United States v. Corbett

16-1489P

2017 | Cited 0 times | First Circuit | September 5, 2017

United States Court of Appeals For the First Circuit

No. 16-1489

UNITED STATES OF AMERICA,

Appellee,

v.

DAMIEN CORBETT,

Defendant, Appellant.

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

[Hon. George Z. Singal, U.S. District Judge]

Before

Torruella, Thompson, and Barron, Circuit Judges.

Michael C. Bourbeau, with whom Victoria M. Bonilla-Argudo and Bourbeau & Bonilla, LLP were on brief, for appellant. Renée M. Bunker, Assistant United States Attorney, with whom Richard W. Murphy, Acting United States Attorney, was on brief, for appellee.

September 5, 2017

THOMPSON, Circuit Judge. The defendant, Damien Corbett,

raises three issues in this appeal from his conviction of

conspiracy to distribute and possess with intent to distribute

oxycodone and oxymorphone. Corbett first argues that the

government's evidence was insufficient. Somewhat relatedly, he

contends that the district court committed plain error in its

response to a question from the jury. Finally, he asserts that

the court erred in imposing a sentencing enhancement for the use

or attempted use of a minor in the commission of the offense, see

U.S.S.G. § 3B1.4. We affirm.

BACKSTORY1

Back in 2014, as part of a drug-trafficking

investigation in North Berwick, Maine, law-enforcement personnel

orchestrated several controlled buys of oxycodone pills2 from two

dealers, Taysha Gillis, who was then eighteen years old, and

Kenneth Gerrish. On December 16, 2014, Gillis and Gerrish were

arrested soon after the final controlled buy. Police also executed

a search warrant for Gillis's residence that same day and found

1 Because Corbett challenges the sufficiency of the evidence, we recount the facts in the light most favorable to the government. See United States v. Ponzo, 853 F.3d 558 , 566 n.1 (1st Cir. 2017). 2 Oxycodone pills are sometimes referred to by their brand name, Percocet.

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over 550 oxycodone pills, over 350 oxymorphone pills,3 and thirty-

seven Suboxone pills4 in two safes in Gillis's bedroom closet.

Meanwhile, police questioned Gillis and Gerrish

separately. Gillis quickly came clean: She removed eighty-seven

oxycodone pills from her shirt and identified Corbett as her source

for the pills she was peddling.5 Armed with this knowledge, law

enforcement decided to set up a meeting between Gillis and Corbett.

Now in full-cooperation mode, Gillis — wearing a wire to

record the encounter and possessing $3,000 in government-supplied

prerecorded buy money — met with Corbett a few days after her

arrest; the ostensible purpose of this meeting was for Gillis to

pay Corbett money for pills that he had "fronted" her.6 The two

met inside Corbett's car.7 After some brief chitchat, Gillis and

3 Throughout the record, the oxymorphone pills are referred to by their brand name, Opana. 4 Although the record is silent on this point, we have previously explained that "Suboxone is a prescription medication that is used to block the effect of withdrawal from opiate addiction." United States v. Fleury, 842 F.3d 774 , 777 n.1 (1st Cir. 2016). 5Like Gillis, Gerrish also identified Corbett as the supplier of the pills he was selling. 6 For those not hip to drug-dealing lingo, drugs are "fronted" when a supplier gives them to a drug dealer on credit with the understanding that the dealer will pay for them once he or she is financially able to do so. 7 When Gillis entered Corbett's car, he was listening to a talk show on the radio. Because Corbett kept the radio on for the entirety of their meeting, the recording of what was said in the car is unintelligible in some places. We piece together the

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Corbett discussed their mutual mistrust of Javier, the then-

boyfriend of Gillis's mother; Corbett had previously expressed his

concern to Gillis that Javier, as a Coast Guard employee, might

impede their pill-distribution scheme in some way. Because of

this concern, Gillis proposed that Corbett take back some Opanas

that she had been unable to sell: "I don't trust Javier either.

That's why I think you should get the Opanas really soon . . . ."

Corbett responded: "All right, I will. I will pick them up,

uh . . . tomorrow or the day after." Following this exchange, and

because Corbett was concerned that the pair's cellphones might be

tapped, he suggested that Gillis put both phones in her car so

that they could continue their conversation in his car. Gillis

complied with this directive and then returned to Corbett's car.

Later in the conversation, Gillis asked Corbett, "What

is it I owe you again?" When Corbett responded "Twenty-six fifty,"

Gillis pushed back, "I thought it was twenty[-]five sixty for some

reason." Corbett replied: "I have to think. It might be." Gillis

then offered to pay Corbett $2,560 and suggested that she had

"extra in case you wanted to give me anything else." Corbett

accepted the $2,560, and responded that he didn't have any

oxycodone pills to sell Gillis at the moment. Corbett then told

Gillis, "[T]omorrow I will come back," which she understood to

substance of the encounter from the intelligible portions of the recording and Gillis's trial testimony.

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mean that he would pick up the Opanas the next day. After the

money switched hands, Gillis told Corbett that she still had some

Suboxone pills and did not want any more of those pills: "I'm

gonna like keep those and continue to try to get rid of the rest

of those but I don't want any more of those." Corbett responded,

"Alright." The conversation eventually ended, and Gillis left

Corbett's car.

At this point, multiple officers converged on the scene,

and Corbett was arrested. In a search of his vehicle, police found

the $2,560 in prerecorded buy money in the center console, as well

as an additional $3,843 underneath the seat. When questioned by

police, Corbett insisted that he and Gillis "were just talking."

Police asked Corbett about the money found in his car, and he

answered that it came from "a settlement";8 he did not mention that

Gillis had just paid him.

A federal grand jury indicted Corbett on one count of

conspiracy to distribute and possess with intent to distribute a

mixture or substance containing oxycodone and a mixture or

substance containing oxymorphone, in violation of 21 U.S.C. §§ 846

and 841(a)(1). The indictment alleged that the charged conspiracy

8 At the time of the interrogation, Corbett had recently "received a sum of money" as part of an insurance settlement for a fire loss.

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ran from "approximately June 2013 through and until December 16,

2014."

Both Gillis and Gerrish, among others, testified at

Corbett's trial.9 Gillis told the jury about the evolution of her

relationship with Corbett. She first came in contact with Corbett

through Facebook when she was thirteen years old. After "[m]aybe

a month or a couple of months" of communicating through Facebook,

the two met in person at the home of Gillis's friend. On that

occasion, Corbett gave Gillis some money and asked her "to get him

weed." Gillis left and did as Corbett instructed, but when she

returned with the goods, Corbett had already left the house; he

told Gillis to keep the newly purchased merchandise for herself.

Corbett and Gillis continued to occasionally see one another,

typically at Gillis's home. On one of these occasions, Corbett

provided the underage Gillis with alcohol.

Eventually, the relationship between Corbett and Gillis

entered the realm of oxycodone trafficking. It all started when

Corbett and Gillis decided to ask Gerrish if he could obtain

oxycodone pills from his father and sell them to Corbett.10 Gillis

9 By that point, Gerrish had pled guilty to conspiracy to distribute oxycodone, and Gillis had pled guilty to conspiracy to distribute both oxycodone and oxymorphone. 10 When asked "who brought up the idea," Gillis responded, "Um, both of us [i.e., Corbett and Gillis]."

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asked Gerrish, and Gerrish obliged, obtaining the pills from his

dad and selling them to Corbett for a profit.

After this first exchange, Corbett told Gillis that he

could obtain oxycodone pills (from some unknown source who was not

Gerrish's father) for $22 per pill and that she could sell them

for a profit. Gillis agreed to that arrangement, and, about a

month later, Corbett fronted her the first delivery of pills. Over

the next two years until Gillis was arrested, Corbett continued to

deliver oxycodone pills for Gillis to distribute. The frequency

of the deliveries varied; sometimes they occurred on a weekly

basis, and sometimes monthly drop-offs were made. Corbett

continued to front Gillis pills on occasion. Gillis also testified

that Corbett set the price that she paid for the pills; she once

asked Corbett how many pills she'd have to purchase in order to

get a cheaper price, and Corbett responded, "Too many." And Gillis

never obtained a cheaper price from Corbett. In addition to

oxycodone, Corbett also supplied Gillis with "Suboxone, Opanas,

Dilaudid, [and other] pharmaceuticals."11

Gerrish also testified against Corbett. He told the

jury that he agreed with Gillis to sell oxycodone pills that he

would purchase from her. Gerrish also explained that he sometimes

11With respect to the oxymorphone pills in particular, about two months before Gillis was arrested, Corbett told her that she could make more profit selling oxymorphone pills than she could selling oxycodone pills.

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was present when Corbett delivered pills to Gillis. On those

approximately five occasions, Gerrish saw Corbett hand Gillis "[a]

baggie with pills in it." On cross-examination, however, Gerrish

acknowledged that, when he was interrogated by police after his

arrest, he denied that he had seen any hand-to-hand exchange of

pills between Corbett and Gillis. He explained, "At that time I

denied a lot of things."

After the government rested its case, Corbett moved for

a judgment of acquittal under Rule 29(a) of the Federal Rules of

Criminal Procedure, arguing that the evidence was insufficient.

