United States v. Reyes-Torres ( 2020 )

United States Court of Appeals
For the First Circuit
No. 18-2170
UNITED STATES OF AMERICA,
Appellee,
v.
JAN EMMANUEL REYES-TORRES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before*
Lynch, Circuit Judge,
and Saris,** 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.
October 27, 2020
* While this case was submitted to a panel that included
Judge Torruella, he did not participate in the issuance of the
panel's opinion. The remaining two panelists therefore issued the
opinion pursuant to 28 U.S.C. § 46(d).
** Of the District of Massachusetts, sitting by designation.
LYNCH, Circuit Judge. Jan Emmanuel Reyes-Torres entered
a straight plea of guilty in June 2018 to one count of illegal
possession of a machine gun in violation of 18 U.S.C. §§ 922(o)
and 924(a)(2) and was sentenced to forty-two months' imprisonment.
Challenging his sentence on procedural and substantive grounds,
Reyes-Torres argues that the district court inappropriately
applied a four-level enhancement to his total offense level for
possession of a firearm in connection with another felony of drug
possession pursuant to United States Sentencing Guidelines
("U.S.S.G.") § 2K2.1(b)(6). His primary argument is that
possession of a firearm in connection with mere drug possession
for personal use is insufficient to apply the enhancement. He
also argues that the government failed to prove that he was engaged
in a different felony offense, drug trafficking, as a basis for
applying the enhancement. We hold the sentence is both
procedurally and substantively reasonable and affirm.
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
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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, P.R. Laws Ann. tit. 25, § 458c, and
controlled substances law, P.R. Laws Ann. tit. 24, § 2404, which
prohibits possession of certain drugs.
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
1 The report of armed robbery was made by a Burger King
employee who saw a gun on the floor of Reyes-Torres's car as he
was purchasing food at the drive-through window and falsely
believed that the restaurant was about to be robbed. Reyes-Torres
did not actually rob the restaurant.
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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
The U.S. Probation Office's Pre-Sentence Report
recommended a four-level enhancement to Reyes-Torres's total
offense level under U.S.S.G. § 2K2.1(b)(6). That enhancement
applies where the defendant
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 . . . .
U.S. Sentencing Guidelines Manual § 2K2.1(b)(6)(B) (U.S.
Sentencing Comm'n 2018). The Application Notes explain that the
subsection applies
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-
2 Reyes-Torres denies that the photographs found on his
cell phone depicted him with the guns or narcotics and alleges
that they were sent to him by his friends.
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manufacturing materials, or drug
paraphernalia . . . because the presence of
the firearm has the potential of facilitating
another felony offense . . . .
U.S. Sentencing Guidelines Manual § 2K2.1(b)(6)(B) application
note 14(A)-(B) (U.S. Sentencing Comm'n 2018). The Probation Office
determined that the enhancement applied because Reyes-Torres used
or possessed the firearm or ammunition in connection with "unlawful
possession of a controlled substance," which was a felony offense
under Puerto Rico law. Applying this enhancement, the Probation
Office determined that the Guidelines Sentencing range was thirty-
seven to forty-six months' imprisonment.
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
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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 U.S.S.G. § 2K2.1(b)(6)
could not apply to mere drug possession offenses or that the
government had failed to prove drug trafficking. The Probation
Office rejected the defendant's arguments. It reaffirmed that the
enhancement applied because "unlawful possession of a controlled
substance is a local offense punishable by imprisonment for a term
exceeding one year" and the enhancement applied regardless of
whether a criminal charge was brought or a conviction obtained.
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 18 U.S.C. § 3553(a) factors
because of his personal characteristics, strong family ties, and
status as a first-time offender. The defendant's sentencing
memorandum discussed his history of marijuana use and need for
treatment and again did not refer to any use of cocaine or crack
cocaine. The sentencing memorandum stated that he possessed the
machine gun only "because of a vague notion of needing protection."
It did not argue that the drugs found in the defendant's car were
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solely for his personal consumption, that the sentencing
enhancement could not be applied based on his mere possession for
personal consumption, or that the government had failed to show
evidence of drug trafficking.
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 U.S.S.G. § 2K2.1(b)(6)(B)
applied because possession of any amount of cocaine or cocaine
base was a felony under Puerto Rico law and case law from other
circuit courts of appeal establishes that the enhancement can be
applied where the other felony offense is mere drug possession.
The government stated that "the evidence supports the conclusion
that the firearm was used in connection with Reyes[-]Torres's
felony of possessing cocaine and crack . . . [because] [t]he
machinegun . . . had the potential to aid or facilitate (e.g., by
protecting) defendant Reyes-Torres's possession of his illegal
drugs." In the alternative, the government argued that a sentence
of forty-six months was justified as a variance under the 18 U.S.C.
§ 3553(a) factors, particularly given the dangerous nature and
characteristics of the machine gun with numerous rounds and the
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need for deterrence in light of Puerto Rico's serious problem with
violent gun crime.3
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-
3 The government did not specifically argue in its
sentencing memorandum that the evidence was also sufficient for
the district court to find that Reyes-Torres was engaged in drug
trafficking. But the government did state that U.S.S.G.
§ 2K2.1(b)(6)(B) applies "in the case of a drug-trafficking
offense in which a firearm is found in close proximity to drugs."
See United States v. Paneto, 661 F.3d 709, 717 (1st Cir. 2011).
