US v. Thompson

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Sandra L. Lynch, Appellate Judge and William J. Kayatta, Jr., Appellate Judge. Unpublished. [16-1374]

Case: 16-1374

Document: 00117125251

Page: 1

Date Filed: 03/03/2017

Entry ID: 6073829

Not for Publication in West's Federal Reporter

United States Court of Appeals
For the First Circuit
No. 16-1374
UNITED STATES OF AMERICA,
Appellee,
v.
MALCOLM THOMPSON,
Defendant, Appellant.

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

Before
Torruella, Lynch, and Kayatta,
Circuit Judges.

Victoria L. Nadel on brief for appellant.
Renée M. Bunker, Assistant U.S. Attorney, and Thomas E.
Delahanty II, United States Attorney, on brief for appellee.

March 3, 2017

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KAYATTA,

Circuit

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Judge.

The

Entry ID: 6073829

defendant,

Malcolm

Thompson, pled guilty to distribution of heroin and cocaine base,
in violation of 21 U.S.C. § 841(a)(1). Although the parties agreed
that Thompson's guidelines sentencing range was thirty to thirtyseven months, the district court imposed an upwardly variant
sentence of forty-eight months in prison.

Thompson now appeals,

arguing that this sentence is both procedurally and substantively
unreasonable.

We affirm.
I.

Background

We briefly state the facts of Thompson's crimes, as
reported

in

"the

uncontested

portions

of

the

change-of-plea

colloquy, presentence report, and sentencing hearing."
States v. Gall, 829 F.3d 64, 67 n.1 (1st Cir. 2016).

United

Here, the

entire presentence report (PSR) is uncontested.1
In May 2015, a cooperating individual (CI) informed the
Drug Enforcement Administration (DEA) that Thompson was importing
drugs from Arizona to Maine for resale.

1

Over the course of four

Thompson's attorney represented at the sentencing hearing
that the probation officer revised the PSR in response to an
objection that he had improperly assigned three criminal history
points to one of Thompson's prior convictions rather than two.
The PSR included in the record on appeal does not reflect this
change. This dispute makes no difference to Thompson's criminal
history category, however, as it concerns whether Thompson has
four criminal history points or five, see U.S.S.G. ch. 5, pt. A,
Sentencing Table (showing that both four and five criminal history
points place defendant in criminal history category III), and
Thompson does not raise this issue on appeal.

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months, Thompson and his associates sold the CI 22.9 grams of
heroin and 0.34 grams of cocaine base.

In addition, at the time

of their arrests, Thompson and one of his associates possessed
$5,350 for which no legitimate source could be identified and which
the PSR therefore treated as drug proceeds.
According to the calculation in the PSR, Thompson's
guidelines sentencing range was thirty to thirty-seven months.
This calculation was based on a total offense level of seventeen
and a criminal history category of III, resulting from five
criminal history points.
The criminal history section of Thompson's PSR recounted
an extensive history of drug offenses, including both convictions
and pending charges.

At age seventeen, Thompson pled guilty to

possession of less than twenty-five grams of cocaine in Michigan.
A companion charge for delivery or manufacture of less than fifty
grams of cocaine was dismissed.

He was sentenced to fourteen days

in jail and eighteen months of probation.2

At age twenty-two, he

was convicted of use of a controlled substance in Michigan.
Companion charges for delivery or manufacture of cocaine and
possession of cocaine were dismissed.
months of probation.

He was sentenced to six

At age twenty-four, he was arrested and

charged with delivery or manufacture of less than fifty grams of

2

In recounting Thompson's prior sentences, we omit community
service requirements and fines.

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cocaine in Michigan. After he failed to appear in court, the court
issued a warrant, which remains active.

At age twenty-five, he

pled guilty to solicitation to commit possession of marijuana for
sale in Arizona.

According to the Arizona state presentence

investigation report written in connection with this offense,
Thompson admitted to working as a "connect" in the "drug trade" by
finding marijuana buyers and putting them in touch with marijuana
dealers.

He was sentenced to six months in jail and three years

of probation.

After he was released from jail, he violated his

probation by absconding, changing residence without permission,
failing to submit to drug testing, and other violations.

He was

sentenced to one year in jail for the probation violation.3

At

age twenty-eight, he was arrested after fleeing from a house in
Arizona where police seized 977 grams of cocaine, around 120 pounds
of marijuana, $54,000 in cash, and several loaded firearms.

When

police arrived at the house, the only person still inside was
Thompson's infant daughter, whose mother had dropped her off at
that house at Thompson's request.

At sentencing, Thompson did not

dispute the description of this event that appeared in the PSR.
However, he insisted that he did not know about the illicit

3

It appears that Thompson did not serve this entire one-year
sentence. The sentence was imposed on May 7, 2014, but Thompson's
next arrest occurred on February 3, 2015.

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activity occurring in the house, that he was outside the house the
whole time, and that he had not been charged after the arrest.4
At

the

sentencing

hearing,

the

parties

agreed

that

Thompson's guidelines sentencing range was thirty to thirty-seven
months.

