United States v. Ruben Nungaray

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 11-30341
Plaintiff-Appellee, D.C. No.
v.  1:11-cr-00067-
RUBEN NUNGARAY, BLW-1
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Argued and Submitted
August 28, 2012—Seattle, Washington
Filed October 5, 2012
Before: Mary M. Schroeder and Ronald M. Gould,
Circuit Judges, and Paul L. Friedman,
Senior District Judge.*
Opinion by Judge Gould
*The Honorable Paul L. Friedman, Senior District Judge for the U.S.
District Court for the District of Columbia, sitting by designation.
12155
UNITED STATES v. NUNGARAY‡ 12157
COUNSEL
Dennis M. Charney (argued), Charney and Associates, PLLC,
Eagle, Idaho, for the defendant-appellant.
Wendy J. Olson, United States Attorney District of Idaho, and
Ann T. Wick (argued), Special Assistant United States Attor-
ney, United States Attorney’s Office, Boise, Idaho, for the
plaintiff-appellee.
OPINION
GOULD, Circuit Judge:
Appellant Ruben Nungaray challenges the district court’s
decision to increase his sentence by two levels under U.S.S.G.
§ 2K2.1(b)(1)(A). We consider whether the district court
erred by enhancing Nungaray’s sentence based on its finding
that he constructively possessed four firearms. We have juris-
diction under 28 U.S.C. § 1291, and we affirm.
I
On July 20, 2011, Nungaray pled guilty to one count of
unlawful possession of a firearm in violation of 18 U.S.C.
12158 UNITED STATES v. NUNGARAY‡
§ 922(g)(1). Although he pled guilty to only one count of
unlawful firearm possession, at the sentencing hearing, the
district court found by a preponderance of the evidence that
Nungaray constructively possessed four other guns that he
sold to an undercover officer. As a result, the court enhanced
Nungaray’s sentence by two levels under U.S.S.G.
§ 2K2.1(b)(1)(A) for a total offense calculation of 23 with a
criminal history score of VI, making the guideline sentencing
range 92 to 115 months. The district court sentenced Nun-
garay to 92 months.
Nungaray sold firearms to undercover officer, Sergeant
Martin Flores, in Boise, Idaho, on January 5, 2010. On Janu-
ary 4, 2010, a confidential informant told the FBI that Nun-
garay wanted to sell several guns. Later that day, Nungaray
called the informant and offered to sell five firearms for
$1,200: a .38 caliber revolver, a .380 caliber pistol, a Derrin-
ger, and two shotguns. On January 5, 2010, Nungaray sent a
text message to the informant with pictures of four firearms:
a .38 caliber revolver, a .357 caliber revolver, a Derringer,
and a .380 caliber pistol. The informant then introduced Ser-
geant Flores and Nungaray through a three-way phone call.
The three then negotiated a price of $900 for the four guns.
At the sentencing hearing, Sergeant Flores testified that he
and Nungaray originally agreed to meet at Cabela’s in Boise,
but Nungaray later changed the location to a particular Jack-
in-the-Box fast-food restaurant in Boise. When Nungaray
arrived, he left his car and got into the passenger’s seat of Ser-
geant Flores’s car. Nungaray first asked Sergeant Flores to
follow him to his home to get the guns, but Sergeant Flores
refused. After this conversation, Nungaray took a brief phone
call on his cell-phone, directed Sergeant Flores to pop the
trunk, and then made another phone call with his cell-phone
and spoke in Spanish. Shortly after this call, a woman
approached the car, placed a bag containing the four guns in
the trunk, and left. Nungaray told Sergeant Flores that he
could inspect the guns in the trunk while Nungaray remained
UNITED STATES v. NUNGARAY‡ 12159
in the passenger seat. Sergeant Flores did so, and after looking
in the trunk he returned to the car and paid Nungaray the
agreed compensation for the guns. Nungaray then said he
would contact Sergeant Flores for another deal.
Nungaray, at the sentencing hearing, testified that he sold
the guns on behalf of his elderly, disabled friend Corrie who
needed money. Per Nungaray’s story, he was just a go-
between who never took possession of the guns. According to
Nungaray, Corrie took the pictures of the guns and sent them
to Nungaray who forwarded them to the informant. At Nun-
garay’s request, Corrie asked her friend Crystal to take the
guns from Oregon to Boise and to meet Nungaray at the Jack-
in-the-Box where Nungaray told her to put the guns in Ser-
geant Flores’s trunk. Nungaray admitted that he negotiated
the sale price and intended to make another sale to Sergeant
Flores,1 but said that he gave the full payment to Corrie the
day after the sale and kept none of the money for himself. He
testified that he never touched the guns and wanted to keep
them out of his possession because of his previous felony con-
viction.
