United States v. Aaron Lunato ( 2019 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 19a0083n.06
No. 18-3179
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
) FILED
) Feb 20, 2019
) DEBORAH S. HUNT, Clerk
)
UNITED STATES OF AMERICA, )
) ON APPEAL FROM THE
Plaintiff-Appellee, ) UNITED STATES DISTRICT
) COURT FOR THE
v. ) NORTHERN DISTRICT OF
) OHIO
AARON J. LUNATO, )
)
Defendant-Appellant. )
)
)
BEFORE: GIBBONS, STRANCH and ROGERS, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. Shortly after returning home from a prison
sentence for felony robbery, Aaron Lunato sent photos of himself wielding a .9 millimeter handgun
and a high capacity rifle, while posing with numerous other firearms, to several people. After one
of the recipients provided the photos to the government, Lunato pled guilty to being a felon in
possession of a firearm. Based on his offense level of twenty-one, which included a two-level
enhancement for possession of between three and seven firearms, the district court sentenced
Lunato to eighty months’ imprisonment and three years’ subsequent supervised release. Lunato
now challenges the two-level enhancement. Because the district court did not clearly err in finding
that Lunato exercised control over the firearms with which he posed, we affirm the district court’s
imposed sentence.
No. 18-3179, United States v. Lunato
I.
Aaron Lunato was convicted of felony robbery in the Lake County Court of Common Pleas
in Ohio on December 10, 2012. In that same proceeding, he was also convicted of possession of
heroin and carrying a concealed weapon.
Upon his release from prison in fall 2016, Lunato returned to live with his mother and
stepfather. His stepfather is a police officer who conducts concealed carry weapons classes and
consequently keeps a collection of firearms in the house. On December 15, 2016, while in his
parents’ basement, Lunato took two photographs with a table full of guns, including numerous
handguns and revolvers, while wielding a .223 caliber rifle, capable of accepting a large capacity
magazine, and a .9 millimeter handgun. Lunato then sent the photographs to a small number of
people, one of whom turned the photographs over to the government. During a subsequent
interview with the FBI on December 23, 2016, Lunato admitted that he possessed the two firearms
and had sent pictures of himself holding the two firearms to others.
Lunato pled guilty to knowingly possessing a firearm after having previously been
convicted of a crime punishable by imprisonment for a term exceeding one year, in violation of
18 U.S.C. § 922(g)(1). Lunato had a calculated offense level of twenty-one, which reflected a base
offense level of twenty-two, because Lunato, who had a previous felony conviction of a crime of
violence, possessed a firearm capable of accepting a large capacity magazine; a two-level increase
based on his offense involving six firearms, under U.S.S.G. § 2K2.1(b)(1)(A), which adds two
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levels for offenses involving three to seven firearms;1 and a three-level decrease for Lunato’s
acceptance of responsibility. This yielded a Guidelines range of 70-87 months.
The district court sentenced him to eighty months of incarceration, followed by three years
of supervised release. At the conclusion of the sentencing hearing, the court asked the government
and Lunato whether they had any objections to the sentence. Neither party objected.
Lunato now argues that the district court abused its discretion by enhancing his offense
level by two points. Lunato argues that he did not “possess” the additional firearms but was rather
merely present in his parents’ basement with them. Without the two-point increase, Lunato’s
offense level would have been nineteen, resulting in a sentencing range of 57-71 months.
II.
We review a district court’s ultimate sentence for reasonableness under an abuse of
discretion standard. United States v. Carter, 510 F.3d 593, 600 (6th Cir. 2007); United States v.
Thomas, 498 F.3d 336, 339 (6th Cir. 2007). The reasonableness of a sentence has both a procedural
and a substantive component. Gall v. United States, 552 U.S. 38, 51 (2007). A district court
abuses its sentencing discretion procedurally if it “commit[s] [a] significant procedural error, . . .
[including] failing to calculate (or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the chosen sentence.” Id. Where a district
court errs in its calculation of the Guidelines range when determining a sentence, the appellate
court should remand for resentencing unless it was harmless error. United States v. Vicol, 514 F.3d
559, 561 (6th Cir. 2008).
1
The Pre-Sentence Report erroneously cited U.S.S.G. § 2K2.1(b)(1)(B), which is a four-level adjustment for offenses
involving eight to twenty-four firearms. It correctly applied the two-level increase from § 2K2.1(b)(1)(A), however.
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No. 18-3179, United States v. Lunato
We “review a district court’s factual findings in sentencing a defendant under the clearly
erroneous standard . . . and its application and interpretation of the Guidelines de novo.” United
States v. Jeross, 521 F.3d 562, 569 (6th Cir. 2008) (citing United States v. Cousins, 469 F.3d 572,
575 (6th Cir. 2006)); United States v. Hazelwood, 398 F.3d 792, 795 (6th Cir. 2005). We are
charged “not only to ‘accept’ a district court’s ‘findings of fact’ (unless ‘clearly erroneous’), but
also to ‘give due deference to the district court’s application of the [G]uidelines to the facts.’”
