USA v. PERRY

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
UNITED STATES OF AMERICA 	)
)
v. 	) 	No. 1:19-cr-00088-JAW
)
DAMIAN PERRY 	)
SENTENCING ORDER
A 	defendant 	asserts 	that 	the 	Court 	should order 	a 	sentence 	that 	runs
concurrently and has the same terms as a sentence he is currently serving for a
federal conviction in Connecticut. 	In his view, his requested sentence is just, based
on his constitutional right to be free from successive punishments for the same
offense under the double jeopardy clause. The Court concludes that the consideration
of uncharged conduct at the defendant’s Connecticut sentencing is not punishment
within the scope of the double jeopardy clause, and there is no constitutional
violation. 	The Court will address the question of a just sentence at the sentencing
hearing when it evaluates the factors under 18 U.S.C. § 3553(a).
I. 	BACKGROUND
A. 	Procedural Background
On May 15, 2019, a grand jury returned a two-count indictment as to Damian
Perry, charging Mr. Perry with 1) possession with intent to distribute controlled
substances, 	in 	violation 	of 	21 	U.S.C. 	§ 	841(a)(1), 	and 	2) 	unlawful 	use 	of 	a
communication facility, in violation of 21 U.S.C. § 843(b). 	Indictment (ECF No. 1).
On July 18, 2019, Mr. Perry and the Government filed with the Court a plea
agreement that they entered into, in which Mr. Perry agreed to plead guilty to the
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Indictment. Agreement to Plead Guilty (with Stipulations and Appeal Waiver) (ECF
No. 17) (Plea Agreement). On August 19, 2019, Mr. Perry appeared before the Court
and pleaded guilty. 	Min. Entry (ECF No. 23). 	On November 26, 2019, the United
States Probation & Pretrial Services Office (PO) prepared a presentence investigation
report, which was revised on February 21, 2020 and again on July 10, 2020. 	2 nd
Revised Presentence Investigation Report (ECF No. 52) (PSR).
On June 26, 2020, the Government filed its sentencing memorandum. Gov’t’s
Mem. in Aid of Sentencing (ECF No. 50) (Gov’t’s Sentencing Mem.). 	On October 8,
2020, after two unopposed motions to extend time, Mr. Perry filed his sentencing
memorandum. Mem. in Aid of Sentencing (ECF No. 71) (Def.’s Sentencing Mem.). On
October 13, 2020, Mr. Perry filed an additional sentencing memorandum under seal.
Sealed Mem. in Aid of Sentencing (ECF No. 73) (Def.’s Sealed Sentencing Mem.). On
October 19, 2020, the Government filed a reply memorandum. Gov’t’s Reply Mem. in
Aid of Sentencing (ECF No. 76) (Gov’t’s Reply Sentencing Mem.).
B. 	Factual Background1
1. 	The Offense Conduct
No later than October 2015, law enforcement began investigating a drug
trafficking organization (DTO) led by Luis Padilla and Damian Perry in Penobscot
1 	The Court relies on the PSR to determine whether the double jeopardy law meets the facts
outlined there. The Court notes that Mr. Perry and the Government have filed multiple exhibits. The
Court does not rely on the exhibits in writing this Order, except to the extent the exhibits reflect what
is a matter of public record in the Connecticut and Maine district courts because the Court does not
know the extent to which, if at all, the parties object to the other’s exhibits. At the sentencing hearing,
the Court will offer counsel an opportunity to argue the facts in their exhibits, and after hearing
counsel, the Court will make further findings as necessary about the nature of the conspiracy—
namely, whether it was the same or a different conspiracy that Mr. Perry was involved in during
2017—based on the exhibits and the PSR.
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County, Maine. 	PSR ¶ 8. 	The investigation, which included controlled buys,
surveillance, and the interviews and Grand Jury testimony of confidential sources,
revealed the DTO was transporting large quantities of heroin and cocaine base from
Waterbury, Connecticut to Penobscot County for distribution. 	Id. 	Local so-called
“trap houses,” the name in the drug trafficking world for houses where drug deals
take place, were used to facilitate the distribution, and the DTO paid the owners of
the trap houses with drugs. Id. The DTO also had several “runners” who distributed
drugs on behalf of the DTO and were compensated with money and/or drugs. 	Id.
Some runners, in exchange for drugs, made resupply trips to Connecticut to bring
drugs to Maine for the DTO to distribute. Id.
In early 2016, Mr. Perry became involved with the conspiracy. 	Id. ¶ 9. 	He
distributed heroin and cocaine base from various residences in Maine, and Mr. Perry
compensated the owner of each residence with heroin, cocaine base, or money for
allowing him and others to stay. Id. The DTO stationed individuals at trap houses
and 	the 	DTO 	provided 	heroin 	and 	cocaine 	base 	for 	distribution 	with 	the
understanding that they would return a portion of the drug proceeds to Mr. Perry
and Mr. Padilla. 	Id. 	Based on his recruitment of trap houses, his supervision of
runners to deliver drugs on his behalf, and his organization of resupply trips to
Maine, the PO concluded that Mr. Perry was a joint leader of the conspiracy with
Mr. Padilla. Id.
Based on the interviews and Grand Jury testimony of multiple confidential
sources, the PO calculated that the DTO made at least seventeen resupply trips from
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Connecticut to Maine with an estimated one hundred grams of cocaine and one
hundred grams of heroin for each trip between April 1, 2016 and November 30, 2016.
Id. ¶¶ 10-11. Thus, the PO attributed a total of 1,700 grams of crack and 1,700 grams
of heroin to the DTO. Id.
On December 7, 2016, a federal grand jury in the District of Connecticut
returned a three-count indictment against Mr. Perry, charging him with 1) conspiracy
to 	distribute 	and 	to 	possess 	with 	intent 	to 	distribute 	controlled 	substances,
2) possession with intent to distribute twenty-eight grams or more of cocaine base,
and 3) possession with intent to distribute heroin. 	United States v. Damien Perry,
16-cr-00205-VLB, Indictment (ECF No. 13).2 On December 15, 2016, Mr. Perry was
arrested and released the same day on an unsecured $25,000 bond. 	PSR ¶¶ 1, 12.
