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Relevant Conduct Sentencing Determination Appealed

U.S. v. Eisom, Case No. 08-1893 (C.A. 1, Nov. 5, 2009)

Following the appellant's guilty plea to a federal drug-trafficking charge, the district court calculated the guideline sentencing range (GSR) to include as relevant conduct amounts of drugs and cash independently seized by local authorities in connection with an unrelated criminal investigation. This single-issue sentencing appeal challenges the court's relevant conduct determination. We conclude that the appellant waived any objection to that determination and, in all events, the determination was not clearly erroneous. Accordingly, we affirm the sentence imposed below.

The facts are straightforward (although certain inferences therefrom are disputed). The venue is Portland, Maine. In June of 2007, the federal Drug Enforcement Administration (DEA) received a tip from a cooperating source (CS-1) that defendantappellant Philjon Eisom was peddling crack cocaine. Under the DEA's direction, CS-1 contacted the appellant on June 14 and purchased 6.5 grams of crack.

Two weeks later, a different informant (CS-2) effected another controlled buy, purchasing 10.8 grams of crack. In the course of this transaction, the appellant told CS-2 that he had more crack for sale and that he had made over $8,000 since setting up shop in Portland.

On July 6, the plot thickened: CS-2 informed DEA agents that he had agreed to buy two more ounces of crack from the appellant. The agents immediately arranged to surveil the site of the planned transaction (near the appellant's home). While in
place, they observed local law enforcement officers arrest the appellant as he left the apartment building in which he lived. A
search of the appellant's residence by the arresting officers, pursuant to a warrant issued by a state court, resulted in the seizure of 60 grams of powdered cocaine, 283.5 grams of crack cocaine, and $11,500 in cash.

As matters turned out, the local authorities had been investigating the appellant's mercantile activities, independent of their federal counterparts. They proceeded to charge the appellant with two counts of unlawful trafficking in scheduled drugs and one count of aggravated trafficking. Me. Rev. Stat. Ann. tit. 17-A, §§ 1103, 1105. The appellant pleaded guilty in the state court, but sentencing was delayed.

On September 18, 2007, a federal grand jury returned a one-count indictment charging the appellant with distributing, on June 28 of that year, five grams or more of cocaine base (crack cocaine) in violation of 21 U.S.C. § 841(a)(1). The charge arose out of the appellant's sale of 10.8 grams of crack to CS-2.

After some preliminary skirmishing, not material here, the appellant admitted his guilt with respect to the federal charge. The district court directed the probation department to prepare a presentence investigation report (PSI Report).
 

 
Circuit Court Judge(s)
Michael Boudin
Kermit Lipez
Bruce Selya

 
Trial Court Judge(s)
Brock Hornby

 
Appellant Lawyer(s) Appellant Law Firm(s)
Christie M. Charles

 
Appellee Lawyer(s) Appellee Law Firm(s)
Margaret McGaughey US Attorney
Paula Silsby US Attorney

 

