United States Court of Appeals For the First Circuit No. 18-2170

UNITED STATES OF AMERICA,

Appellee,

v.

JAN EMMANUEL REYES-TORRES,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Carmen Consuelo Cerezo, U.S. District Judge]

Before* Lynch, Circuit Judge, and Saris,** District Judge.

José Luis Novas Debién, by appointment of the Court, on brief for appellant. Gregory B. Conner, Assistant United States Attorney, W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá- Almonte, Assistant United States Attorney, Chief, Appellate Division, on brief for appellee.

October 27, 2020

* While this case was submitted to a panel that included Judge Torruella, he did not participate in the issuance of the panel's opinion. The remaining two panelists therefore issued the opinion pursuant to

(d). ** Of the District of Massachusetts, sitting by designation. LYNCH, Circuit Judge. Jan Emmanuel Reyes-Torres entered

a straight plea of guilty in June 2018 to one count of illegal

possession of a machine gun in violation of

(o)

and 924(a)(2) and was sentenced to forty-two months' imprisonment.

Challenging his sentence on procedural and substantive grounds,

Reyes-Torres argues that the district court inappropriately

applied a four-level enhancement to his total offense level for

possession of a firearm in connection with another felony of drug

possession pursuant to United States Sentencing Guidelines

("U.S.S.G.") § 2K2.1(b)(6). His primary argument is that

possession of a firearm in connection with mere drug possession

for personal use is insufficient to apply the enhancement. He

also argues that the government failed to prove that he was engaged

in a different felony offense, drug trafficking, as a basis for

applying the enhancement. We hold the sentence is both

procedurally and substantively reasonable and affirm.

I.

Around midnight on January 23, 2018, police officers in

Caguas, Puerto Rico, were notified of a report of an armed robbery

at a nearby Burger King. The police dispatch stated that there

were several armed suspects in a champagne-colored Toyota Corolla.

The officers stopped a champagne-colored Toyota Corolla as it was

- 2 - leaving the Burger King parking lot and found Reyes-Torres alone

in the car.1

The officers ordered Reyes-Torres to get out of the car.

As he did, the officers saw a firearm on the floor of the driver's

compartment and several baggies of drugs (later identified as

cocaine and crack cocaine) in the driver's side door. The officers

asked Reyes-Torres if he had a license for the firearm, but he did

not respond. The officers arrested Reyes-Torres for violations of

Puerto Rico's firearms law, P.R. Laws Ann. tit. 25, § 458c, and

controlled substances law,

, which

prohibits possession of certain drugs.

The officers' search incident to arrest recovered a cell

phone and thirty-one dollars from Reyes-Torres. During a later

vehicle search, officers found numerous items inside the car's

passenger compartment. They recovered a Glock pistol loaded with

thirteen rounds of .40 caliber ammunition and modified to act as

a machine gun, as well as three Glock high-capacity magazines

loaded with a total of sixty-two rounds of .40 caliber ammunition.

They recovered one clear plastic vial containing a white granular

substance (which field tested positive for crack cocaine) and three

1 The report of armed robbery was made by a Burger King employee who saw a gun on the floor of Reyes-Torres's car as he was purchasing food at the drive-through window and falsely believed that the restaurant was about to be robbed. Reyes-Torres did not actually rob the restaurant.

- 3 - clear plastic baggies containing a white powdery substance (which

field tested positive for cocaine). They found a radio scanner,

a black and red mask, a flashlight, a holster, and a white glove.

They also found a second cell phone, an ATM card belonging to

Reyes-Torres, and an additional $280. Photographs from one of the

cell phones showed various pistols and machine guns and what

appeared to be large amounts of narcotics being weighed with an

electronic scale and packaged for distribution.2

The U.S. Probation Office's Pre-Sentence Report

recommended a four-level enhancement to Reyes-Torres's total

offense level under U.S.S.G. § 2K2.1(b)(6). That enhancement

applies where the defendant

used or possessed any firearm or ammunition in connection with another felony offense; or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense . . . .

U.S. Sentencing Guidelines Manual § 2K2.1(b)(6)(B) (U.S.

Sentencing Comm'n 2018). The Application Notes explain that the

subsection applies

if the firearm or ammunition facilitated, or had the potential of facilitating, another felony offense . . . [and] in the case of a drug trafficking offense in which a firearm is found in close proximity to drugs, drug-

2 Reyes-Torres denies that the photographs found on his cell phone depicted him with the guns or narcotics and alleges that they were sent to him by his friends.

