FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE [Hon. John A. Woodcock, Jr., U.S. District Judge]
A. Davis, on brief for appellant.
B. Frank, United States Attorney, with whom Kelly A. Archung,
Special Assistant United States Attorney, on brief, for
Lynch, Stahl, and Barron, Circuit Judges.
an appeal from a sentence imposed following a criminal
conviction. On June 1, 2017, Appellant Michael Vicente
("Vicente") pleaded guilty to conspiracy to
distribute and possess with intent to distribute oxycodone in
violation of 21 U.S.C. §§ 841(a)(1) and 846. On
appeal, Vicente argues that the court improperly assigned
points for a prior sentence that should have been excluded as
conduct that was "part of the instant offense,"
U.S.S.G. § 4A1.2, namely his conviction in state court
for possession with intent to sell or dispense. After review,
Factual Background and Procedural History
this appeal follows a guilty plea, we draw the relevant facts
from the plea agreement, the change-of-plea colloquy, the
undisputed portions of the presentence investigation report
('PSR'), and the transcript of the disposition
hearing." United States v. O'Brien, 870
F.3d 11, 14 (1st Cir. 2017).
2015, the DEA and the Somerset County (Maine) Sheriff's
Office conducted an investigation into suspected drug
distribution by Maine residents Warren LaPrell and Raymond
Ferris. In connection with that investigation, officers
executed a search warrant at the apartment of a witness
("Witness 1") on April 16, 2015, that produced
oxycodone pills, firearms, and other items related to illegal
drug sales. Following that search, Witness 1 identified
Vicente as his source for the oxycodone. After first meeting
Vicente in Maine, Witness 1 admitted that, for approximately
three years,  he purchased pills for illegal resale from
Vicente both in Maine and in Connecticut. Witness 1 claimed
that he witnessed Vicente to be in possession of, "[a]t
most," 2, 000 oxycodone pills in addition to the pills
Witness 1 purchased from him.
other witnesses told the government that they had traveled
with Witness 1 to Connecticut on several occasions to
purchase oxycodone from Vicente. One witness reported that,
although he did not know the exact amount of oxycodone
purchased during these trips, he heard Witness 1 talk about
purchasing 500 pills and estimated that Witness 1 obtained
200 30mg pills per trip. This witness also spent $5, 500 to
$6, 000 to buy oxycodone from Vicente and, on one occasion,
Vicente returned with him and Witness 1 to Maine in
possession of 1, 000 pills.
8, 2016, a single-count indictment in the United States
District Court for the District of Maine charged Vicente with
conspiracy to distribute and possess with intent to
distribute oxycodone. Vicente was arrested on September 7,
2016, in Connecticut, and pleaded guilty to the sole count of
the indictment on June 1, 2017. Following the plea, the
Probation Office prepared a PSR which recommended a total
offense level of 33 and a criminal history category of IV,
resulting in a guidelines range of 188 to 235 months'
imprisonment. As relevant here, the criminal history
calculation was based in part on a one-point increase for a
prior conviction in Connecticut state court in 2013 (the
"2013 Conviction") and a two-point increase because
Vicente committed the instant offense while under probation
from the 2013 Conviction.
it is central to this appeal, details of the 2013 Conviction
are sparse. The PSR states that Vicente was arrested on
October 16, 2012, and charged in superior court in Waterbury,
Connecticut with two counts: (1) possession with intent to
sell/dispense; and (2) sale of a hallucinogen/narcotic. The
PSR further provides that, on July 31, 2013, Vicente received
a five-year suspended sentence along with three years'
probation for the first of those counts. The PSR goes on:
There is no further information regarding this offense at
this time as the Probation Office is awaiting criminal
history records from the District of Connecticut. It is
unknown if the defendant had attorney representation in this
matter. The defendant was also charged with the ...