United States v. Gonsalves , 859 F.3d 95 ( 2017 )

United States Court of Appeals
For the First Circuit
Nos. 15-1194 & 15-1838
UNITED STATES OF AMERICA,
Appellee,
v.
JOSHUA GONSALVES; STANLEY GONSALVES,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, Chief U.S. District Judge]
Before
Lynch, Thompson, and Barron,
Circuit Judges.
Larry J. Ritchie for appellant Joshua Gonsalves.
Joshua L. Gordon, with whom Law Office of Joshua L. Gordon
was on brief, for appellant Stanley Gonsalves.
Randall Ernest Kromm, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.
June 7, 2017
THOMPSON, Circuit Judge. Brothers Stanley and Joshua
Gonsalves (to keep the Gonsalveses straight, we call them Stanley
and Joshua but mean no disrespect) were convicted on multiple
counts stemming from their operation of an oxycodone-trafficking
ring on Cape Cod. Both now challenge their convictions, and
Stanley challenges his sentence. Finding none of the brothers'
plaints have merit, we affirm.
SETTING THE STAGE
The Gonsalves brothers' trial spanned eighteen days and
included testimony from thirty-four witnesses. We decline to
recount it all now (and to explain the brothers' claims on appeal,
we don't have to). But to put everything in its necessary context,
here is the Cliff's-Notes version of what happened; we will detail
the rest later, when we assess the brothers' respective arguments.1
1 Both brothers claim the evidence against them was
insufficient for the jury to convict, and Joshua challenges the
district court's denial of his motion to suppress evidence seized
during a warrantless search of his car. On these claims we present
the relevant facts "in the light most flattering to the
government." United States v. Rodríguez-Soler, 773 F.3d 289, 290
(1st Cir. 2014); see United States v. Burgos-Montes, 786 F.3d 92,
99 (1st Cir. 2015). As to the other claims, the question of how
we relate the facts is unsettled in this circuit--some cases relate
them in the light most favorable to the verdict, but others take
a "balanced" and objective approach. Burgos-Montes, 786 F.3d at
99. Though our framing of those facts does not impact the outcome
of the case, favorably to the Gonsalves brothers we explain the
facts relevant to their other claims in a balanced manner.
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I. The Cast and Crew of the Conspiracy
The story of the Gonsalves brothers' drug-trafficking
conspiracy begins around the end of 2009, when Stanley (Joshua
wasn't on board yet) started buying oxycodone pills in bulk from
Florida resident John Willis. Stanley's objective: to get (and
resell for profit) as many pills as possible. Here's how the
operation worked: both Stanley and Willis paid runners who carried
money down to Florida to buy oxycodone pills from Willis, Stanley's
primary supplier. Willis (or other members of his Florida
operation) hid the pills in vitamin bottles, doctored to look
never-opened, then gave the bottles to the runners to carry back
to Stanley in Massachusetts. Stanley (and members of his
Massachusetts-based crew) counted the pills and packaged them into
lots of 100. Stanley then sold those lots to lower-level drug
dealers. At first, Stanley paid Willis $14 per thirty-milligram
pill and sold them to dealers for $19 each. Over time, the
wholesale and the resale prices went up to $17 and $21,
respectively. Dealers sold the pills on the street for $30 a pop.
Joshua joined his brother's conspiracy in 2010, shortly
after he was released from jail on an unrelated charge. At first
Joshua worked as a runner, but he eventually took over some of
Stanley's responsibilities in the conspiracy, such as buying pills
from suppliers. He sold some pills on his own, too.
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The runners for the Gonsalves brothers--all friends,
family, girlfriends, and exes--made regular trips to Florida. At
first, they flew. Then they switched to driving after one of the
runners was busted in the airport on his way back to Massachusetts
carrying a bottle of about 8,000 pills. The runners each
transported at least 1,000 pills per trip, though some reported as
many as 8,000 or 9,000 per trip, and one reported that she once
carried almost 20,000 pills. The brothers' operation "flooded"
the Cape Cod market, bringing in an estimated 371,327 pills in
under three years (and that's an allegedly conservative estimate).
II. Johnny Willis meets Johnny Law--and so do the Gonsalves
Brothers
Now, (presumably) unbeknownst to Stanley and Joshua,
Willis was the subject of a multi-agency criminal investigation
originally initiated by the FBI's Asian Organized Crime Task Force
to target two other, Boston-area crime lords. (The Willis-specific
branch of the investigation was known as "Operation White Devil.")
While they were looking into the Willis operation, the FBI-led
task force (that also included ATF and IRS2 agents, Massachusetts
State Police, plus some Boston police officers to boot) found out
about Willis' top customers--the Gonsalves brothers. The FBI-led
task force also learned that the Barnstable Police Department and
2 Respectively, these stand for the Federal Bureau of
Investigation; the Bureau of Alcohol, Tobacco, Firearms and
Explosives; and the Internal Revenue Service.
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a DEA-led Cape Cod Drug Task Force were already looking into the
Gonsalveses' activities, so the task forces joined forces.
Operation White Devil culminated in the May 2011 arrest of Willis
and some of his henchmen, which turned off the Florida-to-
Massachusetts pill faucet. Undeterred, the Gonsalves brothers
regrouped and started selling oxycodone bought from new suppliers.
But, the post-Willis era did not last long because by this point,
law enforcement had new information from arrested Willis crew
members, as well as from their own posse of confidential informants
("CIs"), clueing them in on more of the particulars of the
Gonsalves brothers' illegal dealings.
A tip from one informant, CI-1, led to the February 2012
arrest of Joshua and crew member Katelyn Shaw (Joshua's then-
girlfriend) and the seizure of over twenty grand in cash, drug
paraphernalia, and a good lot of oxycodone pills. About a month
later, police seized another $75,000 from another Gonsalves crew
member (turned informant) which had been earmarked for an oxycodone
resupply; and since that was "the end of the money," the seizure
brought the Gonsalveses' operation to a near-halt.
On November 1, 2012, a grand jury indicted the brothers
on a charge of Conspiracy to Possess with Intent to Distribute and
Conspiracy to Distribute Oxycodone in violation of 21 U.S.C. §
846. A second superseding indictment, issued eighteen months later
on May 8, 2014, further charged (1) Money Laundering Conspiracy in
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violation of 18 U.S.C. § 1956(h); (2) multiple counts of
Concealment Money Laundering in violation of 18 U.S.C. §
1956(a)(1)(B)(i); (3) Possession of a Firearm in Furtherance of a
Drug Trafficking Conspiracy in violation of 18 U.S.C. § 924(c);
(4) Drug and Money Laundering Forfeiture allegations under 21
U.S.C. § 853 and 18 U.S.C. § 982(a)(1); and, against Stanley only,
(5) Unlawful Monetary Transactions in violation of 18 U.S.C. §
1957.
