United States v. Barbour

United States Court of Appeals
For the First Circuit

No. 03-1229

UNITED STATES,

Appellee,

v.

SCOTT A. BARBOUR,

Defendant, Appellant.

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

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

Before

Selya, Circuit Judge,
John R. Gibson,* Senior Circuit Judge,
and Howard, Circuit Judge.

William Gray Schaffer, for appellant.

Margaret D. McGaughey, Appellate Chief, Assistant United
States Attorney, with whom Paula D. Silsby, United States Attorney,
was on brief, for appellee.

December 29, 2004

*
Hon. John R. Gibson, of the Eighth Circuit, sitting by
designation.
 JOHN R. GIBSON, Senior Circuit Judge. Scott A. Barbour

appeals his conviction of one count of conspiracy to possess with

the intent to distribute and distribution of at least 500 grams of

cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(B)

(2000), and one count of conspiracy to possess with the intent to

distribute and distribution of at least fifty kilograms of

marijuana in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(C).

On appeal, Barbour raises four arguments: sentencing factor

manipulation, prosecutorial misconduct, improper jury instruction

on drug quantities, and errors in interpreting and applying

sentencing guidelines. We affirm.

Barbour was convicted in Texas in 1996 for wire fraud

arising from a telemarketing scheme and was sentenced to eighteen

months' imprisonment. After he served that term, his supervised

release was revoked in 1998, and he went back to prison until 1999.

He was again put on supervised release and required to live at a

halfway house in Maine. In late October of 1999, while Barbour was

still on supervised release, he moved from Maine to Texas, which

violated the terms of his supervised release. An arrest warrant

was issued two days later, but it was not served on Barbour until

October 2000. In the intervening period, he had established

residence and a fictitious identity ("Jon Kugler") in Houston,

Texas and had begun shipping marijuana to Barry May, who sold it to

Maine drug dealers. Barbour and his family left Houston in the

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late summer of 2000.

Following his arrest in October 2000, Barbour was

sentenced to an additional twelve months' imprisonment. On the

final day of his imprisonment, in October 2001, Barbour and May

were arrested and indicted for conspiracy to possess and distribute

cocaine and marijuana from January 1, 1999 through October 1, 2001.

A jury found Barbour guilty of both counts, and the district court

sentenced him to 420 months' imprisonment.

The issues raised by Barbour do not require that we deal

extensively with the trial record concerning the details of the

conspiracy.

I.

Barbour argues that the government's nine-month delay in

executing on an arrest warrant and twenty-one-month delay in

bringing conspiracy charges constituted impermissible sentencing

factor manipulation. He argues that Agent Baril and the Assistant

United States Attorney knew in early 2000 that Barbour was in

Houston using the alias "Jon Kugler," but they took no serious

action to execute on the November 1999 warrant until September 2000

when agents raided the house that he had been living in. Barbour

argues that Baril was motivated by improper personal animus in

delaying the arrest and charges to increase Barbour's potential

sentence. Barbour attempts to show Baril's personal animus toward

him through Baril's testimony that he was waiting for "the right

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moment" to arrest Barbour. Barbour argues that Baril waited to

arrest Barbour for no legitimate reason, but only to frustrate

Barbour and increase his sentence.

It is the defendant's burden to show sentencing factor

manipulation by a preponderance of the evidence. United States v.

Gibbens, 25 F.3d 28, 31-32 (1st Cir. 1994). We review the district

court's determination of whether manipulation occurred for clear

error. Id. at 32. A district court's determination is clearly

erroneous when, although there is evidence to support it, the

reviewing court is left with the "definite and firm conviction that

a mistake has been committed." United States v. Newton, 326 F.3d

253, 257 (1st Cir. 2003)(quoting Reich v. Newspapers of New

England, Inc., 44 F.3d 1060, 1080 (1st Cir. 1995)).

Sentencing factor manipulation occurs where law

enforcement agents venture outside the scope of legitimate

investigation and engage in extraordinary misconduct that

improperly enlarges the scope or scale of the crime. United States

v. Egemonye, 62 F.3d 425, 427 (1st Cir. 1995). A manipulation

claim can be established by showing that the agents overpowered the

free will of the defendant and caused him to commit a more serious

offense than he was predisposed to commit. United States v.

