United States v. Reid , 142 F. App'x 479 ( 2005 )

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-1561
UNITED STATES OF AMERICA,
Appellee,
v.
WILLIAM REID,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
and Oberdorfer,* Senior District Judge.
H. Ernest Stone for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief, for the United
States.
August 9, 2005
*
Of the District of the District of Columbia, sitting by
designation.
OBERDORFER, Senior District Judge. Appellant William Reid
pleaded guilty to one count of conspiring to possess stolen
firearms in violation of 18 U.S.C. §§ 371 & 922(j). Applying the
then-mandatory federal Sentencing Guidelines, the district court
imposed a sentence of 27-months imprisonment. Reid appeals his
sentence. He contends that the district court erred in calculating
his Guidelines sentencing range by increasing his offense level by
four pursuant to section 2K2.1(b)(5) of the Guidelines. He also
contends, for the first time on appeal, that even if the district
court did not err in calculating the applicable Guidelines range,
he is entitled to a remand for resentencing under United States v.
Booker, 125 S. Ct. 738 (2005). Finding no error in the district
court’s Guidelines calculations and no basis for a Booker remand,
we affirm.
I. BACKGROUND
A. Facts
On the evening of December 19, 2002, Reid and several other
people (the “co-conspirators”) came up with a plan to steal guns
and trade the guns for cocaine. The target of the planned theft
was Bart McNeel, the father of one of the co-conspirators. At the
time the plan was concocted, the co-conspirators were in an
apartment in Biddeford, Maine. In order to carry out the plan,
five of the co-conspirators, including Reid, drove from Biddeford
to McNeel’s home in Westbrook, Maine. Reid kept watch outside,
while two of the group entered the house and stole McNeel’s gun
cabinet; the remaining two occupied themselves by driving around
the neighborhood. The group of five then returned to the apartment
in Biddeford, where the gun safe was opened and six guns were
discovered.
The next day, December 20, 2002, Reid took the six guns that
had been in the gun safe and, accompanied by two of the other co-
conspirators, drove to another town to trade the guns for cocaine.
Once there, Reid alone carried out the trade. He met with a person
named Sam and traded four of the guns for two “rocks” of cocaine.
Initially, Reid kept one rock for himself while giving one rock to
one of the people who had made the trip with him. Ultimately, both
rocks were shared with other co-conspirators who had not made the
trip.
B. Procedural History
On November 4, 2003, Reid was indicted by a federal grand jury
for conspiracy to possess stolen firearms in violation of 18 U.S.C.
§§ 371 & 922(j). A superseding indictment on December 19, 2003,
added the charge of transferring firearms, knowing they would be
used to commit a drug trafficking crime in violation of 18 U.S.C.
§ 924(h). That same day, pursuant to a plea agreement, Reid
pleaded guilty to the first count and the government agreed to
dismiss the second count.
The Presentence Investigation Report (“PSR”) concluded that
the stolen firearms were possessed “in connection with another
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felony offense,” requiring a four-level increase in Reid’s offense
level pursuant to section 2K2.1(b)(5) of the Sentencing Guidelines.
According to the PSR, Reid’s “other offense” was the possession of
cocaine with the intent to distribute. Reid objected to this
aspect of the PSR, arguing that his sharing of the cocaine he had
acquired in exchange for the guns was not “distribution” because
all of the people with whom he shared the cocaine had jointly
agreed to acquire the firearms, to exchange them for drugs, and to
share the drugs among themselves. The district court overruled his
objection, holding that “where one or more individuals purchase or
acquire drugs and then share the drugs with others, there is a
distribution, notwithstanding the existence of a conspiracy or
agreement among all of the parties involved to acquire and use
drugs.” Sentencing Hearing Tr. at 7. Thus, because “only . . .
