          United States Court of Appeals
                        For the First Circuit


No. 17-2197

                      UNITED STATES OF AMERICA,

                              Appellee,

                                  v.

                            MICKEY GILLEY,

                        Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

              [Hon. Nancy Torresen, U.S. District Judge]


                                Before

                    Thompson, Boudin, and Barron,
                           Circuit Judges.


     Andrew Levchuk and Bulkley, Richardson and Gelinas, LLP on
brief for appellant.
     Halsey B. Frank, United States Attorney, and Renée M. Bunker,
Assistant United States Attorney, Appellate Chief, on brief for
appellee.


                          December 19, 2018
              BOUDIN,    Circuit      Judge.        Mickey    Gilley     pled   guilty

pursuant to a plea agreement to one count of distribution of heroin

and   fentanyl.         21   U.S.C.    §    841(a)(1),     (b)(1)(C).       The    plea

agreement included a stipulated sentencing range of 132 to 180

months that bound the district court upon its acceptance of the

agreement. The district court accepted the agreement and sentenced

Gilley   to    168     months.        Gilley   now    appeals     his    sentence    as

substantively unreasonable.

              On September 20, 2016, Gilley and a friend traveled to

Portland, Maine, and bought $100 worth of heroin (approximately

one gram).      Half was for Gilley and Gilley's girlfriend, K.W., to

share.   During the drive back to Bath, Maine, where Gilley lived,

Gilley was in contact with K.W. and used some of the heroin.

              After arriving at K.W.'s apartment, Gilley and K.W., who

had been drinking, used the heroin.                Eventually, K.W. went to bed.

Approximately forty-five minutes later, Gilley lay down next to

K.W. and found her unresponsive.               Gilley fell asleep.

              Gilley    awoke    two       hours   later     to   find   K.W.     still

unresponsive.        He rolled her over, and blood came out of her nose

and mouth.       He "freaked out" and dumped water on her.                      Gilley

called his brother, Christopher, who told him to start CPR.                       After

calling Christopher, Gilley moved K.W. to the shower and let water

run on her.       After Christopher arrived, Christopher called 911.




                                           - 2 -
Gilley left the apartment and took his and K.W.'s daughter to a

neighbor's apartment.

            Gilley failed to immediately call 911 and left the

apartment after his brother arrived because Gilley was subject to

two sets of bail conditions that prohibited him from having contact

with K.W.    Cell phone records indicate that about forty-five to

ninety minutes elapsed from the time Gilley started talking with

Christopher to the time Christopher called 911.

            A medical examiner determined after an autopsy that K.W.

died of acute intoxication from the combined effects of fentanyl,

heroin,   and   ethanol.   In   grand   jury   testimony,   Maine   Drug

Enforcement Agency Agent Chad Carleton suggested that the heroin

was actually a mixture of heroin and fentanyl.

            On July 26, 2017, Gilley was charged in a two-count

superseding indictment with distribution of heroin and fentanyl

resulting in death (Count 1) and distribution of heroin and

fentanyl (Count 2).    21 U.S.C. § 841(a)(1), (b)(1)(C).

            On August 1, 2017, pursuant to a written plea agreement,

Gilley pled guilty to Count 2, while the government agreed to

dismiss Count 1, which carried a twenty-year statutory minimum

sentence.    21 U.S.C. § 841(b)(1)(C).     For Count 2, the parties

agreed to recommend a sentence between 132 and 180 months, a

recommendation that bound the district court if the judge accepted

the plea agreement.    Fed. R. Crim. P. 11(c)(1)(C).


                                - 3 -
          The    agreement       also         contained        a   non-binding

recommendation   that    the    court        find     that    Gilley   accepted

responsibility for the offense and that his offense level should

be reduced accordingly.        Further, the parties stipulated that

Gilley distributed a mixture containing heroin and fentanyl to

K.W. and that K.W. died as a result of using the substance.

Finally, Gilley waived the right to appeal the guilty plea and a

sentence of imprisonment that did not exceed 156 months.

          The Presentence Report ("PSR") held Gilley accountable

for one gram of a mixture containing heroin and fentanyl, giving

Gilley a base offense level of twelve.              The PSR added two offense

levels for obstruction of justice and subtracted two offense levels

for Gilley's acceptance of responsibility.1                  The total offense

level was twelve.