III. Court Proceedings
In pretrial proceedings, Joshua moved to suppress all
items seized during the February 2012 traffic stop. The district
court denied the motion. For its part, the government moved in
limine to admit evidence of the brothers' prior incarceration.
That motion got denied, too. The Gonsalveses' trial finally got
underway on September 8, 2014. Here are some of the highlights of
the proceeding that animate the brothers' appellant challenges.
During the trial, Joshua moved for a mistrial three times after
government witnesses mentioned that he had done prison time--
testimony which violated the trial court's pre-trial ruling
excluding any mention of either brother's prior incarceration.
Stanley made his own mistrial motion after the government
referenced Stanley's stint in the slammer in closing arguments.
All four motions were denied.
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Strategically, the brothers mounted a credibility
defense throughout the trial and in their closing arguments. They
contended that the government's witnesses could not be believed
because some were addicted to drugs, some were "jilted" lovers who
wanted revenge, and many had taken the stand in exchange for lesser
sentences or deferred prosecution for their own roles in the
conspiracy. Despite these credibility challenges, both brothers
were found guilty on all of the charges except the § 924(c) count--
Stanley was convicted of using a rifle in furtherance of the
conspiracy but acquitted of using a pistol, and Joshua was
acquitted as to both guns.
Guilt determined, the proceedings entered phase two--
forfeiture. Responding to additional instructions from the trial
court, the jury found that two cars, a house, and the drug-deal
cash seized from Joshua and Shaw were all subject to forfeiture.
The jury also calculated that over five million dollars was
"generated as proceeds of the [brothers'] oxycodone trafficking
conspiracy"-- attributing 1.5 million to Joshua and the rest to
Stanley.
Following the trial's end, Joshua was first up for
sentencing and received twenty years to serve. (He does not
challenge his sentence here, so we do not get into the details.)
Stanley was next up. His pre-sentence investigation report ("PSR")
calculated a Guidelines sentencing range of life in prison, plus
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sixty months for his gun conviction under 18 U.S.C. § 924(c). The
parties and the judge, in the end, agreed that life wasn't called
for, so Stanley was sentenced to twenty-five years--twenty years
for the drug-trafficking conspiracy, money laundering, and
unlawful monetary transactions, plus five years for the gun charge.
This appeal followed.
DISCUSSION
The brothers challenge the following aspects of their
convictions and sentences: (1) Joshua argues that the district
court should have suppressed the evidence seized the night of his
February 2012 arrest, (2) both brothers challenge the district
court's denial of their motions for mistrial, (3) Stanley contends
that the government presented insufficient evidence against him to
support his conviction, and (4) Stanley argues that the court
incorrectly calculated his Guidelines sentencing range. We
address each issue in turn.
I. Warrantless Car Search
Joshua contends that the district court erred in denying
his motion to suppress all of the evidence seized the night of his
February 2012 arrest (the drugs, the money, and the digital scale).
We begin with the background information necessary to explain that
night's events, presenting the facts in the light most favorable
to the government. See Burgos-Montes, 786 F.3d at 99.
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a) Background
As we briefly mentioned before, on February 27, 2012,
police acted on a tip they received from CI-1. The informant who
provided the information leading to the arrest of Joshua and Shaw
and the seizure of illegal contraband claimed to be a regular
enough oxycodone buyer that he or she knew when Joshua and Shaw's
supply was running low--and when they planned to restock. CI-1
had proved his or her bona fides over time:3
 In October 2011, CI-1 told police that Gonsalves
associate John Doe 1 had planned an off-Cape resupply
run. Police observed John Doe 1 meet with John Doe 2
(whom CI-1 had also previously identified as a Gonsalves
associate). Police followed the two men on their drive
off the Cape and back, as predicted. CI-1 then confirmed
the new supply had been delivered.
 In November 2011, CI-1 told police about another off-
Cape trip to buy oxycodone from a supplier; after
watching the two men identified by CI-1 drive off
together, police pulled them over and seized $69,000.
 In February 2012, CI-1 made a controlled buy from Joshua
and Shaw.
CI-1's hottest tip came on February 27, when CI-1 told
police that Joshua and Shaw had put together enough money to buy
more pills from an oxycodone supplier police referred to as "John
3We also note here that by the time CI-1 appeared on the
scene in 2011, the FBI-led task force investigating Willis had
already combined resources with the DEA-led task force and
Barnstable police. So on top of their newly-cultivated source,
the agents and officers investigating Joshua knew the brothers
were trafficking oxycodone from evidence gathered during the
Willis investigation, including wiretapped conversations and text
messages from Willis' phone seized after his May 2011 arrest.
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Doe 4." Both CI-1 and a second CI had previously told police that
John Doe 4 was Joshua's primary post-Willis oxycodone source. CI-1
said Joshua and Shaw would leave home around 4:30 that afternoon
in Joshua's black Cadillac, drive to the "New Bedford area," and
return with about 2,000 pills. Sure enough, Barnstable police
spotted Joshua, Shaw, and a second woman (who turned out to be
Shaw's friend Ariana Tavares) in the black Cadillac heading
westbound (towards New Bedford) at 4:50. Police tailed them to a
house in Acushnet, a town that shares a border with New Bedford.
They watched the trio park next to a white Infiniti, exit the car,
and enter the house where the Infiniti was parked. Police knew
from pulling over that same white Infiniti one month prior that
the car belonged to John Doe 4.
When Joshua, Shaw, and Tavares left some two hours later,
police tailed them to the highway, clocked Joshua driving sixty-
five miles-per-hour in a fifty-five mile-per-hour zone, and pulled
him over. When the officer who conducted the stop reported back
to headquarters, he was instructed to ask Joshua for permission to
search the car. But if Joshua refused, the officer was instructed
to search the car anyway because the police had probable cause to
believe "the occupants of the vehicle were in possession of
oxycodone." Joshua did refuse, so police ordered him, Shaw, and
Tavares out of the car. During a frisk of Joshua, police found a
$6,253 cash wad in his pocket. It was too dark outside to search
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the car, so police called for a drug-sniffing dog. Overhearing
the talk about the arrival of a drug dog, Shaw pulled a bag of
pills from her bra and threw them into the woods. Seeing the toss,
police recovered the pills, precipitating the arrests of the three
occupants. In a post-arrest search, police found another $16,760
in a speaker box in the trunk, a digital scale in the console, and
a second cache of pills in Shaw's bra.