Buford v. United States, 532 U.S. 59, 63 (2001) (quoting 18 U.S.C. § 3742(e)). A factual finding
is “clearly erroneous” “when the reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.” Tran v. Gonzales, 447 F.3d 937, 943
(6th Cir. 2006).
“[A]fter pronouncing the defendant’s sentence but before adjourning the sentencing
hearing,” district courts are required “to ask the parties whether they have any objections to the
sentence just pronounced that have not previously been raised.” United States v. Bostic, 371 F.3d
865, 872 (6th Cir. 2004). Where, as here, a district court has inquired as to whether a defendant
objects to a sentence under Bostic and the defendant does not so object, this court reviews the
“unpreserved procedural-reasonableness argument for plain error.” United States v. Evers,
669 F.3d 645, 661 (6th Cir. 2012) (citing United States v. Freeman, 640 F.3d 180, 185 (6th Cir.
2011)).
Thus, Lunato must demonstrate that there was “(1) error (2) that was obvious or clear,
(3) that affected [Lunato’s] substantial rights and (4) that affected the fairness, integrity, or public
reputation of the judicial proceedings.” United States v. Taylor, 800 F.3d 701, 714 (6th Cir. 2015).
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No. 18-3179, United States v. Lunato
III.
Lunato argues that the district court committed procedural error when it increased Lunato’s
offense level under U.S.S.G. § 2K2.1(b)(1)(A) because the offense involved three to seven
firearms. Specifically, Lunato argues that “his mere presence in his parent[s’] basement was
insufficient to show possession of the firearms that he was not wielding.” (CA6 R. 24, Appellant
Br., at 10.) The photographs depict, and Lunato does not challenge, that he was clearly wielding
a .9 millimeter handgun and rifle capable of accepting a large capacity magazine. Thus, we must
decide whether it was clear error for the district court to determine that Lunato was also in
possession of the numerous guns on the table with which he was posing.
A court may apply a sentencing enhancement for possession of firearms when the
government proves by a preponderance of the evidence that the defendant was either in actual or
constructive possession of the firearms. United States v. Jackson, 877 F.3d 231, 237-38 (6th Cir.
2017); see also United States v. Dupree, 323 F.3d 480, 491 (6th Cir. 2003) (“The burden is on the
government to prove, by a preponderance of the evidence, that a particular sentencing
enhancement applies.”).
“A defendant may be convicted of unlawful firearm possession under 18 U.S.C. § 922based on either actual or constructive possession of a firearm.” United States v. Roberts, 529 Fed.
App’x 488, 491 (6th Cir. 2013). Actual possession exists “where the defendant has physical
contact with a firearm – e.g., he holds it, holsters it, or keeps it in a place where it is immediately
accessible.” United States v. Grubbs, 506 F.3d 434, 439 (6th Cir. 2007) (emphasis added). On
the other hand, “[c]onstructive possession exists when a person does not have actual possession
but instead knowingly has the power and the intention at a given time to exercise dominion and
control over an objection, either directly or through others.” United States v. Craven, 478 F.2d
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No. 18-3179, United States v. Lunato
1329, 1333 (6th Cir. 1973), abrogated on other grounds by Scarborough v. United States, 431 U.S.
563, 97 S.Ct. 1963 (1977), as recognized in United States v. White, 679 Fed. Appx. 426, 434 (6th
Cir. 2017). A defendant also has constructive possession of an item when he exercises “dominion
over the premises where the item is located.” United States v. Hill, 79 F.3d 1477, 1485 (6th Cir.
1996).
While Lunato’s presence alone near a gun is insufficient to establish constructive
possession, Roberts, 529 Fed. App’x at 491 (citing United States v. Arnold, 486 F.3d 177, 181
(6th Cir. 2007) (en banc)), “other incriminating evidence . . . such as a connection with a gun,
proof of motive, a gesture implying control, evasive conduct, or a statement indicating
involvement in an enterprise along with proximity, may be sufficient to show possession.” United
States v. Kennedy, 745 F. App’x 601, 604 (6th Cir. 2018) (quoting United States v. Campbell,
549 F.3d 364, 374 (6th Cir. 2008)) (internal quotation marks omitted).
The district court did not clearly err in finding that the photographs in the government’s
sentencing memorandum depict Lunato possessing numerous firearms on the table beside him and
demonstrate his power and intent to exercise control over said firearms. As defense counsel noted
at sentencing, the photo “was like a trophy picture.” (DE 28, Sentencing Transcript, Page ID #
148.) When, in the first photo, Lunato posed with the high-capacity rifle, the .9 millimeter
handgun, which he would then wield in the second photo, was clearly visible on the table next to
him, among numerous other firearms. Thus, when Lunato subsequently posed with the
.9 millimeter handgun, he made “a gesture implying control” over all of the firearms on the table,
implying that he had control over the weapons on the table such that he could have posed with any
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No. 18-3179, United States v. Lunato
one of the firearms. That he then sent these photographs to their recipients is a further “gesture
implying control” of the firearms.
IV.
For the reasons stated, we affirm the district court’s sentence of eighty months’
imprisonment and three years’ supervised release. The district court did not clearly err in finding
that Lunato’s offense involved between three and seven firearms when Lunato posed with the
firearms and exercised control over the weapons by wielding two of them.
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