Of the District of the District of Columbia, sitting by *

designation.

Not For Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 04-1561

UNITED STATES OF AMERICA,

Appellee,

v.

WILLIAM REID,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

 Torruella, Circuit Judge,

Stahl, Senior Circuit Judge,

and Oberdorfer, Senior District Judge. *

H. Ernest Stone for appellant.

Margaret D. McGaughey, Appellate Chief, with whom Paula D.

Silsby, United States Attorney, was on brief, for the United

States.

August 9, 2005
OBERDORFER, Senior District Judge. Appellant William Reid

pleaded guilty to one count of conspiring to possess stolen

firearms in violation of 18 U.S.C. §§ 371 & 922(j). Applying the

then-mandatory federal Sentencing Guidelines, the district court

imposed a sentence of 27-months imprisonment. Reid appeals his

sentence. He contends that the district court erred in calculating

his Guidelines sentencing range by increasing his offense level by

four pursuant to section 2K2.1(b)(5) of the Guidelines. He also

contends, for the first time on appeal, that even if the district

court did not err in calculating the applicable Guidelines range,

he is entitled to a remand for resentencing under United States v.

Booker, 125 S. Ct. 738 (2005). Finding no error in the district

court’s Guidelines calculations and no basis for a Booker remand,

we affirm.

I. BACKGROUND

A. Facts

On the evening of December 19, 2002, Reid and several other

people (the “co-conspirators”) came up with a plan to steal guns

and trade the guns for cocaine. The target of the planned theft

was Bart McNeel, the father of one of the co-conspirators. At the

time the plan was concocted, the co-conspirators were in an

apartment in Biddeford, Maine. In order to carry out the plan,

five of the co-conspirators, including Reid, drove from Biddeford

to McNeel’s home in Westbrook, Maine. Reid kept watch outside,

while two of the group entered the house and stole McNeel’s gun
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cabinet; the remaining two occupied themselves by driving around

the neighborhood. The group of five then returned to the apartment

in Biddeford, where the gun safe was opened and six guns were

discovered. 

The next day, December 20, 2002, Reid took the six guns that

had been in the gun safe and, accompanied by two of the other coconspirators, drove to another town to trade the guns for cocaine.

Once there, Reid alone carried out the trade. He met with a person

named Sam and traded four of the guns for two “rocks” of cocaine.

Initially, Reid kept one rock for himself while giving one rock to

one of the people who had made the trip with him. Ultimately, both

rocks were shared with other co-conspirators who had not made the

trip. 

B. Procedural History

On November 4, 2003, Reid was indicted by a federal grand jury

for conspiracy to possess stolen firearms in violation of 18 U.S.C.

§§ 371 & 922(j). A superseding indictment on December 19, 2003,

added the charge of transferring firearms, knowing they would be

used to commit a drug trafficking crime in violation of 18 U.S.C.

§ 924(h). That same day, pursuant to a plea agreement, Reid

pleaded guilty to the first count and the government agreed to

dismiss the second count. 

The Presentence Investigation Report (“PSR”) concluded that

the stolen firearms were possessed “in connection with another
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felony offense,” requiring a four-level increase in Reid’s offense

level pursuant to section 2K2.1(b)(5) of the Sentencing Guidelines.

According to the PSR, Reid’s “other offense” was the possession of

cocaine with the intent to distribute. Reid objected to this

aspect of the PSR, arguing that his sharing of the cocaine he had

acquired in exchange for the guns was not “distribution” because

all of the people with whom he shared the cocaine had jointly

agreed to acquire the firearms, to exchange them for drugs, and to

share the drugs among themselves. The district court overruled his

objection, holding that “where one or more individuals purchase or

acquire drugs and then share the drugs with others, there is a

distribution, notwithstanding the existence of a conspiracy or

agreement among all of the parties involved to acquire and use

drugs.” Sentencing Hearing Tr. at 7. Thus, because “only . . .