Joshua subsequently moved to suppress the evidence
seized during the search, claiming that the stop and search
violated his Fourth Amendment rights because at the time of the
stop, police did not have reasonable suspicion to believe Joshua
had committed a crime. The district court held a pre-trial hearing
on Joshua's motion. Mark Butler, a Barnstable police detective
then serving on the DEA's Cape Cod Drug Task Force and
investigating the Gonsalves brothers, submitted an affidavit about
the Gonsalves investigation and the traffic stop and he also
testified at the hearing. Butler was not present at the stop and
search, but he explained the state of law enforcement's Gonsalves
investigation and his belief that police had probable cause to
search Joshua's car at the time based on CI-1's information. After
the hearing, the court denied Joshua's motion. The court found
that CI-1's tip gave police reasonable suspicion that Joshua was
involved in drug trafficking, and that reasonable suspicion
justified the stop, Joshua's frisk, and detaining the car and its
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occupants until the drug-sniffing dog could arrive. United States
v. Gonsalves, 34 F. Supp. 3d 196, 200-01 (D. Mass. 2014). When
police saw Shaw discard the drugs, officers had probable cause to
arrest Joshua, Shaw, and Tavares. Id. at 201. Police were
entitled to search the Cadillac incident to those arrests. Id.
On appeal, Joshua argues that the district court got it
wrong. His theory goes like this: police had no right to ask him
to get out of the car to begin with (the officer told Joshua he
was stopped for speeding) or to detain him at the scene to wait
for a drug-sniffing dog, and if they hadn't done these things Shaw
never would have tossed the pills, and if she hadn't tossed the
pills police wouldn't have had cause to search the car or arrest
them. The government argues that the police had probable cause
based on CI-1's tip to stop the car and search its occupants, so
everything that followed was fair game. But even if not, the
government argues that the district court was right to find that
police had reasonable suspicion to stop the car, and that suspicion
ripened into probable cause to arrest everyone and search the car
when Shaw pitched the drugs.
b) Probable Cause Analysis
We review a district court's denial of a motion to
suppress de novo, we review subsidiary findings of facts for clear
error, and we must uphold a denial of a suppression motion if any
reasonable view of the record supports it. United States v.
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Polanco, 634 F.3d 39, 41-42 (1st Cir. 2011). Under this rubric we
can likewise affirm a denial on any basis apparent in the record.
United States v. Sanchez, 612 F.3d 1, 4 (1st Cir. 2010). We agree
with the government that the officers had probable cause to stop
Joshua and search the car, and so we affirm the district court's
denial of his motion to suppress.
The Fourth Amendment ordinarily requires police to
obtain a warrant before conducting a search, but under the so-
called "automobile exception," all the police need is probable
cause to search the vehicle. California v. Acevedo, 500 U.S. 565,
580 (1991); accord United States v. Lopez, 380 F.3d 538, 543 (1st
Cir. 2004). "[P]robable cause only 'exists when the totality of
the circumstances suggests that there is a fair probability that
contraband or evidence of a crime will be found in [the vehicle].'"
United States v. Ramírez-Rivera, 800 F.3d 1, 27 (1st Cir. 2015)
(quoting United States v. Gifford, 727 F.3d 92, 98 (1st Cir.
2013)), cert. denied, 136 S. Ct. 908 (2016), and cert. denied sub
nom. Laureano-Salgado v. United States, 136 S. Ct. 917, (2016).
"The government bears the burden of proving the lawfulness of the
search." Lopez, 380 F.3d at 543.
Where, as here, the police act on information from a
confidential informant, "law enforcement must provide some
information from which a court can credit the informant's
credibility." United States v. White, 804 F.3d 132, 136 (1st Cir.
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2015) (quoting Ramírez-Rivera, 800 F.3d at 27-28), cert. denied,
136 S. Ct. 1229 (2016). In assessing an informant's credibility,
we consider factors such as "(1) the probable veracity and basis
of knowledge of the informant; (2) whether an informant's
statements reflect first-hand knowledge; (3) whether some or all
of the informant's factual statements were corroborated wherever
reasonable and practicable; and (4) whether a law enforcement
officer assessed, from his professional standpoint, experience,
and expertise, the probable significance of the informant's
information." Id. at 137.
Applying those factors, CI-1 had a track record of
supplying reliable information to police--as we noted earlier,
three times before the February 2012 search CI-1 had proven
reliable. Accordingly, when CI-1 tipped police off to Joshua and
Shaw's planned trip to the New Bedford area about three weeks
later, this track record gave police reason to believe CI-1's
newest tip was probably reliable, too. See United States v. Tiem
Trinh, 665 F.3d 1, 10-11 (1st Cir. 2011); Ramírez-Rivera, 800 F.3d
at 28 (police history with informant can establish credibility).4
4
Joshua suggests that the three-week time period that passed
after CI-1's last confirmed tip made the tip at issue here somehow
unreliable, or otherwise tarnished CI-1's record of reliability.
But he does not explain why that is so--and in light of the steps
we explain below that police took to confirm the tip before acting
on it, we do not think it is.
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Further, notwithstanding Joshua's unsubstantiated claim
to the contrary, the record shows that CI-1 had first-hand
knowledge of Joshua and Shaw's operation that bolstered CI-1's
credibility. Specifically, CI-1 admitted to buying oxycodone from
Joshua and Shaw many times, so the CI knew when their supply was
low and when they needed to restock. See White, 804 F.3d at 137
(past drug purchases from tip subject are first-hand knowledge of
drug operations that bolster credibility).
Moreover, the tip included details of Joshua and Shaw's
future activities "ordinarily not easily predicted," and almost
all of these details were corroborated by police surveillance
before Joshua's car was stopped. Ramírez-Rivera, 800 F.3d at 29
(quoting Alabama v. White, 496 U.S. 325, 332 (1990)). Police
spotted Joshua's Cadillac (the vehicle identified by CI-1) on the
highway heading out of town at 4:50 pm (shortly after CI-1 said
Joshua and Shaw planned to leave) and followed it to a house in
Acushnet (CI-1 said they would be driving to the New Bedford area,
and Acushnet abuts New Bedford). The Cadillac parked next to a
white Infiniti that belonged to John Doe 4 (the dealer identified
by CI-1). After the Cadillac parked, Joshua and Shaw got out of
the car (CI-1 said the two of them were making the trip).
