APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Aida M. Delgado-Colón, U.S. District Judge.
Anita Hill Adames on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, on brief for appellee.
Before Thompson, Selya and Kayatta, Circuit Judges.
SELYA, Circuit Judge.
This is a single-issue sentencing appeal. In it, defendant-appellant Justo L. Burgos-Figueroa
assigns error to the district court's imposition of a two-level sentencing enhancement reflecting the possession of a dangerous weapon during a drug-trafficking conspiracy. See U.S.S.G. § 2D1.1(b)(1).
It is common ground that a sentencing enhancement must be supported by a preponderance of the evidence. See United States v. McDonald, 121 F.3d 7, 9 (1st Cir. 1997). The facts undergirding an enhancement need not be established by direct evidence but, rather, may be inferred from circumstantial evidence. See United States v. Cruz, 120 F.3d 1, 4 (1st Cir. 1997) (en banc). This is such a case and, after careful consideration, we uphold the disputed enhancement.
A synopsis affords the necessary perspective. On October 26, 2012, a federal grand jury sitting in the District of Puerto Rico returned a four-count indictment against the appellant. The parties later entered into a written plea agreement (the Agreement). Pursuant to the Agreement, the appellant pleaded guilty to count 1 of the indictment (which charged him with conspiring to distribute substantial quantities of cocaine, heroin, and marijuana, see 21 U.S.C. § § 841(a)(1), 846), and the government agreed to dismiss the remaining counts. In the Agreement, the parties stipulated to a series of guidelines calculations. These stipulations envisioned only two adjustments to the appellant's offense level: a two-level enhancement for the appellant's role as a leader or manager of the conspiracy, see U.S.S.G. § 3B1.1(c), and a three-level reduction for acceptance of responsibility, see id. § 3E1.1(b).
Following customary practice, the probation office prepared a presentence investigation report (PSI Report). The Report disclosed that the appellant, along with at least thirty-two confederates, had participated in a sprawling conspiracy to distribute an array of drugs from various drug points in the Pastillo Ward in Juana Diaz, Puerto Rico. The conspiracy was organized along hierarchical lines, allocating varying degrees of authority among leaders, drug point owners, enforcers, sellers, runners, and facilitators. As a drug point owner, the appellant supervised other members of the conspiracy and supplied controlled substances to coconspirators for distribution and sale. Of particular pertinence for present purposes, the PSI Report made pellucid that the conspiracy involved the use of firearms as a means of protecting the enterprise and its wares against rival organizations and gangs. The appellant did not object either to this factual recital or to any other factual recital explicated in the PSI Report.
Based on the facts developed in the PSI Report, the probation office recommended, inter alia, a two-level enhancement for possessing firearms during the conspiracy. See id. § 2D1.1(b)(1). At the disposition hearing, the appellant opposed this recommendation, and the government took no position concerning it. The appellant argued that the weapons enhancement did not apply because the record contained no direct evidence that either he or any person working under his immediate supervision possessed any firearms. The district court rejected this argument. The court found that, as the owner of a drug point and a leader of the conspiracy, the appellant reasonably could have foreseen that his coconspirators and subordinates would possess guns. The court proceeded to impose the enhancement, which had the effect of elevating the appellant's guideline sentencing range to 135-168 ...