- 4 - manufacturing materials, or drug paraphernalia . . . because the presence of the firearm has the potential of facilitating another felony offense . . . .

U.S. Sentencing Guidelines Manual § 2K2.1(b)(6)(B) application

note 14(A)-(B) (U.S. Sentencing Comm'n 2018). The Probation Office

determined that the enhancement applied because Reyes-Torres used

or possessed the firearm or ammunition in connection with "unlawful

possession of a controlled substance," which was a felony offense

under Puerto Rico law. Applying this enhancement, the Probation

Office determined that the Guidelines Sentencing range was thirty-

seven to forty-six months' imprisonment.

The Pre-Sentence Report noted Reyes-Torres's history of

drug use, in which he admitted to smoking marijuana on a daily

basis but denied using or experimenting with any other controlled

substances. He had provided a urine sample after being arrested

which tested positive only for marijuana, tending to confirm his

statement. The Pre-Sentence Report also stated that Reyes-Torres

lacked stable employment and was financially supported by his

parents.

The defendant filed an objection to the Pre-Sentence

Report in which he argued that the four-level enhancement could

not be applied to him because "there is not sufficient evidence

[of] the weight of the alleged controlled substance in this case

for the court to conclude it was during the commission of a felony

- 5 - level controlled substance offense." He also argued that "no

laboratory analysis was conducted on the substance nor was probable

cause found by the grand jury" for the alleged drug offense and so

the enhancement could not be applied. The defendant did not, at

that point, argue that the enhancement under U.S.S.G. § 2K2.1(b)(6)

could not apply to mere drug possession offenses or that the

government had failed to prove drug trafficking. The Probation

Office rejected the defendant's arguments. It reaffirmed that the

enhancement applied because "unlawful possession of a controlled

substance is a local offense punishable by imprisonment for a term

exceeding one year" and the enhancement applied regardless of

whether a criminal charge was brought or a conviction obtained.

Both parties filed sentencing memoranda. The

defendant's sentencing memorandum argued for a sentence of twenty-

four months' imprisonment based off a total offense level which

excluded the four-level enhancement. He argued that a lower

sentence was appropriate under the

(a) factors

because of his personal characteristics, strong family ties, and

status as a first-time offender. The defendant's sentencing

memorandum discussed his history of marijuana use and need for

treatment and again did not refer to any use of cocaine or crack

cocaine. The sentencing memorandum stated that he possessed the

machine gun only "because of a vague notion of needing protection."

It did not argue that the drugs found in the defendant's car were

- 6 - solely for his personal consumption, that the sentencing

enhancement could not be applied based on his mere possession for

personal consumption, or that the government had failed to show

evidence of drug trafficking.

The government's sentencing memorandum included the

photographs found on Reyes-Torres's cell phone which showed

various guns and evidence of drug distribution. The government

argued that the enhancement under U.S.S.G. § 2K2.1(b)(6)(B)

applied because possession of any amount of cocaine or cocaine

base was a felony under Puerto Rico law and case law from other

circuit courts of appeal establishes that the enhancement can be

applied where the other felony offense is mere drug possession.

The government stated that "the evidence supports the conclusion

that the firearm was used in connection with Reyes[-]Torres's

felony of possessing cocaine and crack . . . [because] [t]he

machinegun . . . had the potential to aid or facilitate (e.g., by

protecting) defendant Reyes-Torres's possession of his illegal

drugs." In the alternative, the government argued that a sentence

of forty-six months was justified as a variance under the

(a) factors, particularly given the dangerous nature and

characteristics of the machine gun with numerous rounds and the

- 7 - need for deterrence in light of Puerto Rico's serious problem with

violent gun crime.3

In November 2018, the district court issued an order

overruling the defendant's objection to the application of the

sentencing enhancement. The court described the government's

position from its sentencing memorandum as "recognizing that the

underlying felony offense in this case is mere possession of

controlled substances, and not distribution." But the court did

not make a specific factual finding in the order that the felony

offense was mere drug possession and not drug distribution.4

Citing United States v. Carillo-Ayala,

(11th Cir.

2013), the court held that "[b]ecause the machinegun was found in

defendant's car and in close proximity to the drugs also located

there, it had the potential of facilitating a felony drug offense."