On March 29, 2017, Mr. Perry pleaded guilty to Count 1 of the indictment—
conspiracy—pursuant to a plea agreement. 	United States v. Damien Perry, 16-cr-
00205-VLB, Min. Entry (ECF No. 78); id., Plea Agreement (ECF No. 81).
At some point following his release on bail, Mr. Perry resumed his participation
in 	this 	DTO 	conspiracy, 	distributing 	drugs 	from 	Connecticut 	in 	Maine. 	One
confidential source, CS-11, testified that he met Mr. Perry in May or June 2017 and
made a trip to Connecticut on Mr. Perry’s behalf, returning to Maine with fifty grams
2 	The case caption of the Connecticut case lists Mr. Perry’s name as “Damien Perry,” whereas
the case caption of the instant case spells his name “Damian Perry.” It appears both parties and the
court in the Connecticut case spelled his name “Damien.” However, Mr. Perry attached two support
letters to his sentencing memorandum in Connecticut that were written by Mr. Perry’s grandparents
and his mother, who spell his name “Damian.” See United States v. Damien Perry, 16-cr-00205-VLB,
Damien Perry’s Mem. in Aid of Sentencing, Attachs. 1-2 (ECF No. 216). Assuming Mr. Perry’s own
mother and grandparents know how to spell his name, the Court refers to Mr. Perry as “Damian
Perry.”
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of heroin. PSR ¶ 13. Wire transfers between another confidential source, CS-10, and
Mr. Perry show transfers of $1,507 in drug proceeds between June 11, 2017 and July
14, 2017. Id. ¶ 14. Split evenly between crack and heroin and using the conspiracy’s
rate of $100 per gram crack and $200 per gram heroin, the PO calculated 7.535 grams
of crack ($753.50/$100 per gram crack) and 3.7675 grams of heroin ($753.50/$200 per
gram heroin). Id.
On July 20, 2017, Mr. Perry instructed three members of the conspiracy to
travel to Connecticut and he placed a package of narcotics in their car, instructing
one of the females to conceal the drugs on her person. 	Id. ¶ 15. 	The police pulled
over the car during a traffic stop in New Hampshire. Id. After further investigation,
authorities discovered a large package of narcotics under one of the passenger’s
clothing, which laboratory analysis revealed to be 11.75 grams of crack and 130.441
grams of fentanyl. Id.
On August 21, 2017, a confidential informant placed an audio-recorded call to
Mr. Perry. Id. ¶ 16. During the conversation, Mr. Perry told the informant that he
had drugs that he wanted to bring to Maine, but he needed a location to sell the drugs,
and he asked the informant to find a place where he could stay for this purpose. Id.
This conduct serves as the basis for Count 2 of the indictment in this case. Id.
On September 1, 2017, police officers from Brewer, Maine responded to a hotel
management 	complaint 	about 	two 	guests—Mr. 	Perry 	and 	another 	individual,
Carletta Willette. Id. During a routine warrant check, the officers learned that there
was an outstanding warrant for Ms. Willette’s arrest, and they arrested her. 	Id. 	A
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search of her belongings incident to her arrest revealed 94.1098 grams of crack and
39 grams of heroin. 	Id. 	The September 1, 2017 incident is the conduct comprising
Count 1 of the instant offense of conviction. Id.
On September 8, 2017, Mr. Perry was arrested in the District of Connecticut
for charges stemming from the July 20, 2017 incident and detained. Id. ¶ 17. He was
charged federally in the District of Connecticut for this offense, but the case was
dismissed on May 28, 2020. Id. ¶¶ 15, 51A.
2. 	The Connecticut Conspiracy, 3:16-cr-00205-VLB
Returning to the Connecticut conspiracy charge, on December 7, 2016, a
federal grand jury in the District of Connecticut indicted Mr. Perry. The indictment
contained three counts. United States v. Damien Perry, 16-cr-00205-VLB, Indictment
(ECF No. 13). The first count alleged a drug trafficking conspiracy among Mr. Perry,
Luis Padilla and Cecil Stanley to distribute crack cocaine and heroin from October 1,
2016 to October 12, 2016. 	Id. at 1-2. 	The second count alleged that the three
defendants engaged in a specific instance of crack cocaine distribution on October 12,
2016. Id. at 2. The third count alleged that the three defendants engaged in a specific
incident of heroin distribution on October 12, 2016. Id. at 3. On December 15, 2016,
United States Magistrate Judge William I. Garfinkel released Mr. Perry on bail with
conditions, including that he not violate federal, state, or local law while on release.
Id., Order Setting Conditions of Release at 1 (ECF No. 24). 	On March 29, 2017, he
pleaded 	guilty 	to 	Count 	1 	of 	the 	indictment—conspiracy. 	Id., 	Findings 	and
Recommendation on a Plea of Guilty (ECF No. 83).
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On August 29, 2018, Mr. Perry appeared before Judge Vanessa Bryant for
sentencing. Id., Min. Entry (ECF No. 223). Judge Bryant dismissed counts two and
three of the indictment and sentenced Mr. Perry to ninety-two months imprisonment
on Count 1, four years of supervised release, and a special assessment of $100. Id.,
J. at 1-2 (ECF No. 224).
During sentencing, Judge Bryant considered the large amount of drugs
involved in the offense and Mr. Perry’s considerable criminal history, including
convictions for distribution of drugs and violence against women. 	Id., Tr. of
Sentencing Hearing at 15:18-16:11 (ECF No. 236) (Connecticut Sentencing Tr.).