The district court denied the motion. In his closing argument,

defense counsel attacked the credibility of both Gillis and

Gerrish. Gerrish, defense counsel stressed, had testified

inconsistently with what he initially told investigators about

observing pill exchanges between Corbett and Gillis. Defense

counsel painted Gillis as a liar who was seeking to falsely pin

the blame on Corbett in the hopes of receiving leniency for her

drug-dealing ways. Finally, defense counsel also emphasized that

police did not find any drugs on Corbett or in his car when they

arrested him.

In its final charge to the jury, the district court

instructed the jury on the elements of conspiracy, and told the

jurors that they should consider the testimony of the cooperating

witnesses, Gillis and Gerrish, "with caution" because "[t]hey may

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have had reason to make up stories or exaggerate what others did

because they wanted to help themselves." At the conclusion of its

instructions, the court asked counsel whether they had any

objections or additions to the instructions just delivered;

defense counsel responded that he did not.

During their deliberations, the jurors sent multiple

notes to the judge, two of which are relevant to this appeal. The

first note, which was submitted to the court approximately two-

and-a-half hours after deliberations began, asked: "Can you please

advise us regarding inability to reach a verdict? Both sides are

adamant." The court responded, "In response to your note, I advise

that you again review the evidence and my instructions and continue

to deliberate." Defense counsel informed the court that he had no

objection to this response.

The second note from the jurors read: "Does the

intention of the defendant to pick up the drugs ([O]panas) [from

Gillis's home] as evidenced in the audiotape fall within the scope

of the indictment charges?" (Asterisk omitted.) After the parties

initially disagreed on how to respond, the district court briefly

set forth his intended response. Both before and after the court

discussed its response, the judge told the parties, "I'm not wedded

to this." The court proposed the following response: "In response

to your note (Court Exhibit 6) and to answer your question, you

need to determine if the conspiracy charged in the indictment

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existed, what was the scope and purpose of that conspiracy, and if

the defendant willfully joined the conspiracy based on the evidence

of his own words or deeds." When the district court solicited the

parties' views on its proposed response, defense counsel stated,

"I think it restates the instruction already given, so I have no

problem."

The jury ultimately found Corbett guilty. The

presentence investigation report (PSR) recommended a two-level

enhancement under U.S.S.G. § 3B1.4 for Corbett's use of a minor,

Gillis, during the conspiracy. Corbett objected to this aspect of

the PSR. The district court applied the enhancement, accepting

the government's argument that the evidence showed that Corbett

had groomed12 Gillis to distribute drugs for him. The court

sentenced Corbett to a term of 100 months of imprisonment. Corbett

timely appealed.

ANALYSIS

A. Sufficiency of the Evidence

We first address Corbett's argument that the evidence

against him was insufficient. Because he preserved the issue by

filing a motion for judgment of acquittal, our review is de novo.

See United States v. Gonsalves, 859 F.3d 95 , 110 (1st Cir. 2017).

12We'll discuss the district court's grooming conclusion in more detail below, see infra Part C.

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In assessing a sufficiency-of-the-evidence claim, we

view the evidence in the light most favorable to the government,

draw all reasonable inferences in its favor, and ask whether a

rational factfinder could have found each element of the charged

offense beyond a reasonable doubt. See id. at 110-11; United

States v. Rivera-Ruperto, 846 F.3d 417 , 432 (1st Cir. 2017).

Additionally, we "must defer all credibility judgments to the

jury," Gonsalves, 859 F.3d at 111 (quoting United States v.

O'Brien, 14 F.3d 703 , 706 (1st Cir. 1994)), "drawing all

credibility choices in the government's favor," United States v.

Morosco, 822 F.3d 1 , 7 (1st Cir. 2016), and disturbing "only those

evidentiary interpretations . . . that are unreasonable,

insupportable, or overly speculative," United States v. Serunjogi,

767 F.3d 132 , 140 (1st Cir. 2014) (internal quotation marks

omitted) (quoting United States v. Hernandez, 218 F.3d 58 , 64 (1st

Cir. 2000)). Given the manner in which we must view the evidence,

it's no surprise (and no secret) that a sufficiency challenge is

oftentimes a bit of a longshot. See Rivera-Ruperto, 846 F.3d at

432 (explaining that sufficiency claims are "rarely successful"

(quoting United States v. Moran, 984 F.2d 1299 , 1300 (1st Cir.

1993))); Morosco, 822 F.3d at 7 (explaining that "[s]ufficiency

arguments seldom succeed"); United States v. Correa-Osorio, 784

F.3d 11 , 26 (1st Cir. 2015) (explaining that "[s]ufficiency

challenges rarely succeed"); United States v. George, 761 F.3d 42 ,

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48 (1st Cir. 2014) (explaining that "a sufficiency challenge is a

tough sell" (quoting United States v. Polanco, 634 F.3d 39 , 45

(1st Cir. 2011))).

The government needs to prove three elements beyond a

reasonable doubt to secure a conviction for conspiracy under § 846:

"(1) a conspiracy existed; (2) the defendant had knowledge of the

conspiracy; and (3) the defendant knowingly and voluntarily

participated in the conspiracy." Rivera-Ruperto, 846 F.3d at 432

(quoting United States v. Maryea, 704 F.3d 55 , 73 (1st Cir. 2013)).

The third element requires the government to show that the

defendant "intended to join the conspiracy and that he intended

for its goals to be accomplished." United States v. Paz-Alvarez,

799 F.3d 12 , 25 (1st Cir. 2015). Viewing the evidence in the

requisite verdict-friendly manner, the government's evidence in

this case was plainly sufficient.

Sufficient evidence was presented to show that the

charged conspiracy existed. See Rivera-Ruperto, 846 F.3d at 432.

Based on the testimony of Gillis and Gerrish, a rational juror

could have concluded that an oxycodone-distribution conspiracy

existed where Corbett would supply the oxycodone to Gillis, who

would then sell the pills to others, including Gerrish.

Additionally, Gillis testified that, about two months before her

arrest, Corbett told her that she could make more of a profit

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selling oxymorphone pills, Gillis "agreed to see if [she] could

sell them," and she sold "1 or 2" oxymorphone pills.

The testimony of these two witnesses also amply supports

the second and third elements of the charged conspiracy — that

Corbett knew of the conspiracy and knowingly and voluntarily

participated in it. See id. Gillis testified that Corbett was

her source for the oxycodone and oxymorphone pills. And she

testified that, over a two-year period, Corbett continued to

deliver oxycodone pills to her on either a weekly or a monthly

basis and that the average number of pills Corbett delivered each

time increased during the course of the conspiracy. Gillis also

told the jury that Corbett supplied her with oxymorphone pills on

one occasion. Like Gillis, Gerrish told the jury about the times

he witnessed Corbett delivering pills to Gillis. Finally, Gillis

testified that Corbett fronted some of the pills that he delivered

to her. See United States v. Bedini, 861 F.3d 10 , 15 (1st Cir.

2017) (explaining that fronting drugs can constitute "an act of

trust that assume[s] an ongoing enterprise with a standing

objective" (quoting United States v. Ortiz-Islas, 829 F.3d 19 , 25

(1st Cir. 2016))).

Corbett's knowing and voluntary participation in this

conspiracy was also established by Gillis's testimony about what

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transpired during the recorded conversation in the car.13 When

Gillis asked Corbett to pick up oxymorphone pills from her, he

agreed to do so. Additionally, after a brief exchange about the

precise dollar figure, Corbett accepted $2,560 from Gillis for a

debt that Gillis owed him, and Gillis told the jury that this debt

was for oxycodone pills that Corbett had previously fronted her.

Finally, Corbett's conduct during the conversation with Gillis

betrayed a fear of being overheard while talking to her about the

conspiracy; he played his car radio loudly throughout the

conversation, and, worried that their cellphones might be tapped,

he instructed Gillis to put the phones in her car so that they

could safely talk in his car. Cf. George, 761 F.3d at 51

(explaining, when considering evidence that defendant expressed

over the phone his unwillingness to engage in illegal activity,

13 Even if we accept Corbett's position that no conspiracy existed at the time of the recorded conversation because both of Corbett's coconspirators were cooperating with law enforcement, the recorded conversation (and Gillis's testimony about it) was still admissible. See United States v. Fanfan, 468 F.3d 7 , 11-12 (1st Cir. 2006) (explaining that evidence of recorded conversation between defendant and coconspirator who had, unbeknownst to defendant, been arrested and was cooperating with law enforcement at time of conversation was admissible in conspiracy prosecution); cf. Ortiz-Islas, 829 F.3d at 27 (affirming admission of evidence of post-indictment sting-drug transaction because evidence "'was closely linked in time to the alleged conspiracy and proved the identities and relationships of the conspirators'" and "evidence of the final, faux deal merely illuminated what had been going on among the relevant parties for over a year, a course of conduct that was firmly shown through overwhelming evidence including co- conspirators' testimony" (quoting United States v. Niemi, 579 F.3d 123 , 128 (1st Cir. 2009))).

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that "a logical jury could also conclude that [defendant] did not

like talking shop over the phone and so sprinkled in words

suggesting his unwillingness to do anything illegal just in case

the police were listening in").