(Emphasis added.) It thus found that the enhancement applied under

these circumstances. The underlying offense at issue in Carillo-

3 The government did not specifically argue in its sentencing memorandum that the evidence was also sufficient for the district court to find that Reyes-Torres was engaged in drug trafficking. But the government did state that U.S.S.G. § 2K2.1(b)(6)(B) applies "in the case of a drug-trafficking offense in which a firearm is found in close proximity to drugs." See United States v. Paneto,

(1st Cir. 2011). Reyes-Torres does not argue that the government waived the argument that the enhancement should apply on the basis of evidence of drug distribution. 4 Given this record, it is no surprise that the district court did not make a specific factual finding as to drug distribution.

- 8 - Ayala, however, was drug distribution and not mere drug possession,

see id. at 85-86, and so by citing to that case the district court

was not saying which underlying drug offense was the basis for its

sentence.5

At the sentencing hearing, the defendant renewed his

objection to the application of the enhancement under U.S.S.G.

§ 2K2.1(b)(6) and argued for a sentence at the low end of the

Guidelines Sentencing range. Defense counsel specifically argued

for the first time that the four-level enhancement is "supposed to

be added when you're talking about a drug trafficking offense,

. . . that it can't be mere coincidental possession[,] and there

must be a logical relation or sequence between the possession of

[the] firearm and [the] related drug trafficking offense." He

argued that the government had not proven that the machine gun was

being used to facilitate a drug-trafficking offense and that the

drugs found "were clearly for personal use," even though he

referred only to Reyes-Torres's use of marijuana earlier in the

5 "A firearm found in close proximity to drugs or drug- related items simply 'has' -- without any requirement for additional evidence -- the potential to facilitate the drug offense. A defendant seeking relief under the safety valve, despite his possession of a weapon found in proximity to drug- related items, will have a difficult task in showing that, even so, there is no connection with the drug offense so the safety valve applies." Carillo-Ayala,

(emphasis omitted). The district court directly quoted the first sentence from this passage in its order denying Reyes-Torres's objection to the sentencing enhancement.

- 9 - hearing. Defense counsel stated that "[t]he weapon was possessed

for a general sense of protection . . . [and] [i]t had nothing to

do with protecting those drugs or [Reyes-Torres] being involved in

any kind of drug trafficking enterprise."

The government responded that the nature of the machine

gun and ammunition recovered, together with the drugs, mask, and

radio scanner, made it clear that the machine gun was not for

personal protection. The government also argued that the machine

gun and ammunition created an imminent danger to the community

which justified a higher sentence for adequate deterrence.6

The district court reasoned that the sentencing

enhancement was warranted "since the defendant used or possessed

the firearm or ammunition in connection with another felony

offense, that is, the unlawful possession of controlled

substances, as was determined in the Court's separate written

6 The government did not directly argue at the sentencing hearing that the enhancement under U.S.S.G. § 2K2.1(b)(6)(B) was justified because the evidence showed drug trafficking, but it did argue that the machine gun was not for personal protection. Nonetheless, the district court was aware of the drug-trafficking issue because the defendant addressed that issue at the sentencing hearing in response to the government's sentencing memorandum. Cf. United States v. Martin,

(1st Cir. 2008) ("In considering objections to a sentence's substantive reasonableness, we examine the district court's contemporaneous oral explanation of the sentence, its near-contemporaneous written statement of reasons, and what fairly can be gleaned by comparing what was argued by the parties or proffered in the [Pre-Sentence Report] with what the sentencing court ultimately did." (citations omitted)).

- 10 - order." Having applied the enhancement, the court determined that

the applicable Guidelines range was thirty-seven to forty-six

months' imprisonment. After discussing Reyes-Torres's age,

employment history, and health, including his "history of daily

marijuana use since age 17" and lack of treatment, the court

sentenced him to forty-two months' imprisonment. In doing so, the

court stated that it "considered the serious nature of the offense

of conviction, the type of weapon that the defendant possessed,

that is, a loaded machine gun, . . . his status as [a] first[-

time] offender . . . [,] [his] personal characteristics and [the]

need to deter him from similar criminal behavior."

The defendant timely appealed.

II.