          According     to     the    PSR,     Gilley's        fourteen   prior

convictions resulted in five criminal history points, yielding a

criminal history category ("CHC") of III.                    His past criminal

conduct included incidents of domestic violence against K.W. and


     1 The PSR relied on three facts to justify the obstruction-
of-justice enhancement: First, Gilley called his brother, rather
than 911, when he found K.W. unresponsive; second, due to his bail
conditions, Gilley concealed that he was at K.W.'s apartment; and
third, officers found no evidence of drugs or drug paraphernalia
in K.W.'s apartment, although Gilley admitted he and K.W. used
drugs that evening, suggesting evidence was removed from the
apartment.   At the same time, the PSR concluded that Gilley's
pleading guilty and expressing remorse warranted the reduction for
acceptance of responsibility.


                                     - 4 -
witness-tampering and victim-contact charges based on Gilley's

discouraging   K.W.   from   contacting   the   police   after   domestic-

violence incidents.

          Given a total offense level of twelve and a CHC of III,

the PSR recommended an imprisonment range of fifteen to twenty-

one months.    It further said departure from the range might be

warranted because death resulted from the offense, U.S.S.G. §

5K2.1, and to reflect the actual seriousness of the offense based

on Gilley's conduct underlying the dismissed charge, id. § 5K2.21.

          Defense counsel argued that the district court should

consider the range stipulated in the plea agreement and sentence

Gilley to 132 months in prison, the range's lower bound.          Counsel

explained that Gilley and K.W. were heroin addicts who had relapsed

shortly before this incident; K.W. chose to engage with Gilley and

use drugs; and Gilley, who used the same batch of heroin, was

unaware the heroin was mixed with fentanyl.         Counsel cited state

and federal cases to show that a 132-month term represented an

appropriate sentence.

          The government argued for a sentence of 180 months, the

top of the stipulated range.       The government stressed Gilley's

prior acts of domestic violence, his contact with K.W. in breach

of his then-existing bail conditions, his criminal conduct on that

occasion, and his failure to call 911 when finding K.W. non-




                                 - 5 -
responsive.         The    government      opposed     the    PSR's    recommended

obstruction-of-justice enhancement.

            At sentencing on December 5, 2017, the district court

accepted the binding plea agreement.             The court declined to apply

the obstruction-of-justice enhancement, and it computed a total

offense level of ten and CHC of III, yielding a guidelines range

of ten to sixteen months.            The court recognized that the plea

agreement's stipulated range was "considerably higher" than the

guidelines range, but in exchange, the government had agreed to

dismiss the Count 1 charge that carried a twenty-year mandatory

minimum.

            The court sentenced Gilley to 168 months in prison, a

sentence    that    fell   within    the    range     stipulated      in    the   plea

agreement (132 to 180 months) as well as between the defense

counsel's     recommendation       (132     months)     and   the     government's

recommendation (180 months).          Gilley now claims that the sentence

is substantively unreasonable.

            At the outset, the government says that our jurisdiction

is    "questionable,"      given   that    the   district     court    imposed      an

imprisonment term within the range stipulated in the plea bargain.

The    government    suggests      that    section    3742(c),      which    governs

appellate review of Rule 11(c)(1)(C) plea agreements, may bar our

review of Gilley's sentence:              "In the case of a plea agreement

that includes a specific sentence under [Rule 11(c)(1)(C)] . . .


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a defendant may not [make certain arguments on appeal] unless the

sentence imposed is greater than the sentence set forth in such

agreement . . . ."    18 U.S.C. § 3742(c).2   Because the district

court imposed a sentence within the range stipulated in Gilley's

Rule 11(c)(1)(C) plea agreement, the government contends that

Gilley may not appeal--and so this court may not review--his

sentence.

            Gilley's plea agreement included a waiver of the right

to appeal "[a] sentence of imprisonment that does not exceed 156

months," and the colloquy during Gilley's change-of-plea hearing

implied that Gilley retained a right to appeal any sentence greater

than 156 months.   The sentence imposed exceeded this limit.   Even

if we are mistaken that Gilley retained the right to appeal under

these circumstances, the mistake will prove harmless because the

appeal is itself without merit.

            Gilley's sole claim on appeal is that the district

court's 168-month sentence is substantively unreasonable.       At

sentencing, defense counsel failed to object to the sentence

imposed by the district court.    Whether our review is for plain

error or abuse of discretion, a matter of some debate, United




     2 Federal Rule of Criminal Procedure 11 has been reorganized.
Fed. R. Crim. P. 11 advisory committee's note to 2002 amendment.
Section 3742(c) refers to Rule 11(e)(1)(C), which is now Rule
11(c)(1)(C), the basis for Gilley's plea agreement.


                               - 7 -
States v. Millán-Román, 854 F.3d 75, 80–81 (1st Cir. 2017),

Gilley's sentence is substantively reasonable.

