United States v. Joseph Capello ( 2019 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-10310
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D.C. Docket No. 0:17-cr-60190-JIC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSEPH CAPELLO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(October 25, 2019)
Before MARCUS, GRANT, and HULL, Circuit Judges.
PER CURIAM:
Joseph Capello appeals his 140-month sentence following the entry of a plea
of guilty to drug trafficking, firearms, and obstruction charges. On appeal he
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argues that: (1) his due process rights were violated because the government
provided notice too late of sentencing enhancements and their accompanying
factual bases; (2) the district court incorrectly applied a sentencing enhancement
for possessing a firearm in connection with a felony offense because the alleged
felonies -- two drug transactions -- took place at the direction of law enforcement
and lab tests determined that the drugs Capello turned over to law enforcement did
not contain a controlled substance; and (3) the district court incorrectly applied a
sentencing enhancement for possessing a firearm in connection with a felony
offense because the firearms were not in close proximity to the drug transactions
he conducted in the driveway of his house. Finding no merit in these claims, we
affirm.
I.
The essential facts are these. For a few months in 2017, Capello worked as a
confidential informant (“CI”) for the Broward County Sheriff’s Office (“BCSO”)
and the DEA. Capello began working as a CI after law enforcement officers
observed him leaving the business premises of the target of a drug investigation.
Capello was stopped by the police and admitted that he went to the premises to
purchase heroin. Capello agreed to work as a confidential informant and engaged
in a number of controlled buys of narcotics at the direction of law enforcement
officials. He used investigative funds to purchase drugs and record the exchanges.
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However, Capello’s handling officers later discovered that he had not been
truthful with them. During the period he worked as a CI, Capello went rogue and
engaged in several drug buys on his own. On one occasion he received more heroin
from a drug dealer than the amount he reported and turned over to law
enforcement, and he later surrendered a non-controlled substance that he falsely
claimed to be fentanyl. The agents also discovered that Capello had a hidden
compartment in his vehicle where he could hide money and drugs both before and
after each controlled buy.
At issue today are the events surrounding two drug transactions that Capello
was involved in on July 10 and 18, 2017. Capello was instructed by his handlers to
arrange the purchase of fentanyl from would-be sellers. The two transactions took
place in front of Capello’s residence in his driveway. After each buy, Capello was
followed to the end of his block, where he surrendered what he claimed was
fentanyl to law enforcement officers. Subsequent testing revealed, however, that
what Capello surrendered was not, in fact, a controlled substance.
Following up on their substantial suspicions, law enforcement officers
planned a sting operation targeting Capello in August 2017. He was sold two
ounces of heroin by an undercover agent but only turned over one ounce of the
heroin to the BCSO officers. When Capello was later confronted, he admitted that
he intended to sell the one ounce of heroin he kept for himself, and that he had
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stolen, purchased, and distributed other drugs on his own and outside the direction
of law enforcement officers during the time he acted as a CI. Thereafter, Capello
was arrested, and then consented to a search of his residence. Officers found three
firearms in his bedroom. One of them was a sawed-off shotgun. Capello admitted
to having recently sawed off the barrel. Capello also told the police that he kept the
door to the bedroom locked where the guns were housed.
II.
Capello was indicted by a grand jury sitting in the Southern District of
Florida on August 17, 2017 and charged in four counts with: the knowing and
intentional possession with intent to distribute a controlled substance, in violation
of 21 U.S.C. § 841(a)(1) (Count 1); being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1) (Count 2); possession of a sawed-off shotgun
which was not registered to him in the National Firearms Registration and Transfer
Record, in violation of 26 U.S.C. § 5861(d) and § 5871 (Count 3); and corruptly
concealing heroin with intent to impair its availability for use in a federal grand
jury proceeding and at trial, in violation of 18 U.S.C. § 1512(c)(1) (Count 4).
Soon thereafter, Capello pled guilty to Counts 1, 2, and 4; the government
agreed to dismiss Count 3. All of the issues raised on appeal arose from the
sentence the district court entered on January 11, 2018. As for the first group of
offenses -- Counts 1 and 2 -- the sentencing court found that the circumstances
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surrounding the July 10 and 18 transactions “support an inference that the
defendant could have easily and quickly retrieved any of the three firearms from
his bedroom which was next to the front yard.” Based on this finding of fact, the
court rejected Capello’s objection to a four-level sentencing enhancement pursuant
to U.S.S.G. § 2K2.1(b)(6)(B) for the use or possession of a firearm “in connection
with another felony offense.” The trial court also found that the sawed-off shotgun
in Capello’s bedroom met the definition of a “destructive device” under 26 U.S.C.
§ 5845(f). Thus, the court sustained the government’s objection to the failure in the
presentence investigation report (“PSI”) to include a two-level enhancement under
U.S.S.G. § 2K2.1(b)(3)(B) for offenses that involve a destructive device.
