United States v. Vicente, 909 F.3d 20

Vicente pleaded guilty to conspiracy to distribute and possess with intent to distribute oxycodone (federal) after an investigation linking him to large-scale interstate sales from Connecticut to Maine.
PSR recommended total offense level 33 and criminal history category IV, including 1 point for a 2013 Connecticut conviction (possession with intent to sell/dispense) and 2 points for committing the instant offense while on probation from that conviction.
Facts about the 2013 conviction in the PSR were sparse: arrest in Connecticut with prescriptions in a vehicle; one count resulted in a five-year suspended sentence and three years’ probation; a co-charge was nolle prossed.
At sentencing neither party objected to the criminal history calculation; the district court imposed a 100-month guidelines sentence (after counsel prompted reductions from PSR enhancements).
On appeal Vicente argued the 2013 conviction should not count as a “prior sentence” under U.S.S.G. § 4A1.2 because the conduct was part of the instant offense (relevant conduct under § 1B1.3).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the 2013 Connecticut conviction counts as a "prior sentence" under U.S.S.G. § 4A1.2 or is excluded because the conduct was "part of the instant offense" (relevant conduct under § 1B1.3)	Vicente: the state conviction involved the same type of prescription-drug trafficking, same source/modus operandi and thus was part of the same course of conduct/common scheme as the federal conspiracy	Government/District Court: the record shows no substantial connection—different scale, different factual circumstances and limited factual support tying the state incident to the interstate conspiracy; the state sentence therefore qualifies as a prior sentence	Court affirmed: no plain error. The record is insufficient to treat the 2013 conviction as part of the instant offense; counting it (and the 2-point probation enhancement) was proper

United States v. O'Brien, 870 F.3d 11 (1st Cir. 2017) (sources for facts after a guilty plea)
Molina-Martinez v. United States, 136 S. Ct. 1338 (2016) (an incorrect Guidelines range can show a reasonable probability of a different outcome)
United States v. Bryant, 571 F.3d 147 (1st Cir. 2009) (distinguishes "same course of conduct" from "common scheme or plan" in drug cases)
United States v. Collazo-Aponte, 216 F.3d 163 (1st Cir. 2000) (factors for assessing whether offenses are part of same course of conduct or common scheme)
United States v. Kulick, 629 F.3d 165 (3d Cir. 2010) (when both § 1B1.3(a)(1) and (a)(2) could apply, apply (a)(2))
United States v. Sklar, 920 F.2d 107 (1st Cir. 1990) (offenses must form a single course of conduct, scheme, or plan to be grouped)