United States Court of Appeals For the First Circuit

No. 15-2412

UNITED STATES OF AMERICA,

Appellee,

v.

OSCAR NUÑEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

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

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.

March 29, 2017 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,

(1st Cir. 2010); United States v. Dietz,

(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

- 2 - 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

- 3 - 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

(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,

(1st Cir.), cert. denied,

(2015); United

States v. Martin,

(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,

. Second, we consider any

attack on the substantive reasonableness of the sentence. See

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

1At the time of his federal sentencing, the appellant had not yet been sentenced on the related state charges.

- 4 - 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

(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

§ 921(a);

; 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,

(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,

(1st Cir. 2012). Clear-error review is demanding: this

- 5 - 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,

(1st Cir. 2010) (alteration in original) (quoting Cumpiano v.

Banco Santander P.R.,

(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 States v. Al-Rikabi,

(1st Cir. 2010); United States v. Santos,

(1st Cir. 2004); United States v. McDonald,

(1st Cir. 1997). This is such a case.2

Against this backdrop, we turn to the challenged

finding.3 It is common ground that possession can be either actual

or constructive. See United States v. Maldonado-García,

(1st Cir. 2006). Actual possession means that a person

2 We hasten to add that the standard of review is not determinative here. Even under de novo review, the district court's constructive possession finding would be unimpugnable.

3 The fact that the district court imposed a downwardly variant sentence does not moot the appellant's claim of error. See Molina-Martinez v. United States,

(2016) ("In most cases a defendant who has shown that the district court mistakenly deemed applicable an incorrect, higher Guidelines range has demonstrated a reasonable probability of a different outcome.").

- 6 - has "immediate, hands-on physical possession" of the items in

question. United States v. Gobbi,

(1st Cir.

2006) (quoting United States v. Zavala Maldonado,

(1st Cir. 1994)). The government does not claim that the appellant

actually possessed the Molotov cocktails. Thus, the issue before

us reduces to whether — as the district court concluded — the

evidence supports a finding that the appellant constructively

possessed them.

Constructive possession is present "when a person

knowingly has the power at a particular time to exercise dominion

and control over" an object. Maldonado-García,

.

Dominion and control over an object frequently may be found through

inference, based on a showing of dominion and control over the

area in which the object is found. See United States v. Echeverri,

(1st Cir. 1993). Moreover, constructive

possession may be found based wholly on circumstantial evidence.

See United States v. Ridolfi,

(1st Cir. 2014).

In this instance, several pieces of circumstantial

evidence point convincingly to the appellant’s constructive

possession of the Molotov cocktails. To begin, the sentencing

court had ample reason to believe that the appellant had dominion

and control over his own home, and the Molotov cocktails were found

underneath the deck of the home. Absent some countervailing

considerations — and the record reveals none — a person who

- 7 - exercises dominion and control over his own abode is deemed to

possess the objects found therein. See McDonald,

.

So, for example, "[t]he location of . . . firearms in a defendant’s

home . . . is a common basis for attributing possession to the

defendant." Zavala Maldonado,

.

The appellant rejoins that the Molotov cocktails were

not found within the house itself but, rather, under an outside

deck that was accessible to others. That is true as far as it

goes, but it does not take the appellant very far. Even though

the inference of constructive possession would be stronger had the

Molotov cocktails been stored within the interior of the house,

see, e.g., McDonald,

, that spatial arrangement is

hardly a sine qua non for a finding of constructive possession.

While the area under a deck or porch may be less secure than the

interior of a dwelling, that distinction does not transform the

area into public space. Cf. Florida v. Jardines,

(2013) ("The front porch is the classic exemplar of an area

adjacent to the home and 'to which the activity of home life

extends.'" (quoting Oliver v. United States,

, 182

n.12 (1984))). At the very least, the appellant had especially

easy access to the area under the deck — and when contraband is

located "in a domain specially accessible to the defendant," a

factfinder may reasonably infer that the defendant possessed that

- 8 - contraband. Zavala Maldonado,

; see United States v.

Vargas,

(1st Cir. 1991).

The particular placement of the Molotov cocktails

buttresses the district court’s finding of constructive

possession. The plastic gasoline cans that the appellant used in

an arson the previous day were fitted tightly between the house

and the Molotov cocktails. The close proximity of the Molotov

cocktails to the tools of the appellant’s recent crime supports a

commonsense inference that the appellant knew of their existence.

Such inferences are important because "[w]hen judges sit as

factfinders, they are not obliged to put their common sense into

cold storage." United States v. Dunston, ___ F.3d ___, ___ (1st

Cir. 2017) [No. 15-1812, slip op. at 13.]

The appellant's protest that his companion in the arson

could have hidden the Molotov cocktails does not help his cause.

When two malefactors are working closely together in the same

criminal activity, a court may infer that each knows of the other's

actions. See Ridolfi,

; United States v. Marek,

(1st Cir. 2008); United States v. Spinney,

(1st Cir. 1995). One would have to believe in the Tooth

Fairy to think that, in the hours following the setting of the

blaze, the appellant's accomplice hid the instruments of their

offense under the appellant's deck alongside six Molotov cocktails

without the appellant's knowledge. Regardless of who actually put

- 9 - the items under the deck, the inference of the appellant's

knowledge is strong; and the combination of knowledge and access

bolsters the district court's finding that the appellant

constructively possessed the Molotov cocktails. See Maldonado-

García,

.

To sum up, a sentencing court may base its findings

entirely on circumstantial evidence provided that its inferences

from that evidence. Moreover, the inferences that it draws from

that evidence need not be compelled but, rather, need only be

plausible. See United States v. Marceau,

(1st

Cir. 2009). Here, the evidence of constructive possession, though

circumstantial, is convincing, and the district court's inferences

from that evidence are eminently plausible. See United States v.

Ortiz,

(1st Cir. 1992) ("[F]actfinders may draw

reasonable inferences from the evidence based on shared

perceptions and understandings of the habits, practices, and

inclinations of human beings."). Given this mis-en-scène, we

cannot say that the sentencing court clearly erred in finding that

the appellant constructively possessed the six Molotov cocktails.

See United States v. Ruiz,

(1st Cir. 1990)

(explaining that "where there is more than one plausible view of

the circumstances, the sentencing court's choice among supportable

alternatives cannot be clearly erroneous").

- 10 - We need go no further. For the reasons elucidated above,

the appellant's sentence is

Affirmed.

- 11 -