62 F.4th 26
1st Cir.2023Background
- Police executed warrants at two storage units rented under aliases and found large quantities of fentanyl, cutting agents, scales, vacuum-sealed bricks, and individually bagged corner bags.
- Officers left Unit 1435 secured with a copy of the warrant inside and maintained surveillance; about three hours later defendant entered the facility, shortly retreated, then sped away and crashed into a marked cruiser; he was arrested and four grams of fentanyl packaged like the Unit 1435 baggies were found on him.
- Defendant was indicted for attempted possession with intent to distribute 400+ grams of fentanyl; he moved to suppress but withdrew that motion before trial.
- At trial the government presented surveillance and witness testimony (including that a witness bought fentanyl from the defendant as a courier); defense called no witnesses; jury convicted.
- Post-trial motions were denied; at sentencing the court adopted a TOL of 34 (reduced by 2), calculated 121–151 months, and imposed a downward-variant 108-month sentence after considering defendant’s conduct and mitigation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Fourth Amendment challenge to arrest/search | Gov't: Arrest and search were lawful; suppression was waived by withdrawal below | Concepcion-Guliam: Arrest and search unreasonable; evidence should be suppressed | Waived — defendant withdrew suppression below; appellate claim precluded (waiver) |
| Admission of "lay opinion" testimony (Detective Kuhn) | Gov't: Detective testified to his observations, not defendant's state of mind; testimony admissible under Fed. R. Evid. 602 | Concepcion-Guliam: Testimony amounted to improper state-of-mind lay opinion | No plain error — testimony described observed conduct, not defendant’s mental state; admission proper |
| Sufficiency of the evidence for attempted possession with intent to distribute | Gov't: Circumstantial evidence (entry, open unit, matching baggies, prior courier testimony, quantity/packaging, flight) supports intent and a substantial step | Concepcion-Guliam: Gov't offered no direct proof of intent to possess/distribute; testimony speculative | Sufficiency affirmed — circumstantial evidence and reasonable inferences support conviction for attempt with intent to distribute |
| Sentencing errors (procedural and substantive/disparity) | Gov't: Court adequately explained reasons, considered comparators and mitigation; sentence reasonable | Concepcion-Guliam: Procedural error for inadequate explanation; substantive unreasonableness and disparity with others (Guerrero, Bryant) | No plain error on procedure; substantive sentence within broad range of reasonableness; disparity claim fails for lack of apples-to-apples comparators |
Key Cases Cited
- United States v. Tkhilaishvili, 926 F.3d 1 (1st Cir. 2019) (framing review of facts in light most favorable to verdict)
- United States v. Orsini, 907 F.3d 115 (1st Cir. 2018) (waiver doctrine for appellate review)
- United States v. Rodriguez, 311 F.3d 435 (1st Cir. 2002) (waiver and intentional relinquishment of rights)
- United States v. Etienne, 772 F.3d 907 (1st Cir. 2014) (plain error standard for unpreserved evidentiary objections)
- United States v. Gobbi, 471 F.3d 302 (1st Cir. 2006) (elements of attempt and possession principles)
- United States v. Ayala-García, 574 F.3d 5 (1st Cir. 2009) (large quantity and individual packaging support intent to distribute)
- United States v. Benedetti, 433 F.3d 111 (1st Cir. 2005) (flight as evidence of consciousness of guilt)
- United States v. Sepúlveda-Hernández, 817 F.3d 30 (1st Cir. 2016) (requirement to identify main factors driving sentencing)
- Holguin-Hernandez v. United States, 140 S. Ct. 762 (2020) (abuse-of-discretion standard for substantive reasonableness of sentences)