United States v. Bravo ( 2021 )

Case: 20-10008 Document: 00515796555 Page: 1 Date Filed: 03/25/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 25, 2021
No. 20-10008 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Rafael Bravo,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:19-CR-83
Before Elrod, Willett, and Engelhardt, Circuit Judges.
Per Curiam:*
During their search of the residence of Rigo Sandoval, a known drug
dealer, officers saw Rafael Bravo throwing a gun over the fence in Sandoval’s
backyard. The officers also discovered a stash of 2,978 grams of
methamphetamine inside Sandoval’s home. Bravo was charged with, and
pleaded guilty to, one count of possession of a firearm by a convicted felon.
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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In the pre-sentence report, the probation officer concluded that Bravo was
accountable for the 2,978 grams of methamphetamine inside Sandoval’s
home and calculated Bravo’s Sentencing Guidelines range under the drug
offense section based on that quantity of drugs. The district court adopted
the pre-sentence report and sentenced Bravo to 120 months’ imprisonment
and 3 years’ supervised release. Bravo argues that the district court erred in
finding that the 2,978 grams of methamphetamine were within the scope of a
jointly undertaken criminal activity between Bravo and Sandoval. We agree,
and we vacate and remand to the district court for resentencing.
I
In December 2018, law enforcement received information that Rigo
Sandoval was selling methamphetamine from his home. On January 31, 2019,
officers executed a search of Sandoval’s home where they encountered eight
individuals, including Sandoval and his cousin, Rafael Bravo. When officers
entered Sandoval’s backyard, Bravo threw a gun over Sandoval’s fence into
an adjacent backyard. Inside the residence, officers found several firearms,
ammunition, $9,236 cash, a digital scale, and 2,978 grams of
methamphetamine.
Officers arrested Sandoval and Bravo. During a post-arrest interview,
Sandoval admitted that he lived at the residence, the 2,978 grams of
methamphetamine belonged to him, and he was involved in
methamphetamine distribution. Sandoval also admitted that, in the months
before his arrest, he had sold 56.7 grams of methamphetamine to Bravo, who
redistributed those drugs to his own customers.
Bravo was charged with, and later pleaded guilty to, one count of
possession of a firearm by a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2).
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When determining Bravo’s Guidelines range for the pre-sentence
report, the probation officer concluded that Bravo and Sandoval were co-
conspirators with respect to the stash of drugs inside Sandoval’s home
because: (1) Bravo is Sandoval’s cousin; (2) Sandoval said that Bravo had
previously purchased, and then redistributed, 56.7 grams of
methamphetamine from him; (3) Bravo knew that Sandoval sold drugs from
his residence; and (4) Bravo was at Sandoval’s home on the day of the raid.
Based on this information, the probation officer held Bravo accountable for
the 2,978 grams discovered inside Sandoval’s home, plus the 56.7 grams that
Bravo had previously purchased from Sandoval, for a total of 3,034.7 grams.
After applying § 2K2.1(c)(1)(A), a cross reference from the Guidelines’
firearms offense section to its drug offense section, the probation officer used
the 3,043.7 grams of methamphetamine to calculate Bravo’s base offense
level. With a total offense level of 36 and criminal history category of IV, the
Guidelines range was 262 to 327 months. Because the statutes under which
Bravo was charged set a maximum sentence of 120 months, the probation
officer recommended a sentence of 120 months and 1 to 3 years of supervised
release. See 18 U.S.C. §§ 922(g)(1) & 924(a)(2); U.S.S.G. § 5G1.1(a).
Bravo filed written objections to the PSR. He objected to the PSR’s
description of Sandoval’s admissions “to the extent this information is used
as a basis for the ‘drug cross reference’ guideline calculations.” He also
objected to the use of the listed drug quantities for Guidelines calculation
purposes, denying that he was a methamphetamine customer of Sandoval
and that he had distributed methamphetamine to his own customer base.
Finally, Bravo argued that his Guidelines range should have been calculated
under the Guidelines’ firearms offense section, § 2K2.1. Under that section,
without the cross reference to the Guidelines’ drug offense section, Bravo’s
base offense level would have been calculated as 20, his total offense level as
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18, and his Guidelines range as 41 to 51 months. See U.S.S.G.
§ 2K2.1(a)(4)(A).
The Government argued that Bravo’s objections should be overruled
because Bravo offered no evidence to rebut the PSR. The Government found
that Bravo and Sandoval were co-conspirators with respect to the 2,978
grams of drugs found inside Sandoval’s home because: Sandoval’s cell phone
messages showed that Sandoval was a methamphetamine dealer; Bravo knew
that Sandoval distributed drugs from his home; Bravo was arrested at
Sandoval’s home “where a substantial amount of methamphetamine and
firearms were recovered”; Bravo and Sandoval are cousins; and Bravo had
two prior convictions for drug-possession offenses. In an addendum to the
PSR, the probation officer also responded to Bravo’s objections and
declined to make any changes.
At sentencing, Bravo relied on his written objections. The district
court overruled Bravo’s objections for the reasons stated by the Government
and then adopted the facts and conclusions stated in the PSR. The court
sentenced Bravo to 120 months’ imprisonment and 3 years’ supervised
release. Bravo timely appealed.
