US v. Franci

Filing

OPINION issued by Jeffrey R. Howard, Chief Appellate Judge; Norman H. Stahl, Appellate Judge and Sandra L. Lynch, Appellate Judge. Unpublished. [16-1471]

Case: 16-1471

Document: 00117164302

Page: 1

Date Filed: 06/07/2017

Entry ID: 6097692

Not for Publication in West's Federal Reporter

United States Court of Appeals
For the First Circuit
No. 16-1471
UNITED STATES OF AMERICA,
Appellee,
v.
KENDALL FRANCIS,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]

Before
Howard, Chief Judge,
Stahl and Lynch, Circuit Judges.

Scott Katz and Scott Katz Law on brief for appellant.
Thomas E. Delahanty II, United States Attorney, and Renée M.
Bunker, Assistant United States Attorney, on brief for appellee.

June 7, 2017

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Document: 00117164302

STAHL,

Circuit

Page: 2

Judge.

Date Filed: 06/07/2017

Entry ID: 6097692

Defendant-appellant

Kendall

Francis pled guilty to one count of conspiracy to distribute heroin
and cocaine base in violation of 21 U.S.C. §§ 846, 841(a)(1), and
841(b)(1)(B), and was later sentenced to 108 months' imprisonment.
On appeal, Francis asserts that his sentence was procedurally
unreasonable

because

the

district

court

relied

on

clearly

erroneous facts when calculating his United States Sentencing
Guidelines

("U.S.S.G."

sentencing range.

or

"Guidelines")

offense

level

and

Finding his arguments unpersuasive, we affirm.
I.

Because Francis appeals following a guilty plea, we draw
the facts from the plea agreement, the presentence report ("PSR"),
and the sentencing transcript.
F.3d 305, 306 (1st Cir. 2014).

See United States v. King, 741
Beginning in 2014, a multi-agency

investigation uncovered evidence that several individuals were
transporting narcotics from New York to Lewiston, Maine for resale.
As the investigation progressed, law enforcement concentrated on
Francis, nicknamed "Dew," and some of his possible associates,
including (among others) Christian Dent, Rebecca Thompson, Naquan
Eley, Randy Gosselin, and Corinthian Wright.1

These efforts led

investigators to Thompson and Dent's Lewiston apartment, located

1

We have affirmed Wright's sentence in a companion opinion
issued on the same date as this opinion. United States v. Wright,
No. 16-1508, ___ F. App'x ___ (1st Cir. June 7, 2017).

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at 53 Shawmut Street.

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Entry ID: 6097692

Thompson informed law enforcement of this

apartment after she claimed, in an interview conducted while police
detained her on another matter, that Wright had "invested" in her
and her boyfriend Dent, had rented the apartment for them, and had
thereafter, along with her and Dent, sold cocaine and heroin from
the apartment.

Thompson later testified that Francis and Eley

remained in, and sold drugs from, the 53 Shawmut Street apartment
even after she and Dent moved out.
Further investigatory efforts revealed that Wright had
also rented another nearby Lewiston apartment in November 2014, a
third-floor residence located at 174 Blake Street.2

The landlord

of that residence, meanwhile, identified Francis as having paid
him the December rent for that apartment.

Investigators also

learned that two other nearby apartments had recently been vacated:
a fourth-floor apartment located at 174 Blake Street and a fourthfloor apartment located at 172 Blake Street. These two apartments,
although located in separate buildings, were connected by an
exterior walkway.3

2

Statements from the property manager established that Wright
had changed the locks shortly after he began renting the apartment.
3

Presumably based in part on Thompson's claims, investigators
searched the 53 Shawmut Street apartment on December 10, 2014.
They found no drugs or firearms in the apartment at that time.
However, the search did yield a key, which investigators later
learned opened both the third- and fourth-floor apartments at
174 Blake Street.

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With this new information, law enforcement refocused
their

efforts

on

the

three

Blake

Street

apartments.

On

December 17, 2014, agents seized heroin from a female as she left
the third-floor apartment at 174 Blake Street.

The next day, a

property manager told police that he had "found several firearms
and a large amount of narcotics" in the supposedly vacant fourthfloor apartment at 172 Blake Street.

