United States v. Nunez ( 2017 )

United States Court of Appeals
For the First Circuit
No. 15-2412
UNITED STATES OF AMERICA,
Appellee,
v.
OSCAR NUÑEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Howard, Chief Judge,
Selya and Barron, Circuit Judges.
Hunter J. Tzovarras on brief for appellant.
Thomas E. Delahanty II, United States Attorney, and Margaret
D. McGaughey, Assistant United States Attorney, on brief for
appellee.
March 29, 2017
SELYA, Circuit Judge. The sentencing court — ruling on
the basis of circumstantial evidence — attributed constructive
possession of six Molotov cocktails to defendant-appellant Oscar
Nuñez. That finding fueled a substantial increase in the
appellant’s guideline sentencing range (GSR) and contributed
materially to his 82-month sentence. The appellant now argues
that the constructive possession finding was woven entirely out of
wispy strands of speculation and surmise and that, as a result,
his sentence should be vacated.
We agree with the appellant that the government offered
no direct evidence that he possessed the Molotov cocktails.
Circumstantial evidence, though, can be highly persuasive. Given
the quality and quantity of the circumstantial evidence here, we
conclude that the sentencing court’s constructive possession
finding was not clearly erroneous. Consequently, we affirm the
appellant’s sentence.
Because this appeal trails in the wake of the appellant’s
guilty plea, we draw the facts from the plea colloquy, the
uncontested portions of the presentence investigation report, and
the sentencing transcript. See United States v. Dávila-González,
595 F.3d 42, 45 (1st Cir. 2010); United States v. Dietz, 950 F.2d
50, 51 (1st Cir. 1991). The appellant trafficked in drugs in and
around Bangor, Maine. In the course of that nefarious enterprise,
he briefly employed David Ireland as his driver. After Ireland
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left the appellant’s employ, the two men had a falling-out, one
manifestation of which was that, in June of 2012, the appellant
visited Ireland at his home and threatened him with a handgun.
The acrimony between Ireland and the appellant did not
stop there. Around 2:00 a.m. on July 22, 2012, two men (one of
whom was later identified as the appellant) went to Ireland’s
house, saturated the base of the building with gasoline poured
from red plastic gasoline cans, and ignited the fuel. This ring
of fire, far from a symbol of love, compare Johnny Cash, "Ring of
Fire," on Ring of Fire (Columbia Records 1963) ("Love is a burning
thing / And it makes a fiery ring"), with Dante Alighieri, The
Inferno canto XII (describing those guilty of violence against
their neighbors as trapped in a ring made up of a river of boiling
blood), burned the home’s exterior. To make a bad situation worse,
one of the marauders shot eight rounds in the direction of the
home.
Early the next day, law enforcement officers executed a
search warrant at the appellant’s residence (into which he and his
girlfriend had moved less than a week before). Hidden in the
eaves, the police discovered a Hi-Point .380 caliber pistol, which
matched both the handgun that the appellant had brandished while
threatening Ireland in June and the bullets that had been fired at
Ireland’s house the previous morning. Beneath the deck of the
appellant's dwelling, the officers found two red plastic gasoline
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cans nestled snugly between the foundation and a six-pack of beer
bottles that had been repurposed into Molotov cocktails.
The appellant admitted to setting the fire at Ireland's
house and pleaded guilty in state court to charges of arson and
criminal threatening. He was charged federally with a single count
of being a felon in possession of a firearm. See 18 U.S.C.
§§ 922(g)(1), 924(a)(2). Following his guilty plea to an
information setting forth that charge, the district court
sentenced him to an 82-month term of immurement.1 This timely
appeal ensued.
Our review of a criminal sentence typically engenders a
two-step process. See United States v. Ruiz-Huertas, 792 F.3d
223, 226 (1st Cir.), cert. denied, 136 S. Ct. 258 (2015); United
States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008). First, we
resolve any claims of procedural error, including any claims that
implicate the accuracy of the sentencing court’s calibration of
the GSR. See Martin, 520 F.3d at 92. Second, we consider any
attack on the substantive reasonableness of the sentence. See id.Here, our task is simplified because the appellant has challenged
only the procedural integrity of his sentence.