Reid . . . went inside the drug dealer’s apartment to get the
cocaine,” Reid and the other members of the conspiracy “did not
acquire possession of the drugs simultaneously” and, therefore,
“Reid possessed with the intent to distribute.” Id. The district
court denied Reid’s motion for reconsideration. Applying the four-
level enhancement in section 2K2.1(b)(5) increased Reid’s
Guidelines sentencing range from 12-18 months to 24-30 months.
At the sentencing hearing, the government asked for a 30-month
sentence, the top of the range, arguing that “Mr. Reid did play a
more culpable role in this offense than the other participants”
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because “he was the connection to the supplier, the person who
alone went into the home and made the transfer of the guns which is
the most important and significant and serious overt act in this
conspiracy.” Id. at 20-21. Reid’s counsel asked for a sentence at
the low end of the range, “[g]iven that [Reid had] the minimum
number of points that you can get in Criminal History Category III,
given that Mr. Reid did plead guilty, given that he did receive a
three level reduction for acceptance of responsibility, and given
that his culpability in this case is . . . at a level consistent
with the other participants.” Id. at 21.
The district court imposed a 27-month sentence, the exact
middle of the Guidelines range. The court explained its choice of
sentence as follows:
Mr. Reid, I’m going to sentence you right in
the middle of the range. [Government counsel]
made some good arguments as to why I should go
to the high end, [defense counsel] made some
good arguments why I should go to the low end,
but I conclude that you fit the average
pattern which should place you in the middle
of the range.
The court then spoke directly to Reid, stating:
I have a lot of concerns about where you’re
headed. You’re a young man, 24 years old, and
you’ve already through your criminal history
shown that you know how to get in trouble with
the law. And you’re now a convicted federal
felon going off to federal prison. And if you
continue in this pattern, you’ll be back in
front of me or some other Judge looking at
much more serious time than you’re looking at
now. You could quickly become a career
offender and basically you could be spending
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the rest of your life wearing that kind of a
uniform being in prison. I can’t imagine
that’s the life you want.
. . .
But that’s where you’re headed in terms
of what you’re doing. And so somehow you’ve
got to deal with your alcohol and drug abuse
which clearly are the root of much of what
you’re doing. So I urge you to take advantage
of every program that you can get in prison
and thereafter because you’re the only one
that can make that change.
People like me can talk at you, but it’s
not going to make any difference until you
make the decision. When your prison time is
over, I’m going to sentence you to a period of
supervised release which will carry with it .
. . a number of conditions to try to assist
you on that.
And rest assure if you violate those
terms, you will be back in front of me looking
at revocation and future prison time. But the
decision really is in your hands as to whether
this is something that you can put behind you
or whether it’s just the beginning or a
continuation of dealing with Judges and
prisons.
Id. at 22-24.
Reid filed a timely notice of appeal.
II. DISCUSSION
A. Application of Sentencing Guidelines Section 2K2.1(b)(5)
Reid’s first argument on appeal is that the district court
erred in calculating his sentencing range under the Guidelines by
applying the four-level increase in offense level called for by
section 2K2.1(b)(5).
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Section 2K2.1(b)(5) provides:
If the defendant used or possessed any firearm
or ammunition in connection with another
felony offense; or possessed or transferred
any firearm or ammunition with knowledge,
intent, or reason to believe that it would be
used or possessed in connection with another
felony offense, increase by 4 levels. If the
resulting offense level is less than level 18,
increase to level 18.
The district court concluded that this enhancement applied
because Reid had possessed the stolen firearms in connection with
the felony offense of possession with intent to distribute. Reid
argues on appeal, as he did before the district court, that he did
not commit the offense of possession with intent to distribute. In
particular, he argues, relying on the Second Circuit’s decision in
United States v. Swiderski, 548 F.2d 445 (2d Cir. 1977), that
providing the cocaine he acquired to other members of the
conspiracy was not “distribution” because he acquired and
transferred the cocaine pursuant to a joint agreement to steal guns
and trade them for cocaine solely for the conspirators’ use.
