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United States v. Nunez

United States Court of Appeals, First Circuit

March 29, 2017

UNITED STATES OF AMERICA, Appellee,
v.
OSCAR NUNEZ, Defendant, Appellee.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. John A. Woodcock, Jr., U.S. District Judge]

          Hunter J. Tzovarras on brief for appellant.

          Thomas E. Delahanty II, United States Attorney, and Margaret D. McGaughey, Assistant United States Attorney, on brief for appellee.

          Before Howard, Chief Judge, Selya and Barron, Circuit Judges.

          SELYA, Circuit Judge.

         The 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.

         We 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.

         Because 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 a handgun.

         The 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.

         Early 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.

         The 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.[1] This timely appeal ensued.

         Our 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.

         In this 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)).

         The 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. ...


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