May and Scott Barbour began to obtain and distribute

marijuana in Texas, Florida, and Maine in 1996. Over time, others

joined in the marijuana distribution, with May heading the

operation in Maine.

Typically, Barbour and others purchased marijuana in

Texas and shipped it to May and others for distribution in Maine.

May retained his share of the proceeds and forwarded the

appropriate share to Barbour and others in Texas.

In February 2000, May aided Barbour in the collection of

$10,000 in drug debts. At Barbour's trial, May testified that he

went to Texas to collect a debt owed by two men for some marijuana

they had "strong armed" from Barbour. May, co-conspirator Shane

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Hall, and Barbour got drunk and went to Hall's house, where Hall

obtained a .38 caliber pistol; the three then went looking for the

debtors.

In May 2000, Barbour sent May a package containing one

kilogram of cocaine. No cocaine had previously been involved in

the marijuana distribution conspiracy, and Barbour had not told May

that cocaine was being sent on this occasion. According to May,

the receipt of the cocaine was unexpected and unwanted; May had

been treated in 1989-90 for cocaine addiction, and knew proximity

to the drug posed a danger of relapse. When he realized Barbour

had sent him cocaine, not marijuana, he communicated his anger to

Barbour in Texas and to two other conspirators in Maine, Steven

Case and Kevin Woodward. He told the three men that he wanted

nothing to do with cocaine and that he was withdrawing from the

marijuana conspiracy.

The kilogram of cocaine was divided into smaller

quantities, and May gave seventeen ounces to Case, ten to Woodward,

and retained seven ounces for himself. May established terms of

payment for the cocaine. Fearing access to cocaine would cause him

to return to his former drug habit, May later gave his seven ounces

to Woodward.

May denied having anything to do with distributing the

cocaine after its receipt and division. He also denied both paying

for the cocaine and accepting payment for Barbour.

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 In spite of his statements to his co-conspirators, May

did not immediately withdraw from the marijuana conspiracy. He

continued to receive and distribute marijuana (but not cocaine)

from Texas, primarily from one Todd Massey. As part of the ongoing

conspiracy, there was a further shipment to Maine of forty-two

ounces of cocaine, but this went directly to Case without May's

knowledge or participation.

On October 16, 2001, a federal grand jury indicted May

and Barbour on two counts of conspiracy. Count One alleged that

between January 1, 1999 and October 1, 2001, May and Barbour

conspired to distribute and to possess with intent to distribute at

least 500 grams of cocaine, in violation of 21 U.S.C. §§ 841(a)(1)

and 846 ("the cocaine count"). Count Two alleged that during the

same time period May and Barbour conspired to distribute and to

possess with intent to distribute more than fifty kilograms of

marijuana, in violation of 21 U.S.C. §§ 841 (a)(1), 841 (b)(1)(C),

and 846 ("the marijuana count").

On January 2, 2002, May pled guilty to the marijuana

count. The plea agreement provided that the maximum statutory

sentence was twenty years' imprisonment under 21 U.S.C. § 841

(b)(1)(C). The government agreed to move to dismiss the cocaine

count after sentencing on the marijuana count. The plea agreement

did not contain stipulations for sentencing guidelines

calculations.

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 Prior to sentencing, the parties stipulated that the

quantity of marijuana attributable to May as relevant offense

conduct was between 700 and 1,000 kilograms, corresponding to an

offense level of thirty. The parties disagreed as to whether any

cocaine should be counted as relevant offense conduct, whether

there should be a deadly weapon enhancement, and whether three

misdemeanors should be included in the criminal history

calculation. These questions were submitted to the district court

for determination at the sentencing hearing.1

The district court accepted the stipulation of the

parties regarding marijuana quantity, and attributed one kilogram

of cocaine to May as relevant offense conduct.2 This attribution

1
At the sentencing hearing, the district court heard the
testimony of defense counsel, the government, and May. In
addition, the district court judge could take into account the
testimony from the Barbour trial, over which he presided and of
which a transcript was submitted as evidence at the sentencing
hearing. Along with the presentence report, these are all
appropriate sources of facts at sentencing. Cf. United States v.
Garafano, 36 F.3d 133, 135 (1st Cir. 1994) ("Normally the trial
court makes its own assessment of the facts that pertain to
sentencing, drawing on trial evidence, the presentence report, any
evidence offered at the hearing, and other appropriate sources.");
see also United States v. Sklar, 920 F.2d 107, 110 (1st Cir. 1990)
(indicating rules of evidence do not apply at sentencing and that
the court may consider "virtually any dependable information").
2
The government had argued for attribution of an additional
forty-two ounces of cocaine, but the district court made no finding
about that quantity since it would not change the offense level
under the guidelines.