Responding officers later

seized 272.4 net grams of cocaine base, four handguns, and various
personal effects from that apartment.

Subsequent testing revealed

that Wright's fingerprints were on two plastic bags that contained
some of these drugs.

The four firearms seized from this apartment

were found "in close proximity" to these bags.

Officers found one

of the firearms, meanwhile, within two plastic bags, one of which
had Eley's fingerprint on it.

The parties further stipulated that

the property manager later found a Maryland identification card in
the apartment.

The identification card bore Francis's name and

listed his height as 5' 11".4
Following these discoveries, the landlord requested that
law

enforcement

also

174 Blake Street.5

search

the

fourth-floor

apartment

There, officers found two backpacks.

at
One

4

Gosselin later told investigators that he had repeatedly
obtained drugs from one of the Blake Street apartments, and that
he had seen both Eley and Francis while engaging in these
transactions.
5

We note that although investigators, during the course of
these searches, recovered DNA and fingerprint samples from the
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backpack contained personal effects and 100.7 net grams of heroin,
while the other contained personal effects and $8,077.51 in cash.
Agents also recovered a cellular phone.

Pursuant to a search

warrant, agents then seized a number of text messages from the
phone, including:


An outgoing message, dated October 10, 2014,
stating, "My name is dew like mountain dew."



An outgoing message, dated November 11, 2014,
stating, "i live in bmore but i work out of
state."



An incoming message, dated September 1, 2014,
stating, "how tall are u," with a responsive
outgoing message stating, "5 11"."
Furthermore,

investigators

recovered

a

pair

of

toothbrushes during these searches, one from the fourth-floor
172 Blake Street apartment and one from the fourth-floor 174 Blake
Street

apartment.

The

DNA

recovered

from

both

toothbrushes

ultimately proved to be a match to Eley's DNA.

The record

indicates, however, that these DNA samples were the only ones
recovered by investigators during the course of their searches.
On December 30, 2014, investigators learned that a gun
used

in

a

violent

53 Shawmut Street.

crime

was

reportedly

located

at

The landlord of that apartment let agents into

the by-then vacant apartment, where a search revealed a loaded

fourth-floor apartments at 172 and 174 Blake Street, none matched
those of Francis.

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handgun

Document: 00117164302

hidden

beneath

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the

Date Filed: 06/07/2017

apartment's

Entry ID: 6097692

floorboards.

As

the

government concedes, however, the PSR noted no known connection
between this gun and Francis or Wright.6
The

government

then

brought

an

indictment

against

Francis, charging him with (1) conspiracy to distribute heroin and
more than 28 grams of cocaine base, 21 U.S.C. §§ 846, 841(a)(1),
841(b)(1)(B); (2) possession with intent to distribute more than
28 grams of cocaine base, 21 U.S.C. §§ 841(a)(1), (b)(1)(b); and
(3)

possession

with

intent

§§ 841(a)(1), (b)(1)(C).

to

distribute

heroin,

21

U.S.C.

Francis pled guilty to the conspiracy

charge,7 and the PSR attributed to Francis the drugs and cash
seized from the fourth-floor apartments at 172 and 174 Blake
Street.

In total, these amounts summed to 272.4 grams of cocaine

base, 100.7 grams of heroin, and $8,077.51.

When combined with

the drugs and cash seized from the 99 Horton Street apartment, the
PSR attributed 392.1 grams of cocaine base, 143.1 grams of heroin,

6

Because Francis's challenges only pertain to the drugs and
firearms recovered from the 53 Shawmut Street apartment and the
fourth-floor apartments at 172 and 174 Blake Street, we only
briefly describe the February 12, 2015 search of an apartment at
99 Horton Street in Lewiston, Maine. There, police seized -- and
the district court later attributed to Francis -- 119.7 net grams
of cocaine base, 42.4 net grams of heroin, and $2,351.00 from a
vest found on the back of the chair in which Francis was sitting
at the time of the search. Again, Francis does not dispute these
amounts or the district court's attribution of these amounts to
him at sentencing.
7

The district court later dismissed Counts Two and Three of
the indictment on the government's motion.