Judge Bryant also considered the fact that Mr. Perry continued to sell drugs while on
bail, saying “[t]o continue to commit crimes while on pre-trial supervision, to choose
to leave the State of Connecticut in violation of a court order, to engage in criminal
activity after entering into a plea agreement, to make a mockery of the acceptance of
responsibility, requires a substantial sentence.” 	Id. at 16:18-24. 	She stated that
Mr. Perry, “not only having read the plea agreement, not only having had it explained
to him by his attorney, not only having had it explained to him by the judge and his
acknowledging his understanding of the terms of the plea agreement and the
conditions thereof, proceeded to go out and disqualify himself for the three-level
[acceptance of responsibility] reduction.” 	Id. at 17:24-18:5. 	She further said that
Mr. Perry had it within his control to demonstrate that he truly understood the
significance of his conduct and was a changed man, “[b]ut instead of doing that, he
chose to go out of the State of Connecticut and to put himself in a place where, more
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likely than not, he continued to do – or at the very least facilitate, which is no better
– the same conduct that brought him before the Court in the first instance. And those
decisions have consequences.” Id. 25:4-16.
3. 	The Maine Conspiracy, 1:18-cr-00098-JAW
On July 18, 2018, a federal grand jury in the District of Maine returned an
indictment to this Court, charging Mr. Perry and six other individuals, including Luis
Padilla, with conspiracy to distribute and to possess with intent to distribute
controlled substances, specifically crack cocaine and heroin, in violation of 21 U.S.C.
§ 841(a)(1) and § 846. United States v. Damian Perry, 18-cr-00098-JAW, Indictment
(ECF No. 2).
On October 16, 2018, Mr. Padilla moved to dismiss the conspiracy charge on
double jeopardy grounds. Id., Def.’s Mot. to Dismiss Double Jeopardy (ECF No. 145).
He argued that he previously pleaded guilty to a conspiracy charge for the same
conduct in the Connecticut conspiracy case. 	Id. at 2. 	On December 21, 2018, the
Court dismissed Mr. Padilla’s motion without prejudice, allowing him to refile with
more evidence. Id., Order on Def.’s Mot. to Dismiss (ECF No. 174). Mr. Padilla filed
a renewed motion to dismiss on February 14, 2019. 	Id., Def.’s Renewed Mot. to
Dismiss Double Jeopardy (ECF No. 200). 	On April 16, 2019, the Court granted
Mr. Padilla’s renewed motion to dismiss. Id., Order on Def.’s Renewed Mot. to Dismiss
(ECF No. 235). 	The Court concluded that the Government “failed to show it is not
prosecuting [Mr. Padilla] twice for the same crime.” Id. at 1.
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On 	July 	18, 	2019, 	Mr. 	Perry 	entered 	into 	a 	plea 	agreement 	with 	the
Government. 	Id., Agreement to Plead Guilty (with Stipulations and Appeal Waiver)
(ECF No. 292). In the agreement, Mr. Perry agreed to plead guilty to both counts of
the indictment in the instant case, 19-cr-00088-JAW, and the Government agreed to
dismiss the conspiracy charge against Mr. Perry at the time of sentencing. Id. at 1-
2.
4. 	The Maine Substantive Offenses, 1:19-cr-00088-JAW
On May 15, 2019, a grand jury issued a separate indictment against Mr. Perry
in the instant case on two counts: 1) possession with intent to distribute controlled
substances, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and 2) unlawful
use of a communication facility, in violation of 21 U.S.C. § 843(b). 	Indictment. 	The
indictment is distinguished from the Connecticut Indictment and Maine Conspiracy
Indictment because it does not include a conspiracy charge. 	Thus, the Government
charged Mr. Perry only with substantive offenses, not conspiracy. 	Count 1 stems
from the September 1, 2017 incident in Brewer, Maine, which included 94.1098 grams
of crack and 39 grams of heroin and Count 2 stems from the August 21, 2017 call
between an informant and Mr. Perry. PSR ¶ 16. On July 18, 2019, Mr. Perry agreed
to plead guilty to both counts and the Government agreed to dismiss the conspiracy
charge in the Maine conspiracy case, 18-cr-00098-JAW.
Mr. Perry is now ready to be sentenced on the Maine drug distribution counts.
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C. 	The Presentence Investigation Report
On July 10, 2020, the PO filed a second revised Presentence Investigation
Report (PSR). 2 nd Revised Presentence Investigation Report (ECF No. 52) (PSR). The
PO calculated a total offense level of 38 and a criminal history category V, for a
guidelines range of 360 months to 528 months imprisonment. Id. at 10-28.
In an addendum, the PO calculated the impact of not considering Mr. Perry’s
Connecticut conviction as relevant conduct to the instant offense. Id. at 38. The PO
states that if the Connecticut conspiracy conviction was not relevant conduct,
Mr. Perry would not be held accountable for any drug quantity prior to October 12,
2016. 	Id. 	This means the drug quantity from paragraph eleven of the PSR (1,700
grams of crack and 1,700 grams of heroin) would be removed, and no additional drug
quantity would result from paragraphs ten through thirteen. 	Id. 	Mr. Perry would,
however, still be accountable for drug quantities that occurred from conduct after
October 12, 2016, and under the PO’s calculation, this totaled 823.81 kilograms of
converted drug weight. 	Id. 	This would leave Mr. Perry with a base offense level of
28 and a total offense level of 34 after enhancements. 	Id. at 39-40. 	If not relevant
conduct, however, the Connecticut conspiracy conviction would be a “prior sentence”
pursuant to U.S.S.G. § 4A1.2 and generate three criminal history points, elevating
Mr. Perry’s criminal history category to VI. 	Id. at 40. 	Based upon a total offense
level of 34 and a criminal history category of VI, the guideline imprisonment range is
262 months to 327 months. Id. at 41.
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Finally, if the Connecticut conviction is not relevant conduct, Mr. Perry is
subject to the provisions of U.S.S.G. § 5G1.3(d) as opposed to U.S.S.G. § 5G1.3(b). Id.
