Professional Documents
Culture Documents
Before
Torruella, Dyk,* and Thompson,
Circuit Judges.
THOMPSON,
Circuit
Judge.
Following
tip
from
A search turned up
In a nutshell,
was
not
home
Richardson,
the
trio
met
when
up
they
with
arrived.
him
at
After
Texaco
paging
station.
Richardson did not have any heroin on him, but could get some
-3-
Special Agent
of more heroin, Martin revealed she did not have anything at that
time, but could help her out in an hour.
returned by 9:52 p.m.
After Martin
Duquette handed
Martin $250: $200 for the heroin and $50 as commission. Martin got
out of the vehicle, met with someone from the Brown car, and came
back with four "double bags" of heroin.
B. Martin is Convicted for the 2001 Offenses
On February 5, 2002, a state grand jury returned a twocount indictment charging Martin with unlawful trafficking in
scheduled drugs.
heroin in connection with both the September 2001 offense and the
October 2001 offense.
on October 11, 2001, and as a result, the charge for the September
2001 offense was dismissed.
Meanwhile federal proceedings were underway as well.
On
offense.
authorities.
Martin
was
arrested
and
charged
by
federal
Martin was sentenced in state court for the October 2001 offense to
a term of four years' imprisonment, all but one year of which was
suspended, and three years' probation.
With this backdrop in place, we fast forward a few years
to the circumstances that gave rise to Martin's most recent
conviction, from which this appeal stems.
C. The 2007 Offense
On March 28, 2007, MDEA agents received a tip from a
confidential informant who had recently bought two 80-milligram
oxycodone tablets from Martin.
-5-
MDEA
Special Agent Brad Johnston, who knew Martin from prior encounters,
approached her and asked if she was on federal supervised release.
Martin acknowledged she was. Special Agent Johnston then asked her
if
there
were
any
drugs
in
the
car.
Martin
responded
oxycodone,
841(a)(1).
Martin
and
heroin
entered
in
into
violation
a
plea
of
21
agreement
U.S.C.
with
the
-6-
sentenced.
D. Sentencing
The primary sentencing-related issue was whether Martin
should be treated as a career offender in light of her two previous
felony convictions (stemming from the September 2001 offense and
the October 2001 offense).
career
offender
status
and
non-career
offender
status
was
Martin disagreed.
The dispute centered around 4B1.1 of the 2006 United
Greater
detail on the applicable law will come later, but for now it
suffices to note that under 4B1.1, a defendant should be treated
as a career offender if (among other things not relevant to this
appeal)
she
has
at
least
two
prior
felony
convictions
of
felony convictions for the September 2001 offense and the October
2001 offense should not be counted separately under the Guidelines,
but rather as one.
"a
single
common
scheme
or
plan,"
i.e.,
part
of
the
MDEA's
reviewed
the
sentencing
transcripts
of
both
the
federal
sentencing hearing for the September 2001 offense and the state
sentencing hearing for the October 2001 offense.
During the
hearing, the court heard testimony from Special Agent James Carr,
an MDEA agent involved in the Hancock County investigation that led
to
Martin's
prior
convictions.
The
two-count
state
court
-8-
between Martin and Special Agent Duquette, the district court took
the issue of Martin's career offender status under advisement.
E. The District Court's Opinion
On December 3, 2008, the district court issued its
decision. It noted that applying the concept of a common scheme or
plan to a drug addict like Martin was "admittedly problematic"
because, in essence, each and every day Martin was engaged in some
type of scheme or plan to procure heroin in the confined geographic
area where she lived (Mount Desert Island). Nonetheless, the court
did not think the underlying offenses were part of a single common
scheme or plan.5
between the two offenses, the court found that Martin had not
anticipated or planned the October 2001 offense at the time of the
September 2001 offense, and therefore no common scheme or plan
existed. Thus, Martin's criminal history included two prior felony
convictions of a controlled substance offense, which warranted
career offender designation pursuant to 4B1.1 of the Guidelines.
The court sentenced her to imprisonment for a term of 108 months
(in other words, nine years). Martin timely appealed her sentence;
her sole challenge is to her classification as a career offender.
II. STANDARD OF REVIEW
A
district
court's
interpretation
of
sentencing
United
Under
-10-
U.S.S.G. 4B1.2(c).
Prongs one and two are not at issue in this case; there is
no dispute that Martin's March 28, 2007 offense constituted a
controlled substance felony offense or that she was eighteen when
she committed it.
As for prong three, there is also no
disagreement that her prior felony convictions are convictions for
controlled substance offenses.
The only issue is whether they
should effectively be considered one conviction.
-11-
Id. 4A1.2(a)(2).
