United States v. Magee, 2016 U.S. App. LEXIS 15117

Background

Richard Magee was indicted on multiple drug counts, a felon‑in‑possession count, and a witness‑tampering conspiracy; he pleaded guilty to one felon‑in‑possession count, three distribution counts, and one possession‑with‑intent count.
A DEA affidavit supported a search warrant for Magee’s home (Oct. 4, 2013); the affidavit described controlled buys, intercepted calls, and an observation at a restaurant (Ruski’s) where agents saw Magee carrying something and Mercer later stopped with cocaine in his car. Magee sought a Franks hearing to challenge omissions in the affidavit.
The district court denied the Franks hearing, concluded an affidavit omission (that Magee left the package with a bartender) was not material, and found probable cause to search Magee’s home.
The presentence report attributed 1,220.1 grams of cocaine to Magee (including relevant uncharged conduct) yielding a base offense level of 24 and a Guidelines range of 70–87 months; the district court adopted the PSR and sentenced Magee to 70 months.
Magee challenged (1) the denial of a Franks hearing, (2) the drug‑quantity attribution/BOL, and (3) criminal history calculation (counting a 1994 conviction). The court rejected all challenges and affirmed.

Issues

Issue	Magee's Argument	Government's Argument	Held
Whether omissions in the warrant affidavit required a Franks hearing	Omitted facts (e.g., Magee left the package with a bartender; agents did not see him place anything in Mercer’s car) were material and required a hearing	Affidavit still established probable cause even with the omitted facts; omissions were not material	Denial of Franks hearing affirmed — omissions not material; probable cause remained
Whether drug quantity (1,220.1 g) and BOL 24 were erroneous	Challenges to attribution of large uncharged quantities (esp. Michael Paul transactions) and reliability of Paul’s testimony	Call 3869 and other evidence independently supported attribution; Magee waived challenges by not addressing Call 3869 and conceding at argument	BOL and drug‑quantity attribution affirmed; appellate challenge waived
Whether the district court miscalculated criminal history by counting a 1994 conviction	The instant offense began in 2013, so the 1994 conviction fell outside the 15‑year window and should not have been counted	The district court treated instant offense as commencing Aug. 2011 (relevant uncharged conduct), so 1994 conviction was within 15 years; in any event, sentence would be the same	Even if miscalculated, any error was harmless because the court would have imposed the same 70‑month sentence
Whether sentence was substantively unreasonable	Argues sentence excessive given amounts in plea counts	Government emphasizes ongoing drug/weapons activity and relevant conduct supporting higher sentence	Sentence held substantively reasonable

Key Cases Cited

Franks v. Delaware, 438 U.S. 154 (1978) (establishes defendant’s right to a hearing where affidavit contains knowingly false statements or reckless omissions that are material to probable cause)
United States v. McLellan, 792 F.3d 200 (1st Cir. 2015) (requirements for a Franks preliminary showing)
United States v. Gomez, 716 F.3d 1 (1st Cir. 2013) (interpreting intercepted communications and corroborating facts in finding probable cause for drug transactions)
United States v. Parcels of Land, 903 F.2d 36 (1st Cir. 1990) (standards for reviewing probable‑cause determinations and materiality of omissions)
United States v. Cortés‑Cabán, 691 F.3d 1 (1st Cir. 2012) (sentencing attribution of relevant uncharged conduct for drug quantity)
United States v. St. Hill, 768 F.3d 33 (1st Cir. 2014) (definition of relevant uncharged conduct under Guidelines §1B1.3)
United States v. Romero‑Galindez, 782 F.3d 63 (1st Cir. 2015) (harmlessness analysis for criminal history calculation errors)
United States v. Tavares, 705 F.3d 4 (1st Cir. 2013) (district court sentence must still be reviewed for substantive reasonableness)