As relevant conduct, the guideline calculation under section 5G1.3(b) would require
this Court to take into account the Connecticut sentence to adjust for time Mr. Perry
served to date and to have this sentence run concurrently with unserved Connecticut
time. U.S.S.G. § 5G1.3(b)(1) (“[T]he court shall adjust the sentence for any period of
imprisonment 	already 	served 	on 	the 	undischarged 	term 	of 	imprisonment”);
§ 5G1.3(b)(2) (“[T]he sentence for the instant offense shall be imposed to run
concurrently to the remainder of the undischarged term of imprisonment”). 	By
contrast, once the Connecticut sentence is not deemed relevant conduct, § 5G1.3(d)
allows this Court to impose its sentence consecutively or concurrently in whole or in
part with the Connecticut sentence to achieve a reasonable punishment for the Maine
offense. 	U.S.S.G. § 5G1.3(d) (Policy Statement) (“In any other case involving an
undischarged term of imprisonment, the sentence for the instant offense may be
imposed to run concurrently, partially concurrently, or consecutively to the prior
undischarged term of imprisonment to achieve a reasonable punishment for the
instant offense”).
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II. 	THE PARTIES’ POSITIONS3
A. 	The Government’s Sentencing Memorandum
The Government addresses four issues in its sentencing memorandum: 1) the
appropriate drug quantity calculation, 2) the assessment of an aggravating role
increase, 3) the assessment of a criminal livelihood increase, and 4) the applicability
of U.S.S.G. § 3C1.3 based on Mr. Perry’s commission of the instant offense while
released on federal bail. Gov’t’s Sentencing Mem. at 1.
Regarding drug quantity, the Government argues that the evidence supports
its 	“extremely 	conservative” 	drug 	quantity 	calculation 	of 	823.82 	kilograms 	of
converted drug weight. Id. at 6. The Government explains this amount is based upon
only the amounts that Mr. Perry or others acting at his direction distributed or
possessed with intent to distribute between March 29, 2017 and September 1, 2017.4
Id. These calculations are based only on the conduct described in paragraphs thirteen
through sixteen of the PSR. Id. at 7. “To avoid any argument by [Mr. Perry] that he
is being punished for conduct that he was sentenced for in Connecticut,” the
Government asks the Court not to consider any drug quantity possessed and
distributed by Mr. Perry up to and including the events in Waterbury, Connecticut
in October 2016. Id.
3 	The parties raise a number of issues in their sentencing memoranda, but because the Court
considers only double jeopardy in this order, it does not address the parties’ other issues here and
instead will address them at the sentencing hearing.
4 	Specifically, the Government calculated 92.77 grams of heroin (92.77 kilograms of marijuana
equivalent), 113.40 grams of crack (404.95 kilograms of marijuana equivalent), and 130.441 grams of
fentanyl (326.1 kilograms of marijuana equivalent) for a total of 823.82 kilograms of marijuana
equivalent. Gov’t’s Sentencing Mem. at 6 n.8.
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B. 	Damian Perry’s Sentencing Memorandum
In his sentencing memorandum, Mr. Perry requests this Court “order a
sentence of 92 months, followed by 4 years of supervised release with standard and
special conditions, and the standard $100 felony assessment,” and he says that the
sentence should run concurrently with his Connecticut sentence. 	Def.’s Sentencing
Mem. at 1. He asks that the sentence be further reduced by the time he has already
served, taking into account the Connecticut sentence that Judge Bryant imposed on
August 31, 2018. Id. He claims this should be so based on 1) “his constitutional right
to be free from successive punishments for the same offense under the double
jeopardy clause” and 2) “as a matter of fairness by way of a variant sentence under
18 U.S.C. § 3553(a).” 	Id. at 1-2. 	“Simply put, the Government seeks to exact a
punishment in this matter that it is prohibited from obtaining in the conspiracy
charge it has agreed to dismiss against [Mr. Perry].” Id. at 2. He also addresses the
other points made by the Government in its sentencing memorandum, asks for
consideration of the ongoing COVID-19 pandemic, and raises the issue of considering
relevant conduct in his sentence and criminal history calculation. Id.
In support of his double jeopardy argument, Mr. Perry cites Witte v. United
States, 515 U.S. 389 (1995). Id. at 7. While acknowledging the Supreme Court found
no violation of due process or double jeopardy, Mr. Perry points to the following
language in the opinion: “Petitioner does not argue that the range fixed by Congress
is so broad, and the enhancing role played by the relevant conduct so significant, that
consideration of that conduct in sentencing has become ‘a tail which wags the dogs of
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the substantive offense.’” 	Id. at 8. 	He notes that his sentencing in Connecticut is
“full of references to his conduct in Maine, despite the Government’s attempts to
portray the offenses as part of some ‘new conspiracy’” and the sentencing court
considered the conduct in sentencing Mr. Perry more harshly. Id. at 11-12. He argues
that 	this 	consideration 	of 	his 	post-bail 	actions 	was 	relevant 	conduct 	used 	in
Connecticut and then reused here in the instant case, and it is “the continued use of
conduct that was already considered by the sentencing court in Connecticut [that]
violate[s] [his] double jeopardy rights.” Id. at 12. Even though the Government has
abandoned pursuit of the full relevant conduct drug weight, it still “continues to
pursue guidelines enhancements based on conduct that was already considered by
the Court that punished [Mr.] Perry in his Connecticut case.” 	Id. n.3. 	Therefore,
“[t]he broad sentencing range of 5-40 years and the use of relevant sentencing conduct
from the Connecticut-Maine conspiracy is the tail wagging the dog of [Mr. Perry’s]
substantive offenses here in Maine.” 	Id. at 12-13. To avoid violation of Mr. Perry’s
due process rights under the double jeopardy clause, he argues the Court must “not
consider 	conduct 	from 	the 	already 	charged 	conspiracy 	when 	determining 	his
guidelines sentence and instead consider only that drug weight and conduct actually
involved in the instant offenses.” Id. at 13.
Mr. Perry also addresses how the Court should consider his relevant conduct.
