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United States v. Magee

United States Court of Appeals, First Circuit

August 17, 2016

UNITED STATES OF AMERICA, Appellee,
v.
RICHARD MAGEE, Defendant, Appellee.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. George Z. Singal, U.S. District Judge]

          Robert C. Andrews, with whom Robert C. Andrews Esquire P.C. was on brief, for appellant.

          Margaret D. McGaughey, Assistant United States Attorney, with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellee.

          Before Torruella, Lynch, and Barron, Circuit Judges.

          BARRON, Circuit Judge.

         Richard Magee pleaded guilty to multiple drug charges and a felon in possession of a firearm charge. He challenges both his conviction and his sentence. Finding no errors, we affirm.

         I.

         On December 12, 2013, the government issued a twenty-count indictment against Magee, Joshua Magee, and Craig Mercer. The charges against Magee included one count of felon in possession of a firearm, 18 U.S.C. §§ 922(g)(1), 924(a)(2), thirteen counts of distributing cocaine (on dates that ranged from September 2011 to October 2013), 21 U.S.C. § 841(a)(1), [1] one count of possession with intent to distribute cocaine, id., and one count of conspiracy to commit witness tampering, 18 U.S.C. § 1512(b)(1).

         With respect to the distribution counts, the government alleged that Magee had dealt cocaine to a confidential informant in 2011, to David Jones in 2012 and 2013, and to Mercer in 2013. The allegations as to the possession count stemmed from a search of Magee's residence, which was conducted pursuant to a search warrant, on October 4, 2013. During that search, police recovered various items, including, among other things, firearms and cocaine.

         On February 18, 2014, Magee moved for a so-called Franks hearing in order to challenge the validity of the search warrant that authorized the search of his home on October 4, 2013. See Franks v. Delaware, 438 U.S. 154, 155-56 (1978) ("[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request."). On July 11, 2014, the District Court denied Magee's request for a Franks hearing.

         On October 29, 2014, Magee pleaded guilty to one count of felon in possession, three counts of distributing cocaine, and one count of possession with intent to distribute cocaine. The probation office put together a pre-sentence report ("PSR") that included a calculation of the total drug quantity for which Magee was responsible under the United States Sentencing Guidelines (the "Guidelines"). The PSR calculated a total drug quantity of 1, 220.1 grams of cocaine, which led to Magee's being assigned a base offense level ("BOL") of 24. See U.S.S.G. §2D1.1(c)(8) (providing that the defendant shall have a BOL of 24 if the offenses involved at least 500 grams but less than two kilograms of cocaine).

         The PSR assigned four criminal history points to Magee and thus calculated a criminal history category of III. Three of the four criminal history points were assigned on the basis of a 1994 money laundering conviction, for which Magee was sentenced to a term of imprisonment of 30 months and from which imprisonment Magee was released on August 30, 1996.

         The District Court adopted the PSR's calculation of the Guidelines range -- which was 70-87 months, based on a BOL of 24[2]and a criminal history category of III -- and sentenced Magee to a term of imprisonment of 70 months. The District Court sentenced Magee to a term of supervised release of three years to run concurrently on all counts.

         In doing so, the District Court found that the PSR's drug quantity calculation was "entirely correct" and "probably a conservative estimate." The District Court also concluded that Magee's criminal history category was correctly calculated.

         This appeal followed.

         II.

         We start with Magee's challenge to his convictions for felon in possession of a firearm and possession with intent to distribute to cocaine. These challenges are based on the District Court's denial of Magee's request for a Franks hearing.

         To be entitled to a Franks hearing, the defendant must make "two substantial preliminary showings." United States v. McLellan, 792 F.3d 200, 208 (1st Cir. 2015) (quoting United States v. Rigaud, 684 F.3d 169, 173 (1st Cir. 2012)). First, the defendant must show that a false statement or omission in the affidavit that supported the warrant in question "was made knowingly and intentionally or with reckless disregard for the truth." Id. (quoting Rigaud, 684 F.3d at 173). Second, the defendant must show that the "falsehood or omission [must have been necessary] to the finding of probable cause" -- that is, the falsehood or omission must be material. Id. (alteration in original) (quoting Rigaud, 684 F.3d at 173). "In the case of an omission, this means establishing that the inclusion of the omitted information 'would have led to a negative finding by the magistrate on probable cause.'" Id. (quoting Rigaud, 684 F.3d at 173 n.5). A failure to make either of these two showings is fatal to the defendant's challenge. Id.[3]

         We begin by reciting the pertinent aspects of the affidavit that supported the search warrant, which was put together by Drug Enforcement Administration ("DEA") Agent Bourque. The affidavit states that in 2011, a confidential informant ("CI") engaged in a controlled buy of cocaine from Magee and that the CI told agents that Magee was involved in distributing kilogram quantity amounts of cocaine. The affidavit then states that agents intercepted phone conversations between Magee and Jones, which led Agent Bourque to believe that Magee was distributing personal-use amounts of cocaine to Jones. In particular, the affidavit describes a conversation in which Jones requested the "killer shit" -- which Agent Bourque interpreted to be a coded reference to cocaine -- that Magee gave him "the other day in the bathroom, " to which Magee responded that he "ke[pt] [that stuff] at home" and that he would "pull some out for Jones tomorrow" (i.e., September 20, 2013).

         The affidavit also describes a series of intercepted phone conversations that took place on September 20, 2013. In those conversations, Magee and Jones discussed meeting up at Ruski's, a restaurant in Portland, Maine. According to the affidavit, Agent Bourque interpreted these conversations as attempts to establish a time and place for a cocaine transaction. In one of these conversations, the affidavit states, Magee asked Jones, who ...


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