Connell, 960 F.2d 191, 196 (1st Cir. 1992).

A typical sentencing factor manipulation claim involves

undercover agents participating in criminal activity with the

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defendant and waiting to make an arrest for the sole purpose of

increasing the defendant's sentence by encouraging the commission

of a crime that the defendant was not predisposed to commit. See,

e.g., Egemonye, 62 F.3d at 427; Gibbens, 25 F.3d at 30-31. This is

not such a case because there was no pressure to commit a more

serious crime, no agent involvement in Barbour's crimes, and there

was a legitimate reason to delay Barbour's arrest.

Analysis of a sentencing factor manipulation claim

focuses primarily (though not exclusively) on the conduct and

motives of the government. Gibbens, 25 F.3d at 31. The government

has "broad latitude" in investigating crime and can lengthen an

investigation to explore the size, techniques and participants

involved in a criminal operation. Egemonye, 62 F.3d at 427-28.

The district court rejected Barbour's claim of sentencing

factor manipulation because agents did not encourage Barbour or

"lead him into new criminal conduct," and because it found there

was a legitimate reason to delay Barbour's arrest. The district

court described Barbour as the leader of an extremely large, five-

year drug conspiracy. The government identified at least eighteen

participants, most of whom communicated using false names and code

words. The participants frequently switched cell phones and land

lines. The method of drug transportation evolved from tackle boxes

to PVC pipes to Volkswagen vehicles to commercial shrink wrap

packaging. Barbour avoided police by moving from Maine to Texas,

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to New Hampshire, and to Florida, where he was arrested. During

the year before Barbour's 2001 arrest, Agent Baril identified five

additional participants in the conspiracy and obtained additional

telephone and shipping records. The agents in this case kept up

with the constantly changing size, techniques, and participants of

the conspiracy. This is exactly the type of investigative work

Egemonye considered within the legitimate scope of government

agents' authority. 62 F.3d at 427.

The record reveals no improper conduct on the part of the

agents during that investigation. There is no indication that

agents pressured or coerced Barbour to "achieve a new level of

crime." Id. No undercover agent bought drugs from, or sold drugs

to, Barbour. Agents had no contact with Barbour until his arrest.

The record reflects no improper law enforcement motive.

We have said that racial hostility or personal animus would be an

improper motive. Id. at 428. Even if Baril's comment about

waiting for the "right moment" could be interpreted as personal

animus, as Barbour argues, it is also amenable to an innocent

interpretation. Baril said he was waiting to be sure he had

sufficient evidence for a conviction. He was also waiting to

identify more of the conspirators and gather evidence against them.

A district court's choice between two or more reasonable

interpretations of the evidence cannot be called clearly erroneous.

Gibbens, 25 F.3d at 32. The district court did not err in

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rejecting Barbour's claim of sentencing factor manipulation.

II.

Barbour argues that the district court did not properly

instruct the jury on the government's burden to prove the drug

quantities from the indictment, as required by Apprendi v. New

Jersey, 530 U.S. 466, 490 (2000). The district court instructed

the jury that it must find elements beyond a reasonable doubt, but

did not characterize the drug quantity determination as an element.

Barbour argues this error denied his Fifth and Sixth Amendment

rights to a jury verdict on the drug quantities.

The district court included the drug quantities in the

verdict form. The verdict form asked, "Did the cocaine conspiracy

involve, in total, at least 500 grams of cocaine?" The jury

checked the "yes" box. The verdict form asked, "Did the marijuana

conspiracy involve, in total," listing several quantities, with

instructions to check only one. The jury put a checkmark next to

"at least 50 kilograms of marijuana." The jury instructions stated

that if the jury found Barbour guilty, it must determine the drug

quantities involved, and stated seventeen times that the

government's burden of proof was beyond a reasonable doubt.