Perhaps in recognition of the testimony of these

witnesses, Corbett appears to concede that, if the jury believed

Gillis and Gerrish, the evidence was sufficient. But wait, he

says: "The jur[ors] could not have unanimously agreed on their

credibility," he tells us, "because [of] the notes to the court

sent out during deliberations." Corbett appears to support this

argument with the following reasoning. The first note, in which

the jurors indicated that they were at an impasse in their

deliberations, suggested that at least some jurors were not

convinced beyond a reasonable doubt that Corbett was guilty of the

charged pill-peddling conspiracy. The second note showed that the

once-divided jurors were now focusing on the audio recording of

the December 19 meeting with Gillis and Corbett. Weaving these

two strands together, Corbett insists that the jurors must have

found him guilty of a conspiracy solely based on the recorded

conversation, which occurred at a time when Gillis was acting as

a government agent and, therefore, could not be a conspirator as

a matter of law. This line of argument, although creative, cannot

carry the day.

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Corbett places far more weight on the juror notes than

they can reasonably bear. The second note tells us only that,

when the jurors wrote the note, they were then focusing on the

recorded conversation. Contrary to Corbett's position, that note

in no way suggests that the jurors had rejected all of the other

evidence in the case and had discredited the testimony of Gillis

and Gerrish. Similarly, the first note suggests only that, when

the jurors wrote that note after less than three hours of

deliberations, they were not yet all on the same page with respect

to Corbett's guilt or innocence. As was true for the second note,

nothing in the first note suggests that the jurors in the end

rejected the testimony of Gillis and Gerrish. Therefore, we reject

Corbett's argument that the two juror notes demonstrate that the

jury found these two witnesses to be not credible.

Perhaps as a fallback to his primary insufficiency

argument, Corbett also offers discrete reasons why the testimony

of both Gillis and Gerrish was, in his view, suspect. Both

witnesses, he points out, began cooperating only after they had

both been caught red-handed with a cache of pills. Additionally,

Corbett highlights the about-face in Gerrish's story; although he

initially told police that he had not observed any hand-to-hand

exchange of drugs between Corbett and Gillis, he testified at trial

that he had, in fact, seen such exchanges. And Gillis was no

saint, either, Corbett insists. He emphasizes that, even after

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Corbett was removed from the picture on account of his arrest,

Gillis went right back to her drug-dealing ways, and this time

heroin replaced oxycodone as the hot commodity.

Although these seeds of doubt might have stood some

chance of finding fertile ground in closing argument before a jury,

they have no chance of survival in the arid climate that is

appellate sufficiency-of-the-evidence review. As we have

explained, credibility determinations are for the jury, not this

court, to make, see Gonsalves, 859 F.3d at 111, and our review

must "resolve all credibility disputes in favor of the verdict,"

United States v. Gaw, 817 F.3d 1 , 4 (1st Cir. 2016). Corbett made

these credibility arguments to the jury, but the jury found him

guilty nonetheless. See Gonsalves, 859 F.3d at 111 (emphasizing

this point while rejecting "hopeless" witness-credibility

argument). We cannot say that it was unreasonable or insupportable

to credit the testimony of Gerrish and Gillis. See Serunjogi, 767

F.3d at 140.

In a last-ditch effort to stem the tide, Corbett stresses

that he was never found in possession of any drugs and never

expressed the intent to sell drugs in the recorded conversation

with Gillis. But the government was not required to produce such

smoking-gun evidence to secure Corbett's conviction. See Paz-

Alvarez, 799 F.3d at 25 ("There are many ways to show that a

defendant intended to join and advance a conspiracy, even where

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the defendant never actually handled the drugs."). As explained

above, the testimony of Gerrish and Gillis amply supported the

guilty verdict. Therefore, Corbett's sufficiency challenge must

fail.

B. Court's Response to Second Juror Note

Corbett next argues that the district court erred in its

response to the jurors' question about whether Corbett's

expression in the recorded conversation of an intent to pick up

the oxymorphone fell within the scope of the conspiracy. As

Corbett sees things, the court's response incorrectly suggested to

the jurors that they could consider Corbett's words or actions in

his conversation with Gillis — who by then was a government agent

with whom Corbett could not conspire as a matter of law — as

evidence of the existence of the charged conspiracy.

Recognizing that he failed to raise the issue below,

Corbett suggests that we must review this claim under the daunting

plain-error standard of review. Not so fast, says the government:

When defense counsel told the district court "I have no problem"

with the proposed response, he affirmatively waived — rather than

merely failed to preserve — this issue. We start (and end) our

analysis with the question of waiver.

A litigant waives a claim when he or she "'intentionally

relinquishes or abandons' a known right." United States v. Walker,

538 F.3d 21 , 23 (1st Cir. 2008) (quoting United States v.

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Rodriguez, 311 F.3d 435 , 437 (1st Cir. 2002)); see also United

States v. Torres-Rosario, 658 F.3d 110 , 115-16 (1st Cir. 2011).

The distinction between waiver and forfeiture is critical:

Although a forfeited claim will be reviewed for plain error, "a

waived issue ordinarily cannot be resurrected on appeal." Walker,

538 F.3d at 23 (quoting Rodriguez, 311 F.3d at 437).

In this case, we agree with the government that Corbett

waived any challenge to the district court's response to the second

juror note. Before the district court responded to the note, the

court twice told the parties that it was not at all "wedded" to

the language proposed. Despite this clear invitation from the

district court to propose alternative responses, defense counsel,

when given the opportunity to voice Corbett's position, stated, "I

think it restates the instruction already given, so I have no

problem." (Emphasis added.)

We have explained that, "when the 'subject matter [is]

unmistakably on the table, and the defense's silence is reasonably

understood only as signifying agreement that there was nothing

objectionable,' the issue is waived on appeal." United States v.

Soto, 799 F.3d 68 , 96 (1st Cir. 2015) (quoting United States v.

Christi, 682 F.3d 138 , 142 (1st Cir. 2012)). Here, the district

court unmistakably placed the issue of how to respond to the second

juror note on the table, and Corbett's counsel was not merely

silent, but affirmatively stated that he had "no problem" with the

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court's proposed response. This amounts to waiver. See id.

(holding that challenge to district court's instruction was waived

where "the district court informed [defendants] exactly how it was

planning to instruct the jury . . . and sought their feedback,

twice asking if they were okay with those specific instructions"

and counsel for one defendant "affirmatively stated there was no

objection" while counsel for other defendants "remained silent";

"[g]iven the judge's invitation to speak up with any disagreement,

these reactions can only be interpreted as signifying approval

with the instructions as previewed"); United States v. Hansen, 434

F.3d 92 , 101 (1st Cir. 2006) (holding that challenge to district

court's failure to give multiple-conspiracy instruction was waived

where defense counsel "not only failed to object to the court's

omission of his proposed multiple conspiracy instruction, but also

affirmatively stated 'I am content' after the district court

instructed the jury"); id. at 105-06 (holding that challenge to

district court's handling of note from juror about privacy concerns

was waived because, when district court proposed a curative

instruction, "defense counsel responded, 'Something along those

lines, Judge, fine'").14 So we say no more about this issue.

14We recognize that we can, "as a matter solely of [our] discretion," forgive waiver in "the rare case." United States v. Walker, 665 F.3d 212 , 227 (1st Cir. 2011); see also Torres-Rosario, 658 F.3d at 116 ("[C]ourts may excuse waivers and disregard stipulations where justice so requires."). Corbett has made no

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C. Enhancement for the Use of a Minor

Corbett's final contention on appeal is that the

district court erred in imposing a guideline enhancement under

U.S.S.G. § 3B1.4 for Corbett's use or attempted use of a minor.

Convinced that Gillis's foray into the world of drug dealing both

predated her friendship with Corbett and continued after Corbett

was arrested, he insists that Gillis was "predisposed to commit

the offense and was not an 'unwary innocent.'"

The government must prove sentencing enhancements by a

preponderance of the evidence. Walker, 665 F.3d at 232. We review

the district court's interpretation of the meaning and scope of a

sentencing guideline de novo, while the court's factfinding is

reviewed for clear error, with "due deference to the court's

application of the guidelines to the facts." United States v.

Vega-Rivera, No. 15-2467, 2017 WL 3276789 , at *3 (1st Cir. Aug. 2,

2017); see also Walker, 665 F.3d at 232.

The guidelines call for a two-level increase in the

offense level "[i]f the defendant used or attempted to use a person

less than eighteen years of age to commit the offense or assist in

avoiding detection of, or apprehension for, the offense." U.S.S.G.

§ 3B1.4 (2015). The commentary for this enhancement provides that

"'[u]sed or attempted to use' includes directing, commanding,

argument that this is such a case, and we see no reason to excuse his waiver.

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encouraging, intimidating, counseling, training, procuring,

recruiting, or soliciting." Id. cmt. n.1.