Reid . . . went inside the drug dealer’s apartment to get the

cocaine,” Reid and the other members of the conspiracy “did not

acquire possession of the drugs simultaneously” and, therefore,

“Reid possessed with the intent to distribute.” Id. The district

court denied Reid’s motion for reconsideration. Applying the fourlevel enhancement in section 2K2.1(b)(5) increased Reid’s

Guidelines sentencing range from 12-18 months to 24-30 months. 

At the sentencing hearing, the government asked for a 30-month

sentence, the top of the range, arguing that “Mr. Reid did play a

more culpable role in this offense than the other participants”
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because “he was the connection to the supplier, the person who

alone went into the home and made the transfer of the guns which is

the most important and significant and serious overt act in this

conspiracy.” Id. at 20-21. Reid’s counsel asked for a sentence at

the low end of the range, “[g]iven that [Reid had] the minimum

number of points that you can get in Criminal History Category III,

given that Mr. Reid did plead guilty, given that he did receive a

three level reduction for acceptance of responsibility, and given

that his culpability in this case is . . . at a level consistent

with the other participants.” Id. at 21. 

The district court imposed a 27-month sentence, the exact

middle of the Guidelines range. The court explained its choice of

sentence as follows:

Mr. Reid, I’m going to sentence you right in

the middle of the range. [Government counsel]

made some good arguments as to why I should go

to the high end, [defense counsel] made some

good arguments why I should go to the low end,

but I conclude that you fit the average

pattern which should place you in the middle

of the range.

The court then spoke directly to Reid, stating:

I have a lot of concerns about where you’re

headed. You’re a young man, 24 years old, and

you’ve already through your criminal history

shown that you know how to get in trouble with

the law. And you’re now a convicted federal

felon going off to federal prison. And if you

continue in this pattern, you’ll be back in

front of me or some other Judge looking at

much more serious time than you’re looking at

now. You could quickly become a career

offender and basically you could be spending
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the rest of your life wearing that kind of a

uniform being in prison. I can’t imagine

that’s the life you want.

. . . 

But that’s where you’re headed in terms

of what you’re doing. And so somehow you’ve

got to deal with your alcohol and drug abuse

which clearly are the root of much of what

you’re doing. So I urge you to take advantage

of every program that you can get in prison

and thereafter because you’re the only one

that can make that change.

People like me can talk at you, but it’s

not going to make any difference until you

make the decision. When your prison time is

over, I’m going to sentence you to a period of

supervised release which will carry with it .

. . a number of conditions to try to assist

you on that.

And rest assure if you violate those

terms, you will be back in front of me looking

at revocation and future prison time. But the

decision really is in your hands as to whether

this is something that you can put behind you

or whether it’s just the beginning or a

continuation of dealing with Judges and

prisons.

Id. at 22-24.

Reid filed a timely notice of appeal.

II. DISCUSSION

A. Application of Sentencing Guidelines Section 2K2.1(b)(5)

Reid’s first argument on appeal is that the district court

erred in calculating his sentencing range under the Guidelines by

applying the four-level increase in offense level called for by

section 2K2.1(b)(5). 
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Section 2K2.1(b)(5) provides:

If the defendant used or possessed any firearm

or ammunition in connection with another

felony offense; or possessed or transferred

any firearm or ammunition with knowledge,

intent, or reason to believe that it would be

used or possessed in connection with another

felony offense, increase by 4 levels. If the

resulting offense level is less than level 18,

increase to level 18.

The district court concluded that this enhancement applied

because Reid had possessed the stolen firearms in connection with

the felony offense of possession with intent to distribute. Reid

argues on appeal, as he did before the district court, that he did

not commit the offense of possession with intent to distribute. In

particular, he argues, relying on the Second Circuit’s decision in

United States v. Swiderski, 548 F.2d 445 (2d Cir. 1977), that

providing the cocaine he acquired to other members of the

conspiracy was not “distribution” because he acquired and

transferred the cocaine pursuant to a joint agreement to steal guns

and trade them for cocaine solely for the conspirators’ use. 

