FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE [Hon. D. Brock Hornby, U.S. District Judge]
Elizabeth Latif on brief for the appellant.
B. Frank, United States Attorney, and Julia M. Lipez,
Assistant United States Attorney, on brief for appellee.
Howard, Chief Judge, Selya and Thompson, Circuit Judges.
the sentencing phase of his criminal case,
defendant-appellant Anibal Orsini repeatedly agreed that he
should be sentenced as a career offender. See USSG
§4B1.1. Taking the appellant at his word, the district
court - after independently finding that the appellant's
criminal record qualified him for career offender status -
sentenced him as such to a 188-month term of immurement. On
appeal, the appellant has suffered an attack of buyer's
remorse: he argues for the first time that his prior criminal
record does not include predicate convictions sufficient to
rank him as a career offender. The government says that he
has waived this argument.
orderly administration of justice depends upon a network of
rules. The waiver rule is an important component of this
network, and we agree with the government that waiver
principles are apposite here. Applying those principles, we
discern no reason to allow the appellant to shed the
consequences of his waiver as easily as an iguana sheds its
skin. Because the appellant has waived his "career
offender" argument and has made no showing sufficient to
excuse that waiver, we affirm the challenged sentence.
briefly rehearse the travel of the case. The appellant was
arrested and indicted in the aftermath of a major
drug-trafficking investigation spearheaded by federal
authorities. On March 28, 2017, he pleaded guilty to a single
count of conspiracy to distribute and possess with intent to
distribute 100 grams or more of heroin and detectable
quantities of cocaine hydrochloride and fentanyl.
See 21 U.S.C. §§ 841(a)(1), 846. The
probation department prepared a presentence investigation
report (PSI Report), which recommended among other things
that the appellant be sentenced as a career offender.
See USSG §4B1.1. The PSI Report premised this
recommendation on three predicate convictions reflected in
the appellant's prior criminal record: a 2002
Massachusetts drug-trafficking conviction, a 2012 New
Hampshire sale-of-controlled-substance conviction, and a 2013
Massachusetts drug-distribution conviction.
appellant objected to the PSI Report, but his objections did
not directly contest the career offender enhancement. Rather,
they centered around his claim that a number of crimes
attributed to him by the probation department (not including
the putative predicate-offense convictions) were actually
committed by another individual. Wiping away the fruits of
this mistaken identity, the appellant argued, would reduce
his criminal history score and, thus, reduce his criminal
probation department sustained this objection in part; it
agreed that some of the reported offenses had been
perpetrated by someone else and should not be attributed to
the appellant. But because the appellant did not challenge
any of the three specified career offender predicates, the
revised PSI Report continued to recommend that the sentencing
court treat him as a career offender.
appellant also objected to the total drug quantity and
resulting base offense level, see USSG
§2D1.1(c), as well as to proposed firearms and
role-in-the-offense enhancements, see id.
§§2D1.1(b)(1), 3B1.1(b). Notwithstanding the
appellant's misgivings, the probation department declined
to consent to any further changes to the PSI Report.
district court held a conference on August 10, 2017, to
"find out what is in dispute before the [sentencing]
hearing." The court began by questioning the relevance
of the appellant's remaining identity-based objections,
pointing out that those objections, even if sustained, would
not alter the appellant's criminal history category
(which would, in any event, be a function of his career
offender status). Defense counsel took no issue with this
statement. When the court later repeated that the
identity-based objections would "not affect [the
appellant's] criminal history category in light of the
career offender provisions," counsel acknowledged that
the court was "correct."
court proceeded to address the drug-quantity issue and the
proposed enhancements. It noted, however, that even using a
drug-quantity figure satisfactory to the appellant, his
career offender status would yield a significant guideline
sentencing range (188-235 months). For that reason, the court
suggested that the parties eschew any further wrangling over
either drug quantity or enhancements and simply stipulate to
the 188-235 month range. The parties accepted the court's
suggestion and, as a result, the government abandoned its