The district court appropriately applied this

enhancement in this case. Before the conspiracy even began,

Corbett gave Gillis, who was then about thirteen years old, some

money and asked her to obtain some marijuana for him. After she

did as instructed, Corbett told Gillis that she could keep the

marijuana that he had paid for. On another occasion, Corbett

provided alcohol to the underage Gillis. The district court

supportably found that each of these instances were examples of

Corbett's "long process of grooming" Gillis "to become a dealer

for him." In other words, the district court found that Corbett's

conduct on these occasions — which began when Gillis was a young

girl — were attempts to encourage, recruit, or solicit her. See

id. cmt. n.1; see also United States v. Hardy, 393 F. App'x 205 ,

207 (5th Cir. 2010) (per curiam) (affirming application of

enhancement where defendant "cultivated a relationship with 16-

year-old J.M., providing her with free methamphetamine"; minor

later brought one of her friends to defendant's home to purchase

methamphetamine; friend "eventually became a user and distributor

of [defendant]'s methamphetamine").

In addition to grooming Gillis, the evidence shows that

Corbett used Gillis as a seller in this pill-trafficking conspiracy

when she was a minor. Gillis, who was eighteen years old when she

- 22 -

was arrested, testified that Corbett delivered large quantities of

oxycodone pills to her for approximately two years prior to her

arrest. See United States v. Acosta, 534 F.3d 574 , 588 (7th Cir.

2008) ("Distributing drugs directly to minors for further

distribution qualifies as the type of personal use of a minor

warranting application of the use-of-a-minor enhancement under

§ 3B1.4."); cf. United States v. Mott, 26 F. App'x 8 , 9-10 (1st

Cir. 2001) (per curiam) (affirming application of enhancement

where defendant in conspiracy case allowed minor to sell drugs out

of defendant's apartment; "[defendant] was aware that [minor] was

selling drugs from the apartment and agreed to it"). Moreover,

notwithstanding Corbett's assertion to the contrary, this is a

case where the defendant encouraged the minor's drug activity:

Corbett encouraged Gillis to sell pills by fronting them to her

throughout the two-year conspiracy with the understanding that she

would pay him for the pills once they were sold. See United States

v. Garcia, 497 F.3d 964 , 971 (9th Cir. 2007) (affirming district

court's application of enhancement where defendant, among other

things, encouraged minor by fronting her methamphetamine to sell);

United States v. Caster, 24 F. App'x 864 , 867 (10th Cir. 2001)

(similar); cf. Ortiz-Islas, 829 F.3d at 26 (explaining that

defendant's willingness to front drugs to coconspirator shows "the

importance of sustaining a regular course of business").

- 23 -

Corbett argues that "[t]he guideline enhancement for

using or attempting to use a minor who is already engaged in the

drug business and predisposed to continue in the business[] is not

warranted." We are immediately skeptical of this argument. For

starters, we see nothing in the text of the enhancement to support

the troubling notion that a minor could ever be deemed to be so

predisposed to criminal conduct that an adult who then encourages

that conduct is not subject to the enhancement. Instead, § 3B1.4

reaches defendants who "used or attempted to use" any "person less

than eighteen years of age" — without regard to the minor's

propensity to obey or disobey the criminal laws. Additionally,

none of the cases Corbett cites support his predisposition

argument. Cf. United States v. Rose, 496 F.3d 209 , 214 (2d Cir.

2007) (rejecting argument that "§ 3B1.4 applies only if the minor

is vulnerable, child-like in appearance, or predisposed against

crime" and explaining that "[t]he fact that the minor was a large,

seventeen-and-a-half year old drug dealer who participated eagerly

in the [armed-robbery and kidnapping] crimes does not make § 3B1.4

inapplicable"). Finally, in addition to the lack of support in

the enhancement's text or in the case law, Corbett's predisposition

argument also seems inconsistent with the purpose behind the

enhancement: to protect minors. See United States v. McClain,

252 F.3d 1279 , 1286 (11th Cir. 2001) ("The unambiguous legislative

design of section 3B1.4 is to protect minors as a class . . . .").

- 24 -

Reserving that protection only for law-abiding minors and

withholding it from the minors who need it most would seem to

frustrate that clear purpose.

But we need not definitively decide whether a minor's

predisposition towards crime can ever foreclose application of the

enhancement because the component parts of Corbett's

predisposition argument in this case are either factually

unsupported or undeveloped. As we understand it, Corbett's effort

to paint Gillis as predisposed to deal drugs is based on two

assertions. First, Corbett asserts that Gillis "was selling drugs

before any relationship with the defendant" got underway. Second,

Corbett notes that "Gillis also continued her drug use and drug

sales" after Corbett was out of the picture. Each assertion is

fatally flawed in the circumstances of this case.

The first assertion is factually infirm: Corbett does

not point us to any evidence in this record to support his claim

that Gillis was selling drugs before she met him. Perhaps Corbett

intends to refer to the time when, at Corbett's direction, Gillis

acquired marijuana for him with money he had given her. But

Gillis's acquisition of marijuana from some unknown source is not

evidence that Gillis was selling drugs before she met Corbett.

Similarly, Corbett references the time when "Gillis and . . .

Gerrish, with the assistance of Gerrish's father, provided

oxycodone to [Corbett]." But the evidence shows only that Gillis

- 25 -

reached out to Gerrish to obtain the pills, that Gerrish did so,

and that it was Gerrish, and not Gillis, who sold them to Corbett

for a profit. Thus, this evidence similarly does not support

Corbett's argument that Gillis was selling drugs before her

relationship with him began. Indeed, the district court

supportably found that these prior exchanges between Corbett and

Gillis were evidence of Corbett recruiting and grooming Gillis to

be part of his oxycodone-peddling plan.

The second assertion — that Gillis continued to use and

sell drugs — suffers a flaw of Corbett's own making: He hasn't

pointed us to any authority that suggests that a minor's later

conduct that is unrelated to the charged offense is relevant to

the inquiry of whether the enhancement is appropriate.15 And it's

not apparent to us from the plain text of the enhancement that

such conduct matters one iota; the enhancement, after all, focuses

on whether the defendant used or attempted to use a minor "to

commit the offense or assist in avoiding detection of, or

15The only case Corbett cites is a Supreme Court case that discusses predisposition in the context of the defense of entrapment. See United States v. Russell, 411 U.S. 423 , 428-36 (1973). But he makes no effort to explain why the principles of this entrapment case — which was decided more than twenty years before the enhancement became effective, see U.S.S.G. § 3B1.4, cmt. hist. n. (indicating that enhancement first became effective in 1995) — should have any bearing on the issue before us, and "[d]eveloping a sustained argument out of . . . legal precedents is the job of the appellant, not the reviewing court, as we have previously warned." Town of Norwood v. Fed. Energy Regulatory Comm'n, 202 F.3d 392 , 405 (1st Cir. 2000).

- 26 -

apprehension for, the offense." U.S.S.G. § 3B1.4 (2015) (emphases

added). In any event, given Corbett's failure to meaningfully

develop this argument or support it with any authority, we need

not definitively decide this point. See United States v. Zannino,

895 F.2d 1 , 17 (1st Cir. 1990) ("[I]ssues adverted to in a

perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived.").

Undeterred, Corbett takes another tack at avoiding the

enhancement: Emphasizing that Gillis sold the pills "on her own

at a profit," Corbett argues that Corbett and Gillis were, at best,

partners in this pill-peddling enterprise. And, citing a pair of

out-of-circuit cases, he insists that the enhancement requires

"something more than a 'partner' type relationship" like what we

have here. (Citing United States v. Parker, 241 F.3d 1114 (9th

Cir. 2001); United States v. Butler, 207 F.3d 839 (6th Cir. 2000).)

We are unpersuaded.

Unlike Parker and Butler, this is not a case where the

minor was an equal partner of the defendant. See Parker, 241 F.3d

at 1120-21 (finding enhancement inapplicable where there was no

evidence "that the defendant acted affirmatively to involve the

minor in the [bank] robbery, beyond merely acting as his partner");

Butler, 207 F.3d at 849 & n.3 (finding enhancement inapplicable

where "[t]he facts, at best, show only that [twenty-year-old

defendant] and [seventeen-year-old minor] possessed equal

- 27 -

authority in their commission of the [bank robbery]").16 Corbett,

as Gillis testified, was her sole supplier of oxycodone pills.

See Acosta, 534 F.3d at 588. Gillis had no say in the price that

she paid for the pills; Corbett set the price at $22 per pill.

Additionally, he fronted her pills on multiple occasions,

encouraging her to accept pills she "could not pay for" with the

understanding that she would "pay for [them] the next time." In

short, the record belies Corbett's characterization of his

relationship with Gillis as an equal partnership.

We therefore reject Corbett's challenge to the district

court's application of the use-of-a-minor enhancement.

CONCLUSION

For these reasons, we affirm Corbett's conviction and

sentence.

16 We note that there's a circuit split on whether the enhancement must be based on a defendant's own affirmative actions or whether it can be applied based on a coconspirator's reasonably foreseeable use of a minor, see United States v. Acosta, 474 F.3d 999 , 1002 (7th Cir. 2007) (collecting cases), and that this court has already weighed in on this debate, see United States v. Patrick, 248 F.3d 11 , 27-28 (1st Cir. 2001) (holding that, in conspiracy case, defendant's "sentence could be enhanced based on his co-conspirator's reasonably foreseeable use of juveniles to further the [organization]'s activities"). We need not concern ourselves with this nuance, however, because the question of the enhancement's applicability on these facts concerns only Corbett's actions.

