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United States v. Pinkham

United States Court of Appeals, First Circuit

July 18, 2018

UNITED STATES OF AMERICA, Appellee,
v.
DALE PINKHAM, SR., Defendant, Appellant.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. Jon Levy, U.S. District Judge]

          Lenore Glaser and Law Office of Lenore Glaser on brief for appellant.

          Halsey B. Frank, United States Attorney, and Benjamin M. Block, Assistant United States Attorney, on brief for appellee.

          Before Lynch, Selya and Thompson, Circuit Judges.

          SELYA, Circuit Judge

         Defendant-appellant Dale Pinkham, Sr., challenges his 240-month incarcerative sentence. He strives to convince us that the district court held him responsible for an incorrect drug quantity and, in the bargain, improperly counted two prior convictions when calculating his criminal history score. We are not persuaded by either argument and, therefore, summarily affirm his sentence.

         I. BACKGROUND

         Because this appeal follows the appellant's guilty plea, we draw the facts from the change-of-plea colloquy, the uncontested portions of the presentence investigation report (PSI Report), and the record of the disposition hearing. See United States v. Fields, 858 F.3d 24, 27 (1st Cir. 2017); United States v. Dietz, 950 F.2d 50, 51 (1st Cir. 1991).

         The conviction and sentence sub judice stem from the appellant's operation of what might be termed a family business: a drug-trafficking conspiracy that involved his sons (Robert, Raymond, and Dale, Jr.) and his romantic partner of 30 years (Louise Cook). Beginning around 2012, the appellant ran this conspiracy from his home in Gorham, Maine. During its embryonic stages, the appellant typically obtained 10 to 20 grams of heroin once every two months from a Boston-based supplier. Over time the conspiracy matured, with the result that the appellant's purchases increased in frequency, eventually becoming monthly occurrences. The amounts of heroin handled by the conspiracy escalated as well, rising to roughly 200 to 400 grams per month.

         Even apart from promoting drug use, the appellant's criminal activities had a deleterious effect on the community in which he lived. He encouraged his customers to commit burglaries and bring him items that he prized. In this way, the appellant amassed stockpiles of firearms, jewelry, tools, and electronic gadgets.

         These chickens ultimately came home to roost. On July 22, 2015, a federal grand jury sitting in the District of Maine returned an indictment charging the appellant with a laundry list of crimes. While the appellant was being held in pretrial detention, he reached out to family members, soliciting them to threaten potential witnesses.

         In due season, the grand jury returned a superseding indictment, which charged the appellant in 13 separate counts. Of particular pertinence for present purposes, the superseding indictment charged him with conspiracy to distribute heroin, see 21 U.S.C. §§ 841(a)(1), 846 (count one); conspiracy to possess stolen firearms, see 18 U.S.C. §§ 371, 922(j) (count four); and attempted witness tampering, see id. § 1512(a)(2) (count twelve). The appellant initially maintained his innocence. On September 6, 2016, however, he reversed his course and entered a guilty plea, pursuant to a plea agreement, to counts one, four, and twelve. The government agreed to dismiss the remaining 10 counts at sentencing.

         The PSI Report recommended that the appellant be held responsible for 3.23 kilograms of heroin, which corresponded to a base offense level of 32. See USSG §2D1.1(c)(4) (Drug Quantity Table). Notwithstanding the appellant's protest that this figure represented a "significant overestimate of the drug quantity involved," the district court adopted the drug-quantity calculation and - after making other adjustments not challenged here - set the appellant's total offense level at 39. The court also adopted the PSI Report's recommended criminal history score of six and placed the appellant in criminal history category III. Although these determinations yielded a guideline sentencing range of 324 to 405 months, the court weighed the factors limned in 18 U.S.C. § 3553(a) and concluded that a below-the-range incarcerative sentence of 240 months was sufficient to achieve the purposes of sentencing. The court imposed such a downwardly variant sentence, and this timely appeal followed.

         II. ...


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