The district court determined that May had been "effectively in
joint possession, constructive possession of [the kilogram of]
cocaine at the time," and accordingly held him responsible for it.

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resulted in raising the base offense level from level thirty to

level thirty-two. The district court imposed upward adjustments of

four levels for role in the offense and two levels for possession

of a firearm, and a downward adjustment of three levels for

acceptance of responsibility, resulting in an adjusted offense

level of thirty-five. May's criminal history category was

determined to be Category III, based on the inclusion of, among

other past offenses, convictions for the misdemeanors of

terrorizing, assault, and criminal mischief. Offense level thirty-

five and criminal history Category III combined to produce a

guidelines range of 210 – 262 months.

Upon the government's § 5K1.1 motion for downward

departure, the district court departed downward and sentenced May

to 174 months' imprisonment, to be followed by three years of

supervised release. May now appeals the sentence.

II. Analysis

May argues the sentencing court erred in several

respects. First, May argues that the drug quantity determination

was erroneous because the kilogram of cocaine should not have been

attributed to him as relevant offense conduct. Second, May

questions the enhancement for a co-conspirator's possession of a

The district court went on to say, "you did not distance yourself
enough from it, although I understand emotionally in your mind, you
think you did, you did not take part in it. But so far as the law
is concerned, you are responsible for that."

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deadly weapon, claiming that such possession is not always

reasonably foreseeable during an attempt to collect a drug-related

debt. Third, May posits that the district court erred in finding

May to be a leader or organizer. Finally, May believes the

district court erred in including three misdemeanors as part of his

criminal history. We address each argument in turn.3

A. Drug Quantity

Under the United States Sentencing Guidelines, a court is

to consider all relevant conduct in determining the quantity of

drugs for which a defendant is responsible. U.S.S.G. § 1B1.3. A

preponderance of the evidence standard applies to the determination

of drug quantity, United States v. Caba, 241 F.3d 98, 101 (1st Cir.

2001), and a sentencing court’s drug quantity determination is a

factual matter that will not be disturbed on appeal unless it is

clearly erroneous. United States v. Innamorati, 996 F.2d 456, 489

(1st Cir. 1993).

A defendant may be held "responsible for drug quantities

which [he himself] sold, transported or negotiated" as part of a

3
Only the first issue was briefed by counsel and addressed at
oral arguments, but May raised the others in his pro se brief.
May's additional argument regarding the existence of two separate
conspiracies fails because this Court presumes conspiracies exist
absent an affirmative showing of their termination. United States
v. Elwell, 984 F.2d 1289, 1293 (1st Cir. 1993). The argument that
the inclusion of the cocaine constituted an amendment of the
indictment is similarly doomed. Cf. United States v. Reyes, 3 F.3d
29 (1st Cir. 1993) (upholding inclusion as relevant conduct of drug
transactions that were initially charged but dropped).

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conspiracy. United States v. Miranda-Santiago, 96 F.3d 517, 524

(1st Cir. 1996). In addition, a defendant is accountable for

"reasonably foreseeable quantities of contraband." U.S.S.G.

§ 1B1.3, cmt. n.2. In this case, the sentencing court found May

responsible for a kilogram of cocaine not because May had any

"reason to foresee the cocaine was going to turn up" but rather

because he was "effectively in joint possession, constructive

possession of that cocaine." The court remarked on May's failure

to act after receiving the cocaine, stating:

You could have left right then. You could have
turned it in. You didn't do any of that.
Instead, you stayed. You went with it and were
there to see it broken up and ultimately, went
into the distribution channels. And you were
effectively in joint possession, constructive
possession of the cocaine at the time, and you
are responsible for it.

