FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE HON. NANCY TORRESEN, U.S. DISTRICT JUDGE.
Levchuk and Bulkley, Richardson and Gelinas, LLP on brief for
B. Frank, United States Attorney, and Renée M. Bunker,
Assistant United States Attorney, Appellate Chief, on brief
Thompson, Boudin, and Barron, Circuit Judges.
BOUDIN, CIRCUIT JUDGE.
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
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
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.
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.
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.
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.
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).
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.
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 ...