United States v. Tirado-Nieves ( 2020 )

United States Court of Appeals
For the First Circuit
No. 18-2053
UNITED STATES,
Appellee,
v.
JOSE A. TIRADO-NIEVES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. District Judge]
Before
Lipez and Thompson,
Circuit Judges.
Kendys Pimentel-Soto, with whom Kendys Pimentel-Soto Law
Office LLC was on brief, for appellant.
Julia M. Meconiates, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.
December 3, 2020

Judge Torruella heard oral argument in this matter and
participated in the semble, but 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).
LIPEZ, Circuit Judge. Appellant Jose A. Tirado-Nieves
was sentenced to eighty-six months' imprisonment after pleading
guilty to two firearms counts. He claims the sentence was
procedurally unreasonable because the district court improperly
applied a four-level sentencing enhancement based on his
possession of firearms "in connection with another felony,"
U.S.S.G. § 2K2.1(b)(6)(B), and because the court imposed an above-
Guidelines sentence without proper notice. After careful review
of the record, we affirm.
I.
A. Offense Conduct and Guilty Plea1
In August 2017, an anonymous tipster notified the Puerto
Rico police that Tirado-Nieves had been carrying a weapon in plain
view in the neighborhood where he lived. In a subsequent search
of his home, officers found Tirado-Nieves in a bedroom near an
open black bag containing two rifles. They also found there a
pistol with an adapter to convert the firearm into an automatic
machinegun, eight cell phones, ten pistol magazines of various
capacities and calibers, approximately 370 rounds of ammunition,
and a suitcase containing a plastic baggie with a small amount of
1Since Tirado-Nieves's appeal follows a guilty plea, "we draw
the relevant facts from . . . the change-of-plea colloquy, the
undisputed portions of the presentence investigation report
('PSR'), and the transcript of the disposition hearing." United
States v. O'Brien, 870 F.3d 11, 14 (1st Cir. 2017).
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marijuana, as well as various items the government identified as
drug paraphernalia.2 The drug-related items included color-coded
vials, small plastic bags, sifters, baking soda, and a scale.
Tirado-Nieves admitted that the firearms and other items belonged
to him, and he further admitted that he previously had served a
prison term for a felony.
Tirado-Nieves subsequently entered a guilty plea to
charges of unlawful possession of a firearm by a felon and illegal
possession of a machinegun. See 18 U.S.C. §§ 922(g)(1), 924(a)(2),
922(o).
B. Probation Office Sentencing Recommendation
Tirado-Nieves's Presentence Investigation Report
("PSR") determined a total offense level ("TOL") of 23 based on a
calculation that reflected two enhancements: two points because
the crimes involved three firearms, see U.S.S.G. § 2K2.1(b)(1)(A),
and four additional points because Tirado-Nieves "possessed [a]
firearm or ammunition in connection with another felony offense,"
U.S.S.G. § 2K2.1(b)(6)(B). The PSR also subtracted three points
for acceptance of responsibility. See U.S.S.G. § 3E1.1.
2 The record in some places indicates that the drug
paraphernalia and some of the firearms were found in a second
bedroom, rather than in the master bedroom. Tirado-Nieves does
not suggest that this discrepancy matters, and we therefore assume
that the items were all found in the same room.
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After Tirado-Nieves objected to the four-point
enhancement set forth in § 2K2.1(b)(6)(B), the Probation Office
elaborated on its rationale for that increase in an addendum to
the PSR. The addendum noted that "[t]he firearms were found in
close proximity to drugs, drug manufacturing materials, and drug
paraphernalia," and it concluded that, because "the presence of
the firearm[s] has the potential of facilitating another felony
offense, which in this case is drug trafficking[,] . . . the
defendant possessed the firearms in connection with another felony
offense[,] drug trafficking."
Accordingly, based on a criminal history category
("CHC") of III and the TOL of 23,3 the PSR calculated a Guidelines
range for Tirado-Nieves of 57 to 71 months' imprisonment. The PSR
stated that no factors warranting a sentence outside the Guidelines
range had been identified, although the report noted that the
district court could, in its discretion, impose a variant sentence
pursuant to 18 U.S.C. § 3553(a). After the addendum was issued,
Tirado-Nieves submitted a formal objection to the application of
the four-point enhancement, and he requested a sentence within the
37-to-46-month range that applied without it.