Although the government had indicated at a presentence

conference and at the beginning of the sentencing hearing that an
upward departure or variance might be warranted due to Thompson's
criminal history, the government ended up arguing for a sentence
of thirty-seven months.
of thirty months.

Thompson's attorney argued for a sentence

Thompson himself also addressed the court.

During the argument by defense counsel and the statement
by Thompson, the district court asked several pointed questions
about Thompson's criminal history.

After defense counsel argued

that Thompson would be able to "get himself turned around," the
district court expressed skepticism.

First, the court pointed out

that Thompson had "a drug conviction at age 17, . . . a drug
involved conviction at age 19,[5] . . . a drug conviction at age 22,

4

The government agreed that there had been no charge as of
the day of the sentencing hearing.
5

The "drug involved conviction at age 19" to which the court
was referring was a guilty plea to fleeing a police officer in the
fourth degree in Michigan. After a police officer attempted to
pull Thompson over for speeding, he fled and a chase ensued at
speeds up to 100 miles per hour. After Thompson finally stopped
and was placed under arrest, $1,030 in cash was found in his shoe.
The PSR contained in the record on appeal does not indicate that
this money was the proceeds from selling drugs. However, defense
counsel did not argue at sentencing, and the defendant does not
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. . . a drug conviction at age 25 where he keeps getting low
sentences."

Second,

the

court

noted

that

after

Thompson's

age twenty-five conviction in Arizona, he had "admitted to being
in the drug trade," and that right after he got out of jail for
violating his probation, he began engaging in the conduct that led
to the present conviction.

In the court's view, this history was

"not an indication of somebody who's just drifting around.
is a professional drug dealer.
care what the law says."

This

That's what he does and he doesn't

When Thompson himself addressed his

record by saying that he was "not that person anymore," the court
pressed him to specify when he had changed.

The court also asked

about Thompson's presence at the house that was raided in Arizona.
Although the court noted that there was "no evidence that [Thompson
had]

been

charged

with

anything"

or

that

he

personally

was

"involved with" the drugs in the house, the court asked why
Thompson's presence at this raid with his daughter was not a "wakeup call."
When imposing the sentence, the district court adopted
the PSR and found that the guidelines sentencing range was thirty
to thirty-seven months.

The court stated that it had taken into

account all the factors in 18 U.S.C. § 3553(a), including, "[m]ost
important, the nature and circumstances of the offense, the history

argue on appeal, that the district court erred in describing this
conviction as "drug involved."

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and characteristics of this defendant, the seriousness of the
offense, the need for just punishment and the need for deterrence."
The court concluded, as it had indicated during the hearing, that
it believed Thompson to be "basically a professional drug dealer
who has been engaging in drug transactions virtually his . . .
entire adult life."
guidelines range.

The court decided to vary upwards from the

It explained,

[Thompson has] had multiple wake-up calls all
of
which
he's
disregarded.
In
many
circumstances,
he's
disregarded
the
requirements to appear even in court and he
misses being a career criminal only by the
fact that he failed to appear on several
felony drug offenses in Michigan. If he had
appeared and been convicted, he would be, in
fact, eligible to be a career criminal
today . . . .
I don't see that this defendant, in spite of
his protestations, is prepared to turn over a
new leaf. In my view, he sees this arrest and
conviction as a cost of doing business and in
my mind, it's my belief that he will return to
the drug trade as he has every single time
he's been convicted, so I think that a
variance upward is an appropriate sentence in
this case. . . .
In my view, an upward
variance to 48 months is the appropriate
sentence.
Thompson did not object to this explanation or the sentence at the
time it was imposed.
II.

Discussion

Thompson challenges his sentence as both procedurally
and

substantively

unreasonable.

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"The

review

process

is

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bifurcated:
procedurally

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we first determine whether the sentence imposed is
reasonable

and

substantively reasonable."

then

determine

whether

it

is

United States v. Arroyo-Maldonado, 791

F.3d 193, 198 (1st Cir. 2015) (quoting United States v. Clogston,
662 F.3d 588, 590 (1st Cir. 2011)).
A.

Procedural Reasonableness
"Typically,

advisory

Guidelines

we
for

review
abuse

sentences
of

imposed

discretion."

under

Id.

at

the
197.

However, when a defendant fails to preserve a claim of procedural
error, "the plain error standard supplants the customary standard
of review."

United States v. Bermúdez–Meléndez, 827 F.3d 160, 164

(1st Cir. 2016) (citation omitted).
entails four showings:

"Review for plain error

(1) that an error occurred (2) which was

clear or obvious and which not only (3) affected the defendant's
substantial rights, but also (4) seriously impaired the fairness,
integrity, or public reputation of judicial proceedings."

United

States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001).
Thompson's claim of procedural error rests on three
arguments:

first, that the district court gave more weight to

certain parts of Thompson's record (his criminal history) than to
others (his expressed remorse, his early agreement to plead guilty,
his family history, his attempts to obtain an education); second,
that the district court gave more weight to some of the factors
listed in 18 U.S.C. § 3553(a) than to others; and, third, that the

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district court did not provide an explanation as to why Thompson's
case was so outside the "heartland" of cases that the advisory
guidelines range was not sufficient to reflect the § 3553(a)
factors.
The first two arguments are easily rejected.

