          United States Court of Appeals
                     For the First Circuit


No. 17-2144

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                        MICHAEL VICENTE,

                      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, Stahl, and Barron,
                         Circuit Judges.


     Mary A. Davis, on brief for appellant.
     Halsey B. Frank, United States Attorney, with whom Kelly A.
Archung, Special Assistant United States Attorney, on brief, for
appellee.


                        November 20, 2018
            STAHL, Circuit Judge.           This is an appeal from a sentence

imposed    following     a    criminal      conviction.      On   June     1,   2017,

Appellant Michael Vicente ("Vicente") pleaded guilty to conspiracy

to distribute and possess with intent to distribute oxycodone in

violation of 21 U.S.C. §§ 841(a)(1) and 846.                 On appeal, Vicente

argues that the court improperly assigned points for a prior

sentence that should have been excluded as conduct that was "part

of the instant offense," U.S.S.G. § 4A1.2, namely his conviction

in state court for possession with intent to sell or dispense.

After review, we affirm.

            I.   Factual Background and Procedural History

            "Because this appeal follows a guilty plea, we draw the

relevant    facts   from       the   plea      agreement,   the   change-of-plea

colloquy, the undisputed portions of the presentence investigation

report ('PSR'), and the transcript of the disposition hearing."

United States v. O'Brien, 870 F.3d 11, 14 (1st Cir. 2017).

            In   2015,       the   DEA   and     the   Somerset   County    (Maine)

Sheriff's Office conducted an investigation into suspected drug

distribution by Maine residents Warren LaPrell and Raymond Ferris.

In connection with that investigation, officers executed a search

warrant at the apartment of a witness ("Witness 1") on April 16,

2015, that produced oxycodone pills, firearms, and other items

related to illegal drug sales.              Following that search, Witness 1

identified Vicente as his source for the oxycodone.                  After first


                                         - 2 -
meeting       Vicente   in   Maine,    Witness     1   admitted     that,    for

approximately three years,1 he purchased pills for illegal resale

from Vicente both in Maine and in Connecticut.            Witness 1 claimed

that he witnessed Vicente to be in possession of, "[a]t most,"

2,000 oxycodone pills in addition to the pills Witness 1 purchased

from him.2

              Two other witnesses told the government that they had

traveled with Witness 1 to Connecticut on several occasions to

purchase oxycodone from Vicente.              One witness reported that,

although he did not know the exact amount of oxycodone purchased

during these trips, he heard Witness 1 talk about purchasing 500

pills and estimated that Witness 1 obtained 200 30mg pills per

trip.       This witness also spent $5,500 to $6,000 to buy oxycodone

from Vicente and, on one occasion, Vicente returned with him and

Witness 1 to Maine in possession of 1,000 pills.

              On June 8, 2016, a single-count indictment in the United

States District Court for the District of Maine charged Vicente

with conspiracy to distribute and possess with intent to distribute

oxycodone.        Vicente    was   arrested   on   September   7,    2016,   in

Connecticut, and pleaded guilty to the sole count of the indictment




        1
       Witness 1 subsequently revised this estimate downwards to
"17 or 18 months."
        2
       The DEA was unable to identify Vicente's ultimate source
for the pills.


                                      - 3 -
on June 1, 2017. Following the plea, the Probation Office prepared

a PSR which recommended a total offense level of 333 and a criminal

history category of IV, resulting in a guidelines range of 188 to

235 months' imprisonment.     As relevant here, the criminal history

calculation was based in part on a one-point increase for a prior

conviction     in   Connecticut    state    court   in   2013   (the   "2013

Conviction") and a two-point increase because Vicente committed

the instant offense while under probation from the 2013 Conviction.