3 The CHC III designation was based on the Probation Officer's
assignment of six criminal history points for Tirado-Nieves's past
convictions, which primarily involved weapons violations. See
U.S.S.G. ch. 5, Part A.
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C. Sentencing Hearing
The applicability of the four-level enhancement was
vigorously debated at the sentencing hearing. At the outset of
the hearing, when the court sought to confirm that all objections
to the PSR had been resolved, the government noted that the
§ 2K2.1(b)(6)(B) enhancement remained in dispute. The government
then asserted that, given Tirado-Nieves's possession of an
"incredible amount of paraphernalia" suggestive of drug
trafficking, the court could "reasonably conclude that the
evidence shows that the firearms possessed in this case were in
connection to the commission of another crime" even though the
government did not charge Tirado-Nieves with a drug trafficking
offense. The district court was initially persuaded, stating that
"it's my time to rule, and I find that those are clearly related
to, and the four points do stand."
At that point, defense counsel asked to present argument
on the enhancement, and the court obliged. Tirado-Nieves's counsel
then argued, in effect, that some items characterized by the
government as "tools of the trade" -- such as the eight cellphones
-- were everyday household items that should not be viewed as
evidence of drug trafficking.
However, the district court, plainly skeptical that the
authorities had found an "innocent" cache of items, observed that,
aside from a notebook the government had described as a "ledger,"
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"[e]verything else that is there is related to [the] drug trade."
Referring to a one-edged blade found in the room, the court
continued: "[U]sually you don't need to be a rocket scientist to
know this is to cut cocaine, to cut powder." The court pointed to
other items seized -- including a sifter, baking soda, and zip-
lock bags -- and then asked, "[w]hat is it I'm missing?" After
the court observed that "[e]verything by itself can be an innocent
item," defense counsel clarified that he was not saying that the
items were innocent. He acknowledged that the items could be used
for drug trafficking, but he emphasized that they "are equally
indicative of drug possession." Where, as here, there was no
evidence of prior drug trafficking by Tirado-Nieves or more
suggestive evidence -- such as cash -- the paraphernalia was "all
indicative of personal use." In such circumstances, counsel
argued, the firearms cannot be linked to drug trafficking and the
enhancement should not apply.
In response, the government argued that Tirado-Nieves's
counsel had "minimiz[ed] the amount of paraphernalia that was
found," noting that all of it was found in the bedroom where
firearms were recovered and "not in the kitchen" or "all over the
house." The prosecutor gave the court additional photographs of
the seized paraphernalia,4 and asserted that, "for counsel to argue
4 The government had previously submitted photographs with
its Sentencing Memorandum.
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that that incredible amount of paraphernalia is for his personal
use or could be attributed to personal use[,] is . . . absurd."
Defense counsel then responded briefly, emphasizing that "the
facts of this case do not look like any of the other cases
. . . that I've seen where the enhancement is applied."
In announcing its ruling, the court began by noting "the
fact that all of these items were found together in the bedroom of
this defendant." The court continued:
Taking into consideration the amount of
what is in there, and the color coded [vials],
the ziplocs, the marijuana, the one edge
blades . . . which are commonly known to cut
material, either the mixers or any powdery
substance, it is more indicative than anything
else of the commission of a state or federal
offense. And specifically a state offense.
Then, after reviewing aloud the Guidelines' application note
elaborating on the crimes that qualify as "another felony offense"
for purposes of the four-point enhancement,5 the court observed
that "certainly the illegal possession or the possession of
paraphernalia is a state offense as well." The district court
referenced "the quantity . . . and the type of items" found at
Tirado-Nieves's home, observing that "those are indicative and
5
The court stated that "another felony offense . . . means
any federal, state or local offense . . . [p]unishable by
imprisonment for a term exceeding one year, regardless of whether
a criminal charge was brought or a conviction was obtained." See
U.S.S.G. § 2K2.1 cmt. n.14(C).
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more indicative than not that those are related to the commission
of another offense. So the plus four does remain."
