United States v. Pinkham
Opinion
Defendant-appellant Dale Pinkham, Sr., challenges his 240-month incarcerative sentence. He strives to convince us that the district court held him responsible for an incorrect drug quantity and, in the bargain, improperly counted two prior convictions when calculating his criminal history score. We are not persuaded by either argument and, therefore, summarily affirm his sentence.
I. BACKGROUND
Because this appeal follows the appellant's guilty plea, we draw the facts from the change-of-plea colloquy, the uncontested portions of the presentence investigation report (PSI Report), and the record of the disposition hearing.
See
United States
v.
Fields
,
The conviction and sentence sub judice stem from the appellant's operation of what might be termed a family business: a drug-trafficking conspiracy that involved his sons (Robert, Raymond, and Dale, Jr.) and his romantic partner of 30 years (Louise Cook). Beginning around 2012, the appellant ran this conspiracy from his home in Gorham, Maine. During its embryonic stages, the appellant typically obtained 10 to 20 grams of heroin once every two months from a Boston-based supplier. Over time the conspiracy matured, with the result that the appellant's purchases increased in frequency, eventually becoming monthly occurrences. The amounts of heroin handled by the conspiracy escalated as well, rising to roughly 200 to 400 grams per month.
*136 Even apart from promoting drug use, the appellant's criminal activities had a deleterious effect on the community in which he lived. He encouraged his customers to commit burglaries and bring him items that he prized. In this way, the appellant amassed stockpiles of firearms, jewelry, tools, and electronic gadgets.
These chickens ultimately came home to roost. On July 22, 2015, a federal grand jury sitting in the District of Maine returned an indictment charging the appellant with a laundry list of crimes. While the appellant was being held in pretrial detention, he reached out to family members, soliciting them to threaten potential witnesses.
In due season, the grand jury returned a superseding indictment, which charged the appellant in 13 separate counts. Of particular pertinence for present purposes, the superseding indictment charged him with conspiracy to distribute heroin,
see
The PSI Report recommended that the appellant be held responsible for 3.23 kilograms of heroin, which corresponded to a base offense level of 32.
See
USSG § 2D1.1(c)(4) (Drug Quantity Table). Notwithstanding the appellant's protest that this figure represented a "significant overestimate of the drug quantity involved," the district court adopted the drug-quantity calculation and-after making other adjustments not challenged here-set the appellant's total offense level at 39. The court also adopted the PSI Report's recommended criminal history score of six and placed the appellant in criminal history category III. Although these determinations yielded a guideline sentencing range of 324 to 405 months, the court weighed the factors limned in
II. ANALYSIS
As a general matter, we review challenges to a sentence for abuse of discretion.
See
Gall
v.
United States
,
Against this backdrop, we turn to the appellant's twin claims of sentencing error. We discuss them sequentially.
A. Drug Quantity .
To begin, the appellant challenges the drug quantity for which he was held accountable. In confronting this challenge, we are mindful that, in drug-trafficking cases, "a key datum in constructing the defendant's sentence is the quantity of narcotics attributable to him for sentencing purposes, a datum initially bounded by the sum of the charged conduct to which the defendant pleads plus his relevant uncharged conduct."
United States
v.
Santos
,
At sentencing, the appellant argued that the court was using an incorrect calculation of the amount of drugs handled by the conspiracy. On appeal, the appellant makes the same bottom-line argument, but he has shifted theories. Represented by new counsel, he no longer posits that the district court committed an arithmetical error. Instead, he argues that the court erred as a matter of law in including in its calculation drugs that he personally consumed.
Hopscotching from one theory to another theory has consequences. "A criminal defendant, dissatisfied with the district court's rulings at sentencing yet persuaded that his original arguments lacked merit, cannot switch horses mid-stream in hopes of locating a swifter steed" and expect that his new theory will be treated as a preserved claim of error.
Dietz
,
*138
Plain error is plainly absent. It is settled law in this circuit that when a defendant participates in a drug-trafficking conspiracy, his "purchases for personal use are relevant in determining the quantity of drugs that [he] knew were distributed by the conspiracy."
United States
v.
Demers
,
In the last analysis, the appellant's argument derives from his failure to appreciate the important distinction between conspiracy cases and certain other drug cases. Some of our sister circuits have ruled that drugs obtained for personal consumption should be excluded from the drug-quantity calculus when the defendant is accused only of possession with intent to distribute.
See
,
e.g.
,
United States
v.
Gill
,
In a variation on this theme, the appellant also argues that the rule of lenity requires that we discount the drugs he personally consumed. We think not. In its classic formulation, the rule of lenity applies when "reasonable doubt persists about a statute's intended scope even
after
resort to 'the language and structure, legislative history, and motivating policies' of the statute."
