United States Court of Appeals
For the First Circuit
No. 04-2387
UNITED STATES OF AMERICA,
Appellee,
v.
GERALD MORRISETTE,
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,
Cyr, Senior Circuit Judge,
and Howard, Circuit Judge.
Chauncey B. Wood, with whom Shea, Larocque & Wood was on brief
for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief for appellee.
November 16, 2005
CYR, Senior Circuit Judge. Gerald Morrisette appeals
from the judgment of conviction and sentence entered against him by
the district court, for distributing cocaine base, see 21 U.S.C. §
841(a)(1), (b)(1)(B)(iii). He contends that (i) the guilty plea
was not knowing and voluntary, (ii) the government failed to prove
that he possessed in excess of 50 grams of cocaine base as charged
in the indictment; (iii) the court erred in determining that he did
not qualify for the “safety-valve” sentence reduction permitted
under 18 U.S.C. § 3553(f), and (iv) he is entitled to a Booker
remand so as to allow the district court to consider his family and
mental-health history pursuant to the advisory Guidelines regime.
As we discern no error, we affirm the district court judgment.
I
BACKGROUND
On March 16, 2004, police officers discovered a zip-lock
baggy containing approximately 70 grams of crack cocaine at
Morrisette’s residence. After Morrisette admitted to its
possession, he was charged with a single count of possessing five
or more grams of cocaine base, with intent to distribute, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(B).
On June 25, 2004, Morrisette entered a plea of guilty.
In the course of the plea colloquy, the district court inquired
whether Morrisette was under psychiatric care, and whether he was
taking medication. He responded that he was taking Thorazine for
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anxiety, as prescribed by a doctor at the Cumberland County Jail.
The court inquired whether the medication prevented him from
understanding what was happening during the plea hearing, and
Morrisette responded in the negative. Prior to accepting the
guilty plea, the district court informed Morrisette: “I’ve
observed you and your demeanor and attitude throughout these
proceedings, and I find that you’re not under the influence of any
substance that would impair your judgment.”
Thereafter, on July 6, defense counsel obtained the
approval of the district court to have Morrisette hospitalized for
psychiatric evaluation, citing a troubled family history, and a
medical diagnosis that Morrisette had experienced chronic abnormal
symptoms, including, inter alia, undifferentiated schizophrenia and
auditory hallucinations, as well as severe polysubstance abuse and
a marginal IQ. Following treatment with Zyprexa, Morrisette's
condition improved, and on August 12 he was discharged.
The presentence report (PSR) noted that Morrisette had
told the police that, in addition to the 70 grams of crack cocaine
charged in the indictment, he had possessed another 3/4 kilogram
which he and his drug partner, Donald Couture, had acquired for
distribution. In Morrisette's objection to the PSR, he denied
making any such incriminating statement.
At sentencing, Morrisette unsuccessfully urged the
district court to depart downward, based on (i) diminished mental
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capacity, citing his mental health and substance abuse problems,
and (ii) family history. The government represented to the court
that because there was no available lab analysis of the weight of
the packaging of the 70-gram baggy of cocaine, no request would be
made for imposition of the ten-year mandatory minimum sentence for
drug amounts exceeding 50 grams, 21 U.S.C. § 841(b)(1)(A)(iii),
but only for the five-year mandatory minimum sentence, id. §
841(b)(1)(B)(iii). Nevertheless, the government insisted that the
Sentencing Guidelines base offense level (BOL) should be determined
by reference to the 70-gram amount charged in the indictment, thus
yielding a BOL of 32. Defense counsel expressly agreed with the
position stated by government counsel.
The court declined to apply the “safety valve” provisions
of 18 U.S.C. § 3553(f), which would permit the imposition of a
sentence below the five-year mandatory minimum in certain specified
circumstances, and cited evidence that the police had seized eleven
firearms from the Morrisette apartment during their execution of
the search warrant. The court nevertheless accepted the
government’s recommendation that Morrisette receive a downward
departure for substantial assistance to the government.
Ultimately, Morrisette was sentenced to 78 months’ imprisonment.
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II
DISCUSSION
A. The Guilty Plea
Morrisette first contends that the guilty plea entered on
June 25, 2004, was neither knowing nor voluntary, see Fed. R. Crim.