In this case — as in virtually every case — the plinth
on which the district court's sentencing calculus rests is its
1At the time of his federal sentencing, the appellant had
not yet been sentenced on the related state charges.
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calculation of the applicable guideline range. To this end, the
court made a series of determinations that yielded a GSR of 120-
150 months. That range, which was capped at 120 months by virtue
of the maximum sentence allowed under the statute of conviction,
see 18 U.S.C. § 924(a)(2), hinged in substantial part on a factual
finding that the appellant possessed the six Molotov cocktails
discovered in the search. For sentencing purposes, each Molotov
cocktail was considered both a firearm and a destructive device.
See id. § 921(a); 26 U.S.C. § 5845; see also USSG §2K2.1, cmt.
n.1. Consequently, this finding increased the GSR (and, thus,
adversely affected the appellant's sentence) in three ways: it
boosted his base offense level, see USSG §2K2.1(a)(3); it triggered
a two-level enhancement for possessing three or more firearms, see
id. §2K2.1(b)(1)(A); and it brought into play an additional two-
level "destructive device" enhancement, see id. §2K2.1(b)(3)(B).
The constructive possession finding is the focal point
of the appeal in this case. In reviewing it, we start with the
accepted premise that, at sentencing, the government bears the
burden of proving sentence-enhancing factors by a preponderance of
the evidence. See United States v. Paneto, 661 F.3d 709, 715 (1st
Cir. 2011). Where, as here, a claim of error addressed to the
sentencing court’s factfinding was preserved below, appellate
review is for clear error. See United States v. Leahy, 668 F.3d
18, 21 (1st Cir. 2012). Clear-error review is demanding: this
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standard will be satisfied only if, "upon whole-record-review, an
inquiring court 'form[s] a strong, unyielding belief that a mistake
has been made.'" United States v. Cintrón-Echautegui, 604 F.3d 1,
6 (1st Cir. 2010) (alteration in original) (quoting Cumpiano v.
Banco Santander P.R., 902 F.2d 148, 152 (1st Cir. 1990)).
The appellant chafes at this reasoning. He insists that
the raw facts are uncontested and that, therefore, a de novo
standard of review should apply. But a sentencing court's findings
based on inferences from an undisputed set of facts are nonetheless
subject to clear-error review. See United States v. Al-Rikabi,
606 F.3d 11, 14 (1st Cir. 2010); United States v. Santos, 357 F.3d
136, 142 (1st Cir. 2004); United States v. McDonald, 121 F.3d 7,
9-10 (1st Cir. 1997). This is such a case.2
Against this backdrop, we turn to the challenged
finding.3 It is common ground that possession can be either actual
or constructive. See United States v. Maldonado-García, 446 F.3d
227, 231 (1st Cir. 2006). Actual possession means that a person
2 We hasten to add that the standard of review is not
determinative here. Even under de novo review, the district
court's constructive possession finding would be unimpugnable.
3 The fact that the district court imposed a downwardly
variant sentence does not moot the appellant's claim of error.
See Molina-Martinez v. United States, 136 S. Ct. 1338, 1346 (2016)
("In most cases a defendant who has shown that the district court
mistakenly deemed applicable an incorrect, higher Guidelines range
has demonstrated a reasonable probability of a different
outcome.").
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has "immediate, hands-on physical possession" of the items in
question. United States v. Gobbi, 471 F.3d 302, 309 (1st Cir.
2006) (quoting United States v. Zavala Maldonado, 23 F.3d 4, 6
(1st Cir. 1994)). The government does not claim that the appellant
actually possessed the Molotov cocktails. Thus, the issue before
us reduces to whether — as the district court concluded — the
evidence supports a finding that the appellant constructively
possessed them.
Constructive possession is present "when a person
knowingly has the power at a particular time to exercise dominion
and control over" an object. Maldonado-García, 446 F.3d at 231.
Dominion and control over an object frequently may be found through
inference, based on a showing of dominion and control over the
area in which the object is found. See United States v. Echeverri,
982 F.2d 675, 678 (1st Cir. 1993). Moreover, constructive
possession may be found based wholly on circumstantial evidence.
See United States v. Ridolfi, 768 F.3d 57, 62 (1st Cir. 2014).