Moskal
v.
United States
,
We have indicated, however, that the rule of lenity is not limited to instances of statutory ambiguity. The rule may also apply in the context of the sentencing guidelines. Thus, "[w]e have looked with favor on the application of this rule to a sentencing guideline when 'substantial ambiguity as to the guideline's meaning persists even after a court looks to its text, structure, context, and purposes.' "
United States
v.
Suárez-González
,
The case at hand does not come within these contours. For the reasons already explained, the guidelines clearly support inclusion of a defendant's purchase of drugs for personal consumption in a conspiracy case. Consequently, the rule of lenity does nothing to improve the appellant's position here.
That ends this aspect of the matter. We hold that the appellant's newly emergent drug-quantity claim is futile.
B. Criminal History Score .
This brings us to the appellant's claim that the sentencing court miscalculated his
*139
criminal history score, thus boosting him into the wrong criminal history category (CHC). To lend perspective, we start with some general comments about the computation and effect of a defendant's criminal history score. A defendant's guideline sentencing range is a product of two integers: his total offense level and his CHC.
See
United States
v.
Serrano-Mercado
,
Although prior convictions normally count toward a defendant's criminal history score, the guidelines exempt some misdemeanors and petty offenses from this computation.
See
USSG § 4A1.2(c) ;
see
also
United States
v.
Maldonado
,
The appellant's claim that the sentencing court erred in compiling his criminal history score has two sub-parts. Each sub-part focuses on a different prior conviction: the first sub-part relates to a 2003 conviction for driving without a valid driver's license.
See
The appellant assigns error, contending that the district court should have excluded this conviction from his criminal history score pursuant to section 4A1.2(c)(2) because it was similar to a minor traffic infraction, such as speeding. Since this contention is raised for the first time on appeal, our review is for plain error.
See
Duarte
,
In sorting out whether a subsection of section 4A1.2(c) applies, an inquiring court must focus on factors such as "a comparison of punishments imposed for the listed and unlisted offenses," "the perceived seriousness of the offense as indicated by the level of punishment," "the elements of the offense," "the level of culpability involved," and "the degree to which the commission of the offense indicates a likelihood of recurring criminal conduct." USSG § 4A1.2, cmt. n.12(A). The defendant bears the burden of establishing
*140
that an exemption pertains.
See
United States
v.
Garcia-Sandobal
,
Under Florida law, driving without a valid license is generally considered comparable to driving while one's license is suspended, revoked, canceled, or disqualified.
See
Roedel
v.
State
,
In a last-ditch effort to tip the balance, the appellant conclusorily suggests that the rule of lenity counsels in favor of his interpretation. Given the plain language of the relevant Florida statutes, though, the appellant has wholly failed to sow any reasonable degree of doubt regarding their import.
See
Moskal
,
Nothing more need be said. The short of it is that no error, plain or otherwise, mars the inclusion of two points for the appellant's conviction for driving without a valid driver's license in his criminal history score.
The second sub-part of the appellant's attack on his criminal history score relates to the district court's inclusion of one criminal history point for his 2008 Florida conviction for failing to send his child to school.
See
Here, however, the appellant's claim does not even get out of the starting gate. In his brief, the appellant provides only a cursory reference to guideline commentary, 3 without making even the slightest effort to explain its relevance. He cites no other authority and musters nothing that even remotely resembles a developed argument. Such bare terrain is familiar territory.
*141
We have stated, time and time again, that "issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived."
United States
v.
Zannino
,
III. CONCLUSION
We need go no further. For the reasons elucidated above, the appellant's sentence is summarily
Affirmed . See 1st Cir. R. 27.0(c).
At sentencing, de novo review of preserved claims of legal error is not inconsistent with the general precept that claims of sentencing error are reviewed for abuse of discretion.
See
Gall
,
Under USSG § 4A1.2(c)(1), a prior conviction is excluded from a defendant's criminal history score if three conditions are met: (1) the sentence imposed for the prior conviction was for one year's probation or less and/or less than 30 days' imprisonment; (2) the prior conviction was for an offense that is dissimilar to the offense for which the defendant is currently being prosecuted; and (3) the prior conviction was for an offense that is either enumerated in section 4A1.2(c)(1) or is similar to such an offense.
See
Maldonado
,
The appellant refers to USSG § 4A1.1, cmt. n.3. This comment deals in part with sentences committed before a defendant's 18th birthday.
See
Reference
- Full Case Name
- UNITED STATES of America, Appellee, v. Dale PINKHAM, Sr., Defendant, Appellant.
- Cited By
- 26 cases
- Status
- Published