Barbour raises this Apprendi argument for the first time

on appeal; he did not object to the jury instructions at trial or

at sentencing. He asks that we excuse his failure to object

because the case that established that Apprendi errors may be

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raised at sentencing was decided after Barbour's sentencing.

United States v. Nelson-Rodriguez, 319 F.3d 12 (1st Cir.), cert.

denied, 539 U.S. 938 (2003). Because confusion existed, in

Nelson-Rodriguez we assumed that the defendants preserved their

objections if they objected either before the jury instructions

were given or at sentencing. Id. at 47-48. Barbour did neither,

so even if we made the same assumption for him, we would still

review for plain error. Id. at 47-49.

Under the plain error standard, we reverse only if a

"clear and obvious" error occurred. United States v. Perez-Ruiz,

353 F.3d 1, 9 (1st Cir. 2003) (quoting United States v. Duarte, 246

F.3d 56, 60 (1st Cir. 2001), cert. denied, 124 S. Ct. 2058 (2004)).

That error also must affect the defendant's substantial rights and

must seriously impair the fairness, integrity, or public reputation

of judicial proceedings. Id.

Any fact, other than a prior conviction, that increases

the penalty for a crime beyond the prescribed statutory maximum

must be submitted to a jury and proved beyond a reasonable doubt.

Apprendi, 530 U.S. at 490. In Perez-Ruiz, we applied the Apprendi

rule to drug quantity determinations. 353 F.3d at 16.

Barbour interprets United States v. Goodine, 326 F.3d 26

(1st Cir. 2003), cert. denied, 124 S. Ct. 1600 (2004), as requiring

elements to be found beyond a reasonable doubt, but allowing

sentencing factors to be found by a preponderance of the evidence.

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In Goodine, the jury found certain drug quantities, but the judge

considered additional quantities in sentencing the defendant. Id.

at 27. We applied a preponderance of the evidence standard to the

quantities found by the judge and called them sentencing factors

rather than elements. Id. at 32. Goodine held that Apprendi was

not violated when the sentence imposed exceeded the guideline range

for the indicted amount but did not exceed the maximum statutory

penalty for the drug quantities found by the jury.

Where a fact finding, other than a prior conviction,

increases the statutory maximum, under Apprendi and Harris v.

United States, 536 U.S. 545, 550 (2002), the fact must be found by

the jury beyond a reasonable doubt. The Supreme Court explained

that if, because of the existence of a particular fact, the penalty

is to be increased beyond the statutory maximum, that fact must be

found by the jury regardless of whether it is a sentencing factor

or an element. Harris, 536 U.S. at 550.

The maximum sentence for convictions in which no

particular quantity was proved is twenty years for cocaine and five

years for marijuana. 21 U.S.C. § 841(b)(1)(C), (D) (2000). The

district court sentenced Barbour to 420 months, or thirty-five

years, which exceeds the twenty- and five-year statutory maximums

in the absence of a quantity determination. Under Harris and

Apprendi, before Barbour could be sentenced beyond the statutory

maximums based on quantity, the drug quantity must be found by the

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jury beyond a reasonable doubt. The question in this case is

whether, on the instructions given, the jury would have understood

that it had to find the drug quantities beyond a reasonable doubt.

We held that the jury had not been instructed that it

must find drug quantities beyond a reasonable doubt in United

States v. Perez-Ruiz and United States v. Nelson-Rodriguez. In

Perez-Ruiz, the judge read the quantities listed in the indictment

to the jury once and elsewhere stated that the jury must find

beyond a reasonable doubt that the indicted conspiracy existed.

353 F.3d at 16. We held that instructions did not forge the

necessary link between the concept of drug quantity and the beyond-

a-reasonable-doubt standard. In United States v. Nelson-Rodriguez,

the court provided a copy of the indictment, which listed the drug

quantities, to the jury, but the jury was asked to find only

whether there was the conspiracy as indicted, not whether the drug

amounts in the indictment were correct. 319 F.3d at 45. The

result was that the jury only found that the charged conspiracy

existed but did not determine the drug quantities. Id.