After next resolving in Tirado-Nieves's favor the
government's sole objection to the PSR,6 and hearing additional
arguments about the appropriate sentence, the district court
adopted the Guidelines range of 57 to 71 months proposed in the
PSR. The court reiterated that four points were added pursuant to
§ 2K2.1(b)(6)(B) "[s]ince these weapons were possessed in
connection with another felony offense in which the defendant had
reason to believe it would be used in connection with another
felony offense." The court then reviewed Tirado-Nieves's prior
convictions, educational and employment background, and his
substance abuse and mental health history. After describing the
murders of several of Tirado-Nieves's family members, the district
court made the following statement:
It seems that of course the actions that
he has engaged in will keep driving him to
this path of violence. Here we have that in
the commission of this offense, the only way
of describing this, anyone who looks at the
6
The government argued that the court should use a base
offense level ("BOL") of 22 -- rather than a BOL of 20, as
calculated in the PSR -- based on its view that a prior conviction
for robbery should be treated as a crime of violence. After
extended discussion, the court stated that it would "not be
disposing in a conclusive way of the issue," but would "just give
the benefit of the doubt and go along with the recommendation of
the probation officer of not allocating those points." The court
then indicated that the two points would not matter because it had
already concluded that "a sentence outside of the applicable
guideline range is necessary."
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pictures brought by the government in the
sentencing memo and the ones we have here is
that he had an arsenal.
We are talking about rifles. We are
talking about modified pistols to shoot in an
automatic fashion. Ammunition. He possessed
a large quantity of magazines and ammunition.
Some of these magazines are large capacity.
Five for the rifle. Five for the weapons. A
total of 370 rounds.
And we have confidential tips from a
neighborhood in which the neighbors are
describing seeing this defendant walking
around, plain view, carrying weapons. This is
blatant disregard for the law, for the safety
of the community that he places in danger.
I am aware and I read carefully that he
said that he got a weapon after his brother's
killing for his own safety. But this is not
a weapon for [his] own safety. This is kind
of being prepared for a war.
In addition to that, the seizure lead to
the eight cell phones, one black bag, one
black suitcase with paraphernalia that
included one green box with paraphernalia, one
ziploc baggie with marijuana, a clear baggie
with tobacco leaves, the scale, the drug
manufacturing materials, and the drug
paraphernalia to which mention was made. The
ziplocs with some items that were color coded
like the ones that are used to package and set
for distribution, narcotics.
I'm not making any sort of determination
that this defendant was involved in drug
trafficking, but everything points out to the
commission of related offenses and the weapons
were possessed in relation to . . . .
. . .
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In this particular case, I think that the
facts clearly depict the need for protection
of the public.
The court went on to express its view that Tirado-
Nieves's circumstances warranted a "departure" from the Guidelines
range. The court stated that, "considering all the factors,
considering that a sentence not harsher than necessary is to be
imposed," it was imposing a term of 86 months' imprisonment and
three years of supervised release for each count, to be served
concurrently. Defense counsel renewed his objection to the above-
Guidelines sentence and asked for reconsideration, which the court
denied. This timely appeal followed.
II.
Tirado-Nieves contends that his sentence is procedurally
unreasonable for two reasons. First, he argues that the district
court committed clear error by applying the four-point enhancement
under Guidelines § 2K2.1(b)(6)(B). Second, he asserts that the
district court failed to provide the notice required by Rule 32(h)
of the Federal Rules of Criminal Procedure before imposing a
sentence that departs from the Guidelines.
A. Standard of Review
While our "review [of] the district court's
interpretation of the Sentencing Guidelines [is] de novo," we
review "factual findings for clear error[] and [the] application
of the Guidelines to a particular set of facts on a 'sliding
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scale'" -- i.e., giving closer scrutiny to law-dominated
judgments. United States v. Cannon, 589 F.3d 514, 516-17 (1st
Cir. 2009) (quoting United States v. Sicher, 576 F.3d 64, 71 & n.6
(1st Cir. 2009)); see also United States v. Zehrung, 714 F.3d 628,
631 (1st Cir. 2013). When a defendant challenges the factual basis
for 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." United States v. Luciano, 414 F.3d 174, 180 (1st Cir.
2005) (quoting United States v. Powell, 50 F.3d 94, 103 (1st Cir.
1993)).
B. The Applicability of U.S.S.G. § 2K2.1(b)(6)(B)
1. Legal Background
The Sentencing Guidelines provide for a four-level
increase in the offense level when the defendant "possessed any
firearm or ammunition in connection with another felony offense."
