APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE. Hon. John A. Woodcock, Jr., U.S. District Judge.
James A. Clifford, with whom Law Office of James Clifford, LLC was on brief, for appellant.
René e M. Bunker, Assistant United States Attorney, with whom Richard W. Murphy, Acting United States Attorney, was on brief, for appellee.
Before Torruella, Dyk,[*] and Thompson, Circuit Judges.
THOMPSON, Circuit Judge.
Following a tip from a confidential informant, law
enforcement officers pulled over the vehicle of Nicole Martin on March 28, 2007.
A search turned up heroin, cocaine, and oxycodone. Martin was arrested,
indicted, and ultimately pled guilty to possession with intent to distribute. At
sentencing, relying on two prior felony convictions that Martin had, the judge
treated her as a career offender and handed down a 108-month sentence. Martin
appeals that sentence. In a nutshell, she disputes her career offender status
because, according to Martin, her two prior convictions should have been treated
as one for sentencing purposes. After a painstaking review of the record and the
applicable law, we affirm her sentence.
The crime that led to this appeal occurred in March 2007 but before we get into the details of what happened, we must travel further back to when the convictions, upon which the judge's career offender determination rested, occurred. These convictions stemmed from two controlled purchase transactions by undercover Maine Drug Enforcement Agency (" MDEA" ) agents who were investigating a heroin wave that was flooding Hancock County, Maine. The first purchase was on September 27, 2001 in Bass Harbor (" the September 2001 offense" ), and the second was two weeks later on October 11, 2001 in Bar Harbor (" the October 2001 offense" ). A brief summary of the transactions and subsequent convictions sheds light on how the present controversy emerged.
A. The 2001 Offenses
On September 27, 2001, MDEA Special Agent Ruth Duquette and a confidential informant met Martin at her home in Trenton. Duquette, Martin, and the informant then drove to Martin's dealer's house in Bass Harbor to purchase some heroin. Her dealer, Chris Richardson, was not home when they arrived. After paging Richardson, the trio met up with him at a Texaco station. Richardson arrived at the Texaco station, accompanied by another man. Richardson did not have any heroin on him, but could get some from the guy who was with him. Special Agent Duquette handed Richardson $400 for a bundle -- i.e., ten bags of heroin -- and Richardson promised to meet back up with them at his house, with the heroin, by 6:00 p.m. Duquette, Martin, and the confidential informant then proceeded to Richardson's house to wait for him. Meanwhile, Richardson made a heroin run to his supplier's house in Southwest Harbor. He returned unaccompanied to his home, with the full bundle. Special Agent Duquette received nine bags of heroin and Martin kept one for herself as commission.
Two weeks later, on October 11, 2001, a second controlled purchase of heroin went down. This one took place near the clothing store in Bar Harbor where Martin worked. Special Agent Duquette waited until Martin's shift was over at 9:00 p.m. to approach her. When she asked Martin for assistance getting a hold of more heroin, Martin revealed she did not have anything at that time, but could help her out in an hour. Special Agent Duquette returned by 9:52 p.m. Around 10:00 p.m., Martin met with a man in a car registered to Cameron Brown. After approximately twenty minutes, Martin returned to Special Agent Duquette's car and got in. Wary of police presence that night, Martin instructed Duquette to drive down the street. Once there, Martin got out of the car, and again, spoke with people in the Brown car. After Martin returned to Special Agent Duquette's vehicle, the pair drove to a nearby business, and pulled up on the side of it. 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 two-count indictment charging Martin with unlawful trafficking in scheduled drugs. The indictment charged Martin with trafficking heroin in connection with both the September 2001 offense and the October 2001 offense. Martin pleaded guilty to trafficking heroin 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 April 9, 2002, a federal grand jury in Bangor returned a one-count indictment charging Martin with possession with the intent to distribute heroin on September 27, 2001 -- i.e., for the September 2001 offense. Martin was arrested and charged by federal authorities. Martin pleaded guilty.
On September 10, 2002, Martin was sentenced for the September 2001 offense by a federal judge (who was aware of the pending state charges) to a year and a day in prison, and three years' supervised release. The next day, on September 11, 2002, 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. According to the confidential informant, Martin would be driving from Portland to Bangor with a drug delivery. Acting on this lead, MDEA agents spotted her vehicle heading north on Interstate 95 and kept it under close surveillance. Bangor police officers ultimately stopped Martin as she exited the interstate.
By the time MDEA agents arrived on the scene, Martin was already outside her vehicle speaking with a police officer. 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 affirmatively, and directed him to her purse on the front passenger seat. The search of Martin's purse revealed 21 bags of heroin, 4.4 grams of cocaine, and 25 and one-half 40-milligram oxycodone tablets. According to Martin, she had gotten the ...