Although seemingly straightforward, what counts as a
With the
It first noted
cited United States v. Godin, 489 F.3d 431 (1st Cir. 2007) (vacated
on reh'g on other grounds by 522 F.3d 133 (1st Cir. 2008)) and
United States v. Elwell, 984 F.2d 1289 (1st Cir. 1993). Godin, the
district court continued, stood for the proposition that a scheme
or plan implies the existence of "some kind of connective tissue,"
i.e., an initial plan involving multiple acts or steps taken to a
single end.
single
common
scheme
or
plan"
its
"ordinary
meaning."
-13-
the
transactions,
including
the
agents.
Martin
alleges
the
We
At
did
not
accept
Willis's
Id. at 1295.
proffer,
declined
The district
to
hold
an
Id.
Elwell was brief, given that the relevant issue on appeal was
limited
to
whether
defendant's
proffer
the
and
district
deny
his
court
request
could
for
disregard
an
the
evidentiary
hearing.
and
in
relation
924(c)(1)(A)(ii).
to
the
robbery,
under
18
U.S.C.
the
building.
burglaries
of
Id. at 434.
two
different
apartments
in
same
the
Id. at 434-
Id. at 436.
Id.
Id.
-16-
Doing so,
United States v. Joy, 192 F.3d 761, 771 (7th Cir. 1999)).
This
We
concluded
that
the
district
court
was
correct
in
Id.
-17-
Rather, something
court
similarities
looked
between
for
the
something
predicate
over
crimes
and
and
above
it
tangible
reasonably
Id.
looked for a connective tissue -- that is, whether Martin had laid
11
Perhaps the district court could have been more clear about
the fact that its inquiry was directed at whether Martin, as
opposed to the MDEA agents, had anticipated or planned the October
2001 offense when the September 2001 offense was planned or
committed. That it was not, however, is inconsequential. While
not expressed in so many words, the single common scheme or plan
the district court was looking for was that of the defendant's.
-18-
This
approach makes sense and is consistent with both Elwell and Godin.
Furthermore, some of our sister circuits have read the phrase
"single common scheme or plan" precisely as the district court did
here. See United States v. Joy, 192 F.3d 761, 771 (7th Cir. 1999)12
(holding that "because the terms 'scheme' and 'plan' are words of
intention, . . . crimes are part of a single common scheme or plan
only if they were jointly planned or when one crime would normally
entail the commission of the other"); United States v. Irons, 196
F.3d 634, 638 (6th Cir. 1999) (same); United States v. Robinson,
187
F.3d
516,
520
(5th
Cir.
1999)
(same);
United
States
v.
Chapnick, 963 F.2d 224, 227 n.5 (9th Cir. 1992) (same); see also
United States v. Chartier, 970 F.2d 1009, 1016 (2d Cir. 1992)
(finding that "the term 'single common scheme or plan' must have
been intended to mean something more than simply a repeated pattern
12
The
Indeed a
dual focus on the intentions of Martin and the MDEA agents (as
advocated for by Martin on appeal) makes little sense.
The
After
-20-
Similarly,
We start by saying a
both
offenses
stemmed
from
the
same
law
enforcement
not
planned,
discussed,
or
contemplated
at
the
first
transaction."
Martin's main quibble is with the court's factual finding
that there was no agreement between her and Special Agent Duquette
regarding a second transaction. She claims the record evidence, in
particular Special Agent Carr's13 evidentiary hearing testimony and
his MDEA report, establishes that there was in fact an arrangement
13
between her and Duquette at the time of the September 27th drug
deal that a second transaction would follow.
following testimony.
Special Agent Carr was asked whether there was any contact between
Martin
and
purchase.
Special
Agent
Duquette
after
the
September
27th
points out that not only did a subsequent deal ultimately follow,
but Duquette showed up right before Martin got off work on October
11th, which (according to Martin) implies that Duquette was aware
of Martin's work schedule.
for
her,
there
are
-22-
equally
plausible
competing
inferences. Perhaps Duquette did not call Martin until the morning
of October 11th (or even a couple days before) at which time
arrangements were made for Duquette to meet Martin at the end of
her shift.
See In re
after the September heroin purchase but before the October one, is
proof of an existing agreement.
for
future
drug
[confidential informant]."
cause.
transactions
without
the
use
of
-23-
The fact
Also
According to this
14
cuts
against
Martin's
claim
that
she
and
Duquette
had
If
Namely, there is a
from distinct sources, whom each charged different amounts for the
drugs. The means by which Martin herself was compensated were also
at odds.
of heroin.
-25-
finding
that
Martin
had
not
agreed
to,
planned,
or
of
the
facts;
we
will
This is a plausible
not
second-guess
it.
Moreover, the district court did not clearly err when it determined
that Martin's two offenses were not part of a single common scheme
or plan and therefore should be counted separately.
There was
are
mindful
that
our
ruling
results
in
Martin
-26-
The result is