             Although the district court's 168-month sentence is

within the range stipulated in the plea agreement, Gilley claims

the court should have sentenced him to the stipulated range's lower

bound.    To    this    end,    Gilley      argues      that   the   district     court

overlooked, or failed to give sufficient weight to, a number of

considerations.

             First,    Gilley    says      that   the    district    court   ignored

K.W.'s own contributions to her death.               Indeed, the district court

did not expressly point to K.W.'s culpability as a mitigating

factor.   A district court, however, "is not required to address

frontally every argument advanced by the parties . . . ."                       United

States v. Turbides-Leonardo, 468 F.3d 34, 40 (1st Cir. 2006).                      And

the implicit premise of Gilley's argument is mistaken:                          K.W.'s

contribution does not necessarily make Gilley's conduct any more

tolerable.

             The court, properly, focused on Gilley's culpability.

The court acknowledged Gilley was "not a big drug dealer" and

"didn't have any reason to believe . . . [the heroin] had fentanyl

in it" but faulted Gilley for choices wholly within his control:

his   failure   to     call    911   and    his   failure      to    obey   his    bail

conditions.




                                        - 8 -
          Second, Gilley attempts to downplay his failure to call

911, explaining that "[t]here is . . . no evidence in the record

to show that a prompt call to 911 would have saved K.W."    Yet the

aggravating nature of Gilley's failure to call is not simply the

possibility that the call could have saved K.W.; rather, it is

that the failure to call is evidence that Gilley valued his

immediate liberty over K.W.'s life.

          Third, Gilley claims the district court erred in making

"the history of domestic abuse such an important factor" because

"no nexus" exists between the domestic violence and K.W.'s death.

The court, however, made the nexus plain at sentencing:    The fact

that Gilley failed to call 911, placing his liberty ahead of K.W.'s

life, was, in the court's words, "somewhat predictable" given

Gilley's history of abusing K.W.

          The significant weight the court assigned the history of

domestic abuse, chiefly within its discretion, United States v.

Clogston, 662 F.3d 588, 593 (1st Cir. 2011), was supported by the

court's conclusion that Gilley "controlled and abused" K.W., a

factual determination this court reviews for clear error.   United

States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013).

Gilley's phone calls urging K.W. to hide her injuries from the

police when he was in jail facing domestic-violence charges are a

further aggravation.




                              - 9 -
             Fourth, Gilley asserts the court ignored letters from

Gilley's family and friends that spoke to his positive attributes

and reports from professional treatment providers that concluded

Gilley represents a good candidate for rehabilitation.               But this

claim   contradicts      the   court's        express   statement    that   it

considered, among other things, the letters on Gilley's behalf,

the parties' sentencing memoranda, and the parties' arguments at

the sentencing hearing.

             Further, the 168-month sentence, although severe, was

less than the government's recommended sentence and below the top

of the range that bound the court.            The court had no obligation to

accept the parties' request, and the judge could easily have chosen

to impose a stiffer sentence.            We can comfortably conclude the

district   court,   in   opting    for    a    less-than-maximum    sentence,

considered these mitigating factors.

             Fifth, Gilley argues that the district court violated

the parsimony principle--the overarching sentencing requirement

that courts impose sentences sufficient, but not greater than

necessary,    to   comply   with   the    purposes      of   sentencing.    In

particular, Gilley claims the district court took "insufficient

note" of "similar" federal and state cases in which, in Gilley's

view, "substantially less severe sentences had been imposed for

similar conduct."




                                   - 10 -
          To the contrary, the district court not only noted the

cases   Gilley    offered    as      analogues     but     also     explicitly

distinguished those cases from Gilley's case.              Recognizing that

144 months represented the highest sentence in the allegedly

comparable cases, the court pointed out that those cases did not

have "the overlay of domestic violence" present in Gilley's case.

          Aside from offering comparable cases, Gilley asserts

that the district court violated the parsimony principle because

the three additional years "will do nothing to protect the public,"

and Gilley has already demonstrated genuine remorse and began his

rehabilitation.    This argument, however, ignores other sentencing

purposes--such    as   reflecting    the     seriousness   of     the   offense,

providing just punishment, and affording adequate deterrence--that

section 3553 demands a district court consider.                   18 U.S.C. §

3553(a)(2).

          In sum, Gilley's arguments boil down to a disagreement

with the weight the court assigned particular factors, a task which

is "largely within the [sentencing] court's informed discretion."

Clogston, 662 F.3d at 593. Here, the history of abuse, the failure

to seek timely help, and the callous selfishness of Gilley's

behavior amply justify the sentence imposed.

          Affirmed.




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