United States v. Mullins, 1st Cir. (2015)

United States Court of Appeals
For the First Circuit

No. 132075
UNITED STATES OF AMERICA,
Appellee,
v.
CHRISTOPHER MULLINS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Lynch, Chief Judge,
Stahl and Kayatta, Circuit Judges.
William S. Smith for appellant.

Seth R. Aframe, Assistant United States Attorney, with whom
John P. Kacavas, United States Attorney, was on brief, for
appellee.
February 4, 2015
KAYATTA, Circuit Judge.
Christopher Mullins appeals his
conviction and sentence for conspiring to possess and distribute

cocaine, in violation of 21 U.S.C. 841(a)(1), 846.
He presses
three primary arguments on appeal: (1) the record lacks sufficient

evidence to convict him of the charged conspiracy; (2) the district
court plainly erred in instructing the jury on the conspiracy
charge; and (3) the district court clearly erred in calculating the
drug quantity attributable to Mullins. Finding all three arguments
unpersuasive, we affirm the conviction and the sentence in all
respects.
I.
A.
Background
The Evidence
Because
Mullins
challenges
the
sufficiency
of
the
evidence after a jury found him guilty, "we view the facts in the
light most favorable to the verdict."
United States v. Adorno-
Molina, No. 131065, 2014 WL 7234953, at *1 (1st Cir. Dec. 19,

2014).
In
("MDEA")
September
agents
2011,
investigated
Maine
a
drug
Drug
Enforcement
trafficking
operating out of 100 Ohio Street in Bangor, Maine.
Agency
organization
The leaders of
this organization shipped crack and powder cocaine from the New
York City area to Maine via Greyhound bus.
-2-
As part of the
investigation, MDEA agents, using a confidential informant ("CI"),1

conducted a controlled purchase of $350 worth of powder cocaine
from Mullins.
CI wore a "body wire" (an electronic transmitting
device that transmits all audio within earshot).

at
Mullins's
organization.
apartment,
Mullins
called
the
After CI arrived
100
Ohio
Street
During the call, Mullins mentioned someone named
"Bullet,"2 a member of the organization.

Shortly after Mullins called, a green Lexus pulled up to
his apartment.
"Fish,"3 another member of the organization, came
inside Mullins's apartment.
Mullins and Fish met alone for about
two minutes, and then Fish left. Mullins then handed CI eight bags
of powder cocaine.
CI had purchased ten bags, but only received
eight, because Mullins kept two as a fee.

Two months later, on November 2, 2011, MDEA agents
arrested Mullins.
On that same day, they searched 100 Ohio Street
and an apartment located on Garland Street also used by the

conspirators to store drugs, seizing approximately 368 grams of
crack from the Garland Street location.
After receiving Miranda
We refer to the informant as CI only "in light of concerns

about the safety of cooperating witnesses raised by the Committee
on Court Administration and Case Management of the Judicial
Conference of the United States." United States v. Etienne, 772
F.3d 907, 912 n.1 (1st Cir. 2014).
2
Bullet's name is Jowenky Nunez.
Fish's name is Manuel Trinidad-Acosta. See United States v.

Trinidad-Acosta, 773 F.3d 298 (1st Cir. 2014).
-3-
warnings, Mullins provided MDEA agents with a recorded statement,

during which he communicated the following: He started working for
the members of the organization (to whom he referred as "the
Dominicans") in November 2010.
By June 2011, he had four or five
customers to whom he regularly sold crack and powder cocaine.