The court's conclusion regarding May's joint and

constructive possession of the cocaine is well-supported by the

record. According to May's own statement at his sentencing

hearing, he was present when Woodward and Case divided the kilogram

of cocaine into smaller amounts for further distribution. Further,

May personally distributed cocaine to Case and Woodward, and had

seven ounces in his own possession for a period of time. See

United States v. Georgacarakos, 988 F.2d 1289, 1296 (1st Cir. 1993)

("Constructive possession exists if the defendant knows the drugs

are available and has the power and intent to exercise dominion and

control over them."); see also United States v. Batista-Polanco,

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927 F.2d 14, 18-19 (1st Cir. 1991) (defendant sitting at table with

others while heroin was being packaged was in joint constructive

possession of drug). Certainly, by personally transferring control

of the cocaine to others and by having an amount of the drug in his

own possession however briefly, May was "directly involved" with

the drug, which suffices to hold him accountable for the

contraband. See U.S.S.G. § 1B1.3, cmt. n.2.

Moreover, the delivery of the kilogram of cocaine alone

would have sufficed to render the cocaine relevant conduct to May.

See United States v. Young, 78 F.3d 758, 763 n.5 (1st Cir. 1996)

(transactions involving different drugs but same conspirators and

a common scheme made both drugs relevant conduct). May, Barbour,

Woodward, and Case were all members of the same criminal enterprise

that had been distributing marijuana for almost four years. The

same people and process were used for the cocaine as for the

marijuana, again reinforcing the district court's decision to

attribute the cocaine to May. See U.S.S.G. § 1B1.3, cmt. n.9(A);

United States v. Wood, 924 F.2d 399, 404 (1st Cir. 1991) (taking

into account conduct that involved the same mode of distribution

and transaction type as the charged drug offense).

Because of May's direct involvement with the handling of

the kilogram of cocaine and the use of the marijuana distribution

system for the cocaine, we find that the district court's inclusion

of the cocaine in the drug quantity was not clearly erroneous.

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B. Deadly Weapon Enhancement

May challenges the two-level enhancement for the presence

of a gun, arguing that the district court erroneously held that it

is foreseeable that guns will always be involved in the collection

of drug debts. Where only a guideline's application to the facts

of a case is at issue, we review for clear error. United States v.

Jackson, 3 F.3d 506, 509 (1st Cir. 1993).

A two-level increase in offense level is mandated "[i]f

a dangerous weapon (including a firearm) was possessed" in the

course of a drug offense. U.S.S.G. § 2D1.1(b)(1). The enhancement

applies "if the weapon was present, unless it is clearly improbable

that the weapon was connected with the offense." Id., cmt. n.3.

In a conspiracy case, the government must first show that one of

the defendant's co-conspirators "possessed a weapon during the

offense." United States v. Nelson-Rodríguez, 319 F.3d 12, 59 (1st

Cir. 2003). Once the government demonstrates the possession of a

gun, the burden is on the defendant to show that the connection

between the gun and the drug crime was "clearly improbable." See

Jackson, 3 F.3d at 509.

In this case, the government demonstrated a gun was used

in the course of the conspiracy. May went to Texas to help Barbour

collect a marijuana debt. One of May's co-conspirators brought a

.38 caliber pistol along when they went to collect the debt; May's

testimony at Barbour's trial indicated he knew his co-conspirator

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had the gun. May presented no evidence to show the improbability

of the connection between the gun and the conspiracy. Given May's

failure to show that the gun was likely not connected to the

conspiracy, we cannot say that the district court erred in applying

the deadly weapon enhancement.

C. Role in the Offense

May also challenges the application of the four-level

enhancement for being an "organizer or leader of criminal activity

that involved five or more participants or was otherwise

extensive." U.S.S.G. § 3B1.1. Application of this enhancement is

reviewable only for clear error. United States v. Olivier-Díaz, 13

F.3d 1, 4 (1st Cir. 1993). We have noted before that "battles over

a defendant's status . . . will almost always be won or lost in the

district court" because "the assessment of the appellant's role in

the offense of conviction is factbound." United States v. Conley,

156 F.3d 78, 85 (1st Cir. 1998) (internal quotation omitted).

May concedes that he was a "key player" and a "manager"

but argues that he had a middleman role which should result in a

three-level managerial enhancement as opposed to a four-level

enhancement for a leadership role. Among the relevant factors in

determining the role of a defendant are:

the exercise of decision making authority, the
nature of participation in the commission of
the offense, the recruitment of accomplices,
the claimed right to a larger share of the
fruits of the crime, the degree of
participation in planning or organizing the

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 offense, the nature and scope of the illegal
activity, and the degree of control and
authority exercised over others.