Bravo argues that the district court erred by applying the
§ 2K2.1(c)(1)(A) cross reference because the PSR did not support the
court’s finding that Bravo and Sandoval had agreed to jointly undertake a
criminal activity with respect to the 2,978 grams of methamphetamine found
inside Sandoval’s home.
II
The parties disagree about our standard of review: Bravo argues that
we should review the district court’s finding for clear error, while the
Government argues that we should review for plain error because Bravo did
not specifically object on this basis below. To determine the appropriate
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standard of review, we must first assess whether Bravo properly preserved
the issue he raises on appeal. If he did, we review the district court’s finding
for clear error. United States v. Chavez-Hernandez, 671 F.3d 494, 497 (5th Cir.
2012) (citation omitted). But if he did not, we review only for plain error. Id.;
Fed. R. Crim. P. 52(b).
To preserve an issue for appeal, a defendant must make an objection
that is “sufficiently specific to alert the district court to the nature of the
alleged error and to provide an opportunity for correction.” United States v.
Nesmith, 866 F.3d 677, 679 (5th Cir. 2017) (internal quotation marks and
citation omitted). Where a defendant provides a written objection, we
similarly consider whether the “written objection was clear enough to
provide the district court with opportunity to rule on it.” United States v.
Gomez-Alvarez, 781 F.3d 787, 791 (5th Cir. 2015) (internal quotation marks
and citation omitted). But we do not require that a defendant’s objection
below and his argument on appeal be identical. Nesmith, 866 F.3d at 679.
Instead, a defendant preserves an issue for appeal so long as the “crux of his
objection is the same” as his argument on appeal. Id.
Bravo’s written objections before the district court have the same
fundamental core as the issue on appeal—both concern whether Bravo can
be held accountable for the drugs at Sandoval’s home based on his purported
joint criminal activity with Sandoval. Bravo objected to Sandoval’s
admissions and conduct, as described in the PSR, “to the extent this
information [wa]s used as a basis for the ‘drug cross reference’ guideline
calculations, or in any manner in which [Bravo] [wa]s believed responsible or
accountable for the material seized.” Bravo also objected to the use of the
listed drug quantities for Guidelines calculation purposes, denying that he
was a methamphetamine customer of Sandoval and that he distributed
methamphetamine to his own customer base. Bravo’s objections thus put the
district court on notice that he objected to being held accountable for the
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2,978 grams of methamphetamine found inside Sandoval’s home. And the
district court had the opportunity to address the core of Bravo’s argument
since it explicitly adopted the Government’s response to Bravo’s objections
and the PSR’s addendum, both of which concluded that there was a
conspiracy between Bravo and Sandoval based on the facts in the PSR.
Because Bravo preserved the issue he now raises on appeal, we review
the district court’s application of the Guidelines de novo and its factual
findings for clear error. Gomez-Alvarez, 781 F.3d at 791. Under the deferential
clear error standard, we will uphold the district court’s factual findings “if
they are plausible in light of the record as a whole.” United States v. Torres-
Magana, 938 F.3d 213, 216 (5th Cir. 2019) (internal quotation marks and
citation omitted). But if our “review of all the evidence leaves [us]
with the definite and firm conviction that a mistake has been committed,”
then we must vacate and remand. Id.III
We first detail the mechanics of the Guidelines sections at issue. We
then review the district court’s implicit finding that Bravo and Sandoval had
an agreement with respect to the stash of drugs found inside Sandoval’s
home.
A
Because Bravo was charged with a firearms offense, the relevant
Guideline is U.S.S.G. § 2K2.1. That section includes a cross reference,
§ 2K2.1(c)(1)(A), which may apply if the firearm was cited in the offense of
conviction and the firearm facilitated “another offense.” When “another
offense” is a drug offense, the cross reference may apply if the firearm is
“found in close proximity to drugs, drug-manufacturing materials, or drug
paraphernalia.” Id. § 2K2.1 cmt. 14(B)(ii). The cross reference may apply
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even if the defendant was not charged with, or convicted of, a drug offense.
Id. § 2K2.1 cmt. 14(C).
Before applying the cross reference, the district court must consider
the relationship between the offense of conviction—here, Bravo’s firearm
conviction—and the drug offense, “consistent with relevant conduct
principles” in the Guidelines. Id. § 2K2.1 cmt. 14(E). See also id.
§ 1B1.3(a)(iii) (specifically noting the section’s application to “cross
references in Chapter Two”). If the defendant’s “relevant conduct”
includes “jointly undertaken criminal activity,” the district court may hold
the defendant accountable for another person’s conduct only if that conduct
was (1) “within the scope of the jointly undertaken criminal activity,” (2) “in
furtherance of that criminal activity,” and (3) “reasonably foreseeable in
connection with that criminal activity.” Id. § 1B1.3(a)(1)(B). See also id.
§ 1B1.3 cmt. 3(A). All three requirements must be met. Id. And the district
court must make this finding by a preponderance of the evidence. United
States v. Landreneau, 967 F.3d 443, 451 (5th Cir. 2020).