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and $10,428.51 to Francis, which ultimately yielded a Guidelines
base offense level of thirty. The PSR also recommended a two-level
firearm enhancement based on the guns found near the drugs and
cash recovered from the fourth-floor apartment at 172 Blake Street,
as well as a three-level acceptance-of-responsibility reduction.
These calculations resulted in a total offense level of twentynine, and a corresponding Guidelines sentencing range of 108-135
months' imprisonment.
Francis objected to the PSR's inclusion of the drugs and
cash from the Blake Street apartments.

He also disputed the

application of the firearm enhancement, arguing that it should not
apply "based on the 'mere fact that [his] identification card was
found in an apartment where drugs and firearms were located.'"
Despite

these

overtures,

sentencing,

the

district

challenges,

adopted

the

the

PSR

court
PSR's

remained

likewise

unaltered.

rejected

recommendations,

Francis to 108 months' imprisonment.

and

At

Francis's
sentenced

This appeal followed.

II.
Francis levies two challenges directed at the procedural
reasonableness of his sentence.

He first claims that the district

court incorrectly attributed the drug quantities recovered from
the fourth-floor apartments at 172 and 174 Blake Street to him
when, in fact, the government presented "almost no evidence linking
[him] with those units."

For similar reasons, Francis also argues

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that the district court mistakenly added a two-level sentencing
enhancement for firearm possession based on the four firearms
recovered from the fourth-floor apartment at 172 Blake Street and
the one firearm recovered from the apartment at 53 Shawmut Street.
When

assessing

the

procedural

reasonableness

of

a

sentence, we apply a "multifaceted" abuse-of-discretion standard
that "review[s] factual findings for clear error, arguments that
the

sentencing

court

erred

in

interpreting

or

applying

the

guidelines de novo, and judgment calls for abuse of discretion
simpliciter."

United States v. Serunjogi, 767 F.3d 132, 142

(1st Cir. 2014) (quoting United States v. Leahy, 668 F.3d 18, 21
(1st

Cir.

2012)).

Francis,

however,

acknowledges

that

his

challenges are limited to aspects of the district court's factual
findings, meaning our review is only for clear error.

See, e.g.,

United States v. Miranda-Martinez, 790 F.3d 270, 276 (1st Cir.)
(reviewing a challenge to the factual findings that supported the
defendant's connection to a seized firearm in the context of a
drug trafficking conspiracy for clear error), cert. denied, 136 S.
Ct. 430 (2015); United States v. Trinidad-Acosta, 773 F.3d 298,
317 (1st Cir. 2014) (reviewing "individualized determinations of
drug quantities for clear error").

Under this lens, we find that

the record contains more than enough evidence to sustain both the
district

court's

drug

quantity

attribution

enhancement application.

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and

its

firearms

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A.

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The Drug Quantity

To start, the district court supportably concluded that
there was sufficient evidence connecting Francis to the drugs and
proceeds recovered from the Blake Street apartments.

Under clear

error review, a district court's determination regarding the drug
quantity attributable to a defendant "will be upheld 'so long as
the

approximation

quantity.'"

represents

a

reasoned

estimate

of

actual

United States v. Sepúlveda-Hernández, 752 F.3d 22, 35

(1st Cir. 2014) (quoting United States v. Cintrón-Echautegui,
604 F.3d 1, 6-7 (1st Cir. 2010)).

These determinations "need only

be supported by a preponderance of the evidence."

United States

v. González-Vélez, 587 F.3d 494, 502 (1st Cir. 2009).
Of course, "in a conspiracy case, the sentencing court
cannot

automatically

defendant.

Rather,

assign
the

the

conspiracy-wide

sentencing

court

amount

must

to

make

a
an

individualized finding as to drug amounts attributable to, or
foreseeable by, that defendant."
quotation marks omitted).

Id. (internal citations and

In this context, then, foreseeability

includes "not only . . . the drugs [Francis] actually handled but
also . . . the full amount of drugs that he could reasonably have
anticipated

would

be

within

the

ambit

of

the

conspiracy."