U.S.S.G. § 3B1.1, cmt. n.4.

The record here provides ample support for the finding

that May was a leader or organizer of the marijuana conspiracy.

The conspiracy which May and Barbour instigated in 1996 involved at

least seventeen participants. According to the presentence report

and by May's own admission, May's role in the conspiracy included

recruiting participants to the conspiracy as well as strawmen in

Maine to be used for delivery of the marijuana from Texas. May

collected the marijuana from the delivery sites, took it to others,

received payment, and divided the proceeds among the participants.

He was personally involved in the collection of drug debts, and

typically kept for himself a larger share of the proceeds than

anyone except Barbour. When Barbour was arrested in 2000, it was

May who took over the business with Massey. The evidence at

Barbour's trial showed that a co-conspirator identified May as the

person in charge of the Maine end of the operation and used the

present tense in giving that description. Cf. Olivier-Díaz, 13

F.3d at 5 (finding sufficient support for determination that

defendant was a leader or organizer where, among other things, he

recruited others to distribute the drugs, "supervised the

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collection of debts," and oversaw the operations when two of his

co-conspirators were in prison).4

On this evidence, the trial court's conclusion that May

had a leadership role, rather than a managerial one, cannot be said

to be clearly erroneous.

D. Criminal History

May's final argument is that his criminal history score

was improperly calculated because the district court erroneously

took into account three convictions for misdemeanors. He renews

the argument made at his sentencing hearing that the three

misdemeanors are sufficiently similar to the crime of disorderly

conduct to merit exclusion from the criminal history calculation.

A sentencing court should consider felonies,

misdemeanors, and petty offenses for criminal history purposes

unless the misdemeanor or petty offense falls within one of the

4
May argues that the fact that the conspiracy stopped during part
of Barbour's time in prison is evidence that it was Barbour and not
May who led the drug ring. First of all, the presentence report
indicates that, while the conspiracy slowed during Barbour's
initial time in custody, it did continue. After a temporary hiatus
in July 1998, May and Massey continued the distribution during
another of Barbour's stints in prison in 2000. More than one
person can have a leadership role in a conspiracy. See U.S.S.G.
§ 3B1.1, cmt. n.4 ("There can, of course, be more than one person
who qualifies as a leader or organizer of a criminal association or
conspiracy."); see also United States v. Andújar, 49 F.3d 16, 25
(1st Cir. 1995) (affirming determination that defendant was a
leader in spite of the fact that someone else was "running the
show" because the defendant was the ultimate organizer's "personal
contact, or principal man, . . . and in that sense he was the
leader, a leader and organizer"). Here, May was Barbour's contact
in Maine and led the operation in that state.

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exceptions provided by the guidelines. U.S.S.G. § 4A1.2. One

exception provides that a conviction for disorderly conduct or a

"similar" offense is "counted only if (a) the sentence was a term

of probation of at least one year or a term of imprisonment of at

least thirty days, or (B) the prior offense was similar to an

instant offense." U.S.S.G. § 4A1.2(c)(1). The application of a

guideline to the facts is reviewable for clear error. See United

States v. Camilo, 71 F.3d 984, 986 (1st Cir. 1995).

May contends that his 1989 conviction for terrorizing is

sufficiently similar to disorderly conduct to be excluded from his

criminal history. In that instance, May received a sixty day

suspended sentence and one year of probation. Under the terms of

§ 4A1.2(c)(1)(A), even if the crime was similar to disorderly

conduct or any other enumerated crime, it would count towards

criminal history where "the sentence was a term of probation of at

least one year." See also United States v. Gray, 177 F.3d 86, 89

n.1 (1st Cir. 1999). Thus, the terrorizing misdemeanor was

properly considered toward his criminal history.

Next, May argues his prior assault conviction was also

sufficiently similar to the crime of disorderly conduct to qualify

for exclusion. Relying on United States v. Unger, 915 F.2d 759

(1st Cir. 1990), May argues that the court erred in considering the

conduct involved in the assault. He posits that the elements of

the crime are sufficiently similar to those of the crime of

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disorderly conduct, as defined by the Model Penal Code, to justify

exclusion of the misdemeanor.