P. 11, since the district court was aware of his history of serious
mental-health and substance-abuse problems, yet failed to ascertain
whether the medication prescribed to treat these conditions may
have prevented him from understanding what transpired at the
"change of plea" hearing. Morrisette cites our decision in United
States v. Parra-Ibanez, 936 F.2d 588 (1st Cir. 1991), as
controlling authority.
We normally review the acceptance of a guilty plea only
for abuse of discretion, but since Morrisette failed either to move
to withdraw his guilty plea below, see Fed. R. Crim. P. 11(d)(2),
or otherwise to raise the present objections before the district
court, we review only for plain error. See United States v.
Delgado-Hernandez, 420 F.3d 16, 19-20 (1st Cir. 2005). Thus,
Morrisette must demonstrate that (i) an error occurred, (ii) which
was obvious, (iii) affected his substantial rights, and (iv)
seriously impaired the fairness, integrity, or public reputation of
the judicial proceedings. See id. Morrisette cannot meet this
heavy burden.
Competence to enter a guilty plea is determined by the
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same criteria as those governing competence to stand trial:
whether the defendant is able to understand the proceedings and
assist his counsel with a reasonable degree of rationality. See
United States v. Rodriguez-Leon, 402 F.3d 17, 22 (1st Cir. 2005).
The Parra-Ibanez case is readily distinguishable. Before
Parra-Ibanez entered his guilty plea, the district court had
ordered a mental evaluation and conducted a competency hearing
during which it received evidence that Parra-Ibanez was suicidal
and suffered from serious mental-health problems. See Parra-
Ibanez, 936 F.2d at 591. In contrast, since Morrisette raised no
issue concerning his competency until after the change of plea
hearing, the district court never learned of Morrisette’s medical
diagnosis until after it had accepted the guilty plea, and
therefore it cannot have ignored any red flags.
In Parra-Ibanez, after the court learned that Parra-
Ibanez was taking three medications, it failed to question whether
the medications were such as would have had the effect of
preventing Parra-Ibanez from comprehending the plea hearing
proceedings. See id. at 595-96; see also Cody v. United States,
249 F.3d 47, 53 (1st Cir. 2001) (noting that the court in Parra-
Ibanez “failed to follow up with any question whatsoever about
whether the defendant’s medication affected his competence”)
(emphasis added); Miranda-Gonzalez v. United States, 181 F.3d 164,
166 (1st Cir. 1999) (“The absolute failure to investigate further
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once apprised of the recent ingestion of drugs doomed the plea
entered by the defendant[] in Parra-Ibanez . . . .”) (emphasis
added). At Morrisette’s hearing, however, the court specifically
inquired whether the medication (viz., Thorazine) prevented
Morrisette from understanding what was happening during the
hearing, and Morrisette responded "no." Given the facts available
to the district court at the time, its inquiry was not plainly
inadequate:
Judges are not pharmacists or doctors.
Occasionally the aid of an expert may be
necessary to explain the likely or actual
effects of a particular drug. However,
practical judgments can usually be made.
Courts have commonly relied on the defendant's
own assurance (and assurances from counsel)
that the defendant's mind is clear. Further,
the defendant's own performance in the course
of a colloquy may confirm, or occasionally
undermine, his assurances. Conversely, a
defendant's prior medical history or behavior
may call for heightened vigilance.
United States v. Savinon-Acosta, 232 F.3d 265, 268-69 (1st Cir.
2000).
Neither Morrisette nor defense counsel advised the court
either that the Thorazine had the potential seriously to affect
Morrisette’s cognitive abilities,1 or that the Thorazine was not
1
Morrisette now contends that he was not taking Thorazine, but
Zyprexa. The difference is not material in this instance, however,
as we must assess the plea in reference to the facts known to the
court at the plea hearing. Even assuming Morrisette incorrectly
identified his medication regimen, defense counsel corroborated
that Morrisette was taking Thorazine. We may take notice, however,
that the Physician’s Desk Reference categorizes both these drugs as
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effectively ameliorating the symptoms associated with schizophrenia
and substance abuse. The district court asked Morrisette a series
of questions regarding his understanding of the terms of the plea
agreement, to which Morrisette provided cognizant and coherent
responses.2 At one point, Morrisette volunteered a statement
regarding his fears of retaliation, which had prompted his request
to be placed in the witness protection program. See id. at 269
(noting that defendant volunteered “more elaborate responses” to
questions susceptible of "yes" and "no" responses). Finally, after
observing Morrisette’s demeanor first hand, the district court made
an explicit finding that Morrisette was competent to enter the
guilty plea. See Rodriguez-Leon, 402 F.3d at 25 n.8 (noting that
appellate review is somewhat circumscribed, in that district court
had better vantage to assess defendant's demeanor).