U.S.S.G. § 2K2.1(b)(6)(B). In 2006, responding to a circuit
conflict on the meaning of "in connection with," see U.S.S.G. app.
C supp., amd. 691, at 177 (Nov. 2011); United States v. Paneto,
661 F.3d 709, 717 (1st Cir. 2011), the Sentencing Commission added
an application note explaining that the requirement is met "if the
firearm . . . facilitated, or had the potential of facilitating,
another felony offense." U.S.S.G. § 2K2.1(b)(6) cmt. n.14(A).
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A second clarification provided by the new note is
particularly pertinent here. Note 14(B)(ii) states that, "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," the enhancement applies without the need for a
specific finding by the sentencing court that the firearms were
possessed "in connection with" the drug offense. U.S.S.G. § 2K2.1
cmt. n.14(B)(ii).7 In other words, when the defendant's other
felony for purposes of § 2K2.1(b)(6)(B) "is drug trafficking, the
guideline means that the enhancement is appropriate whenever the
firearm is in close proximity to the drugs." Paneto, 661 F.3d at
717. The application note states that the enhancement is warranted
in such instances because "the presence of the firearm has the
potential of facilitating another felony offense." U.S.S.G.
§ 2K2.1 cmt. n.14(B). Reflecting that view, we have recognized
that a gun can facilitate drug distribution "by emboldening the
enterprise, aiding the collection of a drug debt, or in any number
of foreseeable ways." Cannon, 589 F.3d at 519; see also United
States v. Rivera Calderón, 578 F.3d 78, 94 (1st Cir. 2009)
(observing that, "[i]n drug trafficking[,] firearms have become
7 Note 14(B)(i) similarly provides for the automatic
application of the four-level enhancement in the case of a burglary
in which the defendant found and took a firearm, "even if the
defendant did not engage in any other conduct with that firearm
during the course of the burglary."
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'tools of the trade'" (quoting United States v. McGuire, 389 F.3d
225, 230 (1st Cir. 2004))).
As we previously have noted, however, the express
reference to drug trafficking crimes in Note 14(B)(ii) leaves "open
the question of whether having a firearm in connection with a
simple drug possession offense is sufficient," on its own, to
trigger the four-level enhancement. Paneto, 661 F.3d at 716 n.5
(emphasis added); see also United States v. Matthews, 749 F.3d 99,
106 n.8 (1st Cir. 2014). Although we have not yet answered that
question as a general matter,8 multiple circuits have held that
the mere proximity of a firearm is not enough to justify the four-
8 In United States v. Reyes-Torres, 979 F.3d 1, 7-8 (1st Cir.
2020), we indicated that the simultaneous possession of drugs and
a firearm outside the home can suffice to trigger the enhancement,
citing cases finding the requisite connection because a firearm
carried in public may embolden the defendant to possess the drugs
or serve as protection. See, e.g., United States v. Justice, 679
F.3d 1251, 1255 (10th Cir. 2012) ("A reasonable person could find
that the firearms gave [the defendant] a sense of security
emboldening him to venture from his home with drugs that someone
might wish to take from him by force."); cf. United States v.
Smith, 535 F.3d 883, 886 (8th Cir. 2008) (rejecting emboldenment
theory where defendant possessed drugs and firearms at home); see
also United States v. West, 643 F.3d 102, 116 (3d Cir. 2011)
(stating that the evidence permitting a finding that defendant's
possession of a firearm emboldened him or served as protection
"must be something more than simultaneous possession of a small
quantity of drugs and a firearm in the same vehicle"). However,
in Reyes-Torres, we also explicitly held that the enhancement was
justified because the undisputed facts showed that the defendant
was "clearly in possession of [a] machine gun in furtherance of
drug trafficking." 979 F.3d at 8 (emphasis added). Accordingly,
Reyes-Torres provides, at most, a partial answer to the possession-
only question -- i.e., when the possession is outside the home in
circumstances supporting the emboldenment rationale.
