UNITED STATES OF AMERICA, Appellee, v. JAN EMMANUEL REYES-TORRES, Defendant, Appellant.
No. 18-2170
United States Court of Appeals For the First Circuit
October 27, 2020
Lynch, Circuit Judge, and Saris, District Judge.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Carmen Consuelo Cerezo, U.S. District Judge]
José Luis Novas Debién, by appointment of the Court, on brief for appellant.
Gregory B. Conner, Assistant United States Attorney, W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, on brief for appellee.
I.
Around midnight on January 23, 2018, police officers in Caguas, Puerto Rico, were notified of a report of an armed robbery at a nearby Burger King. The police dispatch stated that there were several armed suspects in a champagne-colored Toyota Corolla. The officers stopped a champagne-colored Toyota Corolla as it was leaving the Burger King parking lot and found Reyes-Torres alone in the car.1
The officers ordered Reyes-Torres to get out of the car. As he did, the officers saw a firearm on the floor of the driver‘s compartment and several baggies of drugs (later identified as cocaine and crack cocaine) in the driver‘s side door. The officers asked Reyes-Torres if he had a license for the firearm, but he did not respond. The officers arrested Reyes-Torres for violations of Puerto Rico‘s firearms law,
The officers’ search incident to arrest recovered a cell phone and thirty-one dollars from Reyes-Torres. During a later vehicle search, officers found numerous items inside the car‘s passenger compartment. They recovered a Glock pistol loaded with thirteen rounds of .40 caliber ammunition and modified to act as a machine gun, as well as three Glock high-capacity magazines loaded with a total of sixty-two rounds of .40 caliber ammunition. They recovered one clear plastic vial containing a white granular substance (which field tested positive for crack cocaine) and three clear plastic baggies containing a white powdery substance (which field tested positive for cocaine). They found a radio scanner, a black and red mask, a flashlight, a holster, and a white glove. They also found a second cell phone, an ATM card belonging to Reyes-Torres, and an additional $280. Photographs from one of the cell phones showed various pistols and machine guns and what appeared to be large amounts of narcotics being weighed with an electronic scale and packaged for distribution.2
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 . . . .
if the firearm or ammunition facilitated, or had the potential of facilitating, another felony offense . . . [and] in the case of a drug trafficking offense in which a firearm is found in close proximity to drugs, drug-manufacturing materials, or drug paraphernalia . . . because the presence of the firearm has the potential of facilitating another felony offense . . . .
The Pre-Sentence Report noted Reyes-Torres‘s history of drug use, in which he admitted to smoking marijuana on a daily basis but denied using or experimenting with any other controlled substances. He had provided a urine sample after being arrested which tested positive only for marijuana, tending to confirm his statement. The Pre-Sentence Report also stated that Reyes-Torres lacked stable employment and was financially supported by his parents.
The defendant filed an objection to the Pre-Sentence Report in which he argued that the four-level enhancement could not be applied to him because “there is not sufficient evidence [of] the weight of the alleged controlled substance in this case for the court to conclude it was during the commission of a felony level controlled substance offense.” He also argued that “no laboratory analysis was conducted on the substance nor was probable cause found by the grand jury” for the alleged drug offense and so the enhancement could not be applied. The defendant did not, at that point, argue that the enhancement under
Both parties filed sentencing memoranda. The defendant‘s sentencing memorandum argued for a sentence of twenty-four months’ imprisonment based off a total offense level which excluded the four-level enhancement. He argued that a lower sentence was appropriate under the
The government‘s sentencing memorandum included the photographs found on Reyes-Torres‘s cell phone which showed various guns and evidence of drug distribution. The government argued that the enhancement under
In November 2018, the district court issued an order overruling the defendant‘s objection to the application of the sentencing enhancement. The court described the government‘s position from its sentencing memorandum as “recognizing that the underlying felony offense in this case is mere possession of controlled substances, and not distribution.” But the court did not make a specific factual finding in the order that the felony offense was mere drug possession and not drug distribution.4 Citing United States v. Carillo-Ayala, 713 F.3d 82, 92 (11th Cir. 2013), the court held that “[b]ecause the machinegun was found in defendant‘s car and in close proximity to the drugs also located there, it had the potential of facilitating a felony drug offense.” (Emphasis added.) It thus found that the enhancement applied under these circumstances. The underlying offense at issue in Carillo-
