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United States v. Gilley

United States Court of Appeals, First Circuit

December 19, 2018

UNITED STATES OF AMERICA, Appellee,
v.
MICKEY GILLEY, Defendant, Appellant.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE HON. NANCY TORRESEN, U.S. DISTRICT JUDGE.

          Andrew Levchuk and Bulkley, Richardson and Gelinas, LLP on brief for appellant.

          Halsey B. Frank, United States Attorney, and Renée M. Bunker, Assistant United States Attorney, Appellate Chief, on brief for appellee.

          Before Thompson, Boudin, and Barron, Circuit Judges.

          BOUDIN, CIRCUIT JUDGE.

         Mickey Gilley pled guilty pursuant to a plea agreement to one count of distribution of heroin and fentanyl. 21 U.S.C. § 841(a)(1), (b)(1)(C). The plea agreement included a stipulated sentencing range of 132 to 180 months that bound the district court upon its acceptance of the agreement. The district court accepted the agreement and sentenced Gilley to 168 months. Gilley now appeals his sentence as substantively unreasonable.

         On September 20, 2016, Gilley and a friend traveled to Portland, Maine, and bought $100 worth of heroin (approximately one gram). Half was for Gilley and Gilley's girlfriend, K.W., to share. During the drive back to Bath, Maine, where Gilley lived, Gilley was in contact with K.W. and used some of the heroin.

         After arriving at K.W.'s apartment, Gilley and K.W., who had been drinking, used the heroin. Eventually, K.W. went to bed. Approximately forty-five minutes later, Gilley lay down next to K.W. and found her unresponsive. Gilley fell asleep.

         Gilley awoke two hours later to find K.W. still unresponsive. He rolled her over, and blood came out of her nose and mouth. He "freaked out" and dumped water on her. Gilley called his brother, Christopher, who told him to start CPR. After calling Christopher, Gilley moved K.W. to the shower and let water run on her. After Christopher arrived, Christopher called 911. Gilley left the apartment and took his and K.W.'s daughter to a neighbor's apartment.

         Gilley failed to immediately call 911 and left the apartment after his brother arrived because Gilley was subject to two sets of bail conditions that prohibited him from having contact with K.W. Cell phone records indicate that about forty-five to ninety minutes elapsed from the time Gilley started talking with Christopher to the time Christopher called 911.

         A medical examiner determined after an autopsy that K.W. died of acute intoxication from the combined effects of fentanyl, heroin, and ethanol. In grand jury testimony, Maine Drug Enforcement Agency Agent Chad Carleton suggested that the heroin was actually a mixture of heroin and fentanyl.

         On July 26, 2017, Gilley was charged in a two-count superseding indictment with distribution of heroin and fentanyl resulting in death (Count 1) and distribution of heroin and fentanyl (Count 2). 21 U.S.C. § 841(a)(1), (b)(1)(C).

         On August 1, 2017, pursuant to a written plea agreement, Gilley pled guilty to Count 2, while the government agreed to dismiss Count 1, which carried a twenty-year statutory minimum sentence. 21 U.S.C. § 841(b)(1)(C). For Count 2, the parties agreed to recommend a sentence between 132 and 180 months, a recommendation that bound the district court if the judge accepted the plea agreement. Fed. R. Crim. P. 11(c)(1)(C).

         The agreement also contained a non-binding recommendation that the court find that Gilley accepted responsibility for the offense and that his offense level should be reduced accordingly. Further, the parties stipulated that Gilley distributed a mixture containing heroin and fentanyl to K.W. and that K.W. died as a result of using the substance. Finally, Gilley ...


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