See United States v. Santos, 357 F.3d 136, 140 (1st Cir. 2004).
Here,

the

district

court

did

not

clearly

err

in

concluding that a preponderance of the evidence established that

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members of the conspiracy used the Blake Street apartments to
further

their

reasonably

drug

could

distribution

have

foreseen

efforts

that

that

drugs

the

and

and

Francis
proceeds

recovered from these apartments were within the scope of and in
furtherance of that conspiracy.
testimony

regarding

the

First, Thompson's statements and

conspiracy's

operations

out

of

the

53 Shawmut Street apartment, and the apparent abandonment of its
operations at that apartment (with the exception of the gun
recovered during the December 30th search), established Francis's
connection

to

the

Lewiston, Maine.8

conspiracy's

drug

distribution

efforts

in

See United States v. Díaz-Arias, 717 F.3d 1,

26-27 (1st Cir. 2013) (noting that courts may consider third-party
proffer statements for sentencing purposes).

Second, the record

contains ample evidence connecting the conspiracy, generally, and
Francis,

specifically,

to

the

Blake

Street

apartments.

The

landlord identified Wright and Francis as having paid, on separate
occasions, the rent for the third-floor apartment at 174 Blake
Street, and Gosselin's testimony indicated that Eley and Francis
distributed drugs out of that apartment.

The key found in the

53 Shawmut Street apartment, meanwhile, opened both the third- and
fourth-floor apartments at 174 Blake Street, the latter of which

8

The record also contains evidence that "[m]ultiple
cooperation sources . . . identified . . . Wright and Francis as
being among the people selling drugs from the . . . 53 Shawmut
Street [apartment]."

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was directly connected via an external walkway to the fourth-floor
apartment at 172 Blake Street.

The property manager similarly

recovered an identification card bearing Francis's descriptive
information from the fourth-floor apartment at 172 Blake Street,
and police found a cellular phone in the fourth-floor apartment at
174 Blake Street containing text messages that suggested Francis
owned the device.

From this evidence, the district court was

entitled to infer from "the whole of the record," United States v.
Doe, 741 F.3d 217, 235 (1st Cir. 2013) (quoting United States v.
Bernier, 660 F.3d 543, 545 (1st Cir. 2011)), that Francis "was
aware of the capacity at which the conspiracy was operating and,
thus, that the drug amount handled by the conspiracy was reasonably
foreseeable to him," Trinidad-Acosta, 773 F.3d at 317.
Francis attacks each of these factual findings, claiming
that none definitively establishes his connection, as opposed to
his co-conspirators' connection, to the fourth-floor apartments at
172 and 174 Blake Street.

To start, Francis emphasizes that the

DNA and fingerprint evidence recovered from the Blake Street
apartments only links Wright and Eley to those locations.

Francis

also asserts that because a property manager purportedly found the
identification

card

after

law

enforcement

had

finished

their

search of the 172 Blake Street apartment, there is no "meaningful"
link between him, the identification card, and that apartment.

In

a similar vein, Francis further argues that the text messages

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recovered from the cellular phone all relate to non-drug-related
matters and were dated "more than a month before the cell phone
found its way into the 174 Blake Street apartment."

Finally,

Francis stresses that the key found at the 53 Shawmut Street
apartment "adds little given that Wright . . . and others were
also linked to [that] apartment."
We disagree.

Francis's arguments essentially "boil down

to griping about the quality of the evidence at the sentencing
hearing," Doe, 741 F.3d at 235, and suggesting that the district
court's drug quantity attribution is not supported by any direct
evidence.

Regarding the former, it is well-established that

"[w]hen faced with conflicting facts relating to drug quantity, a
district court is at liberty to make judgments about credibility
and

reliability."

(1st Cir. 2016).

United

States

v.

Demers,

842

F.3d

8,

13

As to the latter, it is likewise clear that a

fact-finder is entitled to rely on circumstantial evidence in
drawing conclusions regarding drug quantity.

See United States v.

Hall, 434 F.3d 42, 61 (1st Cir. 2006).
To that effect, we believe that the circumstantial and
other record evidence in this case "safely insulates the challenged
finding from clear-error attack."

See United States v. Sklar,

920 F.2d 107, 114 (1st Cir. 1990) (affirming the drug quantity
attributed to a defendant where, as in this case, the defendant
did not "suggest[] any serious methodologic flaw in the district

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court's calculation").