- 28 -

United States Court of Appeals For the First Circuit

No. 16-1489

UNITED STATES OF AMERICA,

Appellee,

v.

DAMIEN CORBETT,

Defendant, Appellant.

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

[Hon. George Z. Singal, U.S. District Judge]

Before

Torruella, Thompson, and Barron, Circuit Judges.

Michael C. Bourbeau, with whom Victoria M. Bonilla-Argudo and Bourbeau & Bonilla, LLP were on brief, for appellant. Renée M. Bunker, Assistant United States Attorney, with whom Richard W. Murphy, Acting United States Attorney, was on brief, for appellee.

September 5, 2017

THOMPSON, Circuit Judge. The defendant, Damien Corbett,

raises three issues in this appeal from his conviction of

conspiracy to distribute and possess with intent to distribute

oxycodone and oxymorphone. Corbett first argues that the

government's evidence was insufficient. Somewhat relatedly, he

contends that the district court committed plain error in its

response to a question from the jury. Finally, he asserts that

the court erred in imposing a sentencing enhancement for the use

or attempted use of a minor in the commission of the offense, see

U.S.S.G. § 3B1.4. We affirm.

BACKSTORY1

Back in 2014, as part of a drug-trafficking

investigation in North Berwick, Maine, law-enforcement personnel

orchestrated several controlled buys of oxycodone pills2 from two

dealers, Taysha Gillis, who was then eighteen years old, and

Kenneth Gerrish. On December 16, 2014, Gillis and Gerrish were

arrested soon after the final controlled buy. Police also executed

a search warrant for Gillis's residence that same day and found

1 Because Corbett challenges the sufficiency of the evidence, we recount the facts in the light most favorable to the government. See United States v. Ponzo, 853 F.3d 558 , 566 n.1 (1st Cir. 2017). 2 Oxycodone pills are sometimes referred to by their brand name, Percocet.

- 2 -

over 550 oxycodone pills, over 350 oxymorphone pills,3 and thirty-

seven Suboxone pills4 in two safes in Gillis's bedroom closet.

Meanwhile, police questioned Gillis and Gerrish

separately. Gillis quickly came clean: She removed eighty-seven

oxycodone pills from her shirt and identified Corbett as her source

for the pills she was peddling.5 Armed with this knowledge, law

enforcement decided to set up a meeting between Gillis and Corbett.

Now in full-cooperation mode, Gillis — wearing a wire to

record the encounter and possessing $3,000 in government-supplied

prerecorded buy money — met with Corbett a few days after her

arrest; the ostensible purpose of this meeting was for Gillis to

pay Corbett money for pills that he had "fronted" her.6 The two

met inside Corbett's car.7 After some brief chitchat, Gillis and

3 Throughout the record, the oxymorphone pills are referred to by their brand name, Opana. 4 Although the record is silent on this point, we have previously explained that "Suboxone is a prescription medication that is used to block the effect of withdrawal from opiate addiction." United States v. Fleury, 842 F.3d 774 , 777 n.1 (1st Cir. 2016). 5Like Gillis, Gerrish also identified Corbett as the supplier of the pills he was selling. 6 For those not hip to drug-dealing lingo, drugs are "fronted" when a supplier gives them to a drug dealer on credit with the understanding that the dealer will pay for them once he or she is financially able to do so. 7 When Gillis entered Corbett's car, he was listening to a talk show on the radio. Because Corbett kept the radio on for the entirety of their meeting, the recording of what was said in the car is unintelligible in some places. We piece together the

- 3 -

Corbett discussed their mutual mistrust of Javier, the then-

boyfriend of Gillis's mother; Corbett had previously expressed his

concern to Gillis that Javier, as a Coast Guard employee, might

impede their pill-distribution scheme in some way. Because of

this concern, Gillis proposed that Corbett take back some Opanas

that she had been unable to sell: "I don't trust Javier either.

That's why I think you should get the Opanas really soon . . . ."

Corbett responded: "All right, I will. I will pick them up,

uh . . . tomorrow or the day after." Following this exchange, and

because Corbett was concerned that the pair's cellphones might be

tapped, he suggested that Gillis put both phones in her car so

that they could continue their conversation in his car. Gillis

complied with this directive and then returned to Corbett's car.

Later in the conversation, Gillis asked Corbett, "What

is it I owe you again?" When Corbett responded "Twenty-six fifty,"

Gillis pushed back, "I thought it was twenty[-]five sixty for some

reason." Corbett replied: "I have to think. It might be." Gillis

then offered to pay Corbett $2,560 and suggested that she had

"extra in case you wanted to give me anything else." Corbett

accepted the $2,560, and responded that he didn't have any

oxycodone pills to sell Gillis at the moment. Corbett then told

Gillis, "[T]omorrow I will come back," which she understood to

substance of the encounter from the intelligible portions of the recording and Gillis's trial testimony.

- 4 -

mean that he would pick up the Opanas the next day. After the

money switched hands, Gillis told Corbett that she still had some

Suboxone pills and did not want any more of those pills: "I'm

gonna like keep those and continue to try to get rid of the rest

of those but I don't want any more of those." Corbett responded,

"Alright." The conversation eventually ended, and Gillis left

Corbett's car.

At this point, multiple officers converged on the scene,

and Corbett was arrested. In a search of his vehicle, police found

the $2,560 in prerecorded buy money in the center console, as well

as an additional $3,843 underneath the seat. When questioned by

police, Corbett insisted that he and Gillis "were just talking."

Police asked Corbett about the money found in his car, and he

answered that it came from "a settlement";8 he did not mention that

Gillis had just paid him.

A federal grand jury indicted Corbett on one count of

conspiracy to distribute and possess with intent to distribute a

mixture or substance containing oxycodone and a mixture or

substance containing oxymorphone, in violation of 21 U.S.C. §§ 846

and 841(a)(1). The indictment alleged that the charged conspiracy

8 At the time of the interrogation, Corbett had recently "received a sum of money" as part of an insurance settlement for a fire loss.

- 5 -

ran from "approximately June 2013 through and until December 16,

2014."

Both Gillis and Gerrish, among others, testified at

Corbett's trial.9 Gillis told the jury about the evolution of her

relationship with Corbett. She first came in contact with Corbett

through Facebook when she was thirteen years old. After "[m]aybe

a month or a couple of months" of communicating through Facebook,

the two met in person at the home of Gillis's friend. On that

occasion, Corbett gave Gillis some money and asked her "to get him

weed." Gillis left and did as Corbett instructed, but when she

returned with the goods, Corbett had already left the house; he

told Gillis to keep the newly purchased merchandise for herself.

Corbett and Gillis continued to occasionally see one another,

typically at Gillis's home. On one of these occasions, Corbett

provided the underage Gillis with alcohol.

Eventually, the relationship between Corbett and Gillis

entered the realm of oxycodone trafficking. It all started when

Corbett and Gillis decided to ask Gerrish if he could obtain

oxycodone pills from his father and sell them to Corbett.10 Gillis

9 By that point, Gerrish had pled guilty to conspiracy to distribute oxycodone, and Gillis had pled guilty to conspiracy to distribute both oxycodone and oxymorphone. 10 When asked "who brought up the idea," Gillis responded, "Um, both of us [i.e., Corbett and Gillis]."

- 6 -

asked Gerrish, and Gerrish obliged, obtaining the pills from his

dad and selling them to Corbett for a profit.

After this first exchange, Corbett told Gillis that he

could obtain oxycodone pills (from some unknown source who was not

Gerrish's father) for $22 per pill and that she could sell them

for a profit. Gillis agreed to that arrangement, and, about a

month later, Corbett fronted her the first delivery of pills. Over

the next two years until Gillis was arrested, Corbett continued to

deliver oxycodone pills for Gillis to distribute. The frequency

of the deliveries varied; sometimes they occurred on a weekly

basis, and sometimes monthly drop-offs were made. Corbett

continued to front Gillis pills on occasion. Gillis also testified

that Corbett set the price that she paid for the pills; she once

asked Corbett how many pills she'd have to purchase in order to

get a cheaper price, and Corbett responded, "Too many." And Gillis

never obtained a cheaper price from Corbett. In addition to

oxycodone, Corbett also supplied Gillis with "Suboxone, Opanas,

Dilaudid, [and other] pharmaceuticals."11

Gerrish also testified against Corbett. He told the

jury that he agreed with Gillis to sell oxycodone pills that he

would purchase from her. Gerrish also explained that he sometimes

11With respect to the oxymorphone pills in particular, about two months before Gillis was arrested, Corbett told her that she could make more profit selling oxymorphone pills than she could selling oxycodone pills.

- 7 -

was present when Corbett delivered pills to Gillis. On those

approximately five occasions, Gerrish saw Corbett hand Gillis "[a]

baggie with pills in it." On cross-examination, however, Gerrish

acknowledged that, when he was interrogated by police after his

arrest, he denied that he had seen any hand-to-hand exchange of

pills between Corbett and Gillis. He explained, "At that time I

denied a lot of things."

After the government rested its case, Corbett moved for

a judgment of acquittal under Rule 29(a) of the Federal Rules of

Criminal Procedure, arguing that the evidence was insufficient.

