APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE. Hon. John A. Woodcock, Jr., U.S. District Judge.
George F. Gormley, with whom Stephen Super and George F. Gormley, P.C., were on brief, for appellant.
Margaret D. McGaughey, Assistant United States Attorney, with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellee.
Before Torruella, Lynch, and Kayatta, Circuit Judges. TORRUELLA, Circuit Judge, concurring.
LYNCH, Circuit Judge.
Nicholas McDonald was a heroin dealer in the Bangor area of Maine, obtaining his heroin on trips to Worcester, Massachusetts.
Eventually, when caught with 26.4 grams of heroin, he was charged both for the heroin and a gun in his possession. McDonald pleaded guilty in February 2014 to one count of possession with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1) and one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (subject to appealing the denial of his motion to suppress). The district court quite correctly denied his motion to suppress and, at sentencing, correctly found that he had tried to obstruct justice by trying to swallow a small bag of heroin.
A separate question on appeal has to do with the increase in his base offense level from 18 to 20, which was based not on the drugs he actually possessed but on relevant conduct concerning drugs he purportedly sold. That relevant conduct was based on untested accounts by a confidential informant (CI) who purportedly had accompanied him on his buying trips south and had been with him on several occasions as he sold drugs. That is, the Presentence Investigation Report (PSR) contained information from the CI, which came in the form of the CI's grand jury testimony and a statement made to the government. No law enforcement or other witness saw those sales. The CI did not testify, and so McDonald never had an opportunity to cross-examine her. Still, we cannot say there was clear error in the district court's finding that this information met the requirements for relevant conduct and was sufficiently reliable to attribute to McDonald an additional quantity of drugs. There was no clear error in the court's finding that between 40 and 60 grams of heroin were involved, which supported a sentence of 75-months imprisonment on the drug count.
We point out that McDonald received a concurrent sentence of 75-months imprisonment on the firearm charge and will serve 75 months anyway, whatever the merits of the method used by the government to get an increased sentence on the drug charge.
As to the motion to suppress, we recite the relevant facts as found by the district court, consistent with record support. United States v. Arnott, 758 F.3d 40, 41 (1st Cir. 2014). As to the facts relevant to the sentencing appeal, we take the facts as set forth in the unchallenged portions of the PSR and the sentencing hearing. United States v. Innarelli, 524 F.3d 286, 288 (1st Cir. 2008).
On April 5, 2013, Sergeant Roy Peary of the Penobscot County Sheriff's Department received an e-mail about suspicious pawning activity. The e-mail indicated that Kelly Jo Desmond, Jarod Brown, and another unidentified female were trying to pawn construction tools and electronics at a Newport, Maine pawnshop, but they could not provide a lot of information about the items. The group had an older, dark-colored Pontiac with a license plate beginning with " 7450" and ending with undetermined letters.
That same day, Sergeant Peary learned of a burglary in Orrington, Maine. The complainant reported that construction tools had been stolen and said that he suspected his ex-girlfriend, Amy White, was involved. The complainant said that White struggled with drug addiction, knew about his tools, drove a maroon Pontiac Bonneville, and might be staying at a trailer park in Holden, Maine. He said that McDonald and Desmond lived in the trailer where he thought White was staying.
Sergeant Peary learned from the Maine Department of Motor Vehicles that White was the registered owner of a 1999 Pontiac
Bonneville with the plate number " 7450 TB" that was listed as being purple. He called Holden Police Officer Chris Greeley and told him that he was investigating a burglary and suspicious pawning activity. Greeley knew of existing arrest warrants for McDonald and Desmond. He suspected that McDonald was staying at a trailer park in Holden because he had previously driven McDonald to a trailer there after he picked McDonald up along a roadway in ...