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level increase when the other felony is drug possession. See
United States v. Briggs, 919 F.3d 1030, 1032 (7th Cir. 2019);
United States v. West, 643 F.3d 102, 114 (3d Cir. 2011); United
States v. Jeffries, 587 F.3d 690, 693 (5th Cir. 2009); United
States v. Jenkins, 566 F.3d 160, 163-64 (4th Cir. 2009); United
States v. Fuentes Torres, 529 F.3d 825, 827 (8th Cir. 2008). The
rationale for caution in such instances is that the simultaneous
presence of guns and a small amount of drugs is more likely to be
an "accident or coincidence." Jenkins, 566 F.3d at 163 (quoting
United States v. Blount, 337 F.3d 404, 411 (4th Cir. 2003)); see
also, e.g., West, 643 F.3d at 116; United States v. Blankenship,
552 F.3d 703, 705 (8th Cir. 2009).9 Hence, in such cases, the
courts hold that Application Note 14(A), rather than Note 14(B)(ii)
applies, and "the district court must affirmatively make a finding
that the weapon or weapons facilitated the drug offense before
9 The possibility that both firearms and drugs would be at a
crime scene only fortuitously was noted in Smith v. United States,
508 U.S. 223 (1993). There, the Supreme Court addressed a
sentencing penalty, under 18 U.S.C. § 924(c)(1), for defendants
who use or carry a firearm "in relation to" a drug trafficking
offense. Id. at 227. The Court stated that "in relation to"
"clarifies that the firearm must have some purpose or effect with
respect to the drug trafficking crime; its presence or involvement
cannot be the result of accident or coincidence." Id. at 238. In
describing the requisite relationship, the Court explained that
"the gun at least must 'facilitat[e], or ha[ve] the potential of
facilitating,' the drug trafficking offense." Id. (quoting United
States v. Stewart, 779 F.2d 538, 540 (9th Cir. 1985) (Kennedy,
J.)). The Sentencing Commission expressly adopted the language
from Smith to elaborate on "in connection with" in Application
Note 14. See U.S.S.G. app. C supp. amd. 691, at 177 (Nov. 2011).
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applying the adjustment." Blankenship, 552 F.3d at 705; see also
West, 643 F.3d at 114 (collecting cases).
2. Tirado-Nieves's § 2K2.1(b)(6)(B) Enhancement
Tirado-Nieves asserts that the district court erred by
adding the four levels to his sentence because the court expressly
stated that it was "not making any sort of determination that [he]
was involved in drug trafficking," but it then failed to make a
specific finding on how the firearms facilitated the state offense
-- "the illegal possession or the possession of paraphernalia" --
that the court identified as the triggering "other felony." Put
differently, Tirado-Nieves argues that the district court found
that his "other felony" was merely a possession offense, and the
court therefore needed to -- but did not -- make a specific finding
on how the firearms facilitated that offense.
In our view, this argument misapprehends the application
of § 2K2.1(b)(6)(B) in the circumstances of this case. In the
"possession" cases on which Tirado-Nieves relies, courts typically
found the enhancement improperly applied where the defendant
possessed a small quantity of drugs and there was no evidence of
involvement in drug trafficking. See, e.g., United States v.
Walker, 900 F.3d 995, 997 (8th Cir. 2018) (per curiam) (reversing
application of the enhancement where the government failed to link
"[t]he user quantity of cocaine" inside a car to a shotgun locked
in the trunk); West, 643 F.3d at 116 (reversing application of
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§ 2K2.1(b)(6)(B) where district court made no finding of drug
trafficking or facilitation, and observing that the enhancement
requires "something more than simultaneous possession of a small
quantity of drugs and a firearm in the same vehicle"); Jeffries,
587 F.3d at 694 (finding the § 2K2.1(b)(6)(B) enhancement
unsupported where defendant possessed a small amount of cocaine
and "no evidence [was] presented that the defendant [was] a
trafficker"); Blankenship, 552 F.3d at 706 (reversing application
of the four-level enhancement where the defendant "possessed a
'user' amount of methamphetamine in his automobile, and there [was]
no evidence or allegation that he is a drug trafficker"); United
States v. Smith, 535 F.3d 883, 885 (8th Cir. 2008) (reversing
application of the enhancement where the defendant "possessed only
an unmeasured quantity of methamphetamine residue"); cf., e.g.,
Jenkins, 566 F.3d at 164 (upholding application of the enhancement
where defendant "simultaneous[ly] possess[ed]" a loaded revolver
and .29 grams of cocaine base on a public street, close to
midnight, and near where a gun had been fired because the
environment suggested the gun "'was present for protection or to
embolden'" defendant (quoting United States v. Lipford, 203 F.3d
259, 266 (4th Cir. 2000))).
