FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE [Hon. George Z. Singal, U.S. District Judge]
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.
Torruella, Lynch, and Barron, Circuit Judges.
BARRON, Circuit Judge.
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.
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),  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).
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.
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
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).
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.
District Court adopted the PSR's calculation of the
Guidelines range -- which was 70-87 months, based on a BOL of
24and 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.
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.
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
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
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).
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 ...