B
To determine whether Sandoval’s possession of 2,978 grams of
methamphetamine was relevant conduct for which Bravo could be held
accountable, the district court had to first determine the scope of the criminal
activity that Bravo agreed to jointly undertake with Sandoval. U.S.S.G.
§ 1B1.3 cmt. 3(B).
Because the district court adopted the PSR, we start there. In the
PSR, the probation officer concluded that Bravo and Sandoval were co-
conspirators with respect to the stash of methamphetamine because
(1) Sandoval is Bravo’s cousin, (2) Bravo had previously purchased, and then
redistributed, drugs from Sandoval, and (3) Bravo was arrested at Sandoval’s
home on the day of the raid where firearms, cash, and a stash of drugs were
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discovered. In its response to Bravo’s objections at sentencing, the
Government also added that Bravo had been convicted of two drug-related
crimes.
Precedent informs our analysis about determining the scope of a
jointly undertaken criminal activity involving drugs. For example, in United
States v. Mitchell, we reviewed a sentence that held the defendant responsible
for 20 kilograms of drugs when he had pleaded guilty to conspiring to
distribute only 0.5 kilograms. 964 F.2d 454, 461 (5th Cir. 1992). We noted
that 20 kilograms is “quite a leap” from 0.5 kilograms and that nothing in the
record suggested that the defendant was dealing in the range of 20 kilograms.
Id. at 460. We vacated the sentence because “there was no indication of the
regularity of [the defendant’s] purchases, the amounts he purchased, or the
length of time he had been associated with his suppliers.” Id. at 461. In
contrast, in United States v. Ponce, we affirmed a sentence that held the
defendant accountable for his co-conspirators’ drugs because the PSR
contained substantial detail about how the conspiracy operated and what role
the defendant played. 917 F.2d 841, 848–49 (5th Cir. 2020).
Here, none of the circumstantial facts in the PSR shows by a
preponderance of the evidence that there was an agreement between
Sandoval and Bravo with respect to the 2,978 grams of methamphetamine
found inside Sandoval’s home. While Sandoval and Bravo’s familial
relationship and Bravo’s presence at Sandoval’s home on the day of the raid
support an inference that Bravo knew Sandoval was a methamphetamine
distributor, these facts do not show that Sandoval and Bravo had an
agreement with respect to the drug stash. Sandoval’s previous sale of 56.7
grams of methamphetamine does not support that their agreement extended
in scope to include the drug stash inside Sandoval’s home. Finally, Bravo’s
two prior convictions also fail to show that the stash of methamphetamine
was within the scope of an agreement between Bravo and Sandoval: The first
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conviction was for a small amount of methamphetamine and did not involve
Sandoval, and the second was for a small amount of marijuana.
The only fact in the PSR that directly supports the existence of a drug
conspiracy between Bravo and Sandoval is that Sandoval told law
enforcement that Bravo had previously purchased, and then redistributed,
56.7 grams of methamphetamine from Sandoval. Like Mitchell, the stash of
2,978 grams inside Sandoval’s home is “quite a leap” from the 56.7 grams
that Bravo had purchased. See Mitchell, 964 F.2d at 460. Moreover, nothing
in the record suggests that Bravo and Sandoval were in a joint enterprise to
distribute 2,978 grams of methamphetamine. See id. at 461. There is no
evidence about the regularity of Bravo’s purchases from Sandoval, whether
those purchases took place at Sandoval’s house, or how long Bravo had been
associated with Sandoval’s methamphetamine distribution. See id. And,
unlike in Ponce, the PSR does not contain any information about the details
of the drug conspiracy between Bravo and Sandoval or what role Bravo
played in Sandoval’s methamphetamine distribution. Finally, under our case
law, the remaining facts asserted in the PSR do not support the inference of
a conspiracy between Sandoval and Bravo involving the drug stash. In sum,
nothing in the record establishes that Bravo agreed to conspire with Sandoval
with regard to any amount of methamphetamine that Sandoval possessed
beyond the 56.7 grams that Sandoval sold to Bravo. See United States v. Roddy,
812 F. App’x 285, 286 (5th Cir. 2020). See also U.S.S.G. § 1B1.3 cmt.
4(C)(vii) (providing an illustration of the scope of a jointly undertaken
criminal activity to distribute drugs). Thus, the record does not support the
PSR’s statement that Bravo and Sandoval were co-conspirators with respect
to the 2,978 grams of methamphetamine found inside Sandoval’s home.
Because the record does not show by a preponderance of the evidence
that the 2,978 grams of methamphetamine was within the scope of an
agreement between Bravo and Sandoval, the district court clearly erred by
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adopting the PSR’s finding without making any explicit findings of its own.
And we cannot disregard that error since the Government has not met its
burden to show that the district court’s clear error was harmless. See United
States v. Moton, 951 F.3d 639, 644 (5th Cir. 2020).
IV
On the evidence in this record, we are left with the “definite and firm
conviction” that it was a mistake to hold Bravo accountable for the 2,978
grams of methamphetamine found inside Sandoval’s home. Torres-Magana,
938 F.3d at 216. We therefore VACATE and REMAND to the district
court for resentencing.
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