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This is not a drug possession case.10 Although
authorities did find a small amount of marijuana in Tirado-Nieves's
home, it was the drug paraphernalia, not the drugs, on which the
district court focused in its discussion of § 2K2.1(b)(6)(B). The
propriety of the enhancement thus depends on the court's handling
of Tirado-Nieves's unlawful possession of paraphernalia. We agree
with Tirado-Nieves that, in announcing that the enhancement
applied, the district court did not expressly articulate how the
firearms in Tirado-Nieves's bedroom facilitated, or had the
potential to facilitate, the possession of the drug paraphernalia
also found there.11 Absent such an express finding, the question
10
At one point in his brief, Tirado-Nieves refers to the
second felony in this case as "drug possession alone," see
Appellant's Br. at 21, but he notes elsewhere that the other felony
on which the court relied was "seemingly [possession of]
paraphernalia." Id. at 26. The record here cannot reasonably be
viewed to involve "drug possession alone."
11
The court twice summed up its view that the enhancement
applied. First, after the colloquy with the parties about the
applicability of § 2K2.1(b)(6)(B), the court stated: "[G]iven the
quantity and the type, and the type of items, those are indicative
and more indicative than not that those are related to the
commission of another offense. So the plus four does remain."
The reference to "the quantity and the type" appears to describe
the firearms.
Second, in reviewing its Guidelines calculation and
explaining its chosen sentence, the court stated: "Since these
weapons were possessed in connection with another felony offense
in which the defendant had reason to believe it would be used in
connection with another felony offense, four . . . points are
added as specified within the guideline calculations at the
Presentence Report." The court, however, did not elaborate on why
or how the firearms would facilitate the possession crime it had
identified as the other felony. See, e.g., Briggs, 919 F.3d at
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becomes whether the district court permissibly treated Tirado-
Nieves's possession of paraphernalia as an automatic trigger for
the four-level increase in offense level. Put simply, we must
determine whether the district court properly treated the
"possession" felony in these circumstances as akin to the "drug
trafficking offense[s]" covered by Note 14(B)(ii).
Based on the record before us, and the district court's
own assessment of the evidence, we readily conclude that the court
did not err. The court plainly rejected defense counsel's
assertion that the paraphernalia discovered in Tirado-Nieves's
bedroom evidenced only personal drug use. The court made repeated
reference to "the quantity and type of items" seized and their
location in a bedroom cache. In addition, in explaining why it
found the § 2K2.1(b)(6)(B) adjustment applicable, the court
expressly referred to the photographs of the paraphernalia that
the prosecutor had highlighted to rebut, in the prosecutor's words,
defense counsel's "minimizing [of] the amount of paraphernalia
that was found." At one point, the court characterized the items
in the bedroom as "related to [the] drug trade." Later, in
reviewing the factors leading to its decision to impose an above-
Guidelines sentence, the court catalogued the paraphernalia found
1033 ("[T]he mere fact that guns and drugs are found near each
other doesn't establish a nexus between them. A court must say
more to connect the two." (citation omitted)).
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in the room, including "drug manufacturing materials" and "[t]he
ziplocs with some items that were color coded like the ones that
are used to package and set for distribution, narcotics."
(Emphasis added.)
To be sure, immediately following that listing of items,
the court went on to say it was "not making any sort of
determination that this defendant was involved in drug
trafficking." Nonetheless, viewing all of its comments in the
context of the proceeding as a whole, we discern a clear
determination by the court that Tirado-Nieves unlawfully possessed
drug paraphernalia in a quantity that was indicative of drug
trafficking. The court chose not to characterize that crime as
"involve[ment] in drug trafficking" per se,12 but it inescapably
had in mind Commonwealth law on the illegal possession of drug
paraphernalia for use in drug dealing. As described above, in
identifying Tirado-Nieves's "other felony," the court noted that
"the amount of what is in there, and the color coded, the ziplocs,
12The court may have declined to find that Tirado-Nieves was
a drug trafficker because the government pointed out during the
sentencing hearing that he had not been charged with a drug
trafficking offense in this case. In addition, the government
noted that at least some of the items seized were "brand new, ready
to be used" -- possibly suggesting to the court that Tirado-Nieves
had not yet been "involved" in drug trafficking. Alternatively,
the district court could have been observing (albeit imprecisely)
that the evidence was sufficient for a sentence enhancement based
on drug trafficking, but not necessarily sufficient for a
conviction for drug trafficking.