Reyes-Torres does not argue that the government waived the argument
that the enhancement should apply on the basis of evidence of drug
distribution.
4 Given this record, it is no surprise that the district
court did not make a specific factual finding as to drug
distribution.
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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
At the sentencing hearing, the defendant renewed his
objection to the application of the enhancement under U.S.S.G.
§ 2K2.1(b)(6) and argued for a sentence at the low end of the
Guidelines Sentencing range. Defense counsel specifically argued
for the first time that the four-level enhancement is "supposed to
be added when you're talking about a drug trafficking offense,
. . . that it can't be mere coincidental possession[,] and there
must be a logical relation or sequence between the possession of
[the] firearm and [the] related drug trafficking offense." He
argued that the government had not proven that the machine gun was
being used to facilitate a drug-trafficking offense and that the
drugs found "were clearly for personal use," even though he
referred only to Reyes-Torres's use of marijuana earlier in the
5 "A firearm found in close proximity to drugs or drug-
related items simply 'has' -- without any requirement for
additional evidence -- the potential to facilitate the drug
offense. A defendant seeking relief under the safety valve,
despite his possession of a weapon found in proximity to drug-
related items, will have a difficult task in showing that, even
so, there is no connection with the drug offense so the safety
valve applies." Carillo-Ayala, 713 F.3d at 92 (emphasis omitted).
The district court directly quoted the first sentence from this
passage in its order denying Reyes-Torres's objection to the
sentencing enhancement.
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hearing. Defense counsel stated that "[t]he weapon was possessed
for a general sense of protection . . . [and] [i]t had nothing to
do with protecting those drugs or [Reyes-Torres] being involved in
any kind of drug trafficking enterprise."
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
6 The government did not directly argue at the sentencing
hearing that the enhancement under U.S.S.G. § 2K2.1(b)(6)(B) was
justified because the evidence showed drug trafficking, but it did
argue that the machine gun was not for personal protection.
Nonetheless, the district court was aware of the drug-trafficking
issue because the defendant addressed that issue at the sentencing
hearing in response to the government's sentencing memorandum.
Cf. United States v. Martin, 520 F.3d 87, 93 (1st Cir. 2008) ("In
considering objections to a sentence's substantive reasonableness,
we examine the district court's contemporaneous oral explanation
of the sentence, its near-contemporaneous written statement of
reasons, and what fairly can be gleaned by comparing what was
argued by the parties or proffered in the [Pre-Sentence Report]
with what the sentencing court ultimately did." (citations
omitted)).
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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 and then determine whether it is
substantively reasonable.'" United States v. Sayer, 916 F.3d 32,
37 (1st Cir. 2019) (quoting United States v. Clogston, 662 F.3d
588, 590 (1st Cir. 2011)). "In the sentencing context, we evaluate
claims of unreasonableness in light of the totality of the
circumstances." United States v. Flores-Machicote, 706 F.3d 16,
20 (1st Cir. 2013) (citing Gall v. United States, 552 U.S. 38, 51
(2007)); see also United States v. Sowers, 136 F.3d 24, 28 (1st
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Cir. 1998) (stating that "we are not chained to the lower court's
rationale but may affirm on any alternative ground supported by
the record" and may "choose to follow a different analytic path").
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 U.S.S.G. § 2K2.1(b)(6). He argues that cases
where this Court has upheld application of this enhancement have
involved evidence of firearm possession in connection with drug
trafficking, not mere possession. He argues that here, the
government did not put into evidence the drug amount, packaging,
or other circumstances which could have supported an inference of
drug distribution and it failed to prove that the drugs were meant
for anything other than personal consumption.
The government responds that this Court should reach and
address the issue of whether the enhancement under U.S.S.G.
§ 2K2.1(b)(6) applies to firearm possession in connection with
mere drug possession for personal consumption. It argues that
other circuit courts have held that the enhancement applies under
those circumstances. Alternatively, the government argues on
appeal that the evidence shows that Reyes-Torres was engaged in
drug distribution and that alone provides a basis for applying the
enhancement.
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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
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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 law.
See, e.g., United States v. Justice, 679 F.3d 1251, 1255 (10th
Cir. 2012) (collecting cases); see also United States v. Swanson,
610 F.3d 1005, 1008 (8th Cir. 2010) ("The gun and PCP were both
within [the defendant's] immediate reach and it was permissive for
the district court to determine they were purposefully together
and not close in proximity as a matter of coincidence."); United
States v. Jenkins, 566 F.3d 160, 163 (4th Cir. 2009) ("A firearm
can embolden the actor to possess the drugs or provide the actor
protection for himself and his drugs, which are likely to be
personally valuable even in small amounts.").
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
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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 U.S.S.G. § 2K2.1(b)(6), this Court stated that
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.
Cannon, 589 F.3d at 517-18.
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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 drug debt, or in any number
of foreseeable ways -- and was therefore 'connect[ed] with' that
felony for purposes of the enhancement." Id. at 519 (second
alteration in original); see also Peterson, 233 F.3d at 111 (noting
that "'the usual case' in which the Guideline applies is one in
which the defendant 'had the firearm available to protect his
supply of drugs'" (quoting Thompson, 32 F.3d at 8)).
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
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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 U.S.S.G.
§ 2K2.1(b)(6).7
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
7 We note that the government has unnecessarily
complicated this case by presenting on appeal an obvious argument
as to drug trafficking which was not made explicitly to the
district court.
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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.
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