Where challenges are to the procedural and substantive

reasonableness of a sentence, "[o]ur 'review process is

bifurcated: we first determine whether the sentence imposed is

procedurally reasonable and then determine whether it is

substantively reasonable.'" United States v. Sayer,

(1st Cir. 2019) (quoting United States v. Clogston,

(1st Cir. 2011)). "In the sentencing context, we evaluate

claims of unreasonableness in light of the totality of the

circumstances." United States v. Flores-Machicote,

(1st Cir. 2013) (citing Gall v. United States,

(2007)); see also United States v. Sowers,

(1st

- 11 - Cir. 1998) (stating that "we are not chained to the lower court's

rationale but may affirm on any alternative ground supported by

the record" and may "choose to follow a different analytic path").

A. The Sentence Is Procedurally Reasonable

Reyes-Torres argues that the district court imposed a

procedurally unreasonable sentence because it improperly applied

the enhancement under U.S.S.G. § 2K2.1(b)(6). He argues that cases

where this Court has upheld application of this enhancement have

involved evidence of firearm possession in connection with drug

trafficking, not mere possession. He argues that here, the

government did not put into evidence the drug amount, packaging,

or other circumstances which could have supported an inference of

drug distribution and it failed to prove that the drugs were meant

for anything other than personal consumption.

The government responds that this Court should reach and

address the issue of whether the enhancement under U.S.S.G.

§ 2K2.1(b)(6) applies to firearm possession in connection with

mere drug possession for personal consumption. It argues that

other circuit courts have held that the enhancement applies under

those circumstances. Alternatively, the government argues on

appeal that the evidence shows that Reyes-Torres was engaged in

drug distribution and that alone provides a basis for applying the

enhancement.

- 12 - In assessing the procedural reasonableness of a

sentence, we apply a "multifaceted" abuse of discretion standard

in which "we apply clear error review to factual findings, de novo

review to interpretations and applications of the guidelines, and

abuse of discretion review to judgment calls." United States v.

Nieves-Mercado,

(1st Cir. 2017); see also United

States v. Cannon,

(1st Cir. 2009). A factual

predicate for application of a sentencing enhancement need only be

proven by a preponderance of the evidence. Cannon,

. "We must ensure that the district court did not commit any

'significant procedural error' to arrive at a sentence." Sayer,

(quoting Gall,

). Significant

procedural errors include

failing to calculate (or improperly calculating) the [Guidelines Sentencing Range], treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence -- including an explanation for any deviation from the Guidelines range.

Flores-Machicote,

(second alteration in original)

(quoting Gall,

).

This sentencing appeal is without merit. There was no

objection made to the district court's finding of drug possession

and so we affirm that finding. We also affirm the district court's

finding that "[b]ecause the machinegun was found in defendant's

- 13 - car and in close proximity to the drugs also located there, it had

the potential of facilitating a felony drug offense." That finding

is not clearly erroneous under the unanimous view of the case law.

See, e.g., United States v. Justice,

(10th

Cir. 2012) (collecting cases); see also United States v. Swanson,

(8th Cir. 2010) ("The gun and PCP were both

within [the defendant's] immediate reach and it was permissive for

the district court to determine they were purposefully together

and not close in proximity as a matter of coincidence."); United

States v. Jenkins,

(4th Cir. 2009) ("A firearm

can embolden the actor to possess the drugs or provide the actor

protection for himself and his drugs, which are likely to be

personally valuable even in small amounts.").

On the undisputed facts, Reyes-Torres was also clearly

in possession of the machine gun in furtherance of drug trafficking

under our case law. The record evidence is plainly sufficient to

justify an enhanced sentence for that reason. Cf. Sowers,

.

Several facts in the record significantly undermine

Reyes-Torres's contention that the cocaine and crack cocaine were

for his personal use, rather than for distribution. Reyes-Torres

denied using any drugs except for marijuana and had tested positive

only for marijuana after being arrested. The photographs found on

Reyes-Torres's cell phone and submitted to the district court

- 14 - showed an electronic scale and large amounts of what appear to be

narcotics packaged for distribution, which further indicate that

the drugs found in his car were not for his personal consumption.

Nothing in the record supports the defense's contention that the

cocaine and crack cocaine were for the defendant's personal

consumption or that the machine gun and ammunition were for mere

personal protection. This Circuit's case law, described below,

also supports this conclusion.

Our decision in Cannon amply supports application of the

sentencing enhancement on the basis of evidence of drug

distribution. In Cannon, we held that we interpret "the phrase

'in connection with' . . . broadly."

