United States of America v. Paul Ford

As part of a plea bargain, Paul Ford pled guilty to two

felonies: conspiring — from 2006 to November 2011 — with James

F., Darlene, and James T. Ford (Paul's father, mother, and brother)

to manufacture 100 or more marijuana plants, and manufacturing —

in November 2011 — 50 or more marijuana plants on his own. See 21

U.S.C. §§ 841(a)(1), 846.1 The district court sentenced him to 46

months in prison — at the very bottom of the court-calculated

guidelines range — and he now appeals, claiming that the term

imposed is both procedurally and substantively unreasonable.

Because it is neither, we affirm, with these briefest of comments.2

1 "Grow" would be a better word than "manufacture," but the statute

uses "manufacture." See DeBartolo v. United States, 790 F.3d 775,

777 (7th Cir. 2015) (Posner, J.) (making that very point).

2 Four quick heads up:

First: Ford agreed to waive his appeal rights, but only if

the court sentenced him to a prison term "that does not exceed

twelve months and one day." Because the sentence exceeded that

limit, the government concedes that Ford's appeal waiver does not

apply. And so we decide this appeal on the merits. See United

States v. Serrano-Mercado, 784 F.3d 838, 841 n.1 (1st Cir. 2015)

(taking that tack in a similar situation).

Second: As is customary in cases like this, we pull the facts

from the plea agreement, the undisputed parts of the pre-sentence

investigation report, and the transcripts of the change-of-plea

and sentencing hearings. See, e.g., United States v. Romero-

Galindez, 782 F.3d 63, 65 n.1 (1st Cir. 2015).

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Procedural-Reasonableness Claims

Paul first complains about the amount of drugs the court

attributed to him, an amount that helped set the base offense level

for the guidelines range. The district court held him responsible

for at least 100 but less than 400 kilograms of marijuana. So

long as a preponderance of the evidence supports that finding, a

reasonable estimate will suffice. See, e.g., United States v.

Mills, 710 F.3d 5, 15 (1st Cir. 2013). And because he attacks the

court's factfinding, our review is for clear error, id. — i.e.,

meaning we will reverse only if the court was "wrong with the force

of a 5 week old, unrefrigerated, dead fish," see Toye v. O'Donnell

(In re O'Donnell), 728 F.3d 41, 46 (1st Cir. 2013) (quoting S

Indus., Inc. v. Centra 2000, Inc., 249 F.3d 625, 627 (7th Cir.

2001)).

Paul basically concedes responsibility for 96.435

kilograms of marijuana. He gets that number this way: he takes

28.942 kilograms seized from his parents' house (all the Fords

Third: Because there are four Fords — Paul, James F.,

Darlene, and James T. — we will use first names from here on (we

intend no disrespect).

Fourth: We review preserved challenges to both the procedural

and substantive reasonableness of a sentence for abuse of

discretion, though we assess the district court's factfinding for

clear error. See United States v. Razo, 782 F.3d 31, 36 (1st Cir.

2015).

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were there when agents executed a search warrant, by the way),

adds 5.493 kilograms taken during a consented-to search of his

house, and tacks on 62 kilograms based on drug ledgers — showing

income from October 2009 to October 2011 — seized from his parents'

house. As Paul sees things, the evidence left him 3.565 kilograms

short of the 100 kilogram threshold, which, the argument continues,

put him in a lower base offense level.

We see the things differently, and for a simple reason.

Record evidence shows that James F. told agents two important

things: first that he grew 11.25-13.5 pounds — or 5.103-6.123

kilograms — of marijuana about every 9 weeks, and second that he

was about to complete "harvest" number "38" when the Fords got

nabbed. Record evidence — James F.'s October 2011 email saying

Paul has been a "dependable worker" since moving into "Dana

Skinner's" house (we don't know who "Dana Skinner" is) and Paul's

November 2011 comments to agents that he had been living at Dana's

for 3-4 years — supportably shows that Paul was involved with the

Ford family conspiracy at least as far back as 2007 or 2008. So

putting all this together, taking, say, just one "harvest" of 5.103

kilograms (the lower number given by James F.) in 2007 or 2008

puts the kilogram tally at 101.538 (96.435 — the number Paul says

the "court could have and should have" stopped at — plus 5.103

equals 101.538).

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Seeking a way around this conclusion, Paul principally

argues that the marijuana amount needed to reach the 100 kilogram

mark was not reasonably foreseeable to him. But the court held

him responsible for drugs he helped produce — after all, as the

court expressly noted, Paul unequivocally admitted at the changeof-

plea hearing that he and other coconspirators "planted, tended,

harvested, processed and packaged the marijuana" at his home and

his parents' (that concept was contained in the government's

version of events, to which he agreed). So the "reasonable

foreseeability" concept holds no sway here, because "[a] defendant

simply cannot be heard to complain that he could not reasonably

foresee acts that he himself engineered." United States v. Conley,

156 F.3d 78, 85 (1st Cir. 1998).

Paul next blasts the court for not giving him a 2-level

reduction in his offense level as a (supposed) "minor participant"

in the conspiracy. See USSG § 3B1.2(b) (2012 version). The

burden, though, is on him to prove by a preponderance of the

evidence that he is both less culpable than (a) most of those

involved in the conspiracy and (b) most of those who have done

similar crimes. See, e.g., United States v. Meléndez-Rivera, 782

F.3d 26, 28 (1st Cir. 2015).3 Absent a mistake of law — and we

3 See generally USSG § 3B1.2 cmts. 5 and 4 (explaining that a

"minor participant" is one who is "less culpable than most other

participants, but whose role [can]not be described as minimal,"

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see none here — we review for clear error, knowing that, given

this deferential standard, role-in-the-offense battles "will

almost always be won or lost in the district court." Id. (quoting

United States v. Garciani, 61 F.3d 70, 75 (1st Cir. 1995)).