             Although it is central to this appeal, details of the

2013 Conviction are sparse.          The PSR states that Vicente was

arrested on October 16, 2012, and charged in superior court in

Waterbury, Connecticut with two counts: (1) possession with intent

to sell/dispense; and (2) sale of a hallucinogen/narcotic.               The

PSR further provides that, on July 31, 2013, Vicente received a

five-year suspended sentence along with three years' probation for

the first of those counts.        The PSR goes on:

             There is no further information regarding this
             offense at this time as the Probation Office
             is awaiting criminal history records from the
             District of Connecticut. It is unknown if the
             defendant had attorney representation in this

     3 The level was primarily established by Vicente's admission
that he sold between 200 and 400 30 mg oxycodone pills per week
for 17 to 18 months which, once converted to its marijuana
equivalent, translated to a base offense level of 30.       The PSR
recommended four-point and two-point enhancements, respectively,
for acting as an organizer or leader of the conspiracy and engaging
in the conduct as a livelihood, and a three-point reduction for
acceptance of responsibility, resulting in a total offense level
of 33.


                                    - 4 -
          matter. The defendant was also charged with
          the Sale of Hallucinogen/Narcotic but had this
          count Nolle Prossed.

During sentencing, the district court inquired about the 2013

Conviction.   Vicente stated:

          It was kind of a weird case because we had the
          prescriptions -- I was pulled over with
          Matthew Summa,[4] we had the prescriptions []
          that were prescribed to us in the vehicle,
          they found it in between the seats and the
          bottle was broken, but the name on the
          prescriptions was the prescription that
          belonged to us. So it wasn't like making a
          sale with it.

During the sentencing hearing, the district court also made mention

of the 2013 Conviction when discussing the fact that Vicente began

taking part in the instant offense before he was sentenced for his

Connecticut crime and continued while on probation from that crime.

There was no discussion by either party of the legal basis for

characterizing the 2013 Conviction as a "prior sentence" under the

sentencing guidelines.

          At sentencing, neither party objected to the criminal

history calculation.5    The district court imposed a guidelines



     4 Summa was not named as a co-conspirator or accomplice in
the present case.
     5  At the parties' urging, the court did not impose
enhancements for either Vicente's role in the criminal activity
under Section 3B1.1(a) or for engaging in the criminal conduct as
a livelihood under Section 2D1.1(b)(5)(E), both of which were
proposed by the PSR. This resulted in an offense level of 27 and,
when combined with Vicente's criminal history category, a
guidelines range of 100 to 125 months' incarceration.


                                - 5 -
sentence    of    100   months'     incarceration.        This    timely   appeal

followed.

                                II.    Discussion

             The sole issue raised by this appeal is whether the

district    court    erred    in   concluding     that    the   2013   Conviction

constitutes      a   "prior    sentence"     under   Section      4A1.2    of   the

Sentencing       Guidelines.       Vicente     contends    that    the     conduct

underlying that conviction was "part of the instant offense," and

so is not a qualifying prior sentence, because his conduct of

possessing prescription drugs with intent to sell and his base of

operations (i.e. Waterbury, Connecticut) align with the present

charge.     He further asserts that his purpose and modus operandi

—— to obtain prescription drugs and sell them for profit —— was

the same.

             There is no dispute that Vicente failed to raise this

point below, and so our review is for plain error.                     See United

States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir. 2015).                      To

prevail under this rigorous standard, an appellant must establish

"(1) that an error occurred (2) which was clear or obvious and

which not only (3) affected [his] substantial rights, but also (4)

seriously impaired the fairness, integrity, or public reputation

of judicial proceedings."           United States v. Duarte, 246 F.3d 56,

60 (1st Cir. 2001).           As to the third prong of this analysis,

"[w]hen a defendant is sentenced under an incorrect Guidelines


                                       - 6 -
range . . . the error itself can, and most often will, be sufficient

to show a reasonable probability of a different outcome absent the

error."    Molina-Martinez v. United States, __ U.S. __, 136 S. Ct.

1338, 1345 (2016).

            Section   4A1.1   of   the   Federal   Sentencing    Guidelines

Manual dictates the allocation of criminal history points to a

defendant, the sum of which determines the defendant's criminal

history category.       Points are added for, inter alia, "prior

sentence[s]," defined in relevant part as "any sentence previously

imposed . . . for conduct not part of the instant offense."6

U.S.S.G.    §   4A1.2(a)(1)    (emphasis    added).      The     Sentencing

Guidelines define conduct that is "part of the instant offense" as

"conduct that is relevant conduct to the instant offense under the

provisions of [Section] 1B1.3 (Relevant Conduct)."              Id. § 4A1.2

cmt. n.1.