Here, in contrast, the jury was given three choices of

drug quantities - not all or nothing, but a multiple choice. The

jury was asked to specify drug type and quantity, and it did so.

It is not tenable to compare this case to Perez-Ruiz or Nelson-

Rodriguez, in each of which the jury was not permitted to specify

amount and was not alerted to the need to consider the amount in

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its own right. Here, the district court included the drug

quantities in the verdict form. The jury was instructed that if it

found Barbour guilty, it would also "have to answer one or more

questions concerning the quantity of the substance involved which

may affect the potential sentence." The jury instructions

contained seventeen references to the government’s beyond-a-

reasonable-doubt burden of proof. The jury was clearly instructed

that the defendant's guilt must be proven beyond a reasonable

doubt, and the drug quantity questions that immediately followed

connected that burden of proof to the drug quantity determination.

The instructions in this case contain a more precise finding of

drug quantity and contain a closer link between the burden of proof

and the jury's quantity determination than the instructions in

either Perez-Ruiz or Nelson-Rodriguez. The district court did not

commit plain error when it instructed the jury on the government's

burden of proof and included the drug quantities involved on the

verdict form.

III.

Barbour argues that the Assistant United States

Attorney's pervasive misconduct during the trial and the sentencing

undermined the accuracy of the fact-finding process and resulted in

a fundamentally unfair conviction and sentence. Only three of

Barbour's allegations of misconduct by the Assistant Attorney

warrant discussion: (1) whether the Attorney tampered with the

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proffer statements; (2) whether the Attorney improperly bolstered

the government's credibility; and (3) whether the Attorney made

improper remarks on Barbour's failure to testify during closing.

We review Barbour's claims of prosecutorial misconduct

for plain error because he failed to object at trial. United States

v. Roberts, 119 F.3d 1006, 1013-14 (1st Cir. 1997).

First, Barbour claims that the Assistant Attorney changed

facts in Baril's proffer reports, which rendered them inaccurate

and unreliable, and then used the reports during his impeachment of

Barry May. The proffer reports were investigative reports prepared

by agents of the Maine Drug Enforcement Agency after interviews

with cooperating witnesses. Barbour's brief argues that by

reviewing and revising proffer reports, the Attorney rendered them

unreliable and then injected the contents of the reports before the

jury without defense counsel being made aware of the tampering.

Barbour's only support for claiming the Assistant

Attorney changed facts is that some of the facts in the reports

differed from Baril's recollection1 or from another witness's

recollection. If the proffer reports do not coincide perfectly

with the witnesses' memories, that inconsistency does not establish

that the Attorney changed facts in Baril's proffer report. Baril

1
Baril remembered May telling him that packages weighed 20-50
pounds, but the proffer said "at least 50 pounds." Baril explained
that May gave several different quantity estimates for those
packages throughout his interview, and he averaged the quantity in
the proffer.

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said during the sentencing hearing that, during an interview, he

routinely tries to take notes verbatim and he types them into a

report as soon as possible. A copy of that report is sent to the

prosecutor, any agents who attended the interview, the witness, and

the defense attorney to be reviewed for accuracy. After the report

is written and signed, any corrections are made in a supplemental

report. Barbour received a copy of Baril's handwritten notes from

the interviews. The record does not establish plain error because

Barbour has not shown that the Assistant Attorney tampered with any

of the proffer reports.

Second, Barbour contends that the Assistant Attorney

improperly bolstered the government's credibility during the trial.

The Attorney periodically questioned witnesses about what they told

"us" or the "agents" in their proffer sessions. Barbour argues

that by identifying himself with the agents, the Attorney

improperly borrowed the prestige of those agents. Barbour argues

that the Attorney repeatedly mentioned that the witnesses told a

different story to government agents to imply that because the

agents worked for the government, their recollection was more

likely to be the truth than the witnesses' recollection. We are

persuaded by the government's explanation that the Attorney used

those words as context, to explain to the court and the witnesses

to which interviews he was referring. An assistant attorney's

cross-examination of a witness with an inconsistent statement would

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be of doubtful value if he were not permitted to delineate between

conversations by giving the witness more context. May participated

in several proffers and at one point during the trial, for

clarification, had to ask the Attorney, "Is this the proffer I did

with you?" There is no indication that the Attorney was attempting

to bolster the government's credibility with those references.