(quoting

United States v. Thompson,

(1st Cir. 1994)); see also

United States v. Peterson,

(1st Cir. 2000). In

affirming the district court's application of the enhancement

under U.S.S.G. § 2K2.1(b)(6), this Court stated that

the record reflects that [the defendant], no stranger to the drug trade, was arrested with a loaded revolver while traveling in a vehicle in which police found multiple packages of drugs, as well as a substantial amount of cash among the occupants, all of whom indicated they were unemployed . . . [and that] [t]hese circumstantial facts, taken together, were sufficient to permit the district court to reasonably infer under a preponderance standard that . . . the drugs were intended for sale and not personal consumption.

Cannon,

.

- 15 - In arriving at this conclusion, Cannon explained that

"the large quantity of cash found on the driver [and passengers]

. . . support the inference that the car's occupants were engaged

in the sale, rather than casual use, of drugs."

.

Moreover, Cannon recognized that "[w]e have often held that

firearms, too, are probative of an intent to distribute narcotics"

and "the district court was not required to turn a blind eye to

the logical relationship between the presence of multiple packages

of drugs, the loaded firearm, and the large amount of cash in

determining whether the drugs found in the [car] were intended for

distribution or personal use."

Based on "the totality of

evidence before the district court," Cannon held "that [the

defendant]'s possession of the firearm had the potential to

facilitate the offense of distribution -- by emboldening the

enterprise, aiding the collection of a drug debt, or in any number

of foreseeable ways -- and was therefore 'connect[ed] with' that

felony for purposes of the enhancement."

(second

alteration in original); see also Peterson,

(noting

that "'the usual case' in which the Guideline applies is one in

which the defendant 'had the firearm available to protect his

supply of drugs'" (quoting Thompson,

)).

Here, Reyes-Torres was found with a machine gun, dozens

of rounds of ammunition, several baggies and a vial of narcotics,

and a total of several hundred dollars and two cell phones, even

- 16 - though he lacked stable employment and was financially supported

by his parents. The nature of the firearm found -- a pistol

modified to act as a machine gun -- together with the high-capacity

magazines, mask, and radio scanner, which could be used to avoid

police detection, demonstrate that this gun was not meant merely

for personal protection. The drugs seized from Reyes-Torres's car

were different than the one he reported using, and he tested

positive only for marijuana after being arrested. Although Reyes-

Torres does not have a history of drug distribution arrests and

convictions like the defendant in Cannon, see

,

the photographs taken from Reyes-Torres's cell phone show that he

was "no stranger to the drug trade."

. The totality of

the evidence confirms that the machine gun and ammunition had the

potential to facilitate the offense of drug distribution which

justified application of the enhancement under U.S.S.G.

§ 2K2.1(b)(6).7

B. The Sentence Is Substantively Reasonable

Reyes-Torres's only challenge to the substantive

reasonableness of his sentence is that the district court

inappropriately applied the enhancement which resulted in a higher

total offense level and Guidelines Sentencing range. We review a

7 We note that the government has unnecessarily complicated this case by presenting on appeal an obvious argument as to drug trafficking which was not made explicitly to the district court.

- 17 - preserved challenge to the substantive reasonableness of a

sentence under an abuse of discretion standard. United States v.

Viloria-Sepúlveda,

(1st Cir. 2019). "A sentence is

substantively reasonable so long as the sentencing court has

provided a 'plausible sentencing rationale' and reached a

'defensible result.'" Sayer,

(quoting United States

v. Martin,

(1st Cir. 2008)).

Having found that the district court properly applied

the sentencing enhancement, we reject the defendant's challenge to

the substantive reasonableness of his sentence, which is

predicated on that alleged error. See United States v. Mangual-

Rosado,

, 111 n.1 (1st Cir. 2018). Furthermore, Reyes-

Torres's sentence of forty-two months is within the applicable

Guidelines range after the enhancement and so is presumptively

reasonable. See United States v. Llanos-Falero,

(1st Cir. 2017). The district court also provided a plausible

sentencing rationale based on the seriousness of the offense and

the dangerous nature of the weapon involved. The mid-Guideline-

range sentence ultimately imposed was a defensible result which

balanced the need for deterrence with the personal characteristics

of Reyes-Torres, including his status as a first-time offender.

Reyes-Torres's sentence is both procedurally and

substantively reasonable.

Affirmed.

- 18 -