United States v. Nunez
852 F.3d 141
| 1st Cir. | 2017Background
- Defendant Oscar Nuñez, a convicted felon who trafficked drugs, admitted to setting fire to an ex-employee David Ireland’s house and pleaded guilty in state court to arson and criminal threatening.
- Federal agents searched Nuñez’s residence the day after the arson and found a .380 pistol in the eaves and, beneath the deck, two red gasoline cans next to six beer-bottle Molotov cocktails.
- Nuñez pleaded guilty to being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)); at federal sentencing the court attributed constructive possession of the six Molotov cocktails to Nuñez.
- Treating each Molotov as both a firearm and a destructive device raised Nuñez’s Guidelines range (via base offense level and two separate enhancements), producing a GSR of 120–150 months (capped at 120 months statutory maximum) and contributing to an 82-month sentence.
- Nuñez appealed, arguing the constructive-possession finding rested on speculation; the First Circuit reviewed the preserved challenge for clear error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court clearly erred in finding Nuñez constructively possessed six Molotov cocktails found under his deck | Government: circumstantial evidence (location in defendant’s dominion, proximity to gasoline cans used in arson, recent joint criminal activity) supports inference of knowledge and dominion | Nuñez: items were outside the house and accessible to others; accomplice could have hidden them without his knowledge; no direct evidence he possessed them | Held: No clear error — circumstantial evidence (control of home, special access, proximity to tools of arson, joint criminal activity) made inference of constructive possession plausible |
| Appropriate standard of appellate review for sentencing factfinding | Government: sentencing findings based on inferences remain entitled to clear-error review | Nuñez: facts are undisputed so review should be de novo | Held: Clear-error review applies to inferences from undisputed facts; even de novo review would uphold the finding |
| Whether circumstantial evidence alone can support sentence-enhancing factual findings | Government: sentencing courts may rely entirely on circumstantial evidence proven by a preponderance | Nuñez: challenges sufficiency and reliability of circumstantial inferences | Held: Permissible — sentencing inferences need only be plausible; court’s inferences were reasonable |
| Effect of downward variance on reviewability of the claimed Guidelines error | Nuñez: downward variance might moot or mitigate any Guidelines-error claim | Government: error remains reviewable | Held: Not moot; defendant may show a reasonable probability of different outcome if incorrect higher Guidelines range applied |
Key Cases Cited
- United States v. Maldonado-García, 446 F.3d 227 (1st Cir. 2006) (defines constructive possession as dominion and control)
- United States v. Zavala Maldonado, 23 F.3d 4 (1st Cir. 1994) (location in defendant’s home supports constructive-possession inference)
- United States v. Ridolfi, 768 F.3d 57 (1st Cir. 2014) (knowledge may be inferred among co-participants in joint criminal activity)
- United States v. McDonald, 121 F.3d 7 (1st Cir. 1997) (possession in one’s home is strong evidence of dominion and control)
- United States v. Marceau, 554 F.3d 24 (1st Cir. 2009) (sentencing inferences need only be plausible, not compelled)
- United States v. Ruiz, 905 F.2d 499 (1st Cir. 1990) (choice among multiple plausible inferences by a sentencing court is not clear error)
- United States v. Paneto, 661 F.3d 709 (1st Cir. 2011) (government’s burden at sentencing is preponderance of the evidence)
- United States v. Cintrón-Echautegui, 604 F.3d 1 (1st Cir. 2010) (articulates demanding clear-error standard on review)
- Florida v. Jardines, 133 S. Ct. 1409 (2013) (discusses the front porch as area adjacent to the home relevant to expectations of privacy)