The Assistant Attorney also said, "So I guess the agents

got that wrong" when confronting May with an inconsistent

statement. Even if the isolated question indirectly implied that

the government was more credible than the witness, the question

still does not rise to the level of plain error in this case.

Third, Barbour claims that the Assistant Attorney made

two improper comments during closing argument about Barbour's

failure to testify.

Comments by a prosecutor on a defendant's failure to

testify violate the Fifth Amendment guarantee against self-

incrimination. Griffin v. California, 380 U.S. 609, 615 (1965).

This court looks at whether the prosecutor's language shows a

manifest intention to comment on the defendant's failure to testify

and whether the jury would naturally and necessarily understand it

to be a comment on the defendant's failure to testify. United

States v. Wihbey, 75 F.3d 761, 769 (1st Cir. 1996).

In this case, the Assistant Attorney said, "But if you

want to really find out what went on, go to the people on the

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inside . . . [t]hose are the only people who laid it out for you."

The government contends that the Attorney meant that the

conspirators were credible witnesses because their information came

from their position inside the conspiracy. That interpretation

fails to explain why he said they were "the only people who laid it

out for you." The Attorney's intention could have been to comment

only on the credibility of his witnesses, but this last phrase

raises the possibility he was commenting on Barbour's failure to

testify or present witnesses. But it seems more likely that he was

comparing the insiders to the other witnesses who testified.

The Assistant Attorney's second comment referred to one

of Barbour's taped phone conversations. He said, "The best witness

in this case I submit to you is Mr. Panasonic. . . . Mr. Panasonic

allowed you to listen to this defendant." That comment may also be

open to more than one interpretation. Perhaps the Attorney was

suggesting only that the taped evidence was the best, most

objective evidence in the trial. In closing, the Attorney

explained that "Mr. Panasonic has nothing to gain or lose. Mr.

Panasonic has not been impeached one iota." On the other hand,

"this allowed you to listen to this defendant" arguably might be

interpreted as a reminder to the jury that Barbour did not take the

stand to explain the taped conversations and as a reminder that the

prosecution was the only party who made it possible for the jury to

listen to the defendant.

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 Assuming, arguendo, that the Assistant Attorney's

comments are each capable of at least two possible interpretations,

one impermissible and one innocent, it would not profit Barbour

here. In these situations we have cautioned, "A court should not

lightly infer that a prosecutor intends an ambiguous remark to have

its most damaging meaning." Wihbey, 75 F.3d at 770 (citations

omitted). Nor should we assume the jury will draw from the

comments the most damaging meaning. United States v. Newton, 327

F.3d 17, 27 (1st Cir.), cert. denied, 124 S. Ct. 338 (2003).

Wihbey reviewed two comments similar to those in Barbour's case.

First, the prosecutor mistakenly named the defendants among those

who testified; he then said, "You've heard from all of those

witnesses except for obviously the two Defendants. . ." Id. at

768. The court agreed that the prosecutor was trying to correct

his earlier mistake and the jury would understand his statement as

a correction. Id. at 770. Second, the prosecutor stated that

defense counsel could not "explain away" a conversation that

another witness testified about. Id. at 769. The court

categorized that statement as a "how-does-counsel-explain" Griffin

violation, but held it was not plain error, stating that the

comment did not seriously affect the fairness and integrity of the

proceedings for two reasons. Id. at 770-71. First, the jury was

instructed on the defendant's right to not testify and on the

government's burden of proof, and second, the evidence against the

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defendant was strong, even if not overwhelming. Id.