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-10- the district court's relevant conduct determination. first, the psi report well in advance of sentencing. they interposed a that the district court did not clearly err in formulating its 8,295.6 kilograms of marijuana and a base offense level of 32. see defendant, appellant. purchase crack from the appellant. it is a logical (perhaps course of this transaction, the appellant told cs-2 that he had although the federal indictment charged only the june 282 identified to the court by him prior to sentencing. the evidence that such uncharged conduct is part of the same course waiver and forfeiture. waiver, on the one hand, is the intentional cocaine sale associated with the state charge can be considered plea to a federal drug-trafficking charge, the district court in an effort to undermine this inference, the appellant second, the compressed time frame during which the events these other arguments are meritless, and we reject them out of a district court's determination of the scope of a -7- seized. in addition, noting that there was no indication of any in june of 2007, the federal drug enforcement administration (dea) that indication is reinforced by two admissions. for one thing, the appellant also notes that the seized contraband was pursuant to a warrant issued by a state court, resulted in the -5- sale to cs-2, the appellant does not question that the drugs fourth, during the controlled buy that constitutes the activity underlying the state charges be considered relevant related in one way or another to his arguments discussed above. that he had waived the objection. id. at 99. so it is here. we hold that any objection to the on september 18, 2007, a federal grand jury returned a non-existence of overarching patterns. see, e.g., bryant, 571 f.3d paula d. silsby, united states attorney, and margaret d. of the crimes, their closeness in time, the appellant's statements, 967, 972 (1st cir. 1995). a forfeited claim receives a reprieve; as matters turned out, the local authorities had been the circumstances that a single course of conduct encompassed the that finding is reviewed under the deferential clear-error and cash seized by local authorities, and to "those facts being in order to go beyond the conduct involved in the offense disposition hearing. when the defendant then tried to attack the at the disposition hearing, defense counsel unambiguously charged and uncharged acts are of the same nature; crack cocaine, transpired is telling. the controlled buy that forms the predicate (a)(2), offense conduct associated with a sentence that was imposed that total to the appellant. because two different types of relevant conduct. one-count indictment charging the appellant with distributing, on course of conduct, scheme, or plan that includes the offense of criminal history calculation on appeal, the seventh circuit held -13- during presentence discussions, yet failed to object at the substantially connected by one or more salient factors, such as a court then asked the appellant himself whether he approved of his found the gsr to be 121-151 months; departed downward based on the probation officer used an average sale price of $88 per gram (based 130.68 grams of crack. in order to avoid double-counting, the found alongside the drugs, the probation officer included the cash seizure of 60 grams of powdered cocaine, 283.5 grams of crack crack cocaine, a hypothetical 113.38 grams of crack resulting from an application note to the relevant conduct guideline is is the rare narcotics trafficker who authors a formal business plan prepare a presentence investigation report (psi report). f.3d 147, 159 (1st cir. 2009); sklar, 920 f.2d at 110. a single whole of the appellant's drug-trafficking activities in the we need go no further. for the reasons elucidated above, drug-trafficking cases. under that guideline, drug quantities not conduct is part of a common course of conduct, scheme, or plan, the appellant made clear that he was keeping a running tally of his be resurrected on appeal. see, e.g., united states v. sumner, 265 was supporting himself and his family by dealing in drugs. argues that there was no direct evidence linking the seized particular scheme, plan, or course of conduct "represents a united states of america, portland area. inferences therefrom are disputed). the venue is portland, maine. v. graciani, 61 f.3d 70, 74 (1st cir. 1995). in this case, the appellant and his counsel received the reasonable factfinder reasonably could infer from the totality of evidence. see sklar, 920 f.2d at 111; cf. id. (remarking that "it court's relevant conduct determination. the government's first november 5, 2009 by three levels for acceptance of responsibility. id. 3e1.1. the appellant philjon eisom was peddling crack cocaine. under the written objection to the portion of the report that recommended the the district court discussed the psi report and other separate sovereign in a separate proceeding does not, without more, more crack for sale and that he had made over $8,000 since setting see united states v. maken, 510 f.3d 654, 657 (6th cir. 2007); prior to the acts or omissions constituting the instant federal -2- before persons cooperating in the federal probe). this conversion yielded charge. the district court directed the probation department to involved in the june 14 sale to cs-1 are properly included as hand. it suffices to say that the record supports a conclusion 3d1.2(d) would require grouping of multiple counts," uncharged understanding that the recommendations contained in the psi report conference, the lawyer advanced the same objection, stating that he gerante, 891 f.2d 364, 369 (1st cir. 1989). to this end, the distribute can readily be inferred. oversight, inadvertence, or neglect in asserting a potential right. investigation. this single-issue sentencing appeal challenges the must be relevant to the charged conduct. ussg 1b1.3. where, as determining the defendant's offense level as long as those we affirm the sentence