May's argument is flawed. May misconstrues Unger, which

dictates that courts consider not just the statutory elements of an

offense as compared to those of an exception, but also "the

substance of the underlying state offense in order to determine

whether it falls within the proscription" of § 4A1.2(c)(1)(A). 915

F.2d at 763; see also United States v. Spaulding, 2003 U.S. App.

LEXIS 15512, at *4 n.1 (1st Cir. Aug. 4, 2003) (applying Unger,

which was about U.S.S.G. § 4A1.2(c)(2), to cases involving U.S.S.G.

§ 4A1.2(c)(1)). Thus, the district court did not err in observing

that he "knocked somebody down and kicked them" and using the

behavior to distinguish the assault from disorderly conduct.

Assault is not one of the offenses enumerated in § 4A1.2

(c)(1)(A), but we evaluate the similarity between it and the listed

offense of disorderly conduct. The statutory elements and the

punishment provided for each offense are among the factors that

deserve comparison in the assessment of similarity. See United

States v. Reyes-Maya, 305 F.3d 362, 366 (5th Cir. 2002). The two

crimes, as defined by Maine law, are clearly different. The

assault statute requires physical injury or contact5 whereas the

5
Under Maine's all-purpose assault statute, "[a] person is guilty
of assault if he intentionally, knowingly, or recklessly causes
bodily injury or offensive physical contact to another." Me. Rev.
Stat. Ann. tit. 17-A, § 207(1) (2003). By statute, bodily injury
is defined as "physical pain, physical illness or any impairment of

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disorderly conduct statute is simply aimed at "annoyance."6

Further, the maximum punishment for assault is twice that for

disorderly conduct.7 Thus, trying to draw a comparison between the

two crimes is futile.

Similar reasoning applies to the third misdemeanor

conviction. First, as described above, the court correctly

considered the conduct involved, which here included throwing beer

bottles at a moving vehicle and continued damage even after the

vehicle stopped. The court distinguished the conduct at issue from

that contemplated in disorderly conduct, saying:

if indeed you'd been throwing those bottles at
a wall where they just broke harmlessly, that
might have been disorderly conduct, but you
were throwing them at a moving vehicle. And
when it stopped, you jumped on and continued
to damage it. That distinguishes it from the
disorderly conduct . . . .

Second, a comparison of the statutes confirms the

inclusion of the misdemeanor in the criminal history. Criminal

mischief is defined as the intentional, knowing, or reckless damage

physical condition." Me. Rev. Stat. Ann. tit. 17-A, § 2(5) (2003);
see also United States v. Nason, 269 F.3d 10, 18 (1st Cir. 2001).
6
Maine's statute defines disorderly conduct as conduct that
"intentionally or recklessly causes annoyance to others" by such
means as "making loud and unreasonable noises," causing "noxious or
offensive odors" to be released, or fighting. Me. Rev. Stat. Ann.
tit. 17-A, § 501 (2003).
7
Assault is punishable by up to a year in prison, see Me. Rev.
Stat. Ann. tit. 17-A, § 1252(1)(D) (2003), whereas disorderly
conduct is punishable by a maximum of six months in prison, see Me.
Rev. Stat. Ann. tit. 17-A, § 1252(1)(E) (2003).

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or destruction of another's property without a right to do so. Me.

Rev. Stat. Ann. tit. 17-A, § 806 (2003). The misdemeanor is

punishable by up to one year in prison. See id; Me. Rev. Stat.

Ann. tit. 17-A, § 1252(1)(D). As discussed above, disorderly

conduct involves but does not require destruction and is punishable

by up to six months in prison. Me. Rev. Stat. Ann. tit. 17-A, §

501; Me. Rev. Stat. Ann. tit. 17-A, § 1252(1)(E). We hold May's

criminal mischief constituted an offense that differed sufficiently

from that of disorderly conduct to support its inclusion in the

criminal history computation.

The district court calculated the criminal history

category properly by including all three misdemeanors.

III. Conclusion

For the foregoing reasons, the district court's judgment

is affirmed.

Affirmed.

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