United States Court of Appeals For the First Circuit

Nos. 18-1305 & 18-1306

UNITED STATES OF AMERICA,

Appellee,

v.

JESSE C. NEWTON,

Defendant, Appellant.

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

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

Before

Thompson, Boudin, Kayatta, Circuit Judges.

William S. Maddox for appellant. Jeanne D. Semivan, Special Assistant United States Attorney, with whom Halsey B. Frank, United States Attorney, was on brief, for appellee.

August 21, 2020 BOUDIN, Circuit Judge. In July 2017, Jesse Newton

("Newton") pled guilty to being a felon in possession of a firearm,

(g)(1), 924(a)(2), and was sentenced to 120 months

in prison. Newton appeals his sentencing enhancement for

possessing a firearm "in connection with another felony offense."

U.S.S.G. § 2K2.1(b)(6)(B).

In May 2013, Newton pled guilty to possessing ammunition

after having been convicted of a misdemeanor crime of domestic

violence and was sentenced to two years in prison, followed by

three years of supervised release. After Newton completed his

prison sentence in December 2014, he spent six months at a

residential reentry center and then went to live at his mother's

home in Waldo, Maine.

In January 2016, Newton's probation officer began

receiving reports that Newton was boasting about hunting and

possessing firearms, firing guns in his backyard, obtaining

bullets, making violent threats, and growing and selling marijuana

out of his mother's home. The Waldo County Deputy Sheriff also

reported that Newton had told a convenience store employee that he

wanted to kill a sergeant in the local police force and burn his

house down. Newton was later suspected of detonating a glass beer

bottle, containing what appeared to be a commercial firecracker,

on the sergeant's front porch.

- 2 - In July 2016, Newton was arrested on state charges of

terrorizing in connection with the detonation incident and

Newton's residence was searched under a special condition of his

supervised release. Police seized Newton's cell phone, which

contained a photo of Newton crouching in a "tactical type" position

in a marijuana grow and aiming a gun at the camera. Officers

located the marijuana grow near Newton's residence. It consisted

of three separate plots with at least forty-six plants at varying

stages, many of which were full-grown. Inside Newton's home,

police discovered two boxes of nine-millimeter casings and two

rifle stocks for an assault rifle. Probation then obtained a

warrant alleging multiple violations of Newton's supervised

release.

Two days later, probation received a tip that Newton had

hidden a gun within a heating duct inside his home. Officers

conducted a second search and discovered a loaded nine-millimeter

semi-automatic pistol wrapped in black fabric. The ammunition

inside the pistol matched the make and caliber of the casings

seized earlier from Newton's home; the DNA on the pistol matched

Newton's DNA profile.

In July 2017, Newton pled guilty in Maine district

court to one count of being a felon in possession of a firearm.

(g)(1), 924(a)(2). Because Newton had a prior

felony "crime of violence" conviction, he faced a base offense

- 3 - level of twenty-two. U.S.S.G. § 2K2.1(a)(3). The sentencing court

heard testimony from multiple witnesses about Newton's possession

of numerous firearms, marijuana growing operation, and efforts to

intimidate witnesses who might testify against him. The court

applied a four-level enhancement for handling at least eight

firearms, id. § 2K2.1(b)(1)(B), a four-level enhancement for

possessing a firearm in connection with another felony offense,

namely marijuana cultivation, id. § 2K2.1(b)(6)(B), and a two-

level enhancement for obstructing justice, id. § 3C1.1.

These enhancements brought Newton's total offense level

to thirty-two, which, paired with a Criminal History Category of

VI, produced an initial guideline range of 210 to 262 months. The

district court then amended the guideline range to 120 months

capped by the statutory maximum for the offense. Id. § 5G1.1(a).

In assessing the sentencing factors under

(a), the district judge emphasized Newton's "very troubling"

criminal history, which included twenty-nine convictions dating

back to age thirteen. The district judge noted the need to protect

the public from Newton was "obvious" and Newton had not heeded the

judge's previous warnings to change his behavior. The district

judge sentenced Newton to the statutory maximum of 120 months in

prison on the felon in-possession charge to run consecutively to

a twenty-four-month revocation sentence for violating his

supervised release conditions.

- 4 - The only issue on appeal is the district court's

application of the four-level sentencing enhancement for

possessing a firearm in connection with another felony offense.

See U.S.S.G. § 2K2.1(b)(6)(B). Newton argues that he neither

committed "another felony offense" nor possessed a firearm "in

connection with" any such offense. Neither argument has merit.

The government bears the burden of proving a sentencing

enhancement by a preponderance of the evidence. United States v.

Paneto,

(1st Cir. 2011). Factual findings are

reviewed for clear error and application of the guidelines on a

"sliding scale." United States v. Matthews,

(1st

Cir. 2014). The clear error standard requires "a strong,

unyielding belief that a mistake has been made." United States v.

Oliveira,

(1st Cir. 2018).

(a)(1) makes cultivating marijuana a

felony offense.

(15), 802(22), 812; 18 U.S.C §

3559(a);

(b)(1)(D). The evidence already described

amply supports the district court's finding that Newton cultivated

marijuana.

Newton offers various reasons why this evidence fails to

prove cultivation. Only one deserves mention: that based on

changing societal trends surrounding recreational marijuana use,

cultivating a "small marijuana patch" for personal use should not

qualify as a felony offense.

(b)(1)(D) dictates,

- 5 - however, that cultivating marijuana in any quantity under

(a)(1) is a felony.

Newton also argues that, contravening this Court's

decision in Matthews,

, the district court never

made "findings as to any elements of the specific charge." A

district court must provide "ultimate findings" when making

sentencing enhancement determinations, but not "such subsidiary

findings" of the kind Newton suggests. United States v. Tracy,

(1st Cir. 1994). A district court must also "state

in open court the reasons for its imposition of the particular

sentence."

(c). Nothing in Matthews suggests

anything different, and the court's actions here easily satisfied

these requirements.

Ultimately, the photo of Newton "pointing a gun directly

at the photographer in the middle of a marijuana grow" supports

the district court's finding that Newton possessed a firearm "in

connection with" another felony offense. The "in connection with"

requirement is satisfied where, as here, the "firearm is found in

close proximity to drugs." United States v. Cannon,

(1st Cir. 2009) (citing U.S.S.G. § 2K2.1(b)(6)(B) cmt. n.14).

Affirmed.

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