Ayala, however, was drug distribution and not mere drug possession, see id. at 85-86, and so by citing to that case the district court was not saying which underlying drug offense was the basis for its sentence.5
The government responded that the nature of the machine gun and ammunition recovered, together with the drugs, mask, and radio scanner, made it clear that the machine gun was not for personal protection. The government also argued that the machine gun and ammunition created an imminent danger to the community which justified a higher sentence for adequate deterrence.6
The district court reasoned that the sentencing enhancement was warranted “since the defendant used or possessed the firearm or ammunition in connection with another felony offense, that is, the unlawful possession of controlled substances, as was determined in the Court‘s separate written order.” Having applied the enhancement, the court determined that the applicable Guidelines range was thirty-seven to forty-six months’ imprisonment. After discussing Reyes-Torres‘s age, employment history, and health, including his “history of daily marijuana use since age 17” and lack of treatment, the court sentenced him to forty-two months’ imprisonment. In doing so, the court stated that it “considered the serious nature of the offense of conviction, the type of weapon that the defendant possessed, that is, a loaded machine gun, . . . his status as [a] first-time offender . . . [,] [his] personal characteristics and [the] need to deter him from similar criminal behavior.”
The defendant timely appealed.
II.
Where challenges are to the procedural and substantive reasonableness of a sentence, “[o]ur ‘review process is bifurcated: we first determine whether the sentence imposed is procedurally reasonable
A. The Sentence Is Procedurally Reasonable
Reyes-Torres argues that the district court imposed a procedurally unreasonable sentence because it improperly applied the enhancement under
The government responds that this Court should reach and address the issue of whether the enhancement under
In assessing the procedural reasonableness of a sentence, we apply a “multifaceted” abuse of discretion standard in which “we apply clear error review to factual findings, de novo review to interpretations and applications of the guidelines, and abuse of discretion review to judgment calls.” United States v. Nieves-Mercado, 847 F.3d 37, 42 (1st Cir. 2017); see also United States v. Cannon, 589 F.3d 514, 516-17 (1st Cir. 2009). A factual predicate for application of a sentencing enhancement need only be proven by a preponderance of the evidence. Cannon, 589 F.3d at 517. “We must ensure that the district court did not commit any ‘significant procedural error’ to arrive at a sentence.” Sayer, 916 F.3d at 37 (quoting Gall, 552 U.S. at 51). Significant procedural errors include
failing to calculate (or improperly calculating) the [Guidelines Sentencing Range], treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence -- including an explanation for any deviation from the Guidelines range.
Flores-Machicote, 706 F.3d at 20 (second alteration in original) (quoting Gall, 552 U.S. at 51).
This sentencing appeal is without merit. There was no objection made to the district court‘s finding of drug possession and so we affirm that finding. We also affirm the district court‘s finding that “[b]ecause the machinegun was found in defendant‘s car and in close proximity to the drugs also located there, it had the potential of facilitating a felony drug offense.” That finding is not clearly erroneous under the unanimous view of the case
On the undisputed facts, Reyes-Torres was also clearly in possession of the machine gun in furtherance of drug trafficking under our case law. The record evidence is plainly sufficient to justify an enhanced sentence for that reason. Cf. Sowers, 136 F.3d at 28.
Several facts in the record significantly undermine Reyes-Torres‘s contention that the cocaine and crack cocaine were for his personal use, rather than for distribution. Reyes-Torres denied using any drugs except for marijuana and had tested positive only for marijuana after being arrested. The photographs found on Reyes-Torres‘s cell phone and submitted to the district court showed an electronic scale and large amounts of what appear to be narcotics packaged for distribution, which further indicate that the drugs found in his car were not for his personal consumption. Nothing in the record supports the defense‘s contention that the cocaine and crack cocaine were for the defendant‘s personal consumption or that the machine gun and ammunition were for mere personal protection. This Circuit‘s case law, described below, also supports this conclusion.