He does not deny that the conduct from the Connecticut case is relevant conduct for
this case, but argues that “he cannot be punished for that conduct twice.” 	Id. 	He
characterizes the substantive offenses in this matter as “merely one transaction in
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one distribution phase of the broader conspiracy that he was already punished for in
Connecticut” and claims that there is no new conduct for sentencing purposes. Id. at
22-23. 	Therefore, he contends that “[a]ny punishment imposed here beyond 92
months concurrent to the Connecticut sentence is successive to the Connecticut
sentence and violates the principles of Lombard and Gonzales.” 	Id. at 23. 	He also
requests the Court apply U.S.S.G. § 5G1.3(b) to his sentence, or if the Court instead
applies § 5G1.3(d), “reduce his sentence based on the delays caused by the COVID-19
pandemic.” Id. at 23, 24 n.8. Finally, he argues that the Government should not be
permitted to elevate his criminal history because “the drug weight and conduct from
the broader conspiracy is relevant conduct and it cannot now be used against
[Mr. Perry] for a second and successive punishment by enhancing his criminal history
category.” Id. at 24.
C. 	The Government’s Reply
The Government replied to Mr. Perry’s sentencing memorandum. 	It first
stated that it will address all § 3553(a) arguments at the time of the sentencing
hearing and it stands by its analysis of the sentencing guideline issues in its opening
memorandum. Gov’t’s Reply at 1. Regarding Mr. Perry’s double jeopardy arguments,
the Government contends that “the commission of a substantive offense and a
conspiracy to commit it are separate and distinct crimes” and “the fact that [Mr.]
Perry was prosecuted and punished for a drug conspiracy offense in Connecticut, does
not bar his prosecution and punishment for these substantive offenses here in
Maine.” 	Id. 	Still, the Government asks the Court to “limit its consideration of the
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evidence to conduct that occurred after the conspiracy that he was convicted of in
Connecticut” to avoid any concern of double jeopardy violations. Id. at 1-2 (emphasis
in original).
III. 	DISCUSSION
A. 	Double Jeopardy
Under the Fifth Amendment’s double jeopardy clause, no person shall be
“subject for the same offense to be twice put in jeopardy of life or limb.” U.S. CONST .
amend. V. 	The double jeopardy clause “protects against multiple punishments for
the same offense.” 	United States v. Chiaradio, 684 F.3d 265, 272 (1st Cir. 2012)
(quoting United States v. Pires, 642 F.3d 1, 15 (1st Cir. 2011)). In the seminal double
jeopardy case, Blockburger v. United States, 284 U.S. 299 (1932), the United States
Supreme Court described the proper analysis: “the test to be applied to determine
whether there are two offenses or only one, is whether each provision requires proof
of a fact which the other does not.” 	Id. at 304. 	In United States v. Dixon, 509 U.S.
688 (1993), the United States Supreme Court further explained that the double
jeopardy 	clause 	“applies 	both 	to 	successive 	punishments 	and 	to 	successive
prosecutions for the same criminal offense.” Id. at 696. “A defendant claiming double
jeopardy has the burden of presenting evidence to establish a prima facie nonfrivolous
double jeopardy claim. 	Once such a claim is established, the burden shifts to the
government to prove by a preponderance of the evidence that the indictments charge
separate offenses.” 	United States v. Laguna-Estela, 394 F.3d 54, 56 (1st Cir. 2005)
(quoting United States v. Booth, 673 F.2d 27, 30-31 (1st Cir. 1982)).
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1. 	Successive 	Prosecution: 	Conspiracy 	and 	Substantive
Offenses
Consistent with Blockburger, “[i]t is settled law in this country that the
commission of a substantive offense and a conspiracy to commit it are separate and
distinct crimes, and a plea of double jeopardy is no defense to a conviction for both.”
Pereira v. United States, 347 U.S. 1, 11 (1954) (citing Pinkerton v. United States, 328
U.S. 640, 643-44 (1946)). 	In United States v. Fornia-Castillo, 408 F.3d 52 (1st Cir.
2005), the First Circuit considered a defendant who had previously been convicted of
conspiracy under 21 U.S.C. § 846 and was being prosecuted a second time for
substantive offenses under 21 U.S.C. § 841(a)(1). 	The First Circuit described as
“futile” the argument that defendant “could not be successively prosecuted . . . for
substantive drug offenses that were the objects of a drug conspiracy for which
[defendant] had already been prosecuted.” 	Id. at 69. 	The Fornia-Castillo Court
concluded that the sequential prosecutions under different statutes “fully satisfy the
Blockburger test.” Id. See id. (“Indeed, it has long been established that conspiracy
to commit a crime is not the same offense as the substantive crime for double jeopardy
purposes because the agreement to do the act is distinct from the [completed] act
itself”) (internal citations omitted). 	The First Circuit further rejected defendant’s
claim that the government was required to try together all offenses, stating that
argument had been “consistently rejected by the [Supreme] Court.” Id. at 70 (quoting
Dixon, 509 U.S. at 709 n.14). “Even where . . . prosecutions for different offenses may
be suitable for joinder, successive prosecutions are permitted under the Double
Jeopardy Clause so long as the offenses pass the Blockburger test . . ..” Id.
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The successive prosecutions of Mr. Perry easily pass the Blockburger test. In
the District of Connecticut, 16-cr-00205-VLB, Mr. Perry was indicted on drug charges
pursuant to 21 U.S.C. §§ 846 and 841(a)(1). However, the substantive offense charges
under § 841(a)(1) were dismissed and he was convicted only of the conspiracy count
under § 846. 	In the District of Maine, 18-cr-00098-JAW, Mr. Perry was indicted
under § 846, but entered a plea agreement to dismiss the conspiracy count of the
indictment and he pleaded guilty to the substantive drug trafficking offenses in the
instant action, 19-cr-00088-JAW.5 	Thus, as in Fornia-Castillo, Mr. Perry was
previously sentenced for participation in a drug conspiracy pursuant to § 846 and is
now being sentenced for substantive offenses pursuant to § 841(a)(1).
A strong argument could be made that the substantive offenses in this case
were not part of the Connecticut drug conspiracy charge at all. 	The Connecticut
indictment charged Mr. Perry with engaging in the conspiracy from October 1, 2016
to October 12, 2016. 	United States v. Damien Perry, 16-cr-00205-VLB, Indictment.