Mullins reported that he purchased from the Dominicans, on average,
$5,000
worth
of
crack
and
powder
cocaine
per
occasion, as much as $5,000 in a single night.4
week,
and,
on
He would resell
the drugs for his own profit, either by taking some portion of the
sale, as he did in the controlled purchase, or by reselling at a
higher price.
Dominicans.
Mullins referred to himself as a "runner" for the

He also said that there were times when customers
would try to purchase drugs directly from the Dominicans, but the
Dominicans would tell them, "no, go see Chris [Mullins]."
B.
Trial and Sentencing

A grand jury indicted Mullins for conspiring to possess
with intent to distribute cocaine and more than 28 grams of cocaine

base from September 2010 through November 2011.
At trial, the key
evidence against him was his own statement to the MDEA agents, the
testimony of CI, and the testimony of Pari Proffitt, a roommate of
the Dominicans.
Proffitt testified that 90 percent of the sales
made by the 100 Ohio Street organization were crack, and that
Mullins claimed that he once spent approximately $50,000 in

two months on drugs for personal use.
-4-
Mullins was a frequent purchaser.
A law enforcement officer
testified that a "runner" is "a middleman," a "go-between the

larger dealer and the typical user."
A jury convicted Mullins
after the two-day trial.

At sentencing, the district court ultimately held Mullins
responsible for 140 grams of crack.
The court conservatively
calculated that Mullins worked for his suppliers for only ten
weeks, from June 2011 until the end of September 2011 (subtracting
6 weeks when he was out of town).
The court found that he bought
about $4,000 worth of drugs per week, 90 percent of which was

crack.
The court found that crack goes for approximately $200 a
gram, and that Mullins kept 20 percent of the purchases for

himself.
The court did not hold Mullins accountable for the
estimated 10 percent of his sales that were cocaine, because both

parties agreed that it would have no effect on the applicable
sentencing range. Based on a base offense level of 28 and criminal
history
category
guideline
VI,
sentencing
the
district
range
was
court
140175
determined
months.
that
the
U.S.S.G.
2D1.1(c); id. ch. 5, pt. A. The district court sentenced Mullins

to 140 months in prison.
II.
A.
Analysis
Sufficiency of Evidence
Mullins contends that the evidence was so lacking that it
at best showed he was a frequent purchaser of crack and cocaine--an
-5-
addict who independently resold drugs to sustain his habit.
We
review the denial of a motion for judgment of acquittal de novo.

United States v. Rosado-Prez, 605 F.3d 48, 52 (1st Cir. 2010). We
draw all reasonable inferences in the prosecution's favor.
"If
reasonable
jury
could
find
[Mullins]
guilty
Id.
beyond
reasonable doubt of all elements of the charged offense, we must

affirm the conviction."
Id.
To establish guilt on a conspiracy charge, the government

must prove that "an agreement existed to commit the underlying
substantive offense, and that the defendant elected to join the
agreement, intending that the underlying offense be committed."
United States v. Gmez-Rosario, 418 F.3d 90, 105 (1st Cir. 2005)
(internal quotation marks omitted).
Mullins's own statement was
more than enough to support a finding that he was, as he put it, a

"runner" for the 100 Ohio Street organization, rather than just a
user who independently resold drugs on his own.
Mullins argues
that his concession that he was a runner is "nebulous."
Perhaps.
But any ambiguity would seem to be irrelevant, since it matters

only that he had a role in the conspiracy, and not that the role be
some particular type of runner.
Mullins's
statement
fleshed
out
Moreover, the remainder of

further
details
that
amply
supported a finding that he was a member of the conspiracy that

operated out of 100 Ohio Street: he obtained on average $5,000
worth of crack per week, and
some of his retail customers were
-6-
referred
to
him
by
the
organization
leaders.
In
short,
he
described himself in substance as a knowing and regular retail

middleman for his suppliers.5
24,
2930
(1st
Cir.
See United States v. Boidi, 568 F.3d
2009)
(continuing
purchase
and
sale
relationship along with upstream dealer's knowledge of defendant's

redistribution permits a jury to infer agreement that defendant
possess and distribute drugs to advance common conspiratorial
goal); United States v. Moran, 984 F.2d 1299, 1303 (1st Cir. 1993).
The details of the sale to CI, and evidence that Mullins called the
organization's order number 116 times in four months added further
substantial support for the jury's conclusion.
In short, the
evidence was more than sufficient to support the verdict.6
In his pro se brief, Mullins also complains about the audio