Finally, police assessed and understood the significance
of CI-1's information before making the stop. Police had
independent knowledge of the brothers' prior drug-trafficking
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activity through the Willis investigation--including information
from two Willis couriers caught bringing pills from Florida up to
Massachusetts for the Gonsalves brothers. See United States v.
Taylor, 985 F.2d 3, 6 (1st Cir. 1993) (officer's "knowledge of the
target's prior criminal activity or record . . . is material to
the probable cause determination"). Furthermore, sources other
than CI-1 developed during and after the Willis investigation told
police that Joshua and Stanley were continuing to sell oxycodone
sourced from other suppliers after Willis' arrest. If more were
needed, the task force officer leading the Gonsalves investigation
(and who told the officer who stopped Joshua that police already
had probable cause) had specialized training and experience in
drug investigations. See id. (officer's "experience and pertinent
expertise" in drug-crime investigations bolstered probable cause
finding). In short, law enforcement assessed CI-1's tip in the
context of the overall Willis and Gonsalves investigations and in
light of their expertise.
But hold on. Before we find probable cause, Joshua says,
we must consider indicia of an informant's unreliability, too--
and Joshua thinks that CI-1's tip was so inaccurate that it could
not support a finding of probable cause. See United States v.
Vigeant, 176 F.3d 565, 573 n.9 (1st Cir. 1999). Specifically,
Joshua points out that (1) he drove to Acushnet, but CI-1 said he
was headed to New Bedford; (2) CI-1 didn't mention that Shaw's
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friend would be with Joshua and Shaw; and (3) police only found
280 pills, not the promised 2,000. But none of these facts
undermine our belief that police had probable cause to stop and
search the car that night. First, although the task force
officer's affidavit said Joshua was going to New Bedford, the
officer testified at the suppression hearing that the CI said
Joshua was going to the "New Bedford area," and the district
court's findings of fact listed the destination as the "New Bedford
area." Gonsalves, 34 F. Supp. 3d at 199. Joshua does not challenge
that finding of fact as clearly erroneous on appeal, so we adopt
it here. See Polanco, 634 F.3d at 41-42. Acushnet and New Bedford
are adjoining towns, so CI-1's claim that Joshua was heading to
the "New Bedford area" was accurate. The same goes for his second
point--that CI-1 didn't tell police that Tavares would be along
for the ride--because the omission of the fact does not make CI-1's
tip inaccurate as to the presence of Joshua and Shaw. But even if
it did, we assess probable cause under the totality of the
circumstances, White, 804 F.3d at 136, and given the other factors
we described above, this point does little to undermine the
government's probable-cause argument or our probable-cause
finding. Joshua's third argument--that Shaw was only carrying a
fraction of the drugs that CI-1 predicted--doesn't help his case,
either. We measure probable cause at the time the officers
effectuate the search. See Lopez, 380 F.3d at 543. That means
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the mid-search discovery of a smaller-than-anticipated pill stash
does not change whether the officers had probable cause to begin
with.
All things considered, we find the police had probable
cause to stop Joshua and search his car. We affirm the district
court's order denying Joshua's motion to suppress the evidence
found during the search.5
II. Motions for Mistrial
Next, Joshua and Stanley claim that the district court
abused its discretion in denying their motions for a mistrial.
Once again, we present some relevant context before we explain the
arguments and our analysis; but this time, we present the facts in
a balanced manner. Burgos-Montes, 786 F.3d at 99.
a) Background
Before trial began, the government filed motions in
limine to introduce evidence that Stanley and Joshua were
5
He also says that the testimony of Katelyn Shaw should be
suppressed, the theory being: (1) police detained Joshua and Shaw
longer than necessary to dispel the reasonable suspicion police
had to pull them over to begin with (if they even had reasonable
suspicion), and (2) it was only because of this unlawfully-long
detention that Shaw lobbed her drugs and was eventually forced to
testify, so (3) her testimony is the fruit of her unlawful
detention. The government points out that Joshua did not raise
this argument to the district court, so it argues that the issue
is waived. We agree. See United States v. Santos Batista, 239
F.3d 16, 19 (1st Cir. 2001) ("Failure to raise suppression
arguments before trial 'shall constitute waiver thereof.'"
(quoting Fed. R. Crim. P. 12(f))).
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previously incarcerated. Before going into business with Willis,
the brothers were part of a burglary crew that got caught; the
government hoped to show that the Gonsalveses and those crew
members enlisted their girlfriends and wives to sell oxycodone on
their behalf while they were in jail. The government also wanted
to prove that Stanley and Willis were incarcerated together,
arguing that this fact was "intrinsic" to the conspiracy--the idea
being that the two trusted each other enough to strike their
illicit deal when Stanley got out of jail in 2009 because they
were simpatico in jail together. The Gonsalveses, of course,
wanted to keep out any mention of past jail time, and pointed out
that Federal Rule of Evidence 404(b)(1) prohibits the use of
evidence of past crimes to show propensity (meaning that if they
did it once, they probably did it again). Before trial began, the
district court ruled that witnesses could "talk about their prior
relationships with the defendants" in order to show the "basis for
the coconspirators' relationship of mutual trust." But, the judge
said, "I am categorically prohibiting the government in any way
from referring to any prior period of incarceration" as to either
defendant. And yet, it came up four times.
The first mention came on the fifth day of trial from
Danielle LeBaron, who testified that she "transported drugs" for
Stanley. When the government asked LeBaron about a conversation
she had with Joshua about oxycodone, she said "[i]t was a
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conversation about Josh making money, since he just got out of
jail." Joshua objected and the government moved to strike,
explaining that LeBaron's response "was not intended." The court
immediately struck the testimony and told the jury: "[y]ou can't
consider anything having to do with that." At a later sidebar
conference away from the jury's earshot, Joshua moved for a
mistrial. The government pointed out it had instructed LeBaron
"repeatedly" not to bring up Joshua's prior jail time. The court
denied Joshua's motion, but offered to give an additional jury
instruction. Joshua turned down the offer, explaining that "if
you call attention to it, it's going to compound the
circumstances." The court later confirmed with LeBaron that the
government had instructed her not to mention Joshua's prior
incarceration, and admonished her not to mention it in her second
day of testimony.