The Maine offenses now before the Court took place on August 21, 2017 and
September 1, 2017 over a year after the ending date of the conspiracy alleged in the
Connecticut indictment. Because Mr. Perry committed the instant offenses after he
had already been indicted for a conspiracy that he was alleged to have committed and
was out on bail, it would be logical to conclude when he engaged in drug distribution
5 	Technically, only one of the Maine offenses is a violation of a drug-trafficking statute. Count
One alleges a violation of § 841(a)(1), the statute that criminalizes the possession of cocaine base and
heroin with the intent to distribute it. 	But Count Two alleges a violation of 21 U.S.C. § 843(b), a
statute that criminalizes the use of a communication facility, namely a telephone, to distribute
controlled substances. 	But § 843 is part of chapter 13 of title 21, which addresses drug abuse
prevention and control and the Court does not rest its decision on this technical difference, since the
object of Mr. Perry’s unlawful use of a telephone was the distribution of crack cocaine and heroin.
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on bail, he was not committing the same crime for which he had already been indicted,
but new offenses.
The Court need not decide that issue, however, because the law is clear that
even if the substantive drug offenses here were objects of the Connecticut conspiracy,
there is no double jeopardy problem. 	As the First Circuit found in Fornia-Castillo,
the Court concludes the successive prosecutions of Mr. Perry pass the Blockburger
test. 	See also United States v. Hernandez, No. 1:18-cr-00098-JAW, 2019 U.S. Dist.
LEXIS 48854, at *12-16 (D. Me. Mar. 25, 2019) (concluding defendant’s prosecution
under § 841(a)(1) and subsequent § 846 prosecution satisfied the Blockburger test).
2. 	Successive Punishment
While the prosecution of Mr. Perry in the instant action is plainly not barred
by the double jeopardy clause, the heart of Mr. Perry’s argument is not that he cannot
be prosecuted for the substantive offense but rather it would be unconstitutional to
punish him again for the same offense. 	The Supreme Court has held that “the
[Double 	Jeopardy] 	Clause 	serves 	the 	function 	of 	preventing 	both 	successive
punishment and successive prosecution and that the Constitution was designed as
much to prevent the criminal from being twice punished for the same offence as from
being twice tried for it.” 	Witte v. United States, 515 U.S. 389, 396 (1995) (internal
quotations omitted). “[T]he language of the Double Jeopardy Clause protects against
more than the actual imposition of two punishments for the same offense; by its
terms, it protects a criminal defendant from being twice put in jeopardy for such
punishment.” Id. (emphasis in original).
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Mr. Perry argues that he has already been punished for his conduct and should
therefore receive a sentence fully concurrent to his Connecticut sentence. He points
to the Connecticut Court’s heavy reliance at sentencing on his continued sale of drugs
in Maine while he was out on federal bail. Because the Connecticut Court considered
the Maine conduct at sentencing, he argues he was already punished and thus any
successive punishment violates the double jeopardy clause. 	Def.’s Sentencing Mem.
at 12-13.
a. 	Witte v. United States
Mr. Perry’s argument runs counter to settled Supreme Court precedent. 	In
Witte v. United States, 515 U.S. 389 (1995), the Supreme Court considered the same
question Mr. Perry now raises—“whether a court violates [the double jeopardy clause]
by convicting and sentencing a defendant for a crime when the conduct underlying
that offense has been considered in determining the defendant’s sentence for a
previous conviction.” 	Id. at 391. 	In June 1990, Witte was involved in a scheme to
import marijuana from Mexico and cocaine from Guatemala. 	Id. 	In August 1990,
local authorities arrested four participants in the scheme, but Witte was not taken
into custody at that time. 	Id. at 392. 	In January 1991, an undercover Drug
Enforcement Administration (DEA) agent spoke with Witte and asked if he would be
interested in purchasing one thousand pounds of marijuana. 	Id. 	The drug sale
transaction occurred in February 1991 and Witte was arrested. Id.
Witte was charged with conspiring and attempting to possess marijuana with
intent to distribute it. 	Id. at 392-93. 	The indictment was limited on its face to the
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conduct occurring on or about January 25 through February 8, 1991, thus covering
only the later marijuana transaction, not the 1990 conspiracy. 	Id. 	Witte pleaded
guilty to the attempted possession count and at sentencing for the marijuana charge,
the District Court considered the uncharged conduct involving cocaine. Id. at 394.
In September 1992, another grand jury returned a two-count indictment
against Witte for conspiring and attempting to import cocaine—the same cocaine that
had been considered at his prior sentencing. 	Id. 	Witte moved to dismiss, arguing
that he “had already been punished for the cocaine offenses because the cocaine
involved in the 1990 transactions had been considered as ‘relevant conduct’ at
sentencing for the 1991 marijuana offense.” 	Id. at 394-95. 	The District Court
dismissed the indictment on grounds that “punishment for the indicted offenses
would violate the prohibition against multiple punishments contained in the Double
Jeopardy Clause of the Fifth Amendment,” and the Court of Appeals for the Fifth
Circuit reversed. Id. at 395.
The Supreme Court affirmed the Fifth Circuit, holding that “petitioner’s
double jeopardy theory—that consideration of uncharged conduct in arriving at a
sentence 	within 	the 	statutorily 	authorized 	punishment 	range 	constitutes
‘punishment’ for that conduct—is not supported by our precedents, which make clear
that a defendant in that situation is punished, for double jeopardy purposes, only for
the offense of which the defendant is convicted.” Id. at 397. In other words, the “use
of evidence of related criminal conduct to enhance a defendant’s sentence for a
separate crime within the authorized statutory limits does not constitute punishment
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for that conduct within the meaning of the Double Jeopardy Clause.” 	Id. at 399.
“Because consideration of relevant conduct in determining a defendant’s sentence
within the legislatively authorized punishment range does not constitute punishment
for that conduct,” the second prosecution of Witte “d[id] not violate the Double
Jeopardy Clause’s prohibition against the imposition of multiple punishments for the
same offense.” Id. at 406.