The district court denied the motion. In his closing argument,

defense counsel attacked the credibility of both Gillis and

Gerrish. Gerrish, defense counsel stressed, had testified

inconsistently with what he initially told investigators about

observing pill exchanges between Corbett and Gillis. Defense

counsel painted Gillis as a liar who was seeking to falsely pin

the blame on Corbett in the hopes of receiving leniency for her

drug-dealing ways. Finally, defense counsel also emphasized that

police did not find any drugs on Corbett or in his car when they

arrested him.

In its final charge to the jury, the district court

instructed the jury on the elements of conspiracy, and told the

jurors that they should consider the testimony of the cooperating

witnesses, Gillis and Gerrish, "with caution" because "[t]hey may

- 8 -

have had reason to make up stories or exaggerate what others did

because they wanted to help themselves." At the conclusion of its

instructions, the court asked counsel whether they had any

objections or additions to the instructions just delivered;

defense counsel responded that he did not.

During their deliberations, the jurors sent multiple

notes to the judge, two of which are relevant to this appeal. The

first note, which was submitted to the court approximately two-

and-a-half hours after deliberations began, asked: "Can you please

advise us regarding inability to reach a verdict? Both sides are

adamant." The court responded, "In response to your note, I advise

that you again review the evidence and my instructions and continue

to deliberate." Defense counsel informed the court that he had no

objection to this response.

The second note from the jurors read: "Does the

intention of the defendant to pick up the drugs ([O]panas) [from

Gillis's home] as evidenced in the audiotape fall within the scope

of the indictment charges?" (Asterisk omitted.) After the parties

initially disagreed on how to respond, the district court briefly

set forth his intended response. Both before and after the court

discussed its response, the judge told the parties, "I'm not wedded

to this." The court proposed the following response: "In response

to your note (Court Exhibit 6) and to answer your question, you

need to determine if the conspiracy charged in the indictment

- 9 -

existed, what was the scope and purpose of that conspiracy, and if

the defendant willfully joined the conspiracy based on the evidence

of his own words or deeds." When the district court solicited the

parties' views on its proposed response, defense counsel stated,

"I think it restates the instruction already given, so I have no

problem."

The jury ultimately found Corbett guilty. The

presentence investigation report (PSR) recommended a two-level

enhancement under U.S.S.G. § 3B1.4 for Corbett's use of a minor,

Gillis, during the conspiracy. Corbett objected to this aspect of

the PSR. The district court applied the enhancement, accepting

the government's argument that the evidence showed that Corbett

had groomed12 Gillis to distribute drugs for him. The court

sentenced Corbett to a term of 100 months of imprisonment. Corbett

timely appealed.

ANALYSIS

A. Sufficiency of the Evidence

We first address Corbett's argument that the evidence

against him was insufficient. Because he preserved the issue by

filing a motion for judgment of acquittal, our review is de novo.

See United States v. Gonsalves, 859 F.3d 95 , 110 (1st Cir. 2017).

12We'll discuss the district court's grooming conclusion in more detail below, see infra Part C.

- 10 -

In assessing a sufficiency-of-the-evidence claim, we

view the evidence in the light most favorable to the government,

draw all reasonable inferences in its favor, and ask whether a

rational factfinder could have found each element of the charged

offense beyond a reasonable doubt. See id. at 110-11; United

States v. Rivera-Ruperto, 846 F.3d 417 , 432 (1st Cir. 2017).

Additionally, we "must defer all credibility judgments to the

jury," Gonsalves, 859 F.3d at 111 (quoting United States v.

O'Brien, 14 F.3d 703 , 706 (1st Cir. 1994)), "drawing all

credibility choices in the government's favor," United States v.

Morosco, 822 F.3d 1 , 7 (1st Cir. 2016), and disturbing "only those

evidentiary interpretations . . . that are unreasonable,

insupportable, or overly speculative," United States v. Serunjogi,

767 F.3d 132 , 140 (1st Cir. 2014) (internal quotation marks

omitted) (quoting United States v. Hernandez, 218 F.3d 58 , 64 (1st

Cir. 2000)). Given the manner in which we must view the evidence,

it's no surprise (and no secret) that a sufficiency challenge is

oftentimes a bit of a longshot. See Rivera-Ruperto, 846 F.3d at

432 (explaining that sufficiency claims are "rarely successful"

(quoting United States v. Moran, 984 F.2d 1299 , 1300 (1st Cir.

1993))); Morosco, 822 F.3d at 7 (explaining that "[s]ufficiency

arguments seldom succeed"); United States v. Correa-Osorio, 784

F.3d 11 , 26 (1st Cir. 2015) (explaining that "[s]ufficiency

challenges rarely succeed"); United States v. George, 761 F.3d 42 ,

- 11 -

48 (1st Cir. 2014) (explaining that "a sufficiency challenge is a

tough sell" (quoting United States v. Polanco, 634 F.3d 39 , 45

(1st Cir. 2011))).

The government needs to prove three elements beyond a

reasonable doubt to secure a conviction for conspiracy under § 846:

"(1) a conspiracy existed; (2) the defendant had knowledge of the

conspiracy; and (3) the defendant knowingly and voluntarily

participated in the conspiracy." Rivera-Ruperto, 846 F.3d at 432

(quoting United States v. Maryea, 704 F.3d 55 , 73 (1st Cir. 2013)).

The third element requires the government to show that the

defendant "intended to join the conspiracy and that he intended

for its goals to be accomplished." United States v. Paz-Alvarez,

799 F.3d 12 , 25 (1st Cir. 2015). Viewing the evidence in the

requisite verdict-friendly manner, the government's evidence in

this case was plainly sufficient.

Sufficient evidence was presented to show that the

charged conspiracy existed. See Rivera-Ruperto, 846 F.3d at 432.

Based on the testimony of Gillis and Gerrish, a rational juror

could have concluded that an oxycodone-distribution conspiracy

existed where Corbett would supply the oxycodone to Gillis, who

would then sell the pills to others, including Gerrish.

Additionally, Gillis testified that, about two months before her

arrest, Corbett told her that she could make more of a profit

- 12 -

selling oxymorphone pills, Gillis "agreed to see if [she] could

sell them," and she sold "1 or 2" oxymorphone pills.

The testimony of these two witnesses also amply supports

the second and third elements of the charged conspiracy — that

Corbett knew of the conspiracy and knowingly and voluntarily

participated in it. See id. Gillis testified that Corbett was

her source for the oxycodone and oxymorphone pills. And she

testified that, over a two-year period, Corbett continued to

deliver oxycodone pills to her on either a weekly or a monthly

basis and that the average number of pills Corbett delivered each

time increased during the course of the conspiracy. Gillis also

told the jury that Corbett supplied her with oxymorphone pills on

one occasion. Like Gillis, Gerrish told the jury about the times

he witnessed Corbett delivering pills to Gillis. Finally, Gillis

testified that Corbett fronted some of the pills that he delivered

to her. See United States v. Bedini, 861 F.3d 10 , 15 (1st Cir.

2017) (explaining that fronting drugs can constitute "an act of

trust that assume[s] an ongoing enterprise with a standing

objective" (quoting United States v. Ortiz-Islas, 829 F.3d 19 , 25

(1st Cir. 2016))).

Corbett's knowing and voluntary participation in this

conspiracy was also established by Gillis's testimony about what

- 13 -

transpired during the recorded conversation in the car.13 When

Gillis asked Corbett to pick up oxymorphone pills from her, he

agreed to do so. Additionally, after a brief exchange about the

precise dollar figure, Corbett accepted $2,560 from Gillis for a

debt that Gillis owed him, and Gillis told the jury that this debt

was for oxycodone pills that Corbett had previously fronted her.

Finally, Corbett's conduct during the conversation with Gillis

betrayed a fear of being overheard while talking to her about the

conspiracy; he played his car radio loudly throughout the

conversation, and, worried that their cellphones might be tapped,

he instructed Gillis to put the phones in her car so that they

could safely talk in his car. Cf. George, 761 F.3d at 51

(explaining, when considering evidence that defendant expressed

over the phone his unwillingness to engage in illegal activity,

13 Even if we accept Corbett's position that no conspiracy existed at the time of the recorded conversation because both of Corbett's coconspirators were cooperating with law enforcement, the recorded conversation (and Gillis's testimony about it) was still admissible. See United States v. Fanfan, 468 F.3d 7 , 11-12 (1st Cir. 2006) (explaining that evidence of recorded conversation between defendant and coconspirator who had, unbeknownst to defendant, been arrested and was cooperating with law enforcement at time of conversation was admissible in conspiracy prosecution); cf. Ortiz-Islas, 829 F.3d at 27 (affirming admission of evidence of post-indictment sting-drug transaction because evidence "'was closely linked in time to the alleged conspiracy and proved the identities and relationships of the conspirators'" and "evidence of the final, faux deal merely illuminated what had been going on among the relevant parties for over a year, a course of conduct that was firmly shown through overwhelming evidence including co- conspirators' testimony" (quoting United States v. Niemi, 579 F.3d 123 , 128 (1st Cir. 2009))).

- 14 -

that "a logical jury could also conclude that [defendant] did not

like talking shop over the phone and so sprinkled in words

suggesting his unwillingness to do anything illegal just in case

the police were listening in").