Given these particular circumstances, therefore,
Morrisette cannot demonstrate plain error, and the guilty plea
stands.
B. The Drug Quantity
Morrisette next contends that the district court erred in
anti-psychotics.
2
Morrisette objects that most of the answers he gave were
"yes" or "no," which provided a poor indication of his level of
comprehension. We have rejected this argument. See Rodriguez-
Leon, 402 F.3d at 25 n.8 (noting difference between “automatic”
"yes" and "no" answers, as distinguished from those “based on an
understanding of the substance of the questions”).
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determining the drug quantity at 70 grams, since the prosecutor
conceded at the sentencing hearing that he had not yet obtained the
laboratory analysis to determine the relative weight of the
packaging and the cocaine base. This contention likewise fails.
As Morrisette failed to assert this objection before the
district court, we review only for plain error. See United States
v. Antonakopoulos, 399 F.3d 68, 77 (1st Cir. 2005). The Sixth
Amendment right to jury trial is not offended where the defendant
was sentenced on the basis of admitted facts. See United States v.
Booker, 125 S. Ct. 738, 756 (2005). Before Morrisette entered into
plea negotiations with the government, the district court
explicitly warned him that “70 grams is the crack quantity on which
you will be sentenced unless you make a different arrangement [with
the government].” During the Rule 11 colloquy, the district court
informed Morrisette that, given the recent decision in Blakely v.
Washington, 542 U.S. 296 (2004) (invalidating state sentencing
guidelines similar to the federal Guidelines), it was possible that
the Supreme Court might determine that the Guidelines violated a
defendant’s Sixth Amendment rights where the court predicated its
sentence upon a drug quantity not determined by a jury. Morrisette
and defense counsel both conceded the accuracy of the prosecution’s
recitation of the facts relevant to the offense, including the fact
that the police recovered a zip-lock baggy containing approximately
70 grams of crack cocaine. Subsequently, Morrisette again failed
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to object when the PSR stated that he had possessed approximately
70 grams of crack cocaine and thus should be ascribed a BOL of 32.
As Morrisette consistently admitted to possessing 70 grams of crack
cocaine, the district court did not commit plain error in utilizing
that amount in establishing the BOL. See, e.g., United States v.
Riggs, 347 F.3d 17, 20 (1st Cir. 2003), cert. denied, 540 U.S. 1126
(2004).
Government counsel's concession, at sentencing, that the
government was not then prepared to establish that the weight of
the cocaine (as contrasted with the weight of its packaging)
exceeded 70 grams, in no sense mitigated Morrisette’s waiver.
Government counsel addressed the matter only as it applied to the
government's decision not to seek the higher statutory mandatory
ten-year minimum sentence, imposed for drug quantities exceeding 50
grams, rather than the 5-year minimum for amounts less than 50
grams. Moreover, defense counsel explicitly agreed with this
treatment, by representing to the court that Morrisette wanted to
“mak[e] a compromise: the mandatory minimum five years, not to
fight, agreeing to more than 50 [grams] for an offense level of
32.” Furthermore, defense counsel characterized the government’s
concession as “reasonable under the circumstances,” and requested
that the district court “accept” the government’s proposed
approach. Given these stark circumstances, Morrisette can hardly
assert plain error.
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Further, we would note that the motivations for
Morrisette’s agreement to the “compromise” are readily apparent.