The Witte Court scrutinized Witte’s argument and found that “[a]t its core” the
argument is not a claim that the successive cocaine prosecution violates principles of
double jeopardy but rather “the more modest contention that he should not receive a
second sentence under the Guidelines for the cocaine activities that were considered
as relevant conduct for the marijuana sentence.” 	Id. at 404. 	The Court found,
however, that “the Guidelines take into account the potential unfairness with which
petitioner is concerned.” Id. For example, U.S.S.G. § 5G1.3 “operates to mitigate the
possibility that the fortuity of two separate prosecutions will grossly increase a
defendant’s sentence.” 	Id. at 405. 	The Supreme Court also noted 18 U.S.C. § 3553
and 	U.S.S.G. 	§ 5K1.1 	provide 	the 	sentencing 	court 	with 	discretion 	to 	depart
downward from the Guidelines range. 	Id. at 405-406. 	Thus, the Witte Court found
“[s]ignificant safeguards built into the Sentencing Guidelines therefore protect
petitioner against having the length of his sentence multiplied by duplicative
consideration of the same criminal conduct; he would be able to vindicate his interest
through appropriate appeals should the Guidelines be misapplied in any future
sentencing proceeding.” Id. at 405.
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Other courts have faithfully applied Witte. See United States v. Faulkner, 793
F.3d 752, 756-57 (7th Cir. 2015) (finding no double jeopardy violation where a 2013
indictment charged defendant with conduct that a judge considered during a 2011
sentencing because “uncharged conduct considered by the judge in the sentencing
context . . . does not constitute ‘punishment’ for purposes of double jeopardy”); United
States v. Gibbs, 190 F.3d 188, 215 (3d Cir. 1999) (“[A] court does not violate a
defendant’s protections against double jeopardy when it convicts a defendant for
crime X, enhances his sentence for crime X because of conduct Y, and convicts him
for conduct Y as well”); United States v. Bellrichard, 62 F.3d 1046, 1052 (8th Cir.
1995) (holding that Witte compelled the court to reject defendant’s argument that
imposition of sentence based on conduct for which defendant had received obstruction
enhancement in previous proceeding violated double jeopardy); United States v.
McClain, 707 F. App’x 129, 130 (4th Cir. 2017) (concluding that defendant’s argument
“that consideration of the conduct . . . during sentencing for the 2014 Conviction and
a subsequent conviction in 2016 based on that same conduct constitutes a double
jeopardy violation” is “squarely foreclosed by [Witte]”).
Mr. Perry’s situation is remarkably similar to the defendant’s in Witte.
Mr. Perry was charged with conspiracy in Connecticut, and at sentencing that Court
considered the uncharged conduct of his continued sale of cocaine and heroin in Maine
while released on bail. Mr. Perry was then subsequently charged in the instant case
for the same post-bail conduct that was considered at the Connecticut sentencing.
The Court agrees with Mr. Perry that at his Connecticut sentencing, the Connecticut
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Court quite naturally considered his breach of the Connecticut bail conditions to
commit new criminal conduct and his return to drug trafficking as serious matters.6
Under Witte, Judge Bryant’s consideration of that conduct is not punishment for
purposes of the double jeopardy clause. 	Thus the Court may consider that conduct
now, as their own substantive offenses, without violating the double jeopardy clause.
b. 	“A Tail Which Wags the Dog”
Mr. Perry concedes that the Witte Court’s decision does not work in his favor,
but he makes a somewhat different argument, namely that consideration of his
Connecticut conviction as relevant conduct here is unconstitutional. 	He points to
specific language where the Supreme Court noted “[p]etitioner does not argue that
the range fixed by Congress is so broad, and the enhancing role played by the relevant
conduct so significant, that consideration of that conduct in sentencing has become ‘a
tail which wags the dog of the substantive offense.’” Witte, 515 U.S. at 403 (quoting
6 	Mr. Perry’s argument reduces the Connecticut District Judge’s complex and considered
sentencing evaluation to a single factor—his bail violation and criminal conduct while out on bail.
However, the Connecticut sentencing transcript reveals that his bail violation and return to drug
dealing were not the only factors the District Judge considered in imposing sentence on Mr. Perry.
Connecticut Sentencing Tr. 15:18-26:6. Other § 3553(a) factors Judge Bryant discussed were: (1) the
“considerable amount of drugs,” (2) the danger to society from drug dealing, (3) Mr. Perry’s
“considerable criminal history that includes the distribution of drugs and violence, and in particular,
violence against women,” (4) his drug distribution for his “own financial gain,” (5) the need to protect
the public, (6) the need to deter Mr. Perry, (7) the need to deter others, (8) his commission of crimes
while on pretrial supervision, (9) his violation of the court order that prohibited him from leaving the
state of Connecticut while on pretrial release, (10) his engaging in criminal activity after having
entered a plea agreement, (11) his failure to truly accept responsibility by continuing to harm the
public upon release, (12) his decision to plead guilty, (13) the powder cocaine to crack cocaine ratios,
(14) the greater addictiveness of crack cocaine, (15) Mr. Perry’s plea agreement with the government,
(16) the recalculated guideline range of 92 to 115 months, and (17) Mr. Perry’s breach of bail and new
criminal conduct and what his conduct said about his prospects for redemption. Id. The sentencing
transcript amply demonstrates that Judge Bryant, having thoughtfully considered “all of the 3553
factors,” imposed a sentence of ninety-two months only after she carefully took “into consideration all
of the 3553 factors.” Id. at 26:3. The transcript also demonstrates that Judge Bryant deemed the
ninety-two-month period of incarceration “sufficient, but not greater than necessary to fulfill the
purposes of sentencing.” Id. at 26:3-6.
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McMillan v. Pennsylvania, 477 U.S. 79, 88 (1986)). Mr. Perry argues that “[t]he broad
sentencing range of 5-40 years and the use of relevant sentencing conduct from the
Connecticut-Maine conspiracy is the tail wagging the dog of [Mr. Perry’s] substantive
offenses here in Maine.” Def.’s Sentencing Mem. at 12-13.
In support, Mr. Perry relies on United States v. Lombard, 72 F.3d 170 (1st Cir.
