United States Court of Appeals 

For the First Circuit 

No. 17-2197 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

MICKEY GILLEY, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MAINE 

[Hon. Nancy Torresen, U.S. District Judge] 

Before 

Thompson, Boudin, and Barron, 

Circuit Judges. 

 Andrew Levchuk and Bulkley, Richardson and Gelinas, LLP on 

brief for appellant. 

 Halsey B. Frank, United States Attorney, and Renée M. Bunker, 

Assistant United States Attorney, Appellate Chief, on brief for 

appellee. 

December 19, 2018 
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BOUDIN, Circuit Judge. Mickey Gilley pled guilty 

pursuant to a plea agreement to one count of distribution of heroin 

and fentanyl. 21 U.S.C. § 841(a)(1), (b)(1)(C). The plea 

agreement included a stipulated sentencing range of 132 to 180 

months that bound the district court upon its acceptance of the 

agreement. The district court accepted the agreement and sentenced 

Gilley to 168 months. Gilley now appeals his sentence as 

substantively unreasonable. 

On September 20, 2016, Gilley and a friend traveled to 

Portland, Maine, and bought $100 worth of heroin (approximately 

one gram). Half was for Gilley and Gilley's girlfriend, K.W., to 

share. During the drive back to Bath, Maine, where Gilley lived, 

Gilley was in contact with K.W. and used some of the heroin. 

After arriving at K.W.'s apartment, Gilley and K.W., who 

had been drinking, used the heroin. Eventually, K.W. went to bed. 

Approximately forty-five minutes later, Gilley lay down next to 

K.W. and found her unresponsive. Gilley fell asleep. 

Gilley awoke two hours later to find K.W. still 

unresponsive. He rolled her over, and blood came out of her nose 

and mouth. He "freaked out" and dumped water on her. Gilley 

called his brother, Christopher, who told him to start CPR. After 

calling Christopher, Gilley moved K.W. to the shower and let water 

run on her. After Christopher arrived, Christopher called 911. 
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Gilley left the apartment and took his and K.W.'s daughter to a 

neighbor's apartment. 

Gilley failed to immediately call 911 and left the 

apartment after his brother arrived because Gilley was subject to 

two sets of bail conditions that prohibited him from having contact 

with K.W. Cell phone records indicate that about forty-five to 

ninety minutes elapsed from the time Gilley started talking with 

Christopher to the time Christopher called 911. 

A medical examiner determined after an autopsy that K.W. 

died of acute intoxication from the combined effects of fentanyl, 

heroin, and ethanol. In grand jury testimony, Maine Drug 

Enforcement Agency Agent Chad Carleton suggested that the heroin 

was actually a mixture of heroin and fentanyl. 

On July 26, 2017, Gilley was charged in a two-count 

superseding indictment with distribution of heroin and fentanyl 

resulting in death (Count 1) and distribution of heroin and 

fentanyl (Count 2). 21 U.S.C. § 841(a)(1), (b)(1)(C). 

On August 1, 2017, pursuant to a written plea agreement, 

Gilley pled guilty to Count 2, while the government agreed to 

dismiss Count 1, which carried a twenty-year statutory minimum 

sentence. 21 U.S.C. § 841(b)(1)(C). For Count 2, the parties 

agreed to recommend a sentence between 132 and 180 months, a 

recommendation that bound the district court if the judge accepted 

the plea agreement. Fed. R. Crim. P. 11(c)(1)(C). 
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The agreement also contained a non-binding 

recommendation that the court find that Gilley accepted 

responsibility for the offense and that his offense level should 

be reduced accordingly. Further, the parties stipulated that 

Gilley distributed a mixture containing heroin and fentanyl to 

K.W. and that K.W. died as a result of using the substance. 

Finally, Gilley waived the right to appeal the guilty plea and a 

sentence of imprisonment that did not exceed 156 months. 

The Presentence Report ("PSR") held Gilley accountable 

for one gram of a mixture containing heroin and fentanyl, giving 

Gilley a base offense level of twelve. The PSR added two offense 

levels for obstruction of justice and subtracted two offense levels 

for Gilley's acceptance of responsibility.1 The total offense 

level was twelve. 