At the sentencing hearing, Nungaray’s counsel argued that
Nungaray’s actions were akin to that of a stock broker and he
lacked the dominion and control necessary for constructive
possession. The district court rejected this argument. After
reviewing Ninth Circuit precedent, the Federal Jury Practice
and Instructions definition of constructive possession,2 and the
1
Nungaray’s underlying felony possession of a firearm offense is related
to the January 5th gun sale. Law enforcement discovered the gun, a Ruger
rifle, during a residence check of Nungaray’s home. Nungaray testified
that he asked Corrie to send this gun at the same time as the other guns
and that one of Corrie’s friends placed it in his garage. Nungaray planned
to sell this gun to Sergeant Flores at a later date.
2
“A person who knowingly has direct physical control over a thing at
a given time is then in actual possession of it. A person who, although not
in actual possession, knowingly has both the power and the intention at a
12160 UNITED STATES v. NUNGARAY‡
evidence presented at the hearing, the district court found that
the facts demonstrated a nexus sufficient to establish that
Nungaray had dominion and control over the guns. Specifi-
cally, the court reasoned that “where an individual negotiates
the sale of the item, sends pictures of it to another individual,
arranges for the sale, is present at the sale, directs another per-
son to physically pick up the firearms and deliver them physi-
cally into the trunk of the purchaser, that . . . constitutes
constructive possession.”
II
Nungaray argues that the preponderance of the evidence
does not support the district court’s finding that he construc-
tively possessed the guns sold to Officer Flores and that the
two-level sentence enhancement was improper. He contends
that he merely brokered the gun sale and lacked the knowl-
edge, power, and intent to exercise control over the guns as
required for constructive possession. We review the district
court’s findings of fact for clear error and its application of
the Sentencing Guidelines to the facts for abuse of discretion.
See United States v. Goodbear, 676 F.3d 904, 909 (9th Cir.
2012). For the reasons stated below, we conclude that the dis-
trict court did not err in finding constructive possession by a
preponderance of the evidence when Nungaray initiated con-
tact with the buyer, negotiated the gun price, minutely
directed the gun delivery and sale location, was present at the
sale, and took payment from the buyer after he inspected the
delivered guns. The district court did not abuse its discretion
by imposing the two-level enhancement for gun possession.
given time to exercise dominion or control over a thing, either directly or
through another person or persons, is then in constructive possession of
it.” 2A Kevin F. O’Malley, et al., Fed. Jury Prac. & Instr. § 39:12 (6th ed.
2012). At the sentencing hearing, the district judge incorrectly referred to
these instructions as the Ninth Circuit Model Instructions.
UNITED STATES v. NUNGARAY‡ 12161
[1] Constructive possession requires the government to
show “a sufficient connection between the defendant and the
contraband to support the inference that the defendant exer-
cised dominion and control over the firearms.” United States
v. Vasquez, 654 F.3d 880, 885 (9th Cir. 2011) (quoting United
States v. Carrasco, 257 F.3d 1045, 1049 (9th Cir. 2001)).
“Dominion and control” exist if a person has knowledge of
the firearms and “the power and intent to exercise control
over them.” Vasquez, 654 F.3d at 885. The government may
demonstrate knowledge and intent through circumstantial evi-
dence. Id. Mere proximity to contraband and mere association
with a person controlling the contraband are each insufficient
to show constructive possession. See United States v. Terry,
911 F.2d 272, 279 (9th Cir. 1990).
[2] Sufficient evidence exists to prove by a preponderance
that Nungaray constructively possessed the guns. He was no
mere bystander. He controlled the sale of the guns from start
to finish. He demonstrated his knowledge of the guns and his
power and intent to control them by contacting the informant,
sending pictures of the guns, setting the delivery location,
asking Sergeant Flores to come to his home to get the guns,
allowing Sergeant Flores to check the guns in the trunk, and
taking payment. Furthermore, according to Nungaray, he
directed Corrie3 to send the guns to Boise and told her agent,
Crystal, to place them in the trunk. Even accepting Nun-
garay’s testimony that he acted at Corrie’s direction, “[h]e
was no mere intermediary or innocent person at the scene of
illicit activity but rather an active participant, if not the princi-
pal, in the sale and delivery.” United States v. Cousins, 427
F.2d 382, 384 (9th Cir. 1970) (evidence sufficient for con-
structive possession when defendant provided a sample of
contraband whiskey, arranged for its delivery, and kept a tally
as it was unloaded). In a real and pragmatic sense, there was
3
It is possible that Corrie is Nungaray’s imaginary friend or that Nun-
garay otherwise distorted the facts in his story, but we conclude, even
crediting his testimony, that he constructively possessed the guns.
12162 UNITED STATES v. NUNGARAY‡
evidence of Nungaray’s control of the guns for purposes of
the sale.
Despite this evidence, Nungaray contends that he lacked
the power to control the firearms because he was a casual
facilitator of the sale and could not assure delivery without
difficulty. He bases this argument on a loose interpretation of
United States v. Barnett, 468 F.2d 1153 (9th Cir. 1972) and
Seventh Circuit case law. We reject this argument.
[3] Under Barnett, Nungaray argues that he did not have
dominion and control over the guns because he lacked a
“working relationship with th[e] principal that enable[d] an
assurance of delivery.” Barnett, 468 F.2d at 1154, (quoting
Hill v. United States, 379 F.2d 811, 814 (9th Cir. 1967)).