In Swiderski, the court held that there had been no
“distribution” where a man and his fiancee, acting in concert the
entire time, jointly acquired and used drugs. Even assuming that
the Swiderski rule applies in the First Circuit (which has not been
definitively established), we are not persuaded that the facts of
the present case warrant its application. Unlike the two people
involved in the conspiracy in Swiderski, the co-conspirators in the
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present case did not act in concert at all times. Rather, only two
of the five (not including Reid) actually stole the gun safe, only
Reid and one other made the trip to trade the guns for cocaine, and
only Reid himself was actually present when the trade was made,
giving him sole possession of the cocaine for a time before it was
transferred to the other co-conspirators. Under these
circumstances, we believe that there has been “distribution” and,
therefore, that the Swiderski rule does not apply. See, e.g.,
United States v. Washington, 41 F.3d 917, 919-20 (4th Cir. 1984).
Accordingly, we hold that the district court properly applied the
four-level enhancement in section 2K2.1(b)(5) for possessing a
firearm in connection with another felony offense.
B. United States v. Booker
Reid also contends that he is entitled to a remand for
resentencing under United States v. Booker, 125 S. Ct. 738 (2005),
because he was sentenced under the mandatory Guidelines system
eliminated by Booker. As the claim of Booker error is raised for
the first time on appeal, a plain error standard of review applies:
there must be (1) an error (2) that is plain, (3) that affects
substantial rights, and (4) that seriously affects the fairness,
integrity, or public reputation of judicial proceedings. See
United States v. Olano, 507 U.S. 725, 732 (1993); United States v.
Antonakopoulos, 399 F.3d 68, 77 (1st Cir. 2005); United States v.
Vega Molina, 407 F.3d 511, 533 (1st Cir. 2005); United States v.
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González-Mercado, 402 F.3d 294, 302 (1st Cir. 2005). As Reid’s
sentence was imposed under a mandatory system, he satisfies the
first two prongs of the plain error test. See Antonakopoulos, 399
F.3d at 77; see also United States v. Heldeman, 402 F.3d 220, 223
(1st Cir. 2005).
The next two requirements, prejudice and fundamental
unfairness, are satisfied if “the appellate panel is convinced by
the defendant based on the facts of the case that the sentence
would, with reasonable probability, have been different” were the
lower court not constrained by the Guidelines. Antonakopolous, 399
F.3d at 81. Reasonable probability is not an “overly demanding”
test. Heldeman, 402 F.3d at 224. Rather, it exists “where, either
in the existing record or by plausible proffer, there is reasonable
indication that the district judge might well have reached a
different result under advisory guidelines.” Id.; see also United
States v. Wilkerson, 411 F.3d 1, 10 (1st Cir. 2005). However, the
mere “theoretical possibility” that the district court would impose
a more favorable sentence is not enough to satisfy this test. See
United States v. Mercado, No. 04-1656, 2005 WL 1404470, at *9 (1st
Cir. Jun. 16, 2005).
As the Antonakopoulos test was adopted after briefing and
argument in the present case, Reid was given the opportunity to
file a supplemental brief and/or supplement the record on appeal.
He did both, filing an affidavit from his mother, Joan Reid,
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detailing his personal and family history, and filing a
supplemental brief.
In his supplemental brief, Reid argues that he is entitled to
a Booker remand for resentencing because his family history, his
personal history and his present family circumstances, as set forth
in his mother’s affidavit and in the PSR, are mitigating factors
that create a “reasonable probability” that the district court
would have imposed a more favorable sentence under an advisory
regime. In particular, he emphasizes the following facts:
(1) Reid’s father left the family when Reid was in first grade
and had no significant further contact with Reid until he was
seventeen;
(2) after Reid’s mother and father divorced, his mother moved
in with another man, James Reagan, who was an alcoholic;
(3) Reid was close to Reagan, but also had to defend his
mother when Reagan was abusive to her;
(4) Reid began drinking at age 10, smoking marijuana at age
12, and using cocaine at age 14;
(5) Reid left school at age 14;
(6) at age 16, Reid was diagnosed with Attention Deficit
Hyperactivity Disorder (“ADHD”), but treated only briefly and
without success;
(7) despite his many years of abusing alcohol and drugs, Reid
has never been treated for substance abuse;
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(8) Reid is the father of a young son (now six years old) and,
although he is no longer in a relationship with the mother of his
son, he has been the de facto father of her older child, his son’s
half-sister; and
(9) when able, Reid provides financial support to his son, his
son’s mother, and his son’s half-sister.