First, although not the subject of evidentiary demonstration, on
the present record, it is highly implausible that the weight of the
packaging – a zip-lock baggy – would constitute 29% of the total
weight of the package and its contents, viz., 70 grams. Second,
the government could have included in the indictment the 3/4
kilogram of crack cocaine which Morrisette allegedly admitted
possessing with his drug partner Donald Couture. Finally, the fact
that the government had yet to receive a lab analysis as to the
weight of the drug package at the time of sentencing cannot be
presumed to mean that the government could not have presented the
analysis at trial had Morrisette rejected the plea agreement. The
Morrisette admission that he possessed 70 grams of crack cocaine
was obviously strategic, as it benefitted him considerably at
sentencing. Accordingly, we discern no plain error in the district
court’s determination of the drug quantity as 70 grams, with a
resulting BOL of 32.
C. The “Safety Valve” Provision
The “safety valve” provision in the Sentencing Guidelines
ordains that the district court ought not impose the statutory
mandatory minimum sentence where the defendant has satisfied five
criteria, including the criterion that the defendant did not
possess a firearm in connection with the offense of conviction. 18
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U.S.C. § 3553(f)(2); U.S.S.G. § 2D1.1(b)(7). Morrisette maintains
that the district court violated the Sixth Amendment by crediting
evidence that the police found eleven firearms in Morrisette's
apartment during their execution of the search warrant, a
sentencing fact that (according to Morrisette) Blakely determined
must be either decided by a jury or admitted by the defendant. We
disagree.
The “safety valve” provision serves to reduce a sentence
below the statutory mandatory minimum sentence, and thus the burden
of proof rests with the defendant to establish the five criteria
set out in subsection 3553(f). See United States v. McLean, 409
F.3d 492, 502 (1st Cir.), cert. denied, No. 05-6286, 2005 WL
2494179 (U.S. Oct. 11, 2005). Blakely, and by extension Booker,
expressly relate only to the constitutionality of judicial
factfinding which results in sentencing enhancements, not to
sentencing reductions. See United States v. De Los Santos, 420
F.3d 10, 13 n.3 (1st Cir. 2005); United States v. Bermudez, 407
F.3d 536, 545 (1st Cir.), cert. denied, 126 S. Ct. 304 (2005); see
also United States v. Payton, 405 F.3d 1168, 1173 (10th Cir. 2005).
Accordingly, the district court finding that Morrisette failed to
establish that he did not possess a firearm in connection with the
offense of conviction is not subject to this type of Blakely-Booker
challenge.
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D. Post-Booker Remand
Finally, Morrisette contends that we must vacate and
remand for resentencing in light of Booker, because there is a
“reasonable probability” that the district court would impose a
more favorable sentence under the post-Booker sentencing regime,
which treats the Sentencing Guidelines as advisory rather than
mandatory. See Antonakopolous, 399 F.3d at 75. Morrisette cites
several factors which the district court might now consider grounds
for imposing a sentence below the corresponding Guidelines
sentence, including his troubled family history,3 and his history
of serious untreated mental illness.
The fatal flaw in these contentions is that the district
court was presented with all of this evidence, yet decided that
Morrisette's contentions bore no relevance in determining whether
to grant a downward departure. Under the Sentencing Guidelines,
family history and mental illness are merely discouraged grounds
for departure, not forbidden grounds. See U.S.S.G. §§ 5H1.2,
5H1.3, 5H1.4. We ordinarily have refused to order post-Booker
remands where – as here – the district court had before it all the
evidence material to these factors, yet demonstrated no inclination
3
Morrisette adduced evidence that his parents were poor, had
serious mental illnesses, were alcoholics, and were physically
abusive. He himself was illiterate and had only limited education
(through sixth grade). His mother put him out of the house when he
was twelve-years-old, whereupon he began using illegal drugs and
abusing alcohol.
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to consider them grounds for departure. See, e.g., United States
v. Martins, 413 F.3d 139, 154 (1st Cir. 2005) (“Nearly all the
factors to which [defendant] alludes were limned in the PSI Report,
yet the district court chose not to speak to them at sentencing.
The inference is that the court was unimpressed.”). For example,
in denying the “diminished capacity” departure, the court stated:
“[T]he psychiatric report . . . does not establish that [his]
significantly reduced mental capacity contributed substantially to
the commission of this offense.” We therefore see no reasonable
probability that the district court would reconsider the relevance
of such evidence under the now-advisory Guidelines regime.
Affirmed.
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