            Section 1B1.3, in turn, contains multiple subsections

defining relevant conduct.         Most pertinent here, as to certain

offenses,7 relevant conduct includes "all acts and omissions . . .


     6 As relevant here, the application notes to that section
indicate that "a sentence imposed after the defendant's
commencement of the instant offense, but prior to sentencing on
the instant offense, is a prior sentence if it was for conduct
other than conduct that was part of the instant offense."   Id.
§ 4A1.2 cmt. n.1.
     7 Section 1B1.3(a)(2) applies to offenses "of a character for
which [Section] 3D1.2(d) would require grouping of multiple
counts." U.S.S.G. § 1B1.3(a)(2). Under Section 3D1.2(d), multiple
counts should be "grouped," or aggregated for purposes of


                                   - 7 -
that were part of the same course of conduct or common scheme or

plan as the offense of conviction."8              Id. § 1B1.3(a)(2).      In

elaborating on the criteria for finding that multiple offenses

constitute a common scheme or plan, the guidelines explain that

the offenses must "be substantially connected to each other by at

least       one   common   factor,   such    as   common   victims,   common

accomplices, common purpose, or similar modus operandi."                Id.




determining offense conduct, when the offense level for those
counts is "determined largely" based on, inter alia, "the quantity
of a substance involved." Id. § 3D1.2(d). That section explicitly
includes drug offenses.     See id.; see also United States v.
Gerante, 891 F.2d 364, 369 (1st Cir. 1989). Vicente claims that
the offenses here require grouping, and the government does not
contest the point.
        8
        Vicente also argues that another section, Section
1B1.3(a)(1)(A) ("[A]ll acts and omissions committed . . . or
willfully caused by the defendant . . . that occurred during the
commission of the offense of conviction . . . ."), separately
applies to his case.     However, the plain language of Section
1B1.3(a)(2) indicates that where the instant offense requires
grouping of multiple counts, the analysis of conduct described in
Section 1B1.3(a)(1) is collapsed into Section 1B1.3(a)(2).
U.S.S.G. § 1B1.3(a)(2) (stating that the relevant conduct defined
by that section includes "all acts and omissions described in
subdivision[] (1)(A) . . . that were part of the same course of
conduct or common scheme or plan as the offense of conviction");
see also United States v. Kulick, 629 F.3d 165, 170 (3rd Cir. 2010)
("[I]f both sections could apply to the facts of a case, we must
apply Section (a)(2)."); but cf. United States v. Hodge, 805 F.3d
675, 682 (6th Cir. 2015) (finding conduct to be relevant under
both subsections (a)(1) and (a)(2)). Even if the court were to
separately    analyze   the    2013   Conviction   under    Section
1B1.3(a)(1)(A), however, there would be no evident basis to
conclude that the offense underlying that conviction "occurred
during the commission of the offense of conviction," as it predates
the charged conspiracy by nearly eight months.


                                     - 8 -
§ 1B1.3(a)(2)   cmt.   n.5(B)(i).    Further,    as   described    by   the

Sentencing Guidelines,

           [o]ffenses that do not qualify as part of a
           common scheme or plan may nonetheless qualify
           as part of the same course of conduct if they
           are sufficiently connected or related to each
           other as to warrant the conclusion that they
           are part of a single episode, spree, or
           ongoing series of offenses. Factors that are
           appropriate to [that] determination . . .
           include the degree of similarity of the
           offenses, the regularity (repetitions) of the
           offenses, and the time interval between the
           offenses. When one of the above factors is
           absent, a stronger presence of at least one of
           the other factors is required.

Id. § 1B1.3 cmt. n.5(B)(ii).

           "[T]he term 'same course of conduct' is analytically

distinct from the term 'common scheme or plan.'" United States v.