imposed below. appellant's prior record placed him in criminal history category -4- purchased 6.5 grams of crack. after some preliminary skirmishing, not material here, relevant conduct vis--vis the federal charge as long as the two for the federal indictment took place on june 28, 2007. that was the consequences of trial-court-level waiver and count of aggravated trafficking. me. rev. stat. ann. tit. 17-a,1 two weeks later, a different informant (cs-2) effected united states v. kenyon, 7 f.3d 783, 787 (8th cir. 1993). longer disputed. defense counsel replied: "that's correct." the local authorities. see d. me. r. 132. at the june 11 sentencing note concludes that, under the relevant conduct guideline, the ussg 1b1.3, cmt. (n.9(b)). in much the same vein, multiple that they are part of a single . . . ongoing series of offenses." cocaine, and $11,500 in cash. search of the appellant's residence by the arresting officers, 2d1.1, cmt. (n.10(d)(i)). this yielded an aggregate quantity of a hard-to-satisfy standard of review (plain error). see olano, 507 the appellant makes other arguments, most of which are seized cash. insists, requires its exclusion in the federal sentencing calculus. relevant conduct determination. we hasten to add that, even if preserved, the appellant's the same course of conduct or common scheme or plan as the offense of conduct or common scheme or plan as the charged conduct. id.; we affirm the sentence imposed by the district court. uncharged quantities are supportably found to be part of a common calculation of a defendant's offense level, that uncharged conduct then, the contours of the claim were known to the appellant and cir. 2002). forfeiture, on the other hand, occurs when a party states v. gooden, 892 f.2d 725, 729 (8th cir. 1989). it follows for the district of maine a drug of choice in both instances, was distributed on june 28 and cooperating source in the federal investigation was scheduled to christie m. charles, by appointment of the court, on brief for mcgaughey, appellate chief, on brief for appellee. trafficking activity. see, e.g., sklar, 920 f.2d at 111; united conduct, ussg 1b1.3(a)(2), in fixing the offense level for federal common purpose. id. 1b1.3, cmt. (n.9(a)). factors to be had committed a state offense and served a state-imposed sentence local authorities in connection with an unrelated criminal previous state court conviction should not be considered relevant -12- june 28 of that year, five grams or more of cocaine base (crack the psi report (including the relevant conduct recommendation); line of defense is a claim that the appellant waived his right to cir. 2008). we disagree. instructive. that note provides an example that is strikingly items, but the forfeiture count is immaterial here. third, on the very day that the search occurred, a -9- v. appellant as he left the apartment building in which he lived. a types of cocaine into their marijuana equivalents. see ussg u.s. at 733-34; rodriguez, 311 f.3d at 437. v. santos-batista, 239 f.3d 16, 22 (1st cir. 2001); united states conviction. ussg 1b1.3(a)(2); see united states v. bryant, 571 united states court of appeals see ussg 1b1.3, cmt. (n.8) ("for the purposes of subsection [hon. d. brock hornby, u.s. district judge] and the other circumstances permit the common-sense inference that of conviction and include other (uncharged) conduct in the strongly supports a conclusion that all the drugs, and the cash, the planned transaction (near the appellant's home). while in seized during the search of the appellant's abode (283.5 grams of with two counts of unlawful trafficking in scheduled drugs and one typically, a waived claim is dead and buried; it cannot thereafter out of the appellant's sale of 10.8 grams of crack to cs-2. used to determine [the appellant's] base offense level." plainly, within two weeks of when local authorities searched the appellant's fails to make a timely assertion of a right. olano, 507 u.s. at court's relevant conduct determination. we conclude that the consequently, cannot now be deployed as a basis for appeal. -3- -6- drug-trafficking profits. cf. hall, 434 f.3d at 61 (holding that undisputed. the appellant said that he did. forfeiture differ with respect to subsequent attempts to appeal. iv, thus producing a gsr of 121-151 months. id. ch. 5, pt. a3 used to ground a separate state court prosecution. this fact, he appellant. boudin, selya and lipez, circuit judges. events, the determination was not clearly erroneous. accordingly, (sentencing table). and imposed a 108-month prison term. this timely appeal followed. offenses arise out of a common scheme, plan, or course of conduct. quantities involved in the two controlled buys. that left 113.382 here, the offense of conviction is "of a character for which [ussg] course of conduct as the offense of conviction. investigating the appellant's mercantile activities, independent of we hold, therefore, that prosecution of conduct by a in this respect, the case is very similar to united states v. in the recommendation, converting it into its crack cocaine charged as part of the offense of conviction may be included in offense of conviction, the appellant told cs-2 that he had more see ussg 1b1.3, cmt. (n.8). the case law is to the same effect. grams of crack attributable to the appellant on account of the abode and seized the above-described contraband. this timing 725, 733 (1993); united states v. rodriguez, 311 f.3d 435, 437 (1st "facts contained in paragraphs 8 and 9," which describe the drugs no. 08-1893 course of conduct is present if multiple offenses "are sufficiently guidelines manual and used a common denominator, converting both cocaine were involved, the probation officer followed the the psi report contained a recommendation that the sentencing court did not err by using defendant's overall drug and cash seized were part of a single course of continuous drug- -11- though it may be on life support, it can be pursued on appeal under 11, 2008. the disposition hearing was held on july 10. without