Hoping to find clear error, Paul accuses the district

court of not comparing his part in the conspiracy with his

parents'. The charge falls flat, however. The sentencing

transcript shows that the court focused (for example) on how the

parents, and not Paul, sold the marijuana, while Paul — as he

himself acknowledged — grew and "took care of the marijuana."

Well, then, says Paul, he should have gotten a minor-role

adjustment because he was not as critical to the scheme as his

drug-peddling parents. But that is a false contrast, for as we

have said many times, one "need not be the key figure" in a criminal

plan "to be denied a mitigating role-in-the-offense adjustment."

Meléndez-Rivera, 782 F.3d at 29. Just as devastating to his

position is the fact that he makes no effort to show how he is

less culpable than the "mine-run" of wrongdoers "who have committed

similar crimes" — perhaps that is because we have routinely upheld

the denial of a minor-participant adjustment for defendants less

involved in drug conspiracies than Paul. See id. (highlighting

with "minimal" reserved for a "participant" who is "plainly among

the least culpable of those involved in the conduct of the group").

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cases affirming an adjustment denial where a defendant's only role

in the scheme was driving a truck with drugs, unloading drugs, or

standing guard).

Having found no procedural error in what the district

court did, we now check the sentence for substantive

reasonableness, keeping in mind that a sentence is substantively

reasonable if it reflects a plausible rationale and a defensible

result. United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008).

Substantive-Reasonableness Claims

Paul thinks his 46-month sentence (again, the lowest

term in the guidelines range) is far too long, for four reasons —

none of which we accept.

For starters Paul says that he should have caught a break

because "marijuana is now legal" in some states. But that argument

goes nowhere, because manufacturing marijuana is still a crime

under federal law. See 21 U.S.C. § 841(a)(1).

Next Paul faults the district court for considering

"previously dismissed charges" in perusing his criminal history —

criminal history is a sentencing factor under 18 U.S.C. § 3553(a).

But he does not back up his claim with any authority, nor does he

give us any meaningful discussion on this issue. So the claim is

waived. See, e.g., Ahmed v. Holder, 611 F.3d 90, 98 (1st Cir.

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2010) (stressing that "appellate arguments advanced in a

perfunctory manner, unaccompanied by citations to relevant

authority, are deemed waived"); see also United States v. Zannino,

895 F.2d 1, 17 (1st Cir. 1990) (similar).

Also insubstantial is Paul's claim that the district

court jacked up his sentence because of firearms found in his

parents' home. Yes, probation did recommend a firearms enhancement

in calculating Paul's offense level. But the government did not

ask for that enhancement. Undaunted, Paul identifies this comment

from the district court at sentencing as the best indication that

the firearms still influenced the sentence:

Although there were firearms at the defendant's parents'

residence, the court — the government has agreed not to

press the firearms enhancement as the defendant — the

court knows the defendant has pleaded guilty and it saves

the government the expense and turmoil at trial.

But neither this nor any other statement by the court leaves us

with "a definite and firm conviction" (the usual abuse-ofdiscretion

standard) that the enhancement played any role improper

in Paul's sentence. See generally United States v. Joubert, 778

F.3d 247, 253 (1st Cir. 2015) (internal quotation marks omitted)

(defining abuse of discretion).

Last but not least, we can make quick work of Paul's

final contention — that "the district court spent entirely too

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much time" talking about "the Ford family's 'bizarre' dynamic."

True, the court did spotlight Paul's "unusual family" — mentioning

(for example) how his "growing up" with marijuana being the family

business's stock-in-trade makes it "not surprising that [he]

thought it was normal to follow [his] parents' footsteps." But

the court made these comments in the context of discussing Paul's

drug history and what sentence might deter him — both legitimate

§ 3553(a) factors. See, e.g., United States v. Tavares, 705 F.3d

4, 32 (1st Cir. 2013). Within wide limits, it is up to the district

court to decide how much weight to give each relevant § 3553(a)

factor in a particular case. See United States v. Maguire, 752

F.3d 1, 7 (1st Cir. 2014); United States v. Clogston, 662 F.3d

588, 592-93 (1st Cir. 2011). And unfortunately for Paul, in

attacking his within-guidelines sentence he has not offered the

required "powerful mitigating reasons" needed to convince us that

the court unreasonably balanced those factors here — which makes

his ultimate claim a no-go too. See Clogston, 662 F.3d at 592-93

(internal quotation marks omitted).

The bottom line then is that Paul's substantive reasonableness

arguments — like his procedural-reasonableness ones

— fail because we find no abuse of discretion.

Our work over, we affirm Paul's sentence.