According to the PSR, Gilley's fourteen prior 

convictions resulted in five criminal history points, yielding a 

criminal history category ("CHC") of III. His past criminal 

conduct included incidents of domestic violence against K.W. and 

 1 The PSR relied on three facts to justify the obstructionof-justice enhancement: First, Gilley called his brother, rather 

than 911, when he found K.W. unresponsive; second, due to his bail 

conditions, Gilley concealed that he was at K.W.'s apartment; and 

third, officers found no evidence of drugs or drug paraphernalia 

in K.W.'s apartment, although Gilley admitted he and K.W. used 

drugs that evening, suggesting evidence was removed from the 

apartment. At the same time, the PSR concluded that Gilley's 

pleading guilty and expressing remorse warranted the reduction for 

acceptance of responsibility. 
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witness-tampering and victim-contact charges based on Gilley's 

discouraging K.W. from contacting the police after domesticviolence incidents. 

Given a total offense level of twelve and a CHC of III, 

the PSR recommended an imprisonment range of fifteen to twentyone months. It further said departure from the range might be 

warranted because death resulted from the offense, U.S.S.G. § 

5K2.1, and to reflect the actual seriousness of the offense based 

on Gilley's conduct underlying the dismissed charge, id. § 5K2.21. 

Defense counsel argued that the district court should 

consider the range stipulated in the plea agreement and sentence 

Gilley to 132 months in prison, the range's lower bound. Counsel 

explained that Gilley and K.W. were heroin addicts who had relapsed 

shortly before this incident; K.W. chose to engage with Gilley and 

use drugs; and Gilley, who used the same batch of heroin, was 

unaware the heroin was mixed with fentanyl. Counsel cited state 

and federal cases to show that a 132-month term represented an 

appropriate sentence. 

The government argued for a sentence of 180 months, the 

top of the stipulated range. The government stressed Gilley's 

prior acts of domestic violence, his contact with K.W. in breach 

of his then-existing bail conditions, his criminal conduct on that 

occasion, and his failure to call 911 when finding K.W. non-
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responsive. The government opposed the PSR's recommended 

obstruction-of-justice enhancement. 

At sentencing on December 5, 2017, the district court 

accepted the binding plea agreement. The court declined to apply 

the obstruction-of-justice enhancement, and it computed a total 

offense level of ten and CHC of III, yielding a guidelines range 

of ten to sixteen months. The court recognized that the plea 

agreement's stipulated range was "considerably higher" than the 

guidelines range, but in exchange, the government had agreed to 

dismiss the Count 1 charge that carried a twenty-year mandatory 

minimum. 

The court sentenced Gilley to 168 months in prison, a 

sentence that fell within the range stipulated in the plea 

agreement (132 to 180 months) as well as between the defense 

counsel's recommendation (132 months) and the government's 

recommendation (180 months). Gilley now claims that the sentence 

is substantively unreasonable. 

At the outset, the government says that our jurisdiction 

is "questionable," given that the district court imposed an 

imprisonment term within the range stipulated in the plea bargain. 

The government suggests that section 3742(c), which governs 

appellate review of Rule 11(c)(1)(C) plea agreements, may bar our 

review of Gilley's sentence: "In the case of a plea agreement 

that includes a specific sentence under [Rule 11(c)(1)(C)] . . . 
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a defendant may not [make certain arguments on appeal] unless the 

sentence imposed is greater than the sentence set forth in such 

agreement . . . ." 18 U.S.C. § 3742(c).2 Because the district 

court imposed a sentence within the range stipulated in Gilley's 

Rule 11(c)(1)(C) plea agreement, the government contends that 

Gilley may not appeal--and so this court may not review--his 

sentence. 

Gilley's plea agreement included a waiver of the right 

to appeal "[a] sentence of imprisonment that does not exceed 156 

months," and the colloquy during Gilley's change-of-plea hearing 

implied that Gilley retained a right to appeal any sentence greater 

than 156 months. The sentence imposed exceeded this limit. Even 

if we are mistaken that Gilley retained the right to appeal under 

these circumstances, the mistake will prove harmless because the 

appeal is itself without merit. 

Gilley's sole claim on appeal is that the district 

court's 168-month sentence is substantively unreasonable. At 

sentencing, defense counsel failed to object to the sentence 

imposed by the district court. Whether our review is for plain 

error or abuse of discretion, a matter of some debate, United 

 2 Federal Rule of Criminal Procedure 11 has been reorganized. 

Fed. R. Crim. P. 11 advisory committee's note to 2002 amendment. 

Section 3742(c) refers to Rule 11(e)(1)(C), which is now Rule 

11(c)(1)(C), the basis for Gilley's plea agreement. 
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States v. Millán-Román, 854 F.3d 75, 80–81 (1st Cir. 2017), 

Gilley's sentence is substantively reasonable. 