Perhaps in recognition of the testimony of these

witnesses, Corbett appears to concede that, if the jury believed

Gillis and Gerrish, the evidence was sufficient. But wait, he

says: "The jur[ors] could not have unanimously agreed on their

credibility," he tells us, "because [of] the notes to the court

sent out during deliberations." Corbett appears to support this

argument with the following reasoning. The first note, in which

the jurors indicated that they were at an impasse in their

deliberations, suggested that at least some jurors were not

convinced beyond a reasonable doubt that Corbett was guilty of the

charged pill-peddling conspiracy. The second note showed that the

once-divided jurors were now focusing on the audio recording of

the December 19 meeting with Gillis and Corbett. Weaving these

two strands together, Corbett insists that the jurors must have

found him guilty of a conspiracy solely based on the recorded

conversation, which occurred at a time when Gillis was acting as

a government agent and, therefore, could not be a conspirator as

a matter of law. This line of argument, although creative, cannot

carry the day.

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Corbett places far more weight on the juror notes than

they can reasonably bear. The second note tells us only that,

when the jurors wrote the note, they were then focusing on the

recorded conversation. Contrary to Corbett's position, that note

in no way suggests that the jurors had rejected all of the other

evidence in the case and had discredited the testimony of Gillis

and Gerrish. Similarly, the first note suggests only that, when

the jurors wrote that note after less than three hours of

deliberations, they were not yet all on the same page with respect

to Corbett's guilt or innocence. As was true for the second note,

nothing in the first note suggests that the jurors in the end

rejected the testimony of Gillis and Gerrish. Therefore, we reject

Corbett's argument that the two juror notes demonstrate that the

jury found these two witnesses to be not credible.

Perhaps as a fallback to his primary insufficiency

argument, Corbett also offers discrete reasons why the testimony

of both Gillis and Gerrish was, in his view, suspect. Both

witnesses, he points out, began cooperating only after they had

both been caught red-handed with a cache of pills. Additionally,

Corbett highlights the about-face in Gerrish's story; although he

initially told police that he had not observed any hand-to-hand

exchange of drugs between Corbett and Gillis, he testified at trial

that he had, in fact, seen such exchanges. And Gillis was no

saint, either, Corbett insists. He emphasizes that, even after

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Corbett was removed from the picture on account of his arrest,

Gillis went right back to her drug-dealing ways, and this time

heroin replaced oxycodone as the hot commodity.

Although these seeds of doubt might have stood some

chance of finding fertile ground in closing argument before a jury,

they have no chance of survival in the arid climate that is

appellate sufficiency-of-the-evidence review. As we have

explained, credibility determinations are for the jury, not this

court, to make, see Gonsalves, 859 F.3d at 111, and our review

must "resolve all credibility disputes in favor of the verdict,"

United States v. Gaw, 817 F.3d 1 , 4 (1st Cir. 2016). Corbett made

these credibility arguments to the jury, but the jury found him

guilty nonetheless. See Gonsalves, 859 F.3d at 111 (emphasizing

this point while rejecting "hopeless" witness-credibility

argument). We cannot say that it was unreasonable or insupportable

to credit the testimony of Gerrish and Gillis. See Serunjogi, 767

F.3d at 140.

In a last-ditch effort to stem the tide, Corbett stresses

that he was never found in possession of any drugs and never

expressed the intent to sell drugs in the recorded conversation

with Gillis. But the government was not required to produce such

smoking-gun evidence to secure Corbett's conviction. See Paz-

Alvarez, 799 F.3d at 25 ("There are many ways to show that a

defendant intended to join and advance a conspiracy, even where

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the defendant never actually handled the drugs."). As explained

above, the testimony of Gerrish and Gillis amply supported the

guilty verdict. Therefore, Corbett's sufficiency challenge must

fail.

B. Court's Response to Second Juror Note

Corbett next argues that the district court erred in its

response to the jurors' question about whether Corbett's

expression in the recorded conversation of an intent to pick up

the oxymorphone fell within the scope of the conspiracy. As

Corbett sees things, the court's response incorrectly suggested to

the jurors that they could consider Corbett's words or actions in

his conversation with Gillis — who by then was a government agent

with whom Corbett could not conspire as a matter of law — as

evidence of the existence of the charged conspiracy.

Recognizing that he failed to raise the issue below,

Corbett suggests that we must review this claim under the daunting

plain-error standard of review. Not so fast, says the government:

When defense counsel told the district court "I have no problem"

with the proposed response, he affirmatively waived — rather than

merely failed to preserve — this issue. We start (and end) our

analysis with the question of waiver.

A litigant waives a claim when he or she "'intentionally

relinquishes or abandons' a known right." United States v. Walker,

538 F.3d 21 , 23 (1st Cir. 2008) (quoting United States v.

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Rodriguez, 311 F.3d 435 , 437 (1st Cir. 2002)); see also United

States v. Torres-Rosario, 658 F.3d 110 , 115-16 (1st Cir. 2011).

The distinction between waiver and forfeiture is critical:

Although a forfeited claim will be reviewed for plain error, "a

waived issue ordinarily cannot be resurrected on appeal." Walker,

538 F.3d at 23 (quoting Rodriguez, 311 F.3d at 437).

In this case, we agree with the government that Corbett

waived any challenge to the district court's response to the second

juror note. Before the district court responded to the note, the

court twice told the parties that it was not at all "wedded" to

the language proposed. Despite this clear invitation from the

district court to propose alternative responses, defense counsel,

when given the opportunity to voice Corbett's position, stated, "I

think it restates the instruction already given, so I have no

problem." (Emphasis added.)

We have explained that, "when the 'subject matter [is]

unmistakably on the table, and the defense's silence is reasonably

understood only as signifying agreement that there was nothing

objectionable,' the issue is waived on appeal." United States v.

Soto, 799 F.3d 68 , 96 (1st Cir. 2015) (quoting United States v.

Christi, 682 F.3d 138 , 142 (1st Cir. 2012)). Here, the district

court unmistakably placed the issue of how to respond to the second

juror note on the table, and Corbett's counsel was not merely

silent, but affirmatively stated that he had "no problem" with the

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court's proposed response. This amounts to waiver. See id.

(holding that challenge to district court's instruction was waived

where "the district court informed [defendants] exactly how it was

planning to instruct the jury . . . and sought their feedback,

twice asking if they were okay with those specific instructions"

and counsel for one defendant "affirmatively stated there was no

objection" while counsel for other defendants "remained silent";

"[g]iven the judge's invitation to speak up with any disagreement,

these reactions can only be interpreted as signifying approval

with the instructions as previewed"); United States v. Hansen, 434

F.3d 92 , 101 (1st Cir. 2006) (holding that challenge to district

court's failure to give multiple-conspiracy instruction was waived

where defense counsel "not only failed to object to the court's

omission of his proposed multiple conspiracy instruction, but also

affirmatively stated 'I am content' after the district court

instructed the jury"); id. at 105-06 (holding that challenge to

district court's handling of note from juror about privacy concerns

was waived because, when district court proposed a curative

instruction, "defense counsel responded, 'Something along those

lines, Judge, fine'").14 So we say no more about this issue.

14We recognize that we can, "as a matter solely of [our] discretion," forgive waiver in "the rare case." United States v. Walker, 665 F.3d 212 , 227 (1st Cir. 2011); see also Torres-Rosario, 658 F.3d at 116 ("[C]ourts may excuse waivers and disregard stipulations where justice so requires."). Corbett has made no

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C. Enhancement for the Use of a Minor

Corbett's final contention on appeal is that the

district court erred in imposing a guideline enhancement under

U.S.S.G. § 3B1.4 for Corbett's use or attempted use of a minor.

Convinced that Gillis's foray into the world of drug dealing both

predated her friendship with Corbett and continued after Corbett

was arrested, he insists that Gillis was "predisposed to commit

the offense and was not an 'unwary innocent.'"

The government must prove sentencing enhancements by a

preponderance of the evidence. Walker, 665 F.3d at 232. We review

the district court's interpretation of the meaning and scope of a

sentencing guideline de novo, while the court's factfinding is

reviewed for clear error, with "due deference to the court's

application of the guidelines to the facts." United States v.

Vega-Rivera, No. 15-2467, 2017 WL 3276789 , at *3 (1st Cir. Aug. 2,

2017); see also Walker, 665 F.3d at 232.

The guidelines call for a two-level increase in the

offense level "[i]f the defendant used or attempted to use a person

less than eighteen years of age to commit the offense or assist in

avoiding detection of, or apprehension for, the offense." U.S.S.G.

§ 3B1.4 (2015). The commentary for this enhancement provides that

"'[u]sed or attempted to use' includes directing, commanding,

argument that this is such a case, and we see no reason to excuse his waiver.

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encouraging, intimidating, counseling, training, procuring,

recruiting, or soliciting." Id. cmt. n.1.