With respect to Booker, it is now established that “[o]ne
category of claims that might warrant remand on plain error review
is the one involving arguments that [] mitigating factor[s] existed
but w[ere] not available for consideration under the mandatory
Guidelines,” if there is a reasonable probability that the district
court would impose a more favorable sentence in light of these
factors. See United States v. McLean, 409 F.3d 492, 505 (1st Cir.
2005) (internal quotations omitted). And, as described above,
Reid’s proffer on appeal identifies a number of such potentially
“mitigating” factors. However, we are not convinced that these
mitigating factors create a reasonable probability that the
district court would have imposed a more favorable sentence under
an advisory regime.
Almost all of the facts cited by Reid in his supplemental
brief and in the affidavit of his mother were contained in his PSR
and, therefore, were available to the district court for
consideration at the time of sentencing. See McLean, 409 F.3d at
505 (noting that the defendant “actually made the mitigating
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arguments that he now posits before the district court” and that
“[h]e does not elaborate how he could make them more convincingly
on remand”); United States v. Brennick, 405 F.3d 96, 102 (1st Cir.
2005) (refusing to remand for resentencing to permit the district
court to give “more emphasis to mitigating factors that ordinarily
have little influence under the Guidelines, such as his troubled
childhood and drug addiction[,]” where those facts were available
to and acknowledged by the district court at sentencing). Nor are
the facts identified by Reid, unfortunately, unique or even rare.
Cf. Wilkerson, 411 F.3d at 10 (basing remand for resentencing in
part on the fact that the district court had observed at sentencing
that the defendant “had the most horrible young life he had seen in
17 years on the bench”); Heldeman, 402 F.3d at 224 (remanding for
resentencing where district court indicated that defendant's age
and physical condition were worthy of consideration but did not
warrant a downward departure under the mandatory Guidelines). In
addition, the sentence imposed falls in the precise middle of the
Guideline range, suggesting, although not proving, that the
district court did not feel constrained by the Guidelines. See
McLean, 409 F.3d at 505 (stating in denying Booker remand: “We note
that [the defendant] was sentenced in the middle of the guideline
range, rather than at the bottom, and so the district court could
have given him a lower sentence under the old regime. That it did
not do so speaks volumes.”); see also United States v. Kornegay,
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410 F.3d 89, 99-100 (1st Cir. 2005) (“That the court sentenced [the
defendant] at the low end of the applicable Guideline range is not,
by itself, sufficient to show a reasonable probability of a lesser
sentence under the advisory system.”). And while it is certainly
not necessary that the district court articulate that it felt
constrained by the mandatory Guidelines, see Antonakopoulos, 399
F.3d at 81, it is still relevant that the district court here
expressed no such concern. Cf. Wilkerson, 411 F.3d at 10 (basing
remand in part on the fact that “[t]he district judge sentenced
[the defendant] to the lowest available sentence under the
Guidelines” and “repeatedly expressed his concern about disparate
treatment between federal and state court sentences in similar
cases, but stated that the Guidelines did not permit him to take
that disparity into account”). Indeed, here the district court
expressly stated that it was selecting the sentence it imposed as
an appropriate accommodation of both the defendant’s good arguments
for lenience and the government’s good arguments for a harsher
sentence.
Taking all of these facts into consideration, we conclude that
there is not a reasonable probability that the district court would
impose a more lenient sentence under an advisory Guideline system.
Accordingly, Reid is not entitled to a Booker remand for
resentencing.
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III. CONCLUSION
For the reasons stated in the foregoing opinion, we affirm.
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