The second jail allusion came on the ninth day of trial,
when the Gonsalveses' sister, Nichole Gonsalves, was testifying
about the purchase of Joshua's Cadillac. Nichole said she used
the car to drive Joshua to "appointments"; when asked what those
appointments were she replied, "probation." The district court
judge "thought [Nichole] was referring to the cousin," not Joshua,
and clarified "This is someone else completely, right, a cousin?"
before granting the government's motion to strike the question.
Joshua renewed his mistrial motion; the court denied it.
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Third, on day ten, Crystal Flaherty (a cooperating ex-
girlfriend) was asked what Joshua said to her about his oxycodone
trafficking. Flaherty responded, "He said that he was working for
Stanley. He was the driver; this is what he needed to do. He was
a--he had a broken hip. He was a convicted felon." The court
struck the answer as "inappropriate," then instructed the jury to
disregard any stricken testimony, and specifically Flaherty's last
answer, because it was "completely irrelevant" to the case. Joshua
again moved for a mistrial. At sidebar, the government confirmed
that it had instructed Flaherty not to discuss Joshua's prior
incarceration. The court reserved judgment on Joshua's motion for
a mistrial, explaining: "this is one of the most overwhelming
government cases I've seen in a long time. I haven't heard [the
Gonsalveses'] side of the story yet, but I am just not sure it's
been prejudicial."6
Finally, in closing the prosecutor described a recorded
call between Stanley and Vincent Alberico (a witness who testified
that he resold pills he bought from Stanley, and who was arrested
while transporting some pills for Stanley). The prosecutor
explained, "Vinnie is still in jail, Stanley is out of jail, and
Stanley is"--before he was cut off by Stanley's objection and the
court's instruction that the prosecutor "misspoke." The
6
Apparently, the district court judge did not give a final
ruling on this motion, nor was she asked to do so.
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prosecutor, rephrasing, continued saying, "[Stanley] is out in the
community back on the Cape," before noting that Stanley bragged to
Alberico about how women wanted to "marry" him for just "one little
blue pill." The district court denied Stanley's later motion for
a mistrial based on the statement that he was "out of jail." In
its instructions to the jury, the court explained, "closing
arguments made by the lawyers are not evidence," and emphasized
that "[y]ou can't consider anything that I struck."
On appeal, the brothers separately argue that the
district court abused its discretion by denying their motions for
mistrial. Joshua argues that the three witness statements are
improper propensity evidence: they invite the jury to convict
based on the fact that he committed crimes in the past, not on the
evidence presented at trial, so the mentions of his prior
incarcerations interfered with his presumption of innocence. The
prosecutor's closing remark that Stanley was "out of jail" was the
"icing on the government's cake"--it drove home the message that
the Gonsalves brothers were criminals. The prejudice resulting
from these remarks as a whole requires a mistrial, Joshua contends.
Stanley claims the witnesses' three remarks about
Joshua's prior incarcerations had a "spillover" effect on him, and
that the prosecutor's closing remark was Stanley's own ticket to
a mistrial. The government argues that any potential prejudice to
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Joshua and Stanley was mitigated by the district court's prompt
jury instructions, so a mistrial was not called for.
b) Mistrial Analysis
We review a district court's denial of a motion for a
mistrial for abuse of discretion. United States v. Trinidad-
Acosta, 773 F.3d 298, 306 (1st Cir. 2014) (improper testimony);
United States v. Gentles, 619 F.3d 75, 80-81 (1st Cir. 2010)
(prosecutor's misconduct in closing arguments). First we consider
whether the remarks were improper--that is, whether the challenged
testimony was inadmissible, or the prosecutor's remark rose to the
level of misconduct. See Trinidad-Acosta, 773 F.3d at 306; United
States v. Vázquez-Botet, 532 F.3d 37, 56 (1st Cir. 2008); United
States v. Cresta, 825 F.2d 538, 549 (1st Cir. 1987). Second, if
the remarks are improper, "we consider the totality of the
circumstances to determine whether the defendant has demonstrated
the kind of clear prejudice [from improper remarks] that would
render the court's denial of his motion for a mistrial a manifest
abuse of discretion." Trinidad-Acosta, 773 F.3d at 306 (quoting
United States v. Dunbar, 553 F.3d 48, 58 (1st Cir. 2009)). Those
circumstances include "the context of the improper remark, whether
it was deliberate or accidental, the likely effect of the curative
instruction, and the strength of the evidence against the
appellants." Id. at 306-07 (quoting Cresta, 825 F.2d at 549-50);
see Gentles, 619 F.3d at 81. A mistrial is a "last resort"
- 23 -
implemented only where the "taint" of the improper evidence is
"ineradicable" and the jury's exposure to it "beyond realistic
hope of repair." Trinidad-Acosta, 773 F.3d at 306; see Cresta,
825 F.2d at 550 (mistrial only appropriate where statement likely
to have affected the jury verdict).
Assessing the witnesses' remarks about Joshua, and then
the prosecutor's statement about Stanley under this standard, we
find that the district court did not abuse its discretion in
denying Joshua's and Stanley's motions.
i) Witness Statements
As to the appropriateness of the comments about Joshua,
the witness testimony about his prior incarceration in the context
of these trial proceedings was likely improper. "It is axiomatic
that the prosecution cannot introduce evidence of defendant's bad
character or previous criminal activity to prove defendant's
propensity to commit the crime charged." United States v. Sclamo,
578 F.2d 888, 890 (1st Cir. 1978); see also Cresta, 825 F.2d at
549. Yet considering the remarks under the totality of the
circumstances, we do not believe the remarks were likely so
prejudicial as to have affected the verdict.
For one thing, the remarks were fleeting and
unaccompanied by any details about Joshua's past crimes or prison
terms. See Trinidad-Acosta, 773 F.3d at 307 ("[F]leeting
references [to the defendant's incarceration] are generally
- 24 -
allowed, but extended comment is impermissible.") (citation
omitted); United States v. De Jesus Mateo, 373 F.3d 70, 73 (1st
Cir. 2004) (brief mention of past incarceration "with little
detail" did not warrant mistrial). Indeed, Nichole's statement
may not have registered with the jury at all: the district court
thought Nichole said she drove Joshua's cousin to probation
appointments, not Joshua himself. Although the other two
statements were not so ambiguous--LeBaron said Joshua had just
gotten out of jail, and Flaherty said Joshua was a felon--these
statements were brief and devoid of detail.