The district court determined that the total offense level was 29 and that
Capello’s criminal history category was V, yielding a guideline range of 140 to
175 months of imprisonment. The government sought a sentence within the
guidelines range. Capello argued, however, that a sentence “somewhat less than
120 months” would be more appropriate. The district court sentenced Capello to a
period of imprisonment of 140 months on Counts 1 and 4, and 120 months on
Count 2, each count to be served concurrently with the others, along with 3 years
of supervised release, a restitution obligation of $3,000, and a special assessment
of $300. When the sentence was imposed, Capello’s counsel objected based on the
arguments he had previously made -- namely that the sawed-off shotgun was not a
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destructive device and that the weapons in the bedroom were not readily
accessible. At no time during or after the sentencing proceeding did Capello
complain to the district court that he had received inadequate notice concerning
any of the sentencing enhancements.
Capello has timely appealed from the sentence.
III.
First, we are unpersuaded by Capello’s claim that he was deprived of due
process when he was notified too late that the government would be seeking a two-
level enhancement under U.S.S.G. § 2K2.1(b)(1)(A) (offense involving 3 or more
firearms), and a two-level enhancement under U.S.S.G. § 2K2.1(b)(3)(B)
(possession of a destructive device). We note at the outset that Capello never
claimed in district court that his right to due process was violated on lack of notice
grounds, nor does he explain how he may have sustained any prejudice on account
of any due process violation. As a result, we review his arguments for plain error.
United States v. Candelario, 240 F.3d 1300, 1306 (11th Cir. 2001). In order to
establish plain error, the defendant must show (1) an error, (2) that is plain, and (3)
that affected his substantial rights. United States v. Turner, 474 F.3d 1265, 1276
(11th Cir. 2007). If the defendant can satisfy these conditions, we may exercise our
discretion and recognize the error only if it seriously affects the fairness, integrity,
or public reputation of judicial proceedings. Id. Our precedent makes clear that
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plain error review is “daunting,” “difficult to meet,” and “should be exercised
sparingly.” United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005)
(quotations omitted).
Capello has failed to navigate around the hurdles of plain error. He cannot
establish any error, let alone one that is plain or affected his substantial rights, or
impugned the fairness or integrity of the proceedings. “To show plain error,
[Capello] must show an error that is obvious and is clear under current law. Where
neither the Supreme Court nor this Court has ever resolved an issue, and other
circuits are split on it, there can be no plain error in regard to that issue. In other
words, [Capello] must show that some controlling authority clearly established that
the court erred in imposing the challenged conditions.” United States v. Carpenter,
803 F.3d 1224, 1238–39 (11th Cir. 2015) (citations, quotations, brackets and
emphasis omitted). It is well-settled under the law of this Circuit that no error can
be plain “[w]ithout precedent directly resolving [Capello’s] kind of claim,”
because such a claim would not be obvious or clearly contrary to established law.
United States v. Humphrey, 164 F.3d 585, 588 (11th Cir. 1999); see also United
States v. Olano, 507 U.S. 725, 734 (1993) (explaining that the “plain” part of plain
error “is synonymous with ‘clear’ or, equivalently, ‘obvious,’” meaning that the
error must be “clear under current law”); United States v. Lange, 862 F.3d 1290,
1296 (11th Cir. 2017) (“[T]here can be no plain error where there is no precedent
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from the Supreme Court or this Court directly resolving it.” (quotation omitted));
United States v. Dortch, 696 F.3d 1104, 1114 (11th Cir. 2012) (“In the absence of
any controlling precedent about this issue, ‘we conclude [that] the district court’s
alleged error is not “obvious” or “clear under current law.”’ Without a ‘plain’
error, we lack authority to reverse the district court.” (quoting Humphrey, 164 F.3d
at 588)); United States v. Aguillard, 217 F.3d 1319, 1321 (11th Cir. 2000)
(“[W]here neither the Supreme Court nor this Court has ever resolved an issue . . .
there can be no plain error in regard to that issue.”).
Generally, due process requires that a criminal defendant have adequate
notice of, and the opportunity to rebut the facts the government intends to present
to support a criminal penalty. See United States v. Plasencia, 886 F.3d 1336, 1343
(11th Cir. 2018). However, the degree of due process protection required at
sentencing “is only that which is necessary to ensure that the district court is
sufficiently informed to enable it to exercise its sentencing discretion in an
enlightened manner.” Id. (quotation omitted). Capello points to no case law stating
that he is entitled to notice, prior to sentencing, that he may be subject to a
particular Guideline. Without controlling law from the Supreme Court or our
Circuit on this issue, there cannot be plain error. See Carpenter, 803 F.3d at 1238–
39.