Although the district court's 168-month sentence is 

within the range stipulated in the plea agreement, Gilley claims 

the court should have sentenced him to the stipulated range's lower 

bound. To this end, Gilley argues that the district court 

overlooked, or failed to give sufficient weight to, a number of 

considerations. 

First, Gilley says that the district court ignored 

K.W.'s own contributions to her death. Indeed, the district court 

did not expressly point to K.W.'s culpability as a mitigating 

factor. A district court, however, "is not required to address 

frontally every argument advanced by the parties . . . ." United 

States v. Turbides-Leonardo, 468 F.3d 34, 40 (1st Cir. 2006). And 

the implicit premise of Gilley's argument is mistaken: K.W.'s 

contribution does not necessarily make Gilley's conduct any more 

tolerable. 

The court, properly, focused on Gilley's culpability. 

The court acknowledged Gilley was "not a big drug dealer" and 

"didn't have any reason to believe . . . [the heroin] had fentanyl 

in it" but faulted Gilley for choices wholly within his control: 

his failure to call 911 and his failure to obey his bail 

conditions. 
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Second, Gilley attempts to downplay his failure to call 

911, explaining that "[t]here is . . . no evidence in the record 

to show that a prompt call to 911 would have saved K.W." Yet the 

aggravating nature of Gilley's failure to call is not simply the 

possibility that the call could have saved K.W.; rather, it is 

that the failure to call is evidence that Gilley valued his 

immediate liberty over K.W.'s life. 

Third, Gilley claims the district court erred in making 

"the history of domestic abuse such an important factor" because 

"no nexus" exists between the domestic violence and K.W.'s death. 

The court, however, made the nexus plain at sentencing: The fact 

that Gilley failed to call 911, placing his liberty ahead of K.W.'s 

life, was, in the court's words, "somewhat predictable" given 

Gilley's history of abusing K.W. 

The significant weight the court assigned the history of 

domestic abuse, chiefly within its discretion, United States v. 

Clogston, 662 F.3d 588, 593 (1st Cir. 2011), was supported by the 

court's conclusion that Gilley "controlled and abused" K.W., a 

factual determination this court reviews for clear error. United 

States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013). 

Gilley's phone calls urging K.W. to hide her injuries from the 

police when he was in jail facing domestic-violence charges are a 

further aggravation. 
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Fourth, Gilley asserts the court ignored letters from 

Gilley's family and friends that spoke to his positive attributes 

and reports from professional treatment providers that concluded 

Gilley represents a good candidate for rehabilitation. But this 

claim contradicts the court's express statement that it 

considered, among other things, the letters on Gilley's behalf, 

the parties' sentencing memoranda, and the parties' arguments at 

the sentencing hearing. 

Further, the 168-month sentence, although severe, was 

less than the government's recommended sentence and below the top 

of the range that bound the court. The court had no obligation to 

accept the parties' request, and the judge could easily have chosen 

to impose a stiffer sentence. We can comfortably conclude the 

district court, in opting for a less-than-maximum sentence, 

considered these mitigating factors. 

Fifth, Gilley argues that the district court violated 

the parsimony principle--the overarching sentencing requirement 

that courts impose sentences sufficient, but not greater than 

necessary, to comply with the purposes of sentencing. In 

particular, Gilley claims the district court took "insufficient 

note" of "similar" federal and state cases in which, in Gilley's 

view, "substantially less severe sentences had been imposed for 

similar conduct." 
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To the contrary, the district court not only noted the 

cases Gilley offered as analogues but also explicitly 

distinguished those cases from Gilley's case. Recognizing that 

144 months represented the highest sentence in the allegedly 

comparable cases, the court pointed out that those cases did not 

have "the overlay of domestic violence" present in Gilley's case. 

Aside from offering comparable cases, Gilley asserts 

that the district court violated the parsimony principle because 

the three additional years "will do nothing to protect the public," 

and Gilley has already demonstrated genuine remorse and began his 

rehabilitation. This argument, however, ignores other sentencing 

purposes--such as reflecting the seriousness of the offense, 

providing just punishment, and affording adequate deterrence--that 

section 3553 demands a district court consider. 18 U.S.C. § 

3553(a)(2). 

In sum, Gilley's arguments boil down to a disagreement 

with the weight the court assigned particular factors, a task which 

is "largely within the [sentencing] court's informed discretion." 

Clogston, 662 F.3d at 593. Here, the history of abuse, the failure 

to seek timely help, and the callous selfishness of Gilley's 

behavior amply justify the sentence imposed. 

Affirmed.