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United States v. Jones

United States Court of Appeals, First Circuit

February 20, 2015

BYRON JONES, Defendant, Appellant

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Jonathan Shapiro, with whom Harley C. Racer and Stern, Shapiro, Weissberg & Garin, LLP were on brief, for appellant.

Kelly Begg Lawrence, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

Before Selya, Circuit Judge, Souter,[*] Associate Justice, and Lipez, Circuit Judge.


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SELYA, Circuit Judge.

Following a failed motion to suppress, defendant-appellant Byron Jones pleaded guilty to an array of drug-trafficking charges. The defendant now challenges both his conviction and his 135-month sentence. His appeal requires us, inter alia, to construe and apply for the first time a sentencing enhancement for maintaining a premises for the purpose of manufacturing or distributing drugs. See U.S.S.G. § 2D1.1(b)(12). After careful consideration of all the issues against the backdrop of a scumbled record, we affirm.


We briefly rehearse the genesis and travel of the case. In the fall of 2011, a Cape Cod drug dealer (whom for simplicity's sake we shall call CW) was under the watchful eye of the Drug Enforcement Administration (DEA). On November 7, local police observed CW meeting the defendant at an apartment in Fall River, Massachusetts before selling crack cocaine to a confidential informant. The surveillance team later saw the defendant's alleged coconspirator, Meaghan Murphy, enter and leave the apartment on several occasions.

Aware that the defendant previously had been convicted of drug-peddling charges,

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the DEA began monitoring the apartment. On November 21, the authorities saw CW meet Murphy at the apartment and then sell crack cocaine to an undercover police officer. CW again met Murphy at the apartment on December 8. Immediately after this meeting, police officers detained CW and seized 63 grams of crack cocaine. At this point, CW began cooperating with the DEA.

On three occasions between December 15, 2011 and January 24, 2012, agents directed CW to contact the defendant by text message to set up controlled buys. These messages resulted in two sales by Murphy and one sale by the defendant himself. During two of the transactions, a video recording device captured footage of Murphy or the defendant retrieving drugs from a cooler inside the apartment.

On January 24, 2012, DEA agents, armed with search and arrest warrants, entered the apartment, found the defendant there, and arrested him. The ensuing search recovered over 600 grams of crack cocaine, nearly 500 grams of powdered cocaine, and extensive evidence that crack was being cooked and packaged on site.

In due season, a federal grand jury indicted Murphy and the defendant. The indictment charged the defendant with conspiracy to distribute controlled substances, possession of controlled substances with intent to distribute,[1] and three specific offense counts reflecting particular crack sales. See 21 U.S.C. § § 841(a)(1), 846.

The defendant initially maintained his innocence and, in view of his indigency, a magistrate judge appointed counsel to represent him. See 18 U.S.C. § 3006A. Within a matter of weeks, the defendant moved for the appointment of new counsel, accusing his original lawyer of failing to raise certain issues during detention proceedings. On March 23, 2012, the magistrate judge granted the motion and replaced the first attorney with a second court-appointed attorney.

Slightly more than four months went by before the defendant again requested new counsel, this time citing a failure to communicate. Once again, the magistrate judge obliged, replacing the second appointed attorney with yet a third appointed attorney (Daniel Cloherty).

Based on the travel of the case, the district court anticipated that the defendant would file a motion to suppress by March 15, 2013. Instead, Attorney Cloherty moved to withdraw, asserting that there had been an irreparable breakdown in the lawyer-client relationship. The district court probed this assertion over two days of hearings. After determining that Attorney Cloherty and the defendant were communicating well enough to enable them to mount an adequate defense, the court denied the motion. Notwithstanding warnings from the court about the perils of self-representation, the defendant elected to proceed pro se on the motion to suppress (with Attorney Cloherty as standby counsel).

The defendant proceeded to file his suppression motion. Following an evidentiary hearing, the court rejected it. The defendant thereafter relinquished his pro se status and Attorney Cloherty resumed his role as defense counsel.

Eventually, the government and the defendant entered into a written plea agreement (the Agreement). The Agreement provided that the defendant would plead guilty to all five counts in exchange for the government's

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withdrawal of a sentence-enhancing information. See 21 U.S.C. § 851.

At the change-of-plea hearing, the court advised the defendant of the charges against him. The subsequent colloquy revealed that the defendant had a partial college education, knew how to read and write, and had read and understood the indictment and the Agreement. At the court's direction, the government recounted the factual basis for the charges. The prosecutor described the events leading up to the three controlled buys, the buys themselves, the search of the apartment, and the circumstances of the defendant's arrest. When the court asked the defendant whether he disagreed with any part of this factual narrative, he replied that he did not. The court then read the indictment aloud, and the defendant pleaded guilty to each and every count.

Following the defendant's plea to the conspiracy charge,[2] the court asked, " So you and Meaghan Murphy were in a conspiracy to distribute crack?" The defendant responded in the affirmative.

The disposition hearing proved to be contentious. The presentence investigation report recommended a two-level enhancement for maintaining the apartment as a stash house. See U.S.S.G. § 2D1.1(b)(12). It also recommended adding two points to the defendant's criminal history score for committing the offenses of conviction while on supervised release following his incarceration for an earlier crime. See id. § 4A1.1(d). The district court resolved both disputed sentencing issues against the defendant. These rulings combined to elevate the defendant's guideline sentencing range (GSR) to 135-168 months.[3]

The court sentenced the defendant to a bottom-of-the-range incarcerative term of 135 months. This timely appeal ensued.


The defendant's counseled brief, filed by new appellate counsel, advances three principal claims of error. In addition, the defendant has filed a pro se brief. We consider the claims set forth in the defendant's counseled brief one by one and then deal with ...

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