Our decision in Cannon amply supports application of the sentencing enhancement on the basis of evidence of drug distribution. In Cannon, we held that we interpret “the phrase ‘in connection with’ . . . broadly.” 589 F.3d at 517 (quoting United States v. Thompson, 32 F.3d 1, 7 (1st Cir. 1994)); see also United States v. Peterson, 233 F.3d 101, 111 (1st Cir. 2000). In affirming the district court‘s application of the enhancement under
the record reflects that [the defendant], no stranger to the drug trade, was arrested with a loaded revolver while traveling in a vehicle in which police found multiple packages of drugs, as well as a substantial amount of cash among the occupants, all of whom indicated they were unemployed . . . [and that] [t]hese circumstantial facts, taken together, were sufficient to permit the district court to reasonably infer under a preponderance standard that . . . the drugs were intended for sale and not personal consumption.
In arriving at this conclusion, Cannon explained that “the large quantity of cash found on the driver [and passengers] . . . support the inference that the car‘s occupants were engaged in the sale, rather than casual use, of drugs.” Id. at 518. Moreover, Cannon recognized that “[w]e have often held that firearms, too, are probative of an intent to distribute narcotics” and “the district court was not required to turn a blind eye to the logical relationship between the presence of multiple packages of drugs, the loaded firearm, and the large amount of cash in determining whether the drugs found in the [car] were intended for distribution or personal use.” Id. Based on “the totality of evidence before the district court,” Cannon held “that [the defendant]‘s possession of the firearm had the potential to facilitate the offense of distribution -- by emboldening the enterprise, aiding the collection of a
Here, Reyes-Torres was found with a machine gun, dozens of rounds of ammunition, several baggies and a vial of narcotics, and a total of several hundred dollars and two cell phones, even though he lacked stable employment and was financially supported by his parents. The nature of the firearm found -- a pistol modified to act as a machine gun -- together with the high-capacity magazines, mask, and radio scanner, which could be used to avoid police detection, demonstrate that this gun was not meant merely for personal protection. The drugs seized from Reyes-Torres‘s car were different than the one he reported using, and he tested positive only for marijuana after being arrested. Although Reyes-Torres does not have a history of drug distribution arrests and convictions like the defendant in Cannon, see 589 F.3d at 518-19, the photographs taken from Reyes-Torres‘s cell phone show that he was “no stranger to the drug trade.” Id. at 517. The totality of the evidence confirms that the machine gun and ammunition had the potential to facilitate the offense of drug distribution which justified application of the enhancement under
B. The Sentence Is Substantively Reasonable
Reyes-Torres‘s only challenge to the substantive reasonableness of his sentence is that the district court inappropriately applied the enhancement which resulted in a higher total offense level and Guidelines Sentencing range. We review a preserved challenge to the substantive reasonableness of a sentence under an abuse of discretion standard. United States v. Viloria-Sepúlveda, 921 F.3d 5, 8 (1st Cir. 2019). “A sentence is substantively reasonable so long as the sentencing court has provided a ‘plausible sentencing rationale’ and reached a ‘defensible result.‘” Sayer, 916 F.3d at 39 (quoting United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008)).
Having found that the district court properly applied the sentencing enhancement, we reject the defendant‘s challenge to the substantive reasonableness of his sentence, which is predicated on that alleged error. See United States v. Mangual-Rosado, 907 F.3d 107, 111 n.1 (1st Cir. 2018). Furthermore, Reyes-Torres‘s sentence of forty-two months is within the applicable Guidelines range after the enhancement and so is presumptively reasonable. See United States v. Llanos-Falero, 847 F.3d 29, 36 (1st Cir. 2017). The district court also provided a plausible sentencing rationale based on the seriousness of the offense and the dangerous nature of the weapon involved. The mid-Guideline-range sentence ultimately imposed was a defensible result which balanced the need for deterrence with the personal characteristics of Reyes-Torres, including his status as a first-time offender.
Reyes-Torres‘s sentence is both procedurally and substantively reasonable.
Affirmed.