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Even if we reviewed this question de novo, rather than for plain error, the
facts make clear that Capello received adequate notice. Both versions of Capello’s
pre-sentence report included a statement that Capello obstructed the investigations
concerning the target of the July 10 and 18 transactions and could be subject to a
two-level enhancement under § 2K2.1(b)(1)(A). This statement afforded Capello
fair notice that these transactions could serve as the basis for a sentence
enhancement. See Plasencia, 886 F.3d at 1344 (finding adequate notice for a
district court’s sua sponte upward variance based on perjured testimony where the
government provided notice prior to the sentencing hearing that it might seek an
upward variance for the same conduct).
Moreover, the factual proffer Capello agreed to and signed as a part of his
plea agreement stated that Capello’s handling officers learned from the
government laboratory that no controlled substances were found in a sample
Capello turned over “from a different target in a separate investigation.” This
provided Capello with further notice that the July 10 and 18 transactions could
serve as the basis for sentencing enhancement. See id. (“[W]hen, as here, the
circumstances afford a defendant notice that he engaged in conduct that may result
in the application of a Guidelines enhancement, the court need not provide
additional notice of its intention to apply the enhancement sua sponte -- the
Guidelines themselves provide adequate notice.”).
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As for the destructive device enhancement under § 2K2.1(b)(3)(B), Capello
was on notice that the government could pursue this enhancement as well because
he admitted that he possessed the weapon, the firearm was found in his bedroom,
and, indeed, he admitted sawing the barrel off himself. Again, when the
circumstances provide notice to a defendant that he engaged in conduct that may
result in the application of an enhancement, the defendant is not entitled to
additional notice. See id. (no lack of notice as to district court’s sua sponte
application of a sentencing enhancement where the defendant was fully aware of
the conduct supporting the enhancement). Capello’s first claim thus fails on
multiple fronts.
We also find no merit to Capello’s claims that the district court incorrectly
applied a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) because the
firearms were not possessed “in connection with another felony offense.” “[W]e
review the district court’s interpretation of the Guidelines and its application of the
Guidelines to the facts de novo, but we review its findings of fact only for clear
error.” United States v. Register, 678 F.3d 1262, 1266 (11th Cir. 2012) (citing
United States v. Ellisor, 522 F.3d 1255, 1273 n.25 (11th Cir. 2008)). At
sentencing, the government “has the burden of introducing sufficient and reliable
evidence to prove the necessary facts by a preponderance of the evidence.” United
States v. Washington, 714 F.3d 1358, 1361 (11th Cir. 2013) (quotation omitted).
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“Under the preponderance of the evidence standard, the trier of fact must find the
existence of a fact is more probable than not.” United States v. Dimitrovski, 782
F.3d 622, 628 (11th Cir. 2015). “Whether sufficient facts exist [to support a
Guidelines enhancement] is a factual issue subject to review under the clearly
erroneous standard.” United States v. Crawford, 906 F.2d 1531, 1536 (11th Cir.
1990); see also United States v. Philidor, 717 F.3d 883, 885 (11th Cir. 2013)
(explaining that the district court is “free to make” reasonable inferences at
sentencing but cannot rely on an inference that is “speculative to the point of being
clearly erroneous” (citation omitted)).
Capello first argues that the evidence was insufficient to support a §
2K2.1(b)(6)(B) enhancement because, essentially, no felony took place at his
house; instead, he says, he engaged in the two drug transactions at the direction of
law enforcement and, moreover, lab tests determined that the drugs Capello turned
over to law enforcement did not contain a controlled substance. Capello suggests
that either he received fake drugs from the drug dealer, or that he purchased actual
drugs in the two transactions, but sometime later, he decided to steal them and
swap them out for the fake fentanyl he gave to law enforcement.
We are unpersuaded. The record reflects that Capello, as he had done on
several prior occasions, purchased what he believed to be fentanyl at the direction
of law enforcement in two transactions, one on July 10 and one on July 18, that
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occurred in his driveway. After he left his house and went down the block to meet
with law enforcement to surrender the purported fentanyl, however, the detectives
discovered it was not fentanyl. The detectives later caught Capella stealing drugs
in an August 2017 sting operation, at which point Capello admitted that he
intended to sell one ounce of heroin he had kept for himself, and admitted that he
had stolen, purchased, and distributed other drugs on his own and outside the
direction of law enforcement officers during the time he acted as a CI. The
detectives also discovered that Capello kept a hidden compartment in his vehicle
where he could hide money and drugs both before and after each controlled buy.
On this record, the government offered more than sufficient evidence to prove, by
a preponderance of the evidence, that Capello hid the actual fentanyl he purchased
in the July 10 and 18, 2017 drug transactions at his house before he met with law
enforcement to surrender the drugs.