Although

"a sentencing court may commit procedural error by 'failing to
consider the § 3553(a) factors[,]' . . . the weighing of relevant
factors is 'largely within the court's informed discretion.'"
United States v. Santiago–Rivera, 744 F.3d 229, 232 (1st Cir. 2014)
(citations omitted); see also United States v. Rivera–González,
776 F.3d 45, 50 (1st Cir. 2015) ("The defendant's real complaint
is not that the court overlooked [the defendant's personal history
and characteristics] but that it weighed those factors less heavily
than he would have liked.

But that type of balancing is, within

wide limits, a matter for the sentencing court.").
court

acted

within

its

discretion

in

choosing

The sentencing
to

focus

on

Thompson's criminal history and to discount the significance of
his claims that he had changed.
As to the third argument, it is true that
when a factor relied on to justify a variant
sentence
"is
already
included
in
the
calculation of the guidelines sentencing
range, a judge who wishes to rely on that same
factor to impose a sentence above or below the
range must articulate specifically the reasons
that this particular defendant's situation is
different from the ordinary situation covered
by the guidelines calculation."

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United States v. Santa–Otero, 843 F.3d 547, 550 (1st Cir. 2016)
(quoting United States v. Zapete–García, 447 F.3d 57, 60 (1st Cir.
2006)).

A district court may satisfy this requirement by citing

to specific facts that distinguish this case from the standard
case.

See id. (rejecting a similar argument because "the District

Court did not rely solely upon [the defendant's] possession of the
machine gun in imposing the variant sentence"; rather, it "cited
to

specific

features

of

the

ammunition

that

[the

defendant]

possessed along with the machine gun"); United States v. GuzmanFernandez, 824 F.3d 174, 177-78 (1st Cir. 2016) (rejecting a
similar argument because "the district court distinguished [the
defendant's]

insider

participation

from

the

typical

'abuse[] . . of . . . private trust' reflected in the Guidelines"
by explaining that the defendant's insider role indicated that his
conduct was "bold[]," "planned," and "deliberate" and that the
number and details of the robberies made them more serious).
Just as in Santa-Otero, the district court here did not
justify

its

variance

merely

by

pointing

to

the

number

of

convictions in Thompson's criminal history, which is arguably
covered by the guidelines calculation.

Rather, the court noted

that Thompson's four convictions and sentences for "drug involved"
crimes over the course of nine years indicated that he was engaged
in the drug trade essentially continuously, with no off time

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suggesting that he had reformed or was deterred by the law.6

The

district court also relied on Thompson's other interactions with
the law, including his failure to appear to face pending charges
in Michigan and his arrest in Arizona, which suggested that he
continued to disregard both his legal obligations and the "wakeup calls" he should have been receiving.

From these facts, the

court inferred that Thompson was a "professional drug dealer,"
discredited his testimony that he planned on changing his life,
and concluded that he would merely view his arrest and conviction
as a "cost of doing business."

The district court did not plainly

err in reaching these factual conclusions or in concluding that
they placed Thompson's conviction outside the "heartland" of cases
covered by the sentencing guidelines.

6

The district court concluded that Thompson was "a
professional drug dealer who ha[d] been engaging in drug
transactions virtually his . . . entire adult life."
This
conclusion overstated what Thompson's actual convictions showed.
Thompson was twenty-nine at the time of his arrest on the present
charges. Prior to the conviction for working as a "connect" in
the drug trade at age twenty-five, two of the convictions were for
use or possession, not selling, and one conviction was for fleeing
a police officer, as described in footnote 4, supra. But Thompson,
who presumably well knew the nature of what he was actually doing,
did not object to the court's description of his conduct, arguing
instead only that he was "not that person anymore." He also does
not argue on appeal that the district court committed plain error
by overstating the duration of his drug dealing activities.
Accordingly, we express no opinion as to whether the district court
erred in the way it understood Thompson's past behavior.

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B.

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Substantive Reasonableness
Thompson asserts that his sentence is substantively

unreasonable because the guidelines sentencing range "sufficiently
satisfies the aims of sentencing . . . where the offender, his
background[,]

and

the

facts

of

the

offense

fall

within

the

heartland of cases adequately served by the advisory guidelines
range."

We have already explained why the district court's

justification of the upward variance was adequate.

Furthermore,

an upward variance of eleven months over a thirty-seven-month
guidelines maximum is within the range of upward variances that we
have deemed reasonable.

See, e.g., Guzman-Fernandez, 824 F.3d at

178–79 (collecting cases); United States v. Díaz-Arroyo, 797 F.3d
125, 127-30 (1st Cir.), cert. denied, 136 S. Ct. 272 (2015)
(upholding as reasonable a forty-eight month sentence where the
top end of the guidelines sentencing range was twenty-one months).
III.
For

the

Conclusion

foregoing

reasons,

sentence.

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we

affirm

Thompson's