In Swiderski, the court held that there had been no

“distribution” where a man and his fiancee, acting in concert the

entire time, jointly acquired and used drugs. Even assuming that

the Swiderski rule applies in the First Circuit (which has not been

definitively established), we are not persuaded that the facts of

the present case warrant its application. Unlike the two people

involved in the conspiracy in Swiderski, the co-conspirators in the
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present case did not act in concert at all times. Rather, only two

of the five (not including Reid) actually stole the gun safe, only

Reid and one other made the trip to trade the guns for cocaine, and

only Reid himself was actually present when the trade was made,

giving him sole possession of the cocaine for a time before it was

transferred to the other co-conspirators. Under these

circumstances, we believe that there has been “distribution” and,

therefore, that the Swiderski rule does not apply. See, e.g.,

United States v. Washington, 41 F.3d 917, 919-20 (4th Cir. 1984).

Accordingly, we hold that the district court properly applied the

four-level enhancement in section 2K2.1(b)(5) for possessing a

firearm in connection with another felony offense. 

B. United States v. Booker

Reid also contends that he is entitled to a remand for

resentencing under United States v. Booker, 125 S. Ct. 738 (2005),

because he was sentenced under the mandatory Guidelines system

eliminated by Booker. As the claim of Booker error is raised for

the first time on appeal, a plain error standard of review applies:

there must be (1) an error (2) that is plain, (3) that affects

substantial rights, and (4) that seriously affects the fairness,

integrity, or public reputation of judicial proceedings. See

United States v. Olano, 507 U.S. 725, 732 (1993); United States v.

Antonakopoulos, 399 F.3d 68, 77 (1st Cir. 2005); United States v.

Vega Molina, 407 F.3d 511, 533 (1st Cir. 2005); United States v.
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González-Mercado, 402 F.3d 294, 302 (1st Cir. 2005). As Reid’s

sentence was imposed under a mandatory system, he satisfies the

first two prongs of the plain error test. See Antonakopoulos, 399

F.3d at 77; see also United States v. Heldeman, 402 F.3d 220, 223

(1st Cir. 2005).

The next two requirements, prejudice and fundamental

unfairness, are satisfied if “the appellate panel is convinced by

the defendant based on the facts of the case that the sentence

would, with reasonable probability, have been different” were the

lower court not constrained by the Guidelines. Antonakopolous, 399

F.3d at 81. Reasonable probability is not an “overly demanding”

test. Heldeman, 402 F.3d at 224. Rather, it exists “where, either

in the existing record or by plausible proffer, there is reasonable

indication that the district judge might well have reached a

different result under advisory guidelines.” Id.; see also United

States v. Wilkerson, 411 F.3d 1, 10 (1st Cir. 2005). However, the

mere “theoretical possibility” that the district court would impose

a more favorable sentence is not enough to satisfy this test. See

United States v. Mercado, No. 04-1656, 2005 WL 1404470, at *9 (1st

Cir. Jun. 16, 2005).

As the Antonakopoulos test was adopted after briefing and

argument in the present case, Reid was given the opportunity to

file a supplemental brief and/or supplement the record on appeal.

He did both, filing an affidavit from his mother, Joan Reid,
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detailing his personal and family history, and filing a

supplemental brief. 

In his supplemental brief, Reid argues that he is entitled to

a Booker remand for resentencing because his family history, his

personal history and his present family circumstances, as set forth

in his mother’s affidavit and in the PSR, are mitigating factors

that create a “reasonable probability” that the district court

would have imposed a more favorable sentence under an advisory

regime. In particular, he emphasizes the following facts:

(1) Reid’s father left the family when Reid was in first grade

and had no significant further contact with Reid until he was

seventeen; 

(2) after Reid’s mother and father divorced, his mother moved

in with another man, James Reagan, who was an alcoholic;

(3) Reid was close to Reagan, but also had to defend his

mother when Reagan was abusive to her; 

(4) Reid began drinking at age 10, smoking marijuana at age

12, and using cocaine at age 14; 

(5) Reid left school at age 14; 

(6) at age 16, Reid was diagnosed with Attention Deficit

Hyperactivity Disorder (“ADHD”), but treated only briefly and

without success; 

(7) despite his many years of abusing alcohol and drugs, Reid

has never been treated for substance abuse; 
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(8) Reid is the father of a young son (now six years old) and,

although he is no longer in a relationship with the mother of his

son, he has been the de facto father of her older child, his son’s

half-sister; and

(9) when able, Reid provides financial support to his son, his

son’s mother, and his son’s half-sister. 