1995). 	In Lombard, the defendant was tried before a jury and acquitted on state
charges of murder. Id. at 173. One year later, the defendant was indicted by a federal
grand jury for unlawful possession of a firearm, aiding and abetting the same, and
conspiracy charges relating to the aftermath of the murders. 	Id. 	The defendant
pleaded guilty and during sentencing, the court applied a cross-reference which
provided that if his unlawfully possessed firearm had been used in the commission of
a murder, his base offense level on that conviction was to be determined by the same
guideline applicable to a conviction for murder. 	Id. at 174. 	The result was a base
offense level requiring a term of life imprisonment, and defendant was sentenced
accordingly. Id.
The First Circuit found that the case “presents precisely the troubling situation
that Witte makes an effort to distinguish: the applicable statutory sentencing range
(fifteen years minimum, no stated maximum) is quite broad, and the enhancing role
played by the relevant conduct—the murders—is inordinately significant.” 	Id. at
181-82. 	The First Circuit found that “the Guidelines, combined with the absence of
a stated statutory maximum, essentially required the district court to determine
[defendant’s] base offense level as if his offense of conviction had been first-degree
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murder,” which “comes perilously close . . . to punishing [defendant] for the ostensibly
‘enhancing’ conduct, the murders.” 	Id. at 182 (emphasis in original). The Lombard
Court thus concluded that the convergence that produced defendant’s life sentence
“is exactly the reason for the Supreme Court’s reserve in McMillan and in Witte when
it carefully withheld its constitutional blessing for a sentence ‘enhancement’ that
would be a ‘tail which wags the dog’ of a defendant’s offense of conviction. 	That
troubling hypothetical is the reality here.” Id. at 182-83. 	The First Circuit vacated
the life sentence and remanded because “the district court did not recognize its
authority to consider whether a downward departure would have been appropriate.”
Id. at 187.
The Lombard Court went on to caution, however, that “this is an extreme case”
and is “an unusual and perhaps a singular case, at the boundaries of constitutional
sentencing law, and does not provide an open door.” Id. The First Circuit specifically
noted that absent the special circumstances highlighted in Lombard, “no comparable
concerns would be raised by cases involving even sizeable sentence increases based
on an uncharged quantity of drugs, an uncharged or acquitted firearms offense, the
defendant’s commission of an unchargeable state offense, or any number of kindred
sentence enhancements.” Id. at 186-87 (internal citations omitted).
The Court first notes that the Government is no longer requesting the Court
consider the Connecticut conspiracy as relevant conduct. See Gov’t’s Sentencing Mem.
at 1, 12. Thus, the Government’s drug quantity calculation is limited to conduct that
occurred after October 2016 and the only role the Connecticut conviction plays is to
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add three points to Mr. Perry’s criminal history, placing him in criminal history
category VI. 	The Court does not conclude that in this circumstance, the tail of the
conspiracy conviction is wagging the dog of the substantive offense conviction.
Even if the Connecticut conviction were considered relevant conduct, the Court
concludes that Lombard is confined to exceptional circumstances not present here.
See United States v. González, 857 F.3d 46, 60 (1st Cir. 2017) (distinguishing
Lombard and noting Lombard is the only time the First Circuit has recognized the
“tail which wags the dog” concern). 	As the First Circuit explained in González,
Lombard involved a life sentence based on acquitted conduct and the sentence was
vacated because “of the extraordinary confluence of factors that ratcheted up his
Guidelines range, plus the district court’s failure to recognize that it could consider a
downward departure from the constitutionally suspect range.” 	Id. 	The Court finds
guidance from Lombard’s instruction that “no comparable concerns would be raised
by cases involving even sizeable sentence increases based on an uncharged quantity
of drugs,” Lombard, 72 F.3d at 186-87, and concludes this is not the rare circumstance
where as a matter of law the tail of relevant conduct wags the dog of the substantive
offense.7
Even though the Court rejects Mr. Perry’s contention that as a matter of law,
it is constitutionally precluded from considering Mr. Perry’s relevant conduct in this
7 	Lombard involved a due process challenge, not a double jeopardy challenge. Lombard, 72 F.3d
at 172. Mr. Perry makes his argument in a section entitled “Double jeopardy violation” but concludes
“[Mr. Perry’s] Due Process rights under the Double Jeopardy Clause require this Court not consider
conduct from the already charged conspiracy when determining his guidelines sentence and instead
consider only that drug weight and conduct actually involved in the instant offenses.” Def.’s Sentencing
Mem. at 13. Regardless of which constitutional provision Mr. Perry challenges, the Court’s conclusion
does not change.
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case, the Court remains open to Mr. Perry’s arguments that in considering his
sentence, the Court should take into account his Connecticut offense, his lengthy
Connecticut federal court sentence, the relationship, if any, between the conduct
underlying his Connecticut sentence and conduct underlying the Maine sentence,
whether the Court would be punishing him for the same conduct for which the
District Judge in Connecticut imposed punishment, and similar arguments related
to its obligations to fashion a sentence consistent with the statutory factors of 18
U.S.C. § 3553(a).
3. 	Conclusion
Mr. Perry’s prior conspiracy conviction under 21 U.S.C. § 846 does not bar his
prosecution here for substantive offenses under 21 U.S.C. § 841(a)(1). 	There is no
double jeopardy violation because under Witte, consideration of uncharged conduct at
a prior sentencing is not punishment that would bar subsequent prosecution for that
conduct. Lombard does not change the result here and the Court retains the ability
to depart downward if it has concerns that Mr. Perry would be punished twice for the
same conduct. 	Thus, the Court concludes that there is no double jeopardy violation
here.
B. 	Other Arguments
In addition to double jeopardy, Mr. Perry argues that his sentence should run
concurrently to his Connecticut sentence based on 18 U.S.C. § 3553(a) considerations.
He also disputes the Government’s proposed sentencing enhancements pursuant to
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U.S.S.G. § 3B1.1(a), § 2D1.1(b)(16)(E), and § 3C1.3. 	The Court will address these
arguments at the sentencing hearing.
IV. 	CONCLUSION
The Court concludes there is no double jeopardy violation nor is there a
problem with the enhancing role Damian Perry’s prior conspiracy conviction plays
here.
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 3rd day of December, 2020
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