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The text messages, identification card,

and key form compelling pieces of evidence from which the district
court could "plausibl[y] extrapolat[e]" that Francis was connected
to the Blake Street apartments and the drugs and proceeds seized
therefrom.

See Cintrón-Echautegui, 604 F.3d at 7; see also United

States v. Dunston, 851 F.3d 91, 101-02 (1st Cir. 2017) ("[W]here
there is more than one plausible view of the circumstances, the
sentencing court's choice among supportable alternatives cannot be
clearly erroneous." (alteration in original) (internal quotation
marks omitted) (quoting United States v. Ruiz, 905 F.2d 499, 508
(1st Cir. 1990))).

"Far from leaving us with the unyielding

feeling that a mistake has been made," the district court's
well-reasoned

analysis

of

the

PSR

and

"strikes us as eminently reasonable."

other

record

evidence

Doe, 741 F.3d at 238.

We

therefore affirm the district court's attribution of the drugs and
proceeds recovered from the Blake Street apartments to Francis.
B.

The Firearm Enhancement

Francis reiterates many of the arguments discussed above
in an effort to impugn the district court's application of the
Guidelines's

sentencing

enhancement

for

firearm

possession,

claiming that "there was essentially no evidence linking" him to
the

fourth-floor

apartment

at

172

disagree.

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Blake

Street.

Again,

we

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"The Sentencing Guidelines apply a two-level enhancement
to the base offense if the defendant possessed a firearm in
connection with the convicted offense."

Trinidad-Acosta, 773 F.3d

at 320 (citing U.S.S.G. § 2D1.1(b)(1)). Because this case involves
a conspiracy, Francis need not "have possessed the weapon h[im]self
or even to have known about it" in order for the enhancement to
apply.

See United States v. Greig, 717 F.3d 212, 219 (1st Cir.

2013). Instead, the government need only prove, by a preponderance
of the evidence, that it was "reasonably foreseeable that a
co-conspirator

would

criminal activity."

possess
Id.

a

weapon

in

furtherance

of

the

If the government establishes that the

defendant or a co-conspirator "possessed a weapon during the
offense, the defendant may avoid application of the enhancement if
he can show that it is 'clearly improbable that the weapon was
connected with the offense.'"

Miranda-Martinez, 790 F.3d at 276

(quoting U.S.S.G. § 2D1.1 cmt. 11(A)).9
As

noted

above,

the

district

court's

finding

that

members of the conspiracy, including Francis, used the vacant Blake
Street apartments, connected to each other via an external walkway,
to store drugs and guns during the relevant time period was not

9

The government argues that Francis failed to address the
"clearly improbable" element in his brief and, consequently, has
waived any challenge to that aspect of the district court's
sentencing decision. Given that the issue is easily resolvable on
the merits, we decline to decide the waiver issue.

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clearly erroneous.
of

his

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Francis could also reasonably foresee that one

co-conspirators

would

procure

and

store

firearms

in

furtherance of the criminal conspiracy, especially where, as here,
investigators

found

recovered drugs.

the

firearms

in

close

proximity

to

the

See, e.g., id. (stating that we have "often

observed that 'firearms are common tools' in drug trafficking
conspiracies involving large amounts of drugs" (quoting United
States v. Bianco, 922 F.2d 910, 912 (1st Cir. 1991))); United
States v. Thongsophaporn, 503 F.3d 51, 59 (1st Cir. 2007) (noting
that the presence of a gun at a drug distribution location "may
allow" courts to "infer[] that the weapon was present for the
protection

of

the

drug

operation"

(quoting

United

Corcimiglia, 967 F.2d 724, 727 (1st Cir. 1992))).

States

v.

Therefore, it

was not clearly improbable that the firearms recovered from the
fourth-floor apartment at 172 Blake Street were connected with the
drug conspiracy and, consequently, Francis.10
III.
For these reasons, Francis's sentence is AFFIRMED.

10

Because we rest our conclusion on the evidence connecting
Francis to the firearms recovered from the Blake Street apartments,
we need not address Francis's connection to the firearm recovered
from the 53 Shawmut Street apartment.

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