United States v. Reid , 899 F.3d 46 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-2021
UNITED STATES OF AMERICA,
Appellee,
v.
DONALD REID,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Howard, Chief Judge,
Boudin and Barron, Circuit Judges.
Elizabeth A. Billowitz on brief for appellant.
Benjamin M. Block, Assistant United States Attorney, and
Halsey B. Frank, United States Attorney, on brief for appellee.
August 10, 2018
BOUDIN, Circuit Judge. Donald Reid pled guilty to
possession with intent to distribute cocaine and heroin. 21
U.S.C. §§ 841(a)(1), 841(b)(1)(C). The district court found Reid
to be a career offender, U.S.S.G. § 4B1.1(a), subject to a
guidelines sentencing range ("GSR") of 151 to 188 months, but it
sentenced him to a below-guidelines term of seventy-eight months
in prison. On appeal, Reid challenges his sentence.
On May 27, 2016, in the course of a wiretap investigation
into a drug trafficking conspiracy in the Portland, Maine area,
law enforcement agents arrested Reid shortly after he traveled by
bus from New York to Portland with 253 grams of cocaine and twenty-
eight grams of heroin in his backpack. Reid was charged, along
with others, with conspiracy to distribute cocaine and heroin, 21
U.S.C. §§ 841(a)(1), 846, but thereafter pled guilty to possession
with intent to distribute, id. §§ 841(a)(1), 841(b)(1)(C).
The presentence investigation report ("PSR") said that
there was "no evidence to suggest that [Reid] was engaged in any
further activities of the drug conspiracy" beyond acting as a
courier. The PSR recommended a two-level minor participant role
reduction, U.S.S.G. § 3B1.2(b), but it advised against a four-
level minimal participant reduction, id. § 3B1.2(a), because Reid
"must have had some knowledge and understanding of the scope of
the criminal enterprise and the activities of those involved to be
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trusted to transport that significant amount of narcotics across
multiple states."
The PSR also set forth Reid's lengthy criminal history,
which included a juvenile conviction at age thirteen for third-
degree robbery; adult convictions at age seventeen for possession
of crack cocaine and first-degree robbery; and subsequent
convictions for disobeying an officer and resisting arrest, sale
of a half-gram of cocaine, second-degree possession of a forged
instrument, and conspiracy to defraud the United States by altering
postal money orders. Reid's convictions for first-degree robbery
and sale of cocaine qualified him as a career offender under
U.S.S.G. § 4B1.1(a).
At the sentencing hearing on September 18, 2017, defense
counsel conceded that there was a "sufficient basis . . . to
substantiate" Reid's career offender designation, but sought a
reduced variant sentence. The district court accordingly found
that Reid was a career offender, with a corresponding total offense
level of twenty-nine--after a three-level decrease for acceptance
of responsibility, U.S.S.G. § 3E1.1--and a criminal history
category of VI. Reid's career offender status mooted his request
for a minimal participant reduction because the career offender
guidelines do not allow for role reductions. "[I]n any event,"
the court found, Reid did not qualify for the minimal participant
reduction.
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Reid's advisory GSR as a career offender was 151 to 188
months. The government recommended a below-guidelines sentence
"in the neighborhood of six years" based on Reid's youth at the
time of his predicate robbery conviction and the small quantity
involved in his predicate drug trafficking conviction. The
evidence, the government recognized, did not suggest that Reid had
further involvement in the conspiracy beyond the one trip. Defense
counsel, pointing to Reid's peripheral role in the instant
conspiracy, his disadvantaged upbringing, and the circumstances of
his predicate convictions, requested a sentence within the GSR
that would have applied had Reid not qualified as a career offender
(twenty-seven to thirty-three months).
The court sentenced Reid to seventy-eight months'
imprisonment--a sentence significantly below Reid's GSR as a
career offender. The judge stressed that Reid had been "a prolific
criminal" since a young age and that, by the age of thirty-one, he
had "an amazing record of criminal activity." The judge also noted
that over the years Reid had "taken advantage of repeated leniency"
and had violated parole.
Remarking that Reid's was a "very difficult case," the
court looked for but found "not much" in terms of redeeming factors
or prospects for improvement: The court stated that "every time
[Reid] had a chance, he . . . committed another crime." After
considering a ten-year sentence "to protect the public from someone
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who is a career criminal," the court settled for a sentence even
further below the adopted GSR.
On appeal, Reid's first claim of error is that the court
wrongly denied him a minimal participant reduction. U.S.S.G.
§ 3B1.2(a). However, Reid's offense level was dictated by the
career offender guidelines, which do not countenance role
reductions: U.S.S.G. § 4B1.1(b) provides that where, as here,
"the offense level for a career offender . . . is greater than the
offense level otherwise applicable, the [career offender] offense
level . . . shall apply." Accordingly, a minimal participant
designation would not have helped Reid. See United States v.
Morales-Diaz, 925 F.2d 535, 540 (1st Cir. 1991); United States v.
Davis, 873 F.3d 343, 346 (1st Cir. 2017).
Reid's main claim is that his sentence is unreasonable.
The crux of his argument is that although he "technically
qualifie[s]" as a career offender, the district court should not
have treated him as such for sentencing purposes because of his
"unique circumstances." (Reid also suggests that it is unclear
whether the district court sentenced him as a career offender, but
twice the court flatly stated that it was treating Reid as such.)
The court, Reid claims, failed to address explicitly and
take into account how his "traumatic" upbringing--marked by
abandonment and abuse--made him "less morally culpable" for the
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robbery conviction that served as a predicate to his career
offender status.
We assume, favorably to Reid, that his sentence is
reviewed for abuse of discretion, see United States v.
Alejandro-Rosado, 878 F.3d 435, 438-39, 440 (1st Cir. 2017), but
we find none. Fatal to Reid's challenge is the court's thoughtful
consideration of his personal history and its imposition of a
variant sentence far below the applicable career offender GSR.
During sentencing the judge provided defense counsel
with multiple opportunities to convince the court that Reid
deserved leniency, stating "I'm looking for a spark here that
[Reid] has any concern for the criminal justice system." And
before announcing Reid's sentence, the judge stated that he had
considered, among other things, the letters submitted by Reid's
family, the PSR (which described in depth Reid's difficult
childhood), defense counsel's arguments (which highlighted Reid's
upbringing and the circumstances of his predicate offenses), and
Reid's "history, record and personal characteristics."
Reid urges that his "troubled background" warranted
exceptional leniency. But the court was under no obligation to
agree, see United States v. Vargas-García, 794 F.3d 162, 167 (1st
Cir. 2015), and the court justifiably found this argument
undermined by Reid's recidivism over more than a decade. In all
events, the imposition of a below-guidelines sentence suggests
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that the court was somewhat persuaded by Reid's argument for
leniency--albeit not to the extent Reid desired.
Reid finally argues that the "application of the [career
offender] guideline . . . ultimately resulted in a sentence that
was substantively unreasonable" and that "the punishment does not
fit the crime." But, having conceded that he qualified as a career
offender, Reid's substantive reasonableness argument is just a
reworking of his argument for a greater downward variance. In
sum, the below-guidelines sentence of seventy-eight months is a
defensible outcome. See United States v. Rivera-González, 776
F.3d 45, 51 (1st Cir. 2015); United States v. King, 741 F.3d 305,
310 (1st Cir. 2014).
Affirmed.
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