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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