Stated another way, he contends that he could not control
whether Corrie would send him the guns. Yet, Nungaray
could and did assure delivery of the guns to Sergeant Flores
before Flores tendered the payment for the guns. Neither the
minor changes in the type and quantity of the guns nor Nun-
garay’s reliance on Corrie and Crystal to deliver the guns
negate Nungaray’s ability to make good on his promise to
sell. See Brothers v. United States, 328 F.2d 151, 155 (9th
Cir. 1964) (constructive possession established regardless of
who placed the drugs at the delivery location); see also White
v. United States, 315 F.2d 113, 114 n.1, 115 (9th Cir. 1963)
(per curiam) (evidence sufficient to find constructive posses-
sion when narcotics delivered after failed attempt).
Nungaray also contends that we should apply the reasoning
of United States v. Manzella, 791 F.2d 1263 (7th Cir. 1986),
and hold that Nungaray merely brokered the sale. Manzella,
as a decision of the Seventh Circuit, is not binding upon us
and we would consider following it only if persuaded that it
is correct. But more importantly, here Manzella can be readily
distinguished on its facts, so we need not decide if we would
hold likewise on similar facts, that is if we would follow Man-
zella in a case with materially indistinguishable facts.
UNITED STATES v. NUNGARAY‡ 12163
In Manzella, Judge Posner’s opinion for the Seventh Cir-
cuit held that the evidence was sufficient to support a conspir-
acy conviction relating to cocaine distribution but was too
weak to establish constructive possession of the cocaine with
intent to distribute it. Manzella had made two failed attempts
to connect the cocaine supplier with the seller and buyer and
was not present during the third attempt when the drugs
finally arrived. Manzella, 791 F.2d at 1265. The court in Man-
zella analogized his conspiratorial role as similar to a real-
estate broker’s part in lining up a real-estate sale. Id. at
1265-66. But the opinion emphasized the weakness of the evi-
dence against Manzella on the issue of constructive posses-
sion. Id. at 1266. The court acknowledged that constructive
possession doctrine was aimed at creating “a legal fiction to
take care of such cases as that of a drug dealer who operates
through hirelings who have physical possession of the drugs,”
and noted it would be odd if a dealer could avoid being guilty
of possession merely because he could “hire a flunky to have
custody of the drugs.” Id. But the essential thing was that the
dealer have “ultimate control over the drugs.” Id.Manzella can be distinguished on both the weight of the
evidence and the evidentiary standard applied. In the case of
Manzella, he had difficulty in arranging the drug delivery. Id.
at 1266-67. By contrast here, the government presented ample
evidence of Nungaray’s control over the sale and his ability
to assure delivery of the guns without difficulty. Even Judge
Posner’s opinion acknowledged that one “who can assure the
delivery of a good controls it.” Id. at 1267 (distinguishing
Manzella from cases where constructive possession was based
on assurance of delivery and association with the actual pos-
sessor). Moreover, Manzella applied the higher beyond a rea-
sonable doubt standard to its review of the evidence
sustaining Manzella’s conviction, see id. at 1264-65 (review-
ing jury conviction for sufficiency of the evidence), but at
Nungaray’s sentencing, the district court properly applied the
lower preponderance of the evidence standard. See United
States v. Mejia-Luna, 562 F.3d 1215, 1221 (9th Cir. 2009). As
12164 UNITED STATES v. NUNGARAY‡
previously discussed, the evidence presented at the sentencing
hearing shows by a clear preponderance that Nungaray
exerted control and dominion over the guns sufficient to
establish constructive possession.
Nungaray’s other two arguments are also unavailing. First,
he argues that his avoidance of direct contact with the guns
demonstrates a lack of intent to control them. This argument
confuses actual and constructive possession. Constructive
possession requires only that the government show intent to
control, not intent to actually possess. See Vasquez, 654 F.3d
at 885, 886. Second, Nungaray complains that the district
court’s decision improperly relied on “formulaic” reasoning
and analogy instead of relevant facts. But the district court
reviewed the case law, described its reasoning, and high-
lighted the facts relevant to its decision. Nothing in the record
suggests that the district court did not consider the specific
facts of this case.
[4] In sum, Nungaray’s theory that he never possessed the
guns that he sold and delivered to Sergeant Flores is too
clever by half. It strains common sense to say that while Nun-
garay orchestrated the details of the gun sale, negotiating on
number of guns and consideration to be paid for them, direct-
ing where the guns were to be delivered, directing that the
guns be placed in the trunk of the buyer’s car, permitting the
buyer to look at them, and, when he was satisfied, collecting
the money that had been negotiated and agreed upon as con-
sideration for the guns, he never had possession of the guns.
Contrary to Nungaray’s strained argument, the preponderance
of the evidence shows that he indirectly controlled the deliv-
ery and placement of the guns in the hands of the buyer. We
hold that the district court did not err in enhancing Nun-
garay’s sentence based on its finding that he constructively
possessed four firearms.
AFFIRMED.