Bryant, 571 F.3d 147, 160 n.13 (1st Cir. 2009). The former concept

focuses on "whether the defendant repeats the same type of criminal

activity over time."     Id. (quoting United States v. Adams, 303

F. App'x 926, 927 (2d Cir. 2008) (unpublished)).               The "common

scheme or plan" prong, on the other hand, looks to whether the

"acts [are] 'connected together' by common participants or by an

overall   scheme."     United   States   v.   Sanders,   982   F.2d   4,   9

(1st Cir. 1992) (quoting United States v. Perdomo, 927 F.2d 111,

115 (2d Cir. 1991)).

           Assessment of whether either of these prongs is met "is

necessarily a fact-specific inquiry that involves more than just




                                 - 9 -
a consideration of the elements of the two offenses. Factors such

as the temporal and geographical proximity of the two offenses,

common victims, and a common criminal plan or intent also must be

considered."        United States v. Collazo-Aponte, 216 F.3d 163, 203

(1st Cir. 2000), vacated on other grounds, Collazo-Aponte v. United

States, 532 U.S. 1036 (2001) (internal quotation marks omitted).

In conducting this inquiry, we are mindful of the "important

limiting principle that not every drug transaction undertaken by

every drug trafficker is necessarily linked in a meaningful sense."

Bryant, 571 F.3d at 160 (internal quotation marks omitted).

              The record here provides insufficient reason to conclude

that   the    2013    Conviction      satisfies      either   prong   of   Section

1B1.3(a)(2).         The few facts that may be gleaned from the PSR

indicate only that Vicente was arrested while in possession of

prescription medications in Connecticut with an individual not

named as a co-conspirator in the instant case.                     This obviously

differs from the "scheme or plan" at issue in the present charge,

which involved a large scale interstate trafficking conspiracy to

move drugs from Connecticut to Maine, and we can discern no

"substantial connection" between the crimes on those facts.                       See

U.S.S.G. § 1B1.3 cmt. n.5(B)(i) ("For two or more offenses to

constitute     part       of   a   common   scheme    or   plan,   they    must    be

substantially connected to each other by at least one common

factor,      such    as    common    victims,   common     accomplices,     common


                                       - 10 -
purpose, or similar modus operandi.").     The factual distinctions

between those crimes also undercut any suggestion that they are

part of the same course of conduct.    The varying quantities in the

two charges in particular underscores the difference, as the record

indicates that the quantity of pills found in between his car seats

in 2012 (a "bottle," in Vicente's account) pales in comparison to

the amount of pills possessed by Vicente throughout the instant

offense, which evidently numbered in the thousands.       Moreover,

Vicente himself distinguished the conduct underlying the 2013

Conviction from the distribution scheme charged here, stating that

it "wasn't like making a sale with [the pills]."      From this, we

cannot see how the record supports a finding that the crimes were

part of a "single course of conduct, scheme, or plan," United

States v. Sklar, 920 F.2d 107, 111 (1st Cir. 1990); indeed, the

available facts seem to us to point in just the opposite direction.

          Vicente asserts additional facts in his brief, including

claims that the drugs in question were the same as those in this

case, came from the same source, and were meant for distribution.

He points to no support for these allegations and so they cannot

be meaningfully evaluated for veracity or relation to the offense

of conviction.    Even taken as true, however, the additional,

completely unsupported facts advanced by Vicente in his brief are

insufficient to show error, let alone plain error, in the district

court's determination that the state offense was not relevant to


                              - 11 -
the federal conspiracy.   Accordingly, we find no error and thus no

basis to conclude that the district court erred in treating the

2013 Conviction as a prior sentence for purposes of determining

Vicente's criminal history category.9

                          III.    Conclusion

          For   the   foregoing    reasons,   we   AFFIRM   the   sentence

imposed on the appellant.




     9 Vicente also challenges the addition of two points under
Section 4A1.1(d) for committing the offense while under a criminal
justice sentence, namely the probation resulting from the 2013
Conviction. This challenge fails for the reasons set forth above.
The Guidelines define "a 'criminal justice sentence' [as] a
sentence countable under § 4A1.2 . . . ." U.S.S.G. § 4A1.1 cmt.
n.4. Because the 2013 Conviction was properly considered under
Section 4A1.2, the imposition of two points for committing the
crime while under a "criminal justice sentence" pursuant to Section
4A1.1(d) was also proper.


                                  - 12 -