calculated the guideline sentencing range (gsr) to include as the probation officer then reduced the base offense level 964, 987 (7th cir. 2003) (determining that conduct underlying their federal counterparts. they proceeded to charge the appellant appellant waived any objection to that determination and, in all inclusion, as relevant conduct, of the drugs and cash seized by was possessed in such a quantity on july 6 that the intent to the state also sought forfeiture of the cash and other1 we caution that a different rule might apply if a defendant4 appellee, f.2d 107, 111 (1st cir. 1990). once the court finds that uncharged united states v. johnson, 324 f.3d 875, 877-78 (7th cir. 2003); on the transactions consummated between the appellant and the place, they observed local law enforcement officers arrest the for the first circuit (including the proposed relevant conduct determination) were no 733. at bottom, then, waiver implies an intention to forgo a known the seized contraband was part and parcel of the same illicit claim of error would prove unavailing. we explain below. received a tip from a cooperating source (cs-1) that defendant- for it prior to committing the (federal) offense of conviction. the government's claim requires us to distinguish between dea's direction, cs-1 contacted the appellant on june 14 and f.3d 532, 537 (7th cir. 2001); united states v. taylor, 54 f.3d crack for sale and that he had made $8,200 from peddling drugs in rodriguez, 311 f.3d at 437. this is precisely what happened here. profits as a basis for estimating drug quantity under relevant next, the probation officer combined the drugs purveyed united states v. staples, 202 f.3d 992, 995 (7th cir. 2000). that he had agreed to buy two more ounces of crack from the relevant conduct amounts of drugs and cash independently seized by connected or related to each other as to warrant the conclusion criminal history score for the pending state charges. see united states v. blanco, 888 f.2d 907, 909 (1st cir. 1989). 1103, 1105. the appellant pleaded guilty in the state court, offense (the offense of conviction) is not considered as part of conduct guideline). for another thing, the appellant said that he that ends this aspect of the matter. the similar nature equivalent for this purpose. id. 2d1.1, cmt. (n.12); united considered include (but are not limited to) the nature of the -8- first and by federal authorities for the second. the application offenses may be deemed part of a common scheme or plan if they are inclusion of the seized drugs and cash as relevant conduct for we have stated that "[a] party who identifies an issue sentencing purposes. this encompassed the drugs that had been arranged to buy were to come from the stash seized in the search. sentencing issues with the prosecutor and defense counsel on june the appellant is represented on appeal by newly appointed affirmed. or keeps meticulously detailed inventory records."). here, a purposes of setting the appellant's offense level was waived and, here. appellant's substantial assistance to the authorities, id. 5k1.1; no criminal history points were added to the appellant's3 appellant. the agents immediately arranged to surveil the site of up shop in portland. selya, circuit judge. following the appellant's guilty separated by an intervening sentence). that is not the situation practical, real-world assessment of probabilities, based on the at 159-60; united states v. jaca-nazario, 521 f.3d 50, 55-56 (1st sentencing calculus pursuant to the relevant conduct guideline.4 redding, 104 f.3d 96 (7th cir. 1996). there, the defendant appeal that determination. we begin there. offenses, their timing, their commonalities, and the existence or the appellant admitted his guilt with respect to the federal initially objected to a proposed criminal history calculation on july 6, the plot thickened: cs-2 informed dea agents the cash conversion, and 60 grams of cocaine powder) and attributed conduct is relevant if the government proves by a preponderance of appeal from the united states district court similar to the facts of this case: a hypothetical defendant engages philjon eisom, wished to object both to the inclusion in the psi report of the in the case at hand, these factors coalesce to support but sentencing was delayed. portland. these statements are indicative of an ongoing operation. standard. id. at 110-11. relinquishment of a known right. united states v. olano, 507 u.s. were part of the same course of conduct. see, e.g., united states legitimate source for the cash seized and that the cash had been attorney's statement that the contents of the psi report were in the two controlled buys (17.3 grams of crack) and the contraband inevitable) inference that the two ounces of crack that cs-2 had probation officer subtracted from the cash's crack equivalent the disqualify that conduct from inclusion in a federal court's that the drugs sold during the offense of conviction and the drugs right, whereas forfeiture implies something less deliberate -- say, states v. hall, 434 f.3d 42, 61 (1st cir. 2006); united states v. conduct because that offense and the offense of conviction were the facts are straightforward (although certain id. 2d1.1(c)(3); id. 2d1.1, cmt. (n.10(e)). and then explicitly withdraws it, has waived the issue." objection, the court adopted the various calculations adumbrated in relevant conduct determination may be grounded in circumstantial totality of proven circumstances." united states v. sklar, 920 in two cocaine sales, and is charged by state authorities for the of conviction."); see also united states v. hernandez, 330 f.3d another controlled buy, purchasing 10.8 grams of crack. in the counsel. his brief makes a head-on challenge to the sentencing the relevant conduct guideline can find fertile soil in withdrew this objection. the court sought to verify its cocaine) in violation of 21 u.s.c. 841(a)(1). the charge arose contraband to the drugs sold to cs-2. that may be so -- but a


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