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United States v. Vicente

United States Court of Appeals, First Circuit

November 20, 2018

UNITED STATES OF AMERICA, Appellee,
v.
MICHAEL VICENTE, Defendant, Appellant.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. John A. Woodcock, Jr., U.S. District Judge]

          Mary A. Davis, on brief for appellant.

          Halsey B. Frank, United States Attorney, with whom Kelly A. Archung, Special Assistant United States Attorney, on brief, for appellee.

          Before Lynch, Stahl, and Barron, Circuit Judges.

          STAHL, Circuit Judge.

         This is 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, we affirm.

         I. Factual Background and Procedural History

         "Because 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).

         In 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, [1] 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.[2]

         Two 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.

         On June 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[3] 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.

         Although 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 ...

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