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the marijuana, the one edge blades . . . , which are commonly known
to cut material, . . . is more indicative than anything else of
the commission of a state or federal offense. And specifically a
state offense." (Emphasis added.)
It is a felony in Puerto Rico "to knowingly and with
criminal intent[] use[,] or possess with the intention of using[,]
[certain] drug paraphernalia to . . . pack, repack, refill, store,
keep, contain, conceal, . . . or otherwise introduce into the human
body a controlled substance." P.R. Laws Ann. tit. 24,
§ 2411b(c)(2). Puerto Rico also criminalizes the possession of
such paraphernalia with the intent -- among other purposes -- to
distribute the items for use in "stor[ing], keep[ing], [or]
contain[ing]" a controlled substance for unlawful drug use. Id.
§ 2411b(c)(1).13 Among the drug-related materials cited in the
statute are scales, baking soda, sieves, plastic bags, and "other
containers" that could be used to "pack[] small amounts of
13
This latter provision appears aimed at conduct (such as
distribution) that enables others to use the paraphernalia, while
the prior provision appears to primarily target the defendant's
own use of (or intention to use) the paraphernalia. Section (c)(1)
contains language equivalent to the language from section (c)(2)
quoted above, but with a primary focus on the dissemination of the
paraphernalia. It states, in relevant part, that it is unlawful
"to knowingly, and with criminal intent . . . possess with the
intent of distributing, selling, disposing, delivering,
transporting or concealing" specified drug paraphernalia "in order
to . . . pack, repack, refill, store, keep, contain, conceal . . .
or otherwise introduce a controlled substance into the human body."
P.R. Laws Ann. tit. 24, § 2411b(c)(1).
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controlled substances" -- all items found in Tirado-Nieves's
possession, some in large quantity. P.R. Laws Ann. tit. 24,
§ 2411b(a).
The district court also highlighted the nature of the
firearms found in the bedroom. Tirado-Nieves possessed not merely
a single gun, but a collection of guns and ammunition -- including
an automatic weapon -- that the district court described as "an
arsenal." Those firearms, found in proximity to a large amount of
paraphernalia commonly associated with drug-trafficking, further
distanced the facts here from a "possession" offense in which drugs
and firearms are more likely to be in proximity only
coincidentally. See United States v. Reyes-Torres, 979 F.3d 1, 9
(1st Cir. 2020) (citing "[t]he nature of the firearm found -- a
pistol modified to act as a machinegun" -- among the factors
"demonstrat[ing] that this gun was not meant merely for personal
protection").
In sum, the undisputed facts in this record present a
scenario that is nothing like the "simple drug possession offense"
for which courts have required an explicit facilitation finding to
ensure that an enhancement under § 2K2.1(b)(6)(B) is warranted.
Paneto, 661 F.3d at 716 n.5. Although the bare fact that Tirado-
Nieves possessed the firearms and drug items in his home might in
some circumstances suggest happenstance, see, e.g., Blankenship,
552 F.3d at 705, the evidence here powerfully indicated otherwise.
- 21 -
Given the quantity and type of firearms and drug-related items,
the facts closely resemble those for which Application Note 14(B)
assumes that "the presence of the firearm[s] has the potential of
facilitating another felony offense." U.S.S.G. § 2K2.1 cmt.
n.14(B).
Unquestionably, our review would have been aided by an
explicit statement on whether the district court was applying
Application Note 14(A) or 14(B), and the basis for its conclusion
that Tirado-Nieves's possession of firearms facilitated his other
felony offense. However, this is not a case where the ambiguities
require us to remand for clarification. Cf. Briggs, 919 F.3d at
1033 (remanding for further findings on the § 2K2.1(b)(6)(B)
enhancement because "we don't know what the district court
thought"). The court clearly found that the possession offense at
issue here was linked to drug trafficking, and its disinclination
to label Tirado-Nieves a drug trafficker does not negate the force
of the evidence supporting that finding.
