United States v. Chanthachack , 483 F. App'x 580 ( 2012 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 11-1309
UNITED STATES,
Appellee,
v.
BRIAN CHANTHACHACK,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor, IV, U.S. District Judge]
Before
Lynch, Chief Judge,
Lipez and Thompson, Circuit Judges.
Stanley W. Norkunas on brief for appellant.
Kelley Begg Lawrence, Assistant U.S. Attorney, and Carmen M.
Ortiz, United States Attorney, on brief for appellee.
July 13, 2012
Per Curiam. Defendant-appellant Brian Chanthachack
appeals from his within-guideline sentence following his guilty
plea to one count of being a felon in possession of a firearm,
in violation of 18 U.S.C. § 922(g)(1). We affirm.
I. "Crime of Violence"
Chanthachack argues that the sentencing court
improperly classified his Massachusetts conviction of assault
with a deadly weapon (ADW), Mass. Gen. Laws ch. 265, §15B(b),
as a "crime of violence" under U.S.S.G. § 2K2.1(a)(4)(a). The
district court correctly determined that this contention is
foreclosed by our precedents. See United States v. Am, 564 F.3d
25, 33 (1st Cir. 2009)(holding that conviction for
Massachusetts ADW qualifies as a predicate offense under ACCA's
force clause); see also United States v. Hart, 674 F.3d 33, 44
(1st Cir. 2012)(holding that a conviction for Massachusetts
ABDW qualifies as a predicate offense under ACCA's residual
clause).
II. Enhancement Pursuant to U.S.S.G. § 2K2.1(b)(6)
Chanthachack argues that there was insufficient
evidence to support the four-level enhancement on the ground
that the defendant "possessed or transferred any firearm . . .
with knowledge, intent, or reason to believe that it would be
used or possessed in connection with another felony offense."
§2K2.1(b)(6) (2010 Guidelines). "Where, as here, a defendant
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challenges the factual predicate supporting the district
court's application of a sentencing enhancement, 'we ask only
whether the court clearly erred in finding that the government
proved the disputed fact by a preponderance of the evidence.'
'[W]here there is more than one plausible view of the
circumstances, the sentencing court's choice among supportable
alternatives cannot be clearly erroneous.'" United States v.
Cannon, 589 F.3d 514, 517 (1st Cir. 2009).
We have "held that, as used in this provision of the
Guidelines, 'the phrase "in connection with" should be
interpreted broadly.'" Id. "We read the guideline through the
prism of Application Note 14." United States v. Paneto, 661
F.3d 709, 717 (1st Cir. 2011). The application note was
adopted in 2006, and "sheds a bright light on the scope of the
phrase 'in connection with' and confirms that the guideline
applies when the firearm 'facilitate[s], or ha[s] the potential
of facilitating, another felony offense.' U.S.S.G. §2K2.1,
comment. (n. 14(A))." Id.
The sentencing court found that "at a minimum, the
defendant had reason to believe that the firearm would be used
or possessed in connection with a drug trafficking offense."
In support, the court referred to the fact that "[t]he
defendant and the confidential witness [(CW)] discussed the
CW's drug trafficking activities" and that they had
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specifically "discussed that it was a -- I think the words
were, 'it's a war out there,' and that one needed to be armed."
Appellant argues that it was error to apply the
enhancement because there was insufficient evidence that the CW
would resell (rather than consume himself) the 3.4 grams of
cocaine that the defendant had sold him on 8/20/08 (eight days
before he sold him the gun), or that he would wait to
distribute the cocaine until after he bought the gun.
Appellant's argument is misplaced. Application of
the enhancement does not require a finding that the defendant
knew that the CW would use the gun to facilitate a specific
felony. See United States v. Malloy, 324 F.3d 35, 39 (1st Cir.
2003) (noting that this court interprets the enhancement as
applying "even where the defendant had no knowledge of a
specific felony involving the transferred weapons"). It is
sufficient if Chanthachack sold the gun to the CW "with reason
to believe that his customer planned to use it in connection
with drug trafficking." United States v. Brewster, 1 F.3d 51,
54 (1st Cir. 1993).
On this record, the district court did not clearly
err in finding that the government proved by a preponderance of
the evidence that Chanthachack had reason to believe that the
gun he sold to the CW would be used in connection with drug
trafficking. "'A sentencing court is entitled to rely on
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circumstantial evidence, and draw plausible inferences
therefrom' in determining whether an enhancement should apply."
Cannon, 589 F.3d at 517. As recounted in the Government's
sentencing memorandum, the recorded conversation between the
defendant and the CW on August 20, 2008 (the date of the drug
sale) included the CW's references to the quantities in which
he would re-sell the cocaine that he was purchasing from the
defendant. The defendant stipulated to the accuracy of the
memo's summary of that conversation. It can be reasonably
inferred from that conversation that the defendant had reason
to believe that the CW was engaged in drug trafficking.
The sentencing court did not err in relying, in
part, on the PSR's description of a conversation between
Chanthachack and the CW on September 3, 2008. Although this
conversation occurred after the defendant's possession and
transfer of the firearm on August 28, 2008, it may still be
relevant to defendant's state of mind at the time of the
offense. See Molloy, 324 F.3d at 41. Here, it could be
reasonably be inferred from the conversation between the
defendant and the CW on September 3, 2008, which seemed to
assume mutual familiarity with an interrelationship between
drug trafficking and guns, that five days earlier the defendant
had reason to believe that the weapon he sold to the CW would
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be used to facilitate drug trafficking. There was no clear
error.
III. Substantive Reasonableness
Appellant argues that the sentence was substantively
unreasonable in view of the nature and circumstances of the
offense and the history of the defendant. "Our review here is
for abuse of discretion, taking into account the district
court's explanation of the sentence, the parties' arguments,
and the contents of the pre-sentence investigation report."
United States v. Goergen, ___ F.3d ___, 2012 WL 1957988, *3
(1st Cir. 2012). "Challenging a sentence as substantively
unreasonable is a burdensome task in any case, and one that is
even more burdensome where, as here, the challenged sentence is
within a properly calculated GSR." United States v. Clogston,
662 F.3d 588, 593 (1st Cir. 2011).
The court stated that it had "considered the
sentencing factors under 3553(a)," and taken into account the
"nature of the offense." The record reveals that the court
considered the mitigating factors on which appellant relies.
That the court "chose not to attach to certain [of them] the
significance that the appellant thinks they deserved does not
make the sentence unreasonable." Id. at 593.
Chanthachack's conviction and sentence are affirmed.
See 1st Cir. R. 27.0(c).
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