Even if the Assistant Attorney intended the comments to

be a reference to Barbour's failure to testify, or if the jury

believed them to be, the comments did not likely affect the outcome

of the trial. The potential influence of those comments on the

jury was mitigated by the jury instructions, which stated that the

defendant had no obligation to testify and repeated the

government's beyond-a-reasonable-doubt burden seventeen times. The

evidence of Barbour's guilt was strong, although the specific drug

quantities and length of the conspiracy were disputed. If the

comments were objectionable, Barbour did not object, and the

comments do not rise to the level of plain error. See, e.g.,

United States v. Moran, No. 03-2148, 2004 WL 2900357 (1st Cir. Dec.

15, 2004).

IV.

Barbour argues that in sentencing him, the district court

erred in its determination of drug quantities, possession of a

weapon, criminal history, and obstruction of justice.

Barbour first argues that the district court erred in

attributing to him drug quantities that were outside the scope of

the charged conspiracy. In reviewing a district court's

application of sentencing guidelines, we review the guideline's

legal meaning and scope de novo. United States v. Caraballo, 200

F.3d 20, 24 (1st Cir. 1999). We review the court's fact-finding

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for clear error, giving due deference to the court's application of

the guidelines to the facts. Id.

Under the sentencing guidelines, a defendant may be held

accountable for drug quantities involved in his "relevant conduct."

This includes acts committed during the commission of the offense,

in preparation, in the course of attempting to avoid detection, or,

in some situations, conduct that was part of the same course of

conduct or common scheme or plan as the offense of conviction.

U.S.S.G. § 1B1.3 (2003). The background section of 1B1.3

authorizes judges to look at conduct beyond the crimes charged in

the indictment: "Conduct that is not formally charged or is not an

element of the offense of conviction may enter into the

determination of the applicable guideline sentencing range."

U.S.S.G. § 1B1.3, comment: backg'd. In the context of controlled

substances, the background states that "quantities and types of

drugs not specified in the count of conviction are to be included

in determining the offense level" if they fit within the definition

of relevant conduct. Id.

Barbour's argument is that the government should have

charged four separate conspiracies rather than charging a single

(1999-2001) conspiracy, and the court should have viewed Barbour's

activity before 1999 as a separate conspiracy. The government

provided evidence to support the theory of a single evolving drug

conspiracy rather than several discrete and separate conspiracies.

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The district court made a factual finding that Barbour was the

leader of one single drug conspiracy from 1996 to 2001. We cannot

say this finding, which was supported by the record, was clearly

erroneous. Barbour's conduct can still be relevant, though it may

be outside the time frame of the charged conspiracy. The district

court's finding of a single conspiracy from 1996-2001 supports the

inclusion of the drug quantities as part of the same course of

conduct or common scheme or plan as the offense of conviction. The

district court made no legal error in its application of the

guidelines. Because Barbour's involvement as early as 1996 is

supported by the record, the district court did not err in

attributing the drug quantities to Barbour as part of his relevant

conduct.

Barbour also argues that the court relied on "unreliable"

or "inaccurate" information in attributing to him 360 pounds of

marijuana and one kilogram and forty-two ounces of cocaine.

Barbour claims the marijuana could only have been part of the

conspiracy in 1999, but the district court attributed it to Barbour

in 1996. The district court relied on John Ross's testimony, a co-

conspirator, whom the court found credible for determining drug

quantities, even though he was unable to recall the dates of the

drug transactions. Barbour does not claim that the marijuana was

counted twice. Whether the transaction occurred in 1996 or 1999

makes little difference because the district court found the

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conspiracy lasted from 1996-2001.

Barry May and Steven Case testified about Barbour's

involvement with the cocaine. May testified that he received a

kilogram of cocaine in May 2000. He said "they all were involved

with it," but that it was either Barbour or Shane Hall who actually

sent the cocaine to him. May took some of the cocaine to Kevin

Woodward's house to be divided. Case testified that in May 2000,

he saw almost a full kilo of cocaine at May's house, and that May

told him that Barbour took some of it when he packaged the kilo.

Case also testified that Barbour sent him another forty-two ounces

of cocaine around the time that Barbour was leaving Texas.

The district court was only required to find by a

preponderance of the evidence that these drug quantities were part

of Barbour's relevant conduct. United States v. Laboy, 351 F.3d

578, 582 (1st Cir. 2003). The record supports each drug quantity

determination, and we find no clear error in the district court's

application of the guidelines to the facts.