quality of his recorded statement, portions of which were played
for the jury. But the jury was able to evaluate that recording for
itself, along with the interviewing officer's first-hand testimony
about the content of that interview.
6
In his pro se brief, Mullins contends that evidence of drug

type--crack or powder cocaine--was insufficient to support a
conviction. But, under the statute, the government need not prove
any specific type of controlled substance. See 21 U.S.C. 841(a)
("[I]t shall be unlawful for any person knowingly or intentionally
(1) to . . . possess with intent to . . . distribute, or dispense,
a controlled substance[.]"); see also United States v. Andino, 627
F.3d 41, 48 (2nd Cir. 2010) (noting that the government does not
need to prove a "type-specific scienter on the defendant's part, as
a result of alleging a conspiracy involving a specific type of
drug").
-7-
B.
Jury Instructions
Mullins argues that the district court should have sua
sponte provided additional jury instructions on "the principles of

separate conspiracies."
Mullins failed to object below, so we
review only for plain error. United States v. Colon, 744 F.3d 752,
757 (1st Cir. 2014). Plain error requires Mullins to meet a "heavy
burden of showing (1) that an error occurred; (2) that was clear or
obvious; (3) that the error affected his substantial rights; and
(4) that the error also seriously impaired the fairness, integrity,
or public reputation of judicial proceedings."
Id. (internal
quotation marks omitted).

Mullins is correct that a defendant charged with a
conspiracy is entitled to an instruction that he must be convicted
of the conspiracy charged, and not another conspiracy that might be
supported by the evidence, whenever the evidence would support a
finding of an illicit conspiracy other than the one charged.
United States v. Daz, 670 F.3d 332, 350 (1st Cir. 2012).
But the
district court did provide such an instruction. In pertinent part,

the district court instructed that:
For you to find Mr. Mullins guilty of
conspiracy, you must be convinced that the
government has proved each of the following
elements beyond a reasonable doubt: First,
that
the
agreement
specified
in
the
indictment, and not some other agreement or
agreements, existed between at least two
people to distribute and to possess with
intent to distribute cocaine and cocaine base;
-8-
and, second, that the defendant

joined in that agreement.
willfully
. . . .
[T]he
government
must
prove
beyond
a
reasonable doubt that those who were involved
shared a general understanding about the
crime.
Mere similarity of conduct among
various people or the fact that they may have
associated with each other or discussed common
aims and interests does not necessarily
establish proof of the existence of a
conspiracy, but you may consider such factors.
An instruction like this has survived similar challenges.
See
United States v. Niemi, 579 F.3d 123, 12627 (1st Cir. 2009);
United States v. Balthazard, 360 F.3d 309, 316 (1st Cir. 2004).
The instruction, as given, conveyed the substance of Mullins's
defense.
fails.
C.
As such, his claim--especially on plain error review--
See Niemi, 579 F.3d at 127.
Drug Quantity Calculation

The specific type of controlled substance does matter for
purposes
of
2D1.1(c).
applying
the
sentencing
guidelines.
See
U.S.S.G.
In his pro se brief, Mullins argues that there was no
basis for the district court's finding at sentencing that 90

percent of his dealings involved crack.
Mullins points us to the
controlled purchase, which involved only a small amount of powder

cocaine, not crack.
We review a district court's factual findings regarding
drug quantity for clear error.
United States v. Green, 426 F.3d
-9-
64, 66 (1st Cir. 2005).
Drug quantity findings may "be based on
approximations . . . as long as those approximations represent

reasoned estimates of drug quantity."
United States v. Ventura,
353 F.3d 84, 88 (1st Cir. 2003).
A defendant may be held
responsible
only
individual."
2009).
for
drug
quantities
"foreseeable
to
[that]
United States v. Correy, 570 F.3d 373, 380 (1st Cir.
Foreseeability encompasses "not only . . . the drugs [the
defendant] actually handled but also . . . the full amount of drugs

that he could reasonably have anticipated would be within the ambit
of the conspiracy."
United States v. Santos, 357 F.3d 136, 140
(1st Cir. 2004).