Further, Joshua's claims notwithstanding, nothing in the
record indicates that the remarks were made deliberately. See
Cresta, 825 F.2d at 550. In each instance, the prosecution's
questioning was proceeding along legitimate--and otherwise
relevant--lines, unrelated to the prior prison terms. The
questions posed could naturally have been answered without any
reference to Joshua's time in jail. The record also shows that
the district court judge questioned LeBaron herself to confirm
that the prosecution had followed the judge's instruction and
warned LeBaron against mentioning Joshua's jail time.
Additionally, as the government points out, the district
court issued a prompt curative instruction with each witness's
slip-up. We see no reason to believe that the district court's
curative instructions were not effective. "'[W]ithin wide
- 25 -
margins, the potential for prejudice . . . can be satisfactorily
dispelled by appropriate curative instructions.' Jurors are
presumed to follow such instructions, except in extreme cases."
United States v. Freeman, 208 F.3d 332, 345 (1st Cir. 2000)
(quoting United States v. Sepulveda, 15 F.3d 1161, 1184 (1st Cir.
1993)) (internal citation omitted). Indeed, whenever "a curative
instruction is promptly given, a mistrial is warranted only in
rare circumstances implying extreme prejudice." United States v.
Van Anh, 523 F.3d 43, 54 (1st Cir. 2008) (quoting United States v.
Reiner, 500 F.3d 10, 16 (1st Cir. 2007)). Given the content and
context of the remarks, the witnesses' remarks do not represent
the "extreme case" that would make Joshua and Stanley's case the
exception to the rule.
Finally, we note that the evidence against Joshua and
Stanley was, as the district judge put it, "overwhelming." The
allegedly mistrial-worthy witness statements were dropped mid-
stream in explanations of significantly more salacious details
about the brothers' drug trafficking. LeBaron mentioned that
Joshua was freshly out of jail just before she explained her own
role as a courier for Stanley, flying pills from Florida to Boston,
and distributing pills and picking up money all over Cape Cod.
Nichole made her reference to Joshua's probation while describing
how she helped her brother use cash to buy a Cadillac registered
in her name (relevant to Joshua's charge of concealment money
- 26 -
laundering). Flaherty, too, mentioned that Joshua was a "convicted
felon" immediately before launching into a description of Joshua
and Stanley's oxycodone-trafficking business.
Considering these factors under the totality of the
circumstances, Joshua has not demonstrated such "clear prejudice"
from the improper witness testimony that the district court's
denial of his mistrial motions was a "manifest abuse of
discretion." Trinidad-Acosta, 773 F.3d at 306.
That finding means that Stanley--who was not directly
implicated by any of the remarks--hasn't, either. We turn next to
the prosecutor's statement in his closing argument to see what, if
anything, it adds to Joshua's argument, and whether the district
court abused its discretion in denying Stanley's motion.
ii) Closing Argument
As a reminder, we check to see whether a prosecutor's
remark rose to the level of prosecutorial misconduct before
assessing the prejudice caused by the remark under the totality of
the circumstances. Vázquez-Botet, 532 F.3d at 56. Even though
the defendants' briefs are silent on the point, we assume for the
sake of argument that the Stanley-is-out-of-jail statement amounts
to misconduct.
But considering the prejudice caused by the remark under
the totality of the circumstances, it did not "so poison[] the
well that the trial's outcome was likely affected, thus warranting
- 27 -
a new trial." Gentles, 619 F.3d at 81 (quoting United States v.
Azubike, 504 F.3d 30, 38 (1st Cir. 2007)). The comment was
isolated, and we see no indication that it was made deliberately.
Indeed, the prosecutor himself immediately attempted to clarify
his point by saying that Stanley was "in the community." The
district court quickly struck the offending remark, and later when
instructing the jury, cautioned them that the closing remarks were
not evidence and that the jury could not consider anything the
judge had stricken. Finally, as we explained above, the evidence
against both brothers was extremely strong, so we do not believe
any remaining prejudice could have influenced the jury's verdict.
Under these circumstances, the district court did not
abuse its discretion in denying Stanley's motion for a mistrial.
Moreover, in light of the isolated nature of the prosecutor's
comment (which had nothing to do with Joshua) and the judge's
curative instructions, we do not think the prosecutor's comment
adds enough to Joshua's mistrial argument to shift the balance (if
indeed it adds anything at all). The district court did not abuse
its discretion in denying the brothers' motions.
III. Sufficiency of the Evidence against Stanley
Stanley argues that he should have been acquitted--of
everything, and of the gun charge at a bare minimum--because the
government did not present enough evidence for the jury to convict
him. First, we explain the few facts necessary to understand his
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arguments in the light most favorable to the verdict, Rodríguez-
Soler, 773 F.3d at 289-290, followed by the arguments and our take.
a) Background
As we mentioned earlier, the charges against Stanley
included possession of a firearm in furtherance of a drug-
trafficking conspiracy in violation of 18 U.S.C. § 924(c)--
specifically, a rifle. At trial, two witnesses testified that
Stanley possessed that rifle:
 Alexa Doran--one of Stanley's exes and the mother of one
of his children--testified that Stanley bought a "big
gun, like a rifle or something" in a large case from a
friend and stored it behind the couch for a few weeks.
During that time, she was working for Stanley and
counting money and distributing pills in the apartment
where the gun was kept.
 Matthew Hernon--Doran's brother, who started working for
Stanley when he was fifteen or sixteen and chauffeured
Stanley to drug deals while still on his learner's
permit--testified that in 2011, he saw an AR-15, the
"public model of the M16" assault rifle, in Stanley's
house. Stanley pulled a case out from behind the couch,
took the gun out of the case, cocked the gun, and pointed
it at Hernon from one or two feet away. Afterwards
Stanely wiped his fingerprints off the gun and put it
back in the case. Stanley told Hernon he was afraid
someone was going to rob him, so he had the gun for
protection.
In his opening and closing arguments, and throughout his
cross-examination of the government's witnesses, Stanley attacked
the witnesses' credibility. Hernon, for instance, wanted an
opportunity to get back at Stanley for leaving Doran for another
woman while Doran was pregnant with Stanley's child. On top of
- 29 -
being a jilted ex, Doran also had a drug problem while she was
working for Stanley and was testifying against him to avoid
prosecution for her own part in the conspiracy. (Thirteen of the
thirty-six witnesses were alleged co-conspirators subject to this
brand of attack.)