Barbour additionally argues that the district court did

not have sufficient evidence for the weapon enhancement. Witnesses

May and Hall testified that Barbour was among a group who went to

collect a debt in Houston. The group started from a bar and

dropped by Hall's house to get a gun. Hall went inside and

returned with a gun, and the group went to collect a drug debt from

Case. Barbour admitted they went looking for Case to "rough him

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up."

We upheld a weapon enhancement against May for the same

incident. United States v. May, 343 F.3d 1, 7 (1st Cir. 2003). In

May, we said that in a conspiracy case, the government must show

that one of the defendant's co-conspirators "possessed a weapon

during the offense." May, 343 F.3d at 7 (quoting Nelson-Rodriguez,

319 F.3d at 59). Then the burden shifts to the defendant to show

the connection between the gun and the drug conspiracy was "clearly

improbable." Id. Here, the government showed that Hall, a co-

conspirator, took a gun with him on the group expedition to collect

on a drug debt owed to Barbour and the other conspirators. Barbour

failed to provide evidence that the connection between the drug

conspiracy and the gun was "clearly improbable." We affirm the

enhancement.

Barbour argues that the district court sentenced him from

the wrong criminal history category because the government failed

to establish that he was represented by counsel for his previous

convictions.

Once the government establishes the existence of a prior

conviction, the burden shifts to the defendant to show that the

earlier conviction was constitutionally infirm or otherwise

inappropriate for consideration. United States v. Gray, 177 F.3d

86, 89 (1st Cir. 1999). For his lack of representation claim,

Barbour must have established both that he was uncounseled and that

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he did not waive his right to counsel. Id. at 90. The Presentence

Investigation Report, which can be used to satisfy the government's

"modest" burden, id. at 89, detailed fifteen of Barbour's prior

convictions. Barbour provided state records of his criminal

history; some of those records indicate that Barbour was

represented and some of them are silent as to representation.

Even if we were to assume those records establish a lack

of representation, they still do not show whether Barbour waived

his right to counsel. Id. We have said that as the person in the

best position to offer details about his own criminal history, a

defendant's silence at sentencing can be "deafening." Id. at 90.

Here, Barbour testified at sentencing, but failed to testify about

whether he was represented in connection with his prior

convictions, thus failing to establish the necessary element of

failure to waive counsel. The district court did not err in its

criminal history determination.

A lengthy discussion of Barbour's challenge to the

obstruction of justice enhancement is not necessary. The record is

replete with references to support the district court's conclusion.

For the first time after oral arguments, Barbour

submitted a letter under Fed. R. App. P. 28(j), calling our

attention to Blakely v. Washington, 124 S. Ct. 2531 (2004).

Although Blakely stated that it expressed no opinion on the

validity of the federal sentencing guidelines, its rationale casts

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doubt on their constitutionality, and the Supreme Court has taken

the question under advisement. United States v. Del Rosario, 388

F.3d 1 (1st Cir. 2004).

A party cannot normally raise a new issue in a Rule 28(j)

filing. United States v. Morgan, 384 F.3d 1, 8 (1st Cir. 2004).

A more difficult question is whether this rule should apply when a

party is raising a new issue in response to a Supreme Court

decision that was issued only after briefing and oral argument.

Id. If Barbour merely failed to raise the argument, we can still

review for plain error, but if Barbour waived the argument, no

review is available. See id. If we assume, in Barbour's favor,

that plain error review is available, Barbour's argument does not

prevail.

We review the district court's determinations in light of

the existing precedent at that time. The district court sentenced

Barbour on February 5, 2003, which was more than one year before

the Supreme Court decided Blakely. We cannot say that the district

court's application of the sentencing guidelines, which occurred

before Blakely cast doubt on their constitutionality, was plain

error. See, e.g., Del Rosario, 388F.3d at 14-15; Morgan, 384 F.3d

at 8.

Barbour's conviction and sentence are affirmed.

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