The district court's finding here had substantial support
in the record, and was thus not clearly erroneous: Proffitt
testified that crack accounted for 90 percent of the conspirators'
drug sales, and police seized 368 grams of crack when they searched
the Garland Street apartment. Proffitt also testified that Mullins
frequently purchased crack from Fish.
To be sure, the drug
quantity calculation here was imprecise.
But Mullins could have
been held accountable for "the full amount of drugs that he could
reasonably have anticipated would be within the ambit" of the 100
Ohio Street conspiracy.
Id.
Instead, the court only held Mullins
accountable for a very conservative estimate of the crack that he

himself handled.
they
are
"based
Imprecise drug-quantity findings are upheld when

upon
conservative
-10-
estimates
or
favorable
assumptions."
United States v. Rodriguez, 731 F.3d 20, 32 (1st
Cir. 2013).
III.
Conclusion
For the foregoing reasons, we affirm.
-11-

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United States Court of Appeals

For the First Circuit

APPEAL FROM THE UNITED STATES DISTRICT COURT

William S. Smith for appellant.

KAYATTA, Circuit Judge.

Christopher Mullins appeals his

conviction and sentence for conspiring to possess and distribute

three primary arguments on appeal: (1) the record lacks sufficient

United States v. Adorno-

Molina, No. 131065, 2014 WL 7234953, at *1 (1st Cir. Dec. 19,

operating out of 100 Ohio Street in Bangor, Maine.

investigation, MDEA agents, using a confidential informant ("CI"),1

CI wore a "body wire" (an electronic transmitting

device that transmits all audio within earshot).

During the call, Mullins mentioned someone named

"Bullet,"2 a member of the organization.

"Fish,"3 another member of the organization, came

inside Mullins's apartment.

Mullins and Fish met alone for about

CI had purchased ten bags, but only received

eight, because Mullins kept two as a fee.

On that same day, they searched 100 Ohio Street

and an apartment located on Garland Street also used by the

After receiving Miranda

We refer to the informant as CI only "in light of concerns

Bullet's name is Jowenky Nunez.

Fish's name is Manuel Trinidad-Acosta. See United States v.

warnings, Mullins provided MDEA agents with a recorded statement,

By June 2011, he had four or five

customers to whom he regularly sold crack and powder cocaine.

occasion, as much as $5,000 in a single night.4

Mullins referred to himself as a "runner" for the

Trial and Sentencing

with intent to distribute cocaine and more than 28 grams of cocaine

At trial, the key

Proffitt testified that 90 percent of the sales

Mullins claimed that he once spent approximately $50,000 in

Mullins was a frequent purchaser.

A law enforcement officer

testified that a "runner" is "a middleman," a "go-between the

A jury convicted Mullins

after the two-day trial.

The court conservatively

The court found that he bought

about $4,000 worth of drugs per week, 90 percent of which was

The court found that crack goes for approximately $200 a

gram, and that Mullins kept 20 percent of the purchases for

The court did not hold Mullins accountable for the

estimated 10 percent of his sales that were cocaine, because both

2D1.1(c); id. ch. 5, pt. A. The district court sentenced Mullins

at best showed he was a frequent purchaser of crack and cocaine--an

addict who independently resold drugs to sustain his habit.

review the denial of a motion for judgment of acquittal de novo.

reasonable doubt of all elements of the charged offense, we must

To establish guilt on a conspiracy charge, the government

Mullins's own statement was

more than enough to support a finding that he was, as he put it, a

that his concession that he was a runner is "nebulous."

But any ambiguity would seem to be irrelevant, since it matters