At the close of the evidence, Stanley moved for a
judgment of acquittal. The district court denied the motion.
Stanley now reprises his two-part insufficient-evidence
challenge, contending as he did below that (1) the government
presented insufficient evidence on all of the charges because
"[a]ll of the witnesses" were proven incredible--all were
"impeached" by their animosity for the brothers, criminal past, or
the deals they got for testifying; and (2) the government did not
present evidence that he possessed a gun in furtherance of a drug-
trafficking offense, as it must for the jury to convict him under
§ 924(c), because "[b]eyond the rifle's existence, there is no
evidence it was ever used . . . as part of any transaction." The
government disagrees.
b) Sufficiency Analysis
We review a district court's denial of a motion for
judgment of acquittal de novo, considering "whether, after
assaying all the evidence in the light most amiable to the
government, and taking all reasonable inferences in its favor, a
rational factfinder could find, beyond a reasonable doubt, that
- 30 -
the prosecution successfully proved the essential elements of the
crime." United States v. George, 841 F.3d 55, 61 (1st Cir. 2016)
(quoting United States v. Chiaradio, 684 F.3d 265, 281 (1st Cir.
2012)).
i) Witness Credibility
Stanley's witness-credibility-based sufficiency
argument is hopeless. As a general matter, in reviewing the
sufficiency of the evidence this court "must defer all credibility
judgments to the jury." United States v. O'Brien, 14 F.3d 703,
706 (1st Cir. 1994); accord United States v. Sepulveda, 15 F.3d
1161, 1174 n.4 (1st Cir. 1993). "We are not at liberty to question
the credibility of witnesses." United States v. Rodríguez-Milían,
820 F.3d 26, 31 (1st Cir. 2016), cert. denied, 137 S. Ct. 138
(2016). As the government points out, Stanley made his credibility
arguments to the jury, but the jury found him guilty nonetheless.
On appeal, he simply reiterates that the witnesses were incredible,
but does not explain how or why his case escapes our credibility
rule, so this argument gets him nowhere.
ii) Gun Charge
Stanley's § 924(c) transactional argument fares no
better--a rational factfinder could find Stanley guilty of the
§ 924(c) charge beyond a reasonable doubt. Contrary to his
position on appeal, the government did not have to show that
Stanley used the gun in a drug transaction in order to convict.
- 31 -
Instead, it had to show three things, that Stanley (1) possessed
a firearm (2) in furtherance of (3) a drug-trafficking crime. 18
U.S.C. § 924(c)(1)(A), (2).
As to the first element, the government presented
evidence that Stanley possessed a gun: Doran and Hernon testified
that they saw Stanley handle a rifle he pulled out from behind his
couch, and Hernon said Stanley pointed it at him. See United
States v. Carlos Cruz, 352 F.3d 499, 509 (1st Cir. 2003) (testimony
that defendant was carrying a gun established element of
possession).
As to the second element, the government also presented
evidence that Stanley possessed the gun "in furtherance of" his
oxycodone-trafficking conspiracy. A gun is possessed in
furtherance of a crime where it is possessed "to advance or promote
the commission of the underlying offense." United States v.
Robinson, 473 F.3d 387, 399 (1st Cir. 2007) (quoting United States
v. Grace, 367 F.3d 29, 35 (1st Cir. 2004)). For instance, a gun
kept near a drug distribution point for "protection from robbery
of drug-sale proceeds . . . may reasonably be considered to be
possessed 'in furtherance of' an ongoing drug-trafficking crime."
Carlos Cruz, 352 F.3d at 509 (quoting United States v. Garner, 338
F.3d 78, 81 (1st Cir. 2003)). That's what the government showed
here: Doran said Stanley kept the gun behind the couch where he
distributed oxycodone pills and counted drug money, and Hernon
- 32 -
said he had the rifle for protection in case someone tried to rob
him.
As for element three, Stanley was convicted of a drug-
trafficking crime--conspiracy to possess with intent to distribute
and conspiracy to distribute oxycodone under 18 U.S.C. §§ 841(a)(1)
and 846. Aside from his witness-credibility argument, which we
have already rejected, Stanley does not otherwise challenge that
conviction on appeal. The government presented sufficient
evidence for the jury to convict Stanley of possessing the rifle
in furtherance of his drug-trafficking conspiracy.7
IV. Stanley's Sentence
That brings us to the last claim on appeal--Stanley's
argument that his Guidelines sentencing range was incorrectly
calculated and so his sentence is procedurally unreasonable. As
before, we begin by recounting the relevant facts in a balanced
manner. Burgos-Montes, 786 F.3d at 99.
7
Stanley puzzlingly mentions that the jury was confused about
his guilt because it wrote "? Were any guns seized?" on the verdict
form. The government doesn't have to introduce the actual gun
into evidence to prove a § 924(c) charge--indeed, the jury's note
doesn't relate to any element of the offense--so we do not see how
this point helps Stanley. In any case, we don't have to parse it
out any further because the argument is undeveloped, and
undeveloped arguments are waived. United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990).
- 33 -
a) Background
Stanley's pre-sentence investigation report ("PSR")
calculated Stanley's Guidelines sentencing range as life in
prison, plus five years for his conviction under 18 U.S.C.
§ 924(c). Stanley's criminal history score was twenty, which put
him in criminal history category VI. U.S. Sentencing Guidelines
Manual ("U.S.S.G.") Ch. 5, pt. A (U.S. Sentencing Comm'n 2014).
The PSR calculated his total offense level as forty-six. The only
component of that offense-level calculation relevant here is
Stanley's base offense level, which is determined by the quantity
of drugs attributable to Stanley and involved in the conspiracy.
See U.S.S.G. § 2D1.1(a)(5), (c). The sentencing court found
Stanley's base offense level was thirty-six, which it calculated
by dividing the jury's $3,552,203 forfeiture verdict (Stanley's
share of "the total gross proceeds of the oxycodone conspiracy")
by $20 per pill (Stanley's average sale price when he sold thirty-
milligram oxycodone pills to other dealers), and adding on the
pills seized during the conspiracy.
At sentencing, Stanley argued that his base offense
level should have been even lower--thirty-four--because the drug-
quantity calculation was based on "estimates," and so Stanley's
drug quantity could not be established with certainty. But,
Stanley's attorney said, "I'm not sure it makes any difference .