In this instance, several pieces of circumstantial
evidence point convincingly to the appellant’s constructive
possession of the Molotov cocktails. To begin, the sentencing
court had ample reason to believe that the appellant had dominion
and control over his own home, and the Molotov cocktails were found
underneath the deck of the home. Absent some countervailing
considerations — and the record reveals none — a person who
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exercises dominion and control over his own abode is deemed to
possess the objects found therein. See McDonald, 121 F.3d at 10.
So, for example, "[t]he location of . . . firearms in a defendant’s
home . . . is a common basis for attributing possession to the
defendant." Zavala Maldonado, 23 F.3d at 7.
The appellant rejoins that the Molotov cocktails were
not found within the house itself but, rather, under an outside
deck that was accessible to others. That is true as far as it
goes, but it does not take the appellant very far. Even though
the inference of constructive possession would be stronger had the
Molotov cocktails been stored within the interior of the house,
see, e.g., McDonald, 121 F.3d at 10, that spatial arrangement is
hardly a sine qua non for a finding of constructive possession.
While the area under a deck or porch may be less secure than the
interior of a dwelling, that distinction does not transform the
area into public space. Cf. Florida v. Jardines, 133 S. Ct. 1409,
1415 (2013) ("The front porch is the classic exemplar of an area
adjacent to the home and 'to which the activity of home life
extends.'" (quoting Oliver v. United States, 466 U.S. 170, 182
n.12 (1984))). At the very least, the appellant had especially
easy access to the area under the deck — and when contraband is
located "in a domain specially accessible to the defendant," a
factfinder may reasonably infer that the defendant possessed that
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contraband. Zavala Maldonado, 23 F.3d at 7; see United States v.
Vargas, 945 F.2d 426, 429 (1st Cir. 1991).
The particular placement of the Molotov cocktails
buttresses the district court’s finding of constructive
possession. The plastic gasoline cans that the appellant used in
an arson the previous day were fitted tightly between the house
and the Molotov cocktails. The close proximity of the Molotov
cocktails to the tools of the appellant’s recent crime supports a
commonsense inference that the appellant knew of their existence.
Such inferences are important because "[w]hen judges sit as
factfinders, they are not obliged to put their common sense into
cold storage." United States v. Dunston, ___ F.3d ___, ___ (1st
Cir. 2017) [No. 15-1812, slip op. at 13.]
The appellant's protest that his companion in the arson
could have hidden the Molotov cocktails does not help his cause.
When two malefactors are working closely together in the same
criminal activity, a court may infer that each knows of the other's
actions. See Ridolfi, 768 F.3d at 62; United States v. Marek, 548
F.3d 147, 153 (1st Cir. 2008); United States v. Spinney, 65 F.3d
231, 237 (1st Cir. 1995). One would have to believe in the Tooth
Fairy to think that, in the hours following the setting of the
blaze, the appellant's accomplice hid the instruments of their
offense under the appellant's deck alongside six Molotov cocktails
without the appellant's knowledge. Regardless of who actually put
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the items under the deck, the inference of the appellant's
knowledge is strong; and the combination of knowledge and access
bolsters the district court's finding that the appellant
constructively possessed the Molotov cocktails. See Maldonado-
García, 446 F.3d at 231.
To sum up, a sentencing court may base its findings
entirely on circumstantial evidence provided that its inferences
from that evidence. Moreover, the inferences that it draws from
that evidence need not be compelled but, rather, need only be
plausible. See United States v. Marceau, 554 F.3d 24, 32 (1st
Cir. 2009). Here, the evidence of constructive possession, though
circumstantial, is convincing, and the district court's inferences
from that evidence are eminently plausible. See United States v.
Ortiz, 966 F.2d 707, 712 (1st Cir. 1992) ("[F]actfinders may draw
reasonable inferences from the evidence based on shared
perceptions and understandings of the habits, practices, and
inclinations of human beings."). Given this mis-en-scène, we
cannot say that the sentencing court clearly erred in finding that
the appellant constructively possessed the six Molotov cocktails.
See United States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990)
(explaining that "where there is more than one plausible view of
the circumstances, the sentencing court's choice among supportable
alternatives cannot be clearly erroneous").
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We need go no further. For the reasons elucidated above,
the appellant's sentence is
Affirmed.
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