As for his claim that it is possible that no felony occurred because he
received fake drugs from the dealer, the record simply does not support it. Indeed,
nothing in the record suggests that drug dealers often sell fake drugs. It’s even
more unlikely in this scenario, since the drug dealer had repeated transactions with
Capello, who would have had time to discover the hoax in between the
transactions. Nor is there anything in the record to indicate that Capello decided to
steal the drugs at some place other than his house. Capello admitted that he had
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stolen drugs in the past when he was purportedly engaged in controlled buys at the
direction of the police, he kept a hidden compartment in his car that he used to hide
the drugs, and what he turned over to the officers immediately after the July 10 and
18 transactions was not fentanyl -- all of which suggests that he stole the drugs for
his own purposes at the time of those controlled buys. Thus, there was sufficient
evidence to prove, by a preponderance of the evidence, that felonies occurred when
Capello made the two controlled buys with the drug dealer, for purposes of the §
2K2.1(b)(6)(B) enhancement.
Nor, moreover, did the district court clearly err when it found that the
firearms the agents recovered from Capello’s bedroom on August 8, 2017 were
accessible during the July 10 and 18 transactions, which occurred in Capello’s
driveway. Sentencing Guideline § 2K2.1(b)(6)(B) provides for a four-level
sentencing enhancement when the defendant “used or possessed any firearm or
ammunition in connection with another felony offense.” In November 2006, the
Commission added a note explaining that the “in connection with” enhancement
applies “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.” Id.
App. Note 14(B) (emphasis added).
“Our cases interpreting guidelines that require a ‘connection’ have
consistently recognized that a firearm which facilitates or has the potential to
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facilitate an offense is possessed ‘in connection with’ that offense.” United States
v. Carillo-Ayala, 713 F.3d 82, 93 (11th Cir. 2013). A firearm has the “potential to
facilitate an offense” in “circumstances showing the firearm’s ability for use as a
weapon or the attempt to use the firearm in a manner that would facilitate the
offense.” Id. at 96; see also United States v. Flennory, 145 F.3d 1264, 1270 (11th
Cir. 1998) (finding possession of a firearm in connection with a crime when the
defendant kept the firearm in a car across the street from where he sold drugs),
superseded by regulation on other grounds, as stated in United States v. Brown,
332 F.3d 1341, 1345 n.6 (11th Cir. 2003). “[T]here is a strong presumption that a
defendant aware of the weapon’s presence will think of using it if his illegal
activities are threatened,” so “[t]he firearm’s potential use is critical.” Carillo-
Ayala, 713 F.3d at 92. “[T]he presence of a gun within a defendant’s dominion and
control during a drug trafficking offense ordinarily will suffice to show . . . that the
defendant possessed the firearm in connection with the offense.” Id. at 96.
Capello’s argument that the firearms were too far away to have been used
“in connection with” the drug crimes is unpersuasive. As the record reflects, when
Capello purchased drugs in his driveway, numerous weapons sat in his bedroom.
Just as in Flennory, where the defendant kept his firearm in a readily accessible
location in his car across the street during a drug transaction, Capello could easily
have gone inside and quickly retrieved one of the firearms from his bedroom,
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which was next to the front yard. Simply keeping his bedroom door locked may
have kept the kids from easily and quickly retrieving a firearm, but, presumably,
Capello had a key to his own bedroom, and nothing in the record supports his
argument that it would have been impossible for him to unlock the bedroom door
and quickly and easily retrieve a firearm. On this record, the district court found
that the facts “support an inference that the defendant could have easily and
quickly retrieved any of the three firearms from his bedroom which was next to the
front yard.” Sentencing Hearing Transcript at 24. We can discern no clear error in
the district court’s findings about the location of the guns at the time of the July 10
and 18 transactions, nor any error in its legal conclusion that the firearms had the
potential to facilitate the commission of another offense. See United States v.
Gordillo, 920 F.3d 1292, 1300 (11th Cir. 2019) (characterizing the sentencing
court’s findings on the physical location of firearms as “factual findings” and the
determination of whether a firearm was in “close proximity” as a “legal
conclusion”).
As for Capello’s claim that there was no proof that the firearms were in his
bedroom during the July 10 and 18 transactions, we again disagree. When he was
arrested, Capello told the agents that his bedroom door was “always” locked to
prevent his children from accessing the firearms. Nothing in the record suggests
that he did not possess them on July 10 and 18. The fact that the firearms were
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seized within approximately three weeks of the drug transactions, coupled with the
evidence that Capello “always” kept the firearms behind the locked door of his
bedroom, raised the fair inference that he had possessed the firearms during the
time of the drug transactions. Thus, there was sufficient evidence to prove, by a
preponderance of the evidence, that the firearms the agents recovered from
Capello’s bedroom on August 8, 2017 were accessible during the July 10 and 18
transactions.
AFFIRMED.
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