FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE [Hon. John A. Woodcock, Jr., U.S. District Judge]
J. Tzovarras on brief for appellant.
E. Delahanty II, United States Attorney, and Margaret D.
McGaughey, Assistant United States Attorney, on brief for
Howard, Chief Judge, Selya and Barron, Circuit Judges.
sentencing court - ruling on the basis of circumstantial
evidence - attributed constructive possession of six Molotov
cocktails to defendant-appellant Oscar Nuñez. That
finding fueled a substantial increase in the appellant's
guideline sentencing range (GSR) and contributed materially
to his 82-month sentence. The appellant now argues that the
constructive possession finding was woven entirely out of
wispy strands of speculation and surmise and that, as a
result, his sentence should be vacated.
agree with the appellant that the government offered no
direct evidence that he possessed the Molotov cocktails.
Circumstantial evidence, though, can be highly persuasive.
Given the quality and quantity of the circumstantial evidence
here, we conclude that the sentencing court's
constructive possession finding was not clearly erroneous.
Consequently, we affirm the appellant's sentence.
this appeal trails in the wake of the appellant's guilty
plea, we draw the facts from the plea colloquy, the
uncontested portions of the presentence investigation report,
and the sentencing transcript. See United States
v. Dávila-González, 595 F.3d
42, 45 (1st Cir. 2010); United States v.
Dietz, 950 F.2d 50, 51 (1st Cir. 1991). The
appellant trafficked in drugs in and around Bangor, Maine. In
the course of that nefarious enterprise, he briefly employed
David Ireland as his driver. After Ireland left the
appellant's employ, the two men had a falling-out, one
manifestation of which was that, in June of 2012, the
appellant visited Ireland at his home and threatened him with
acrimony between Ireland and the appellant did not stop
there. Around 2:00 a.m. on July 22, 2012, two men (one of
whom was later identified as the appellant) went to
Ireland's house, saturated the base of the building with
gasoline poured from red plastic gasoline cans, and ignited
the fuel. This ring of fire, far from a symbol of love,
compare Johnny Cash, "Ring of Fire, " on
Ring of Fire (Columbia Records 1963) ("Love is
a burning thing / And it makes a fiery ring"),
with Dante Alighieri, The Inferno canto XII
(describing those guilty of violence against their neighbors
as trapped in a ring made up of a river of boiling blood),
burned the home's exterior. To make a bad situation
worse, one of the marauders shot eight rounds in the
direction of the home.
the next day, law enforcement officers executed a search
warrant at the appellant's residence (into which he and
his girlfriend had moved less than a week before). Hidden in
the eaves, the police discovered a Hi-Point .380 caliber
pistol, which matched both the handgun that the appellant had
brandished while threatening Ireland in June and the bullets
that had been fired at Ireland's house the previous
morning. Beneath the deck of the appellant's dwelling,
the officers found two red plastic gasoline cans nestled
snugly between the foundation and a six-pack of beer bottles
that had been repurposed into Molotov cocktails.
appellant admitted to setting the fire at Ireland's house
and pleaded guilty in state court to charges of arson and
criminal threatening. He was charged federally with a single
count of being a felon in possession of a firearm.
See 18 U.S.C. §§ 922(g)(1), 924(a)(2).
Following his guilty plea to an information setting forth
that charge, the district court sentenced him to an 82-month
term of immurement. This timely appeal ensued.
review of a criminal sentence typically engenders a two-step
process. See United States v.
Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir.),
cert. denied, 136 S.Ct. 258 (2015); United
States v. Martin, 520 F.3d 87, 92 (1st
Cir. 2008). First, we resolve any claims of procedural error,
including any claims that implicate the accuracy of the
sentencing court's calibration of the GSR. See
Martin, 520 F.3d at 92. Second, we consider any attack
on the substantive reasonableness of the sentence. See
id. Here, our task is simplified because the appellant
has challenged only the procedural integrity of his sentence.
case - as in virtually every case - the plinth on which the
district court's sentencing calculus rests is its
calculation of the applicable guideline range. To this end,
the court made a series of determinations that yielded a GSR
of 120-150 months. That range, which was capped at 120 months
by virtue of the maximum sentence allowed under the statute
of conviction, see 18 U.S.C. § 924(a)(2),
hinged in substantial part on a factual finding that the
appellant possessed the six Molotov cocktails discovered in
the search. For sentencing purposes, each Molotov cocktail
was considered both a firearm and a destructive device.
See id. § 921(a); 26 U.S.C. § 5845;
see also USSG §2K2.1, cmt. n.1. Consequently,
this finding increased the GSR (and, thus, adversely affected
the appellant's sentence) in three ways: it boosted his
base offense level, see USSG §2K2.1(a)(3); it
triggered a two-level enhancement for possessing three or
more firearms, see id. §2K2.1(b)(1)(A); and it
brought into play an additional two-level "destructive
device" enhancement, see id.
§2K2.1(b)(3)(B). The constructive possession finding is
the focal point of the appeal in this case. In reviewing it,
we start with the accepted premise that, at sentencing, the
government bears the burden of proving sentence-enhancing
factors by a preponderance of the evidence. See United
States v. Paneto, 661 F.3d 709, 715
(1st Cir. 2011). Where, as here, a claim of error addressed
to the sentencing court's factfinding was preserved
below, appellate review is for clear error. See United
States v. Leahy, 668 F.3d 18, 21 (1st
Cir. 2012). Clear-error review is demanding: this standard
will be satisfied only if, "upon whole-record-review, an
inquiring court 'form[s] a strong, unyielding belief that
a mistake has been made.'" United States
v. Cintrón-Echautegui, 604 F.3d 1, 6
(1st Cir. 2010) (alteration in original) (quoting
Cumpiano v. Banco Santander P.R.,
902 F.2d 148, 152 (1st Cir. 1990)).
appellant chafes at this reasoning. He insists that the raw
facts are uncontested and that, therefore, a de novo standard
of review should apply. But a sentencing court's findings
based on inferences from an undisputed set of facts are
nonetheless subject to clear-error review. See United
Statesv.Al-Rikabi, 606 F.3d 11, 14
(1st Cir. 2010); United Statesv.Santos, 357 F.3d 136, 142 (1st Cir. ...