Hence, put simply, the evidence was "plainly
sufficient," Reyes-Torres, 979 F.3d at 8, to support the court's
conclusion that the firearms were possessed "in connection with"
Tirado-Nieves's unlawful possession of the drug-related items --
an offense that, under Puerto Rico law and on this record, is at
least akin to a drug trafficking crime. Accordingly, we conclude
- 22 -
that the district court did not err by imposing the four-level
enhancement pursuant to § 2K2.1(b)(6)(B).
C. Notice of "Departure"
The parties dispute whether Tirado-Nieves sufficiently
preserved his second claim of error and thus disagree about the
applicable standard of review. Because the claim fails regardless
of the standard applied, we assume, favorably to Tirado-Nieves,
that the claim was preserved.
Citing Rule 32(h) of the Federal Rules of Criminal
Procedure, Tirado-Nieves contends that his sentence was
procedurally unreasonable because the district court "departed"
sua sponte from the Guidelines range of 57 to 71 months without
providing the necessary notice of that possibility. Tirado-Nieves
is correct that Rule 32(h) requires a sentencing court to provide
"reasonable notice" of its intent to "depart from the applicable
sentencing range on a ground not identified for departure either
in the presentence report or in a party's prehearing submission."
Fed. R. Crim. P. 32(h). However, not all sentences outside the
advisory Guidelines range are subject to the Rule 32(h)
requirement. When a court imposes a "variance," rather than a
"departure," Rule 32(h) does not apply. Irizarry v. United States,
553 U.S. 708, 714 (2008).
As we have previously explained, variances are "non-
Guidelines sentences that result from the sentencing judge's
- 23 -
consideration of factors under 18 U.S.C. § 3553[(a)]," while
departures are non-Guidelines sentences authorized and "'imposed
under the framework set out in the Guidelines.'" United States v.
Adorno-Molina, 774 F.3d 116, 126 (1st Cir. 2014) (quoting Irizarry,
553 U.S. at 714). For variances, notice is required only when the
district court plans to premise a non-Guidelines sentence "on some
ground or fact that would unfairly surprise competent and
reasonably prepared counsel." United States v. Politano, 522 F.3d
69, 75 (1st Cir. 2008) (quoting United States v. Vega-Santiago,
519 F.3d 1, 5 (1st Cir. 2008) (en banc)).
Here, the district court rested its above-Guidelines
sentence on the factors described in 18 U.S.C. § 3553(a) and, thus,
imposed a "variance" rather than a "departure." Before announcing
the sentence, the court specifically stated that it was
"considering the 3553 factors" and then outlined Tirado-Nieves's
age, dependents, education, and employment history. The court
went on to describe his substance abuse, mental health treatment,
and the details of the instant offense. The court also noted
Tirado-Nieves's "disregard for the law" and the importance of
promoting "the safety of the community," phrases that track the
text of the statutory factors. See 18 U.S.C. § 3553(a)(2)(A)-(C).
Although the court did, at one point, describe its sentence as "a
departure," the court's terminology does not necessarily determine
the nature of the deviation from the Guidelines. See United States
- 24 -
v. Nelson, 793 F.3d 202, 206-07 (1st Cir. 2015) (concluding that
the district court imposed a "variance" when it justified its
above-Guidelines sentence based on the § 3553(a) factors, even
though the court used the word "depart" in the sentencing hearing).
Because the district court imposed a "variance," not a
departure, it did not violate Rule 32(h).14 Tirado-Nieves does not
argue that he was entitled to notice of the court's intent to
impose a variant sentence on some other basis. Accordingly, we
reject his claim of procedural error.
Having found no basis to disturb the sentencing judgment
of the district court, we affirm the sentence it imposed.
So ordered.
14 Of course, as we have observed, the distinction between
departures and variances in post-Booker sentencing may be, "[f]or
practical purposes," simply a matter of nomenclature. See United
States v. Santini-Santiago, 846 F.3d 487, 490 (1st Cir. 2017)
(noting the difficulty of "identify[ing] any movement away from
the applicable guidelines sentencing range that can be justified
as a departure but not as a variance"). Nonetheless, here, as we
have explained, the court clearly imposed a variance because it
did not invoke any Guidelines provision as the basis for its
"movement away from the applicable" range. Id.- 25 -