The district court appropriately applied this

enhancement in this case. Before the conspiracy even began,

Corbett gave Gillis, who was then about thirteen years old, some

money and asked her to obtain some marijuana for him. After she

did as instructed, Corbett told Gillis that she could keep the

marijuana that he had paid for. On another occasion, Corbett

provided alcohol to the underage Gillis. The district court

supportably found that each of these instances were examples of

Corbett's "long process of grooming" Gillis "to become a dealer

for him." In other words, the district court found that Corbett's

conduct on these occasions — which began when Gillis was a young

girl — were attempts to encourage, recruit, or solicit her. See

id. cmt. n.1; see also United States v. Hardy, 393 F. App'x 205 ,

207 (5th Cir. 2010) (per curiam) (affirming application of

enhancement where defendant "cultivated a relationship with 16-

year-old J.M., providing her with free methamphetamine"; minor

later brought one of her friends to defendant's home to purchase

methamphetamine; friend "eventually became a user and distributor

of [defendant]'s methamphetamine").

In addition to grooming Gillis, the evidence shows that

Corbett used Gillis as a seller in this pill-trafficking conspiracy

when she was a minor. Gillis, who was eighteen years old when she

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was arrested, testified that Corbett delivered large quantities of

oxycodone pills to her for approximately two years prior to her

arrest. See United States v. Acosta, 534 F.3d 574 , 588 (7th Cir.

2008) ("Distributing drugs directly to minors for further

distribution qualifies as the type of personal use of a minor

warranting application of the use-of-a-minor enhancement under

§ 3B1.4."); cf. United States v. Mott, 26 F. App'x 8 , 9-10 (1st

Cir. 2001) (per curiam) (affirming application of enhancement

where defendant in conspiracy case allowed minor to sell drugs out

of defendant's apartment; "[defendant] was aware that [minor] was

selling drugs from the apartment and agreed to it"). Moreover,

notwithstanding Corbett's assertion to the contrary, this is a

case where the defendant encouraged the minor's drug activity:

Corbett encouraged Gillis to sell pills by fronting them to her

throughout the two-year conspiracy with the understanding that she

would pay him for the pills once they were sold. See United States

v. Garcia, 497 F.3d 964 , 971 (9th Cir. 2007) (affirming district

court's application of enhancement where defendant, among other

things, encouraged minor by fronting her methamphetamine to sell);

United States v. Caster, 24 F. App'x 864 , 867 (10th Cir. 2001)

(similar); cf. Ortiz-Islas, 829 F.3d at 26 (explaining that

defendant's willingness to front drugs to coconspirator shows "the

importance of sustaining a regular course of business").

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Corbett argues that "[t]he guideline enhancement for

using or attempting to use a minor who is already engaged in the

drug business and predisposed to continue in the business[] is not

warranted." We are immediately skeptical of this argument. For

starters, we see nothing in the text of the enhancement to support

the troubling notion that a minor could ever be deemed to be so

predisposed to criminal conduct that an adult who then encourages

that conduct is not subject to the enhancement. Instead, § 3B1.4

reaches defendants who "used or attempted to use" any "person less

than eighteen years of age" — without regard to the minor's

propensity to obey or disobey the criminal laws. Additionally,

none of the cases Corbett cites support his predisposition

argument. Cf. United States v. Rose, 496 F.3d 209 , 214 (2d Cir.

2007) (rejecting argument that "§ 3B1.4 applies only if the minor

is vulnerable, child-like in appearance, or predisposed against

crime" and explaining that "[t]he fact that the minor was a large,

seventeen-and-a-half year old drug dealer who participated eagerly

in the [armed-robbery and kidnapping] crimes does not make § 3B1.4

inapplicable"). Finally, in addition to the lack of support in

the enhancement's text or in the case law, Corbett's predisposition

argument also seems inconsistent with the purpose behind the

enhancement: to protect minors. See United States v. McClain,

252 F.3d 1279 , 1286 (11th Cir. 2001) ("The unambiguous legislative

design of section 3B1.4 is to protect minors as a class . . . .").

- 24 -

Reserving that protection only for law-abiding minors and

withholding it from the minors who need it most would seem to

frustrate that clear purpose.

But we need not definitively decide whether a minor's

predisposition towards crime can ever foreclose application of the

enhancement because the component parts of Corbett's

predisposition argument in this case are either factually

unsupported or undeveloped. As we understand it, Corbett's effort

to paint Gillis as predisposed to deal drugs is based on two

assertions. First, Corbett asserts that Gillis "was selling drugs

before any relationship with the defendant" got underway. Second,

Corbett notes that "Gillis also continued her drug use and drug

sales" after Corbett was out of the picture. Each assertion is

fatally flawed in the circumstances of this case.

The first assertion is factually infirm: Corbett does

not point us to any evidence in this record to support his claim

that Gillis was selling drugs before she met him. Perhaps Corbett

intends to refer to the time when, at Corbett's direction, Gillis

acquired marijuana for him with money he had given her. But

Gillis's acquisition of marijuana from some unknown source is not

evidence that Gillis was selling drugs before she met Corbett.

Similarly, Corbett references the time when "Gillis and . . .

Gerrish, with the assistance of Gerrish's father, provided

oxycodone to [Corbett]." But the evidence shows only that Gillis

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reached out to Gerrish to obtain the pills, that Gerrish did so,

and that it was Gerrish, and not Gillis, who sold them to Corbett

for a profit. Thus, this evidence similarly does not support

Corbett's argument that Gillis was selling drugs before her

relationship with him began. Indeed, the district court

supportably found that these prior exchanges between Corbett and

Gillis were evidence of Corbett recruiting and grooming Gillis to

be part of his oxycodone-peddling plan.

The second assertion — that Gillis continued to use and

sell drugs — suffers a flaw of Corbett's own making: He hasn't

pointed us to any authority that suggests that a minor's later

conduct that is unrelated to the charged offense is relevant to

the inquiry of whether the enhancement is appropriate.15 And it's

not apparent to us from the plain text of the enhancement that

such conduct matters one iota; the enhancement, after all, focuses

on whether the defendant used or attempted to use a minor "to

commit the offense or assist in avoiding detection of, or

15The only case Corbett cites is a Supreme Court case that discusses predisposition in the context of the defense of entrapment. See United States v. Russell, 411 U.S. 423 , 428-36 (1973). But he makes no effort to explain why the principles of this entrapment case — which was decided more than twenty years before the enhancement became effective, see U.S.S.G. § 3B1.4, cmt. hist. n. (indicating that enhancement first became effective in 1995) — should have any bearing on the issue before us, and "[d]eveloping a sustained argument out of . . . legal precedents is the job of the appellant, not the reviewing court, as we have previously warned." Town of Norwood v. Fed. Energy Regulatory Comm'n, 202 F.3d 392 , 405 (1st Cir. 2000).

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apprehension for, the offense." U.S.S.G. § 3B1.4 (2015) (emphases

added). In any event, given Corbett's failure to meaningfully

develop this argument or support it with any authority, we need

not definitively decide this point. See United States v. Zannino,

895 F.2d 1 , 17 (1st Cir. 1990) ("[I]ssues adverted to in a

perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived.").

Undeterred, Corbett takes another tack at avoiding the

enhancement: Emphasizing that Gillis sold the pills "on her own

at a profit," Corbett argues that Corbett and Gillis were, at best,

partners in this pill-peddling enterprise. And, citing a pair of

out-of-circuit cases, he insists that the enhancement requires

"something more than a 'partner' type relationship" like what we

have here. (Citing United States v. Parker, 241 F.3d 1114 (9th

Cir. 2001); United States v. Butler, 207 F.3d 839 (6th Cir. 2000).)

We are unpersuaded.

Unlike Parker and Butler, this is not a case where the

minor was an equal partner of the defendant. See Parker, 241 F.3d

at 1120-21 (finding enhancement inapplicable where there was no

evidence "that the defendant acted affirmatively to involve the

minor in the [bank] robbery, beyond merely acting as his partner");

Butler, 207 F.3d at 849 & n.3 (finding enhancement inapplicable

where "[t]he facts, at best, show only that [twenty-year-old

defendant] and [seventeen-year-old minor] possessed equal

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authority in their commission of the [bank robbery]").16 Corbett,

as Gillis testified, was her sole supplier of oxycodone pills.

See Acosta, 534 F.3d at 588. Gillis had no say in the price that

she paid for the pills; Corbett set the price at $22 per pill.

Additionally, he fronted her pills on multiple occasions,

encouraging her to accept pills she "could not pay for" with the

understanding that she would "pay for [them] the next time." In

short, the record belies Corbett's characterization of his

relationship with Gillis as an equal partnership.

We therefore reject Corbett's challenge to the district

court's application of the use-of-a-minor enhancement.

CONCLUSION

For these reasons, we affirm Corbett's conviction and

sentence.

16 We note that there's a circuit split on whether the enhancement must be based on a defendant's own affirmative actions or whether it can be applied based on a coconspirator's reasonably foreseeable use of a minor, see United States v. Acosta, 474 F.3d 999 , 1002 (7th Cir. 2007) (collecting cases), and that this court has already weighed in on this debate, see United States v. Patrick, 248 F.3d 11 , 27-28 (1st Cir. 2001) (holding that, in conspiracy case, defendant's "sentence could be enhanced based on his co-conspirator's reasonably foreseeable use of juveniles to further the [organization]'s activities"). We need not concern ourselves with this nuance, however, because the question of the enhancement's applicability on these facts concerns only Corbett's actions.

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