. . whether he was a 36 to start or a 34, I think the computation
- 34 -
probably is almost irrelevant as we go forward." Indeed, the
parties and the court agreed at sentencing "that life is not
appropriate here."
In their sentencing arguments, both Stanley and the
government stressed how Stanley's role in the conspiracy compared
to that of Joshua and Willis--both men were sentenced first, and
both got twenty years in prison. When Stanley pointed out, "all
of the alleged kingpins," including Willis, "got non-Guideline
sentences," the sentencing court interrupted to say that Stanley
is "going to get a non-Guideline sentence."
In sentencing Stanley to twenty years, plus five years
for the § 924(c) charge, the court explained that Stanley was "the
organizer on Cape Cod, on top of, as far as I'm concerned, even
[his] brother Josh." The judge stated that Stanley's twenty-five
year sentence was "appropriate" and "sufficient but not greater
than necessary" to serve a deterrent purpose, considering "the
gravity of the offense, giving [Stanley] a proportionate
punishment to other people in similar situations in this
conspiracy, and also essentially making sure that the deterrence
goes out to the community that oxycodone is something that is
harmful and that we take seriously." The judge reiterated, "[e]ven
if my criminal Guideline sentencing turns out to be incorrect in
some [way], this is what I think is sufficient but not greater
than necessary to serve the purposes of punishment."
- 35 -
Stanley appeals his sentence, arguing that the district
court overestimated the quantity of drugs attributable to him so
his base offense level was too high. The government disagrees,
and contends that even if the court made some error in assessing
Stanley's drug quantity, the error did not affect his substantial
rights.
b) Analysis
Stanley did not object below on the grounds he raises on
appeal, so we review his sentencing claim for plain error.8 That
means Stanley must show "(1) that an error occurred (2) which was
clear and obvious and which not only (3) affected the [his]
substantial rights, but also (4) seriously impaired the fairness,
integrity, or public reputation of judicial proceedings." United
States v. Rìos-Hernandez, 645 F.3d 456, 462 (1st Cir. 2011); accord
United States v. Goodhue, 486 F.3d 52, 55 (1st Cir. 2007). Under
this standard, Stanley faces a steep uphill climb, and his
arguments are not up to the challenge. As we explain, we agree
with the government that even if a clear and obvious error
occurred, Stanley's claim still fails because we cannot conclude
8
The parties squabble over whether some of Stanley's fact-
specific drug-quantity-calculation arguments are waived. We give
him the benefit of the doubt and review them all for plain error.
See United States v. Kinsella, 622 F.3d 75, 86 (1st Cir. 2010)
(taking an analogous approach).
- 36 -
that the error "affected [Stanley's] substantial rights."
Goodhue, 486 F.3d at 55.
On the third prong of plain error review, the defendant
must show "a reasonable likelihood 'that, but for the error, the
district court would have imposed a different, more favorable
sentence.'" United States v. Hudson, 823 F.3d 11, 19 (1st Cir.
2016), cert. denied, 137 S. Ct. 620 (2017) (quoting United States
v. Ortiz, 741 F.3d 288, 293-94 (1st Cir. 2014)). Though an
incorrectly calculated Guidelines range is, in itself, often
enough to meet this burden, the government may counter by
demonstrating that "the district court would have imposed the same
sentence even without the error." United States v. Reed, 830 F.3d
1, 4 (1st Cir. 2016) (internal quotation marks omitted) (quoting
United States v. Tavares, 705 F.3d 4, 25 (1st Cir. 2013)); see
United States v. Marchena-Silvestre, 802 F.3d 196, 201 (1st Cir.
2015). "Our approach has been to attempt to discern whether there
exists 'a clear statement by the [sentencing] court that would be
sufficient to diminish the potential of the [Guideline Sentencing
Range] to influence the sentence actually imposed.'" Hudson, 823
F.3d at 19 (quoting Marchena-Silvestre, 802 F.3d at 201). If so,
we may affirm the defendant's sentence. Id.
We think the sentencing court made such a "clear
statement" here. First, Stanley proposed a lower drug-quantity
calculation at sentencing. Aware of his argument, the court
- 37 -
explained that Stanley's alternative Guidelines calculation did
not matter because Stanley is "going to get a non-Guideline
sentence." Then, instead of basing Stanley's sentence on his
Guidelines range, the sentencing judge gave Stanley "a
proportionate punishment" to that of his co-conspirators Willis
and Joshua. Both of these men were sentenced to twenty years'
imprisonment, and Stanley's sentence was the same--plus five years
for his § 924(c) conviction (remember Joshua was acquitted of that
charge, and as the parties discussed at the sentencing hearing,
Willis was never charged under the statute). If more evidence of
the sentencing judge's intent to give a non-Guidelines sentence
were needed, she explained that even if the Guidelines range "turns
out to be incorrect," the sentence was "sufficient but not greater
than necessary to serve the purposes of punishment." So even if
there were some error in the court's drug-quantity calculation and
the resulting Guidelines range--which we doubt--we think these
statements show that the court would have imposed the same sentence
even under the correct range. That means that any error did not
impact Stanley's substantial rights. See Reed, 830 F.3d at 8.
- 38 -
CONCLUSION
For the reasons stated we affirm the brothers'
convictions and Stanley's sentence.9
9 One more sentencing point: Stanley also argues that the
district court erred in considering him a career offender under
the Guidelines because he did not have "two prior felony
convictions of either a crime of violence or a controlled substance
offense." U.S.S.G. § 4B1.1(a)(3). Stanley himself points out
that three of his convictions are career-offender predicates under
the Guidelines' residual clause; his entire argument hinges on his
claim that these convictions don't count because the residual
clause is unconstitutionally vague. But after this case was
briefed and argued, the Supreme Court found that the Guidelines'
residual clause "is not void for vagueness." Beckles v. United
States, 137 S. Ct. 886, 892 (2017). That means Stanley has at
least three predicates, so he has not shown the sentencing court
erred in considering him a career offender. Although the
government conceded in its brief that the Guidelines' residual
clause was unconstitutionally vague, this court is "not bound by
the government's concession, which, while understandable before
Beckles, turned out to be incorrect." United States v. Thompson,
851 F.3d 129, 131 (1st Cir. 2017) (affirming career-offender-
predicate status of Massachusetts assault and battery with a
dangerous weapon under the Guidelines' residual clause over
government concession that residual clause was invalid).
- 39 -