With respect to Booker, it is now established that “[o]ne

category of claims that might warrant remand on plain error review

is the one involving arguments that [] mitigating factor[s] existed

but w[ere] not available for consideration under the mandatory

Guidelines,” if there is a reasonable probability that the district

court would impose a more favorable sentence in light of these

factors. See United States v. McLean, 409 F.3d 492, 505 (1st Cir.

2005) (internal quotations omitted). And, as described above,

Reid’s proffer on appeal identifies a number of such potentially

“mitigating” factors. However, we are not convinced that these

mitigating factors create a reasonable probability that the

district court would have imposed a more favorable sentence under

an advisory regime. 

Almost all of the facts cited by Reid in his supplemental

brief and in the affidavit of his mother were contained in his PSR

and, therefore, were available to the district court for

consideration at the time of sentencing. See McLean, 409 F.3d at

505 (noting that the defendant “actually made the mitigating
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arguments that he now posits before the district court” and that

“[h]e does not elaborate how he could make them more convincingly

on remand”); United States v. Brennick, 405 F.3d 96, 102 (1st Cir.

2005) (refusing to remand for resentencing to permit the district

court to give “more emphasis to mitigating factors that ordinarily

have little influence under the Guidelines, such as his troubled

childhood and drug addiction[,]” where those facts were available

to and acknowledged by the district court at sentencing). Nor are

the facts identified by Reid, unfortunately, unique or even rare.

Cf. Wilkerson, 411 F.3d at 10 (basing remand for resentencing in

part on the fact that the district court had observed at sentencing

that the defendant “had the most horrible young life he had seen in

17 years on the bench”); Heldeman, 402 F.3d at 224 (remanding for

resentencing where district court indicated that defendant's age

and physical condition were worthy of consideration but did not

warrant a downward departure under the mandatory Guidelines). In

addition, the sentence imposed falls in the precise middle of the

Guideline range, suggesting, although not proving, that the

district court did not feel constrained by the Guidelines. See

McLean, 409 F.3d at 505 (stating in denying Booker remand: “We note

that [the defendant] was sentenced in the middle of the guideline

range, rather than at the bottom, and so the district court could

have given him a lower sentence under the old regime. That it did

not do so speaks volumes.”); see also United States v. Kornegay,
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410 F.3d 89, 99-100 (1st Cir. 2005) (“That the court sentenced [the

defendant] at the low end of the applicable Guideline range is not,

by itself, sufficient to show a reasonable probability of a lesser

sentence under the advisory system.”). And while it is certainly

not necessary that the district court articulate that it felt

constrained by the mandatory Guidelines, see Antonakopoulos, 399

F.3d at 81, it is still relevant that the district court here

expressed no such concern. Cf. Wilkerson, 411 F.3d at 10 (basing

remand in part on the fact that “[t]he district judge sentenced

[the defendant] to the lowest available sentence under the

Guidelines” and “repeatedly expressed his concern about disparate

treatment between federal and state court sentences in similar

cases, but stated that the Guidelines did not permit him to take

that disparity into account”). Indeed, here the district court

expressly stated that it was selecting the sentence it imposed as

an appropriate accommodation of both the defendant’s good arguments

for lenience and the government’s good arguments for a harsher

sentence.

Taking all of these facts into consideration, we conclude that

there is not a reasonable probability that the district court would

impose a more lenient sentence under an advisory Guideline system.

Accordingly, Reid is not entitled to a Booker remand for

resentencing.
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III. CONCLUSION

For the reasons stated in the foregoing opinion, we affirm.