United States Court of Appeals For the First Circuit

No. 20-1214

UNITED STATES OF AMERICA,

Appellee,

v.

JOSÉ ESPINOZA-ROQUE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

Howard, Chief Judge, Kayatta, Circuit Judge, and Casper,* District Judge.

Jessica E. Earl, Assistant Federal Public Defender, with Eric Alexander Vos, Federal Public Defender, Franco L. Pérez-Redondo, Assistant Federal Public Defender, and Kevin E. Lerman, Research & Writing Specialist, on brief, for appellant. Joshua K. Handell, Attorney, Criminal Division, with W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, and Julia M. Meconiates, Assistant United States Attorney, on brief, for appellee.

* Of the District of Massachusetts, sitting by designation. February 15, 2022 KAYATTA, Circuit Judge. José Espinoza-Roque challenges

the 46-month sentence he received after pleading guilty to various

firearm offenses. The length of the challenged sentence was shaped

by the district court's finding that Espinoza was an unlawful drug

user at the time of his offenses. Because we find that the district

court erred in reaching that conclusion, we vacate the resulting

sentence. Our reasoning follows.

I.

In January 2019, Espinoza and a co-defendant were

indicted for two illegal firearms sales alleged to have occurred

in May and June of 2018. As relevant here, Espinoza was charged

with dealing firearms without a license and illegally possessing

a machine gun in violation of

(a)(1)(A) and 922(o),

respectively. Espinoza pleaded guilty.

Because each of Espinoza's offenses involved at least

one qualifying gun, the United States Sentencing Guidelines called

for a higher base offense level (BOL) if Espinoza was also "a

prohibited person at the time" of the offenses. U.S.S.G.

§ 2K2.1(a)(4)(B) (emphasis added). The Guidelines define

"prohibited person" by reference to

(g). U.S.S.G.

§ 2K2.1 app. n.3. In turn,

(g) applies to, inter

alia, "any person . . . who is an unlawful user of or addicted to

any controlled substance (as defined in section 102 of the

Controlled Substances Act (21 U.S.C. 802))." To determine whether

- 3 - a person "is an unlawful user," we apply a three-part test: The

offender must have used a controlled substance (1) regularly

(2) "over a long period of time" (3) "proximate to or

contemporaneous with the possession of the firearm." United States

v. Caparotta,

(1st Cir. 2012) (quoting United

States v. Marceau,

(1st Cir. 2009)). To justify

an unlawful-user sentencing enhancement, the government must prove

these facts by a preponderance of the evidence. See United States

v. Damon,

(1st Cir. 2010).

Of particular relevance here is Caparotta's third

element: temporal nexus. Requiring the government to prove that

element serves two purposes. First, it effectuates Congress's

intent to reach an offender "who is an unlawful user."

(g)(3) (emphasis added); see also United States v. Augustin,

(3d Cir. 2004) ("The use of the present tense

was not idle. Quite simply, Congress intended the statute to cover

unlawful drug use at or about the time of the possession of the

firearm, with that drug use not remote in time or an isolated

occurrence."). Second, the temporal limitation is necessary "to

avoid unconstitutional vagueness" in the statutory definition.

Marceau,

.

In its presentence investigation report (PSR), probation

calculated Espinoza's Guidelines sentencing range using a BOL of

20 based on the premise that Espinoza was an unlawful user at the

- 4 - time of his offenses. Espinoza objected to that characterization.

Relying solely on a translated summary of statements Espinoza made

to probation regarding his drug use (which we will describe in

more detail below), the district court classified Espinoza as an

unlawful user of marijuana at the time of his offenses. For that

reason, the court applied section 2K2.1(a)(4)(B)'s "prohibited

person" enhancement.

On appeal, Espinoza challenges the unlawful-user

determination that led the district court to adopt a BOL of 20.

II.

Espinoza advances two arguments in support of his

contention that the district court erred in concluding that he was

an unlawful user at the time of his offenses.1 His first argument

is a categorical one: A court's classification of a defendant as

a "prohibited person" under section 2K2.1(a)(4)(B) can never rest

solely on a defendant's uncorroborated admission. Alternatively,

Espinoza argues that the particular statements upon which the

district court relied did not provide an adequate basis for the

court's unlawful-user determination.2

1 The district court concluded that Espinoza was "not an addict." The government does not dispute this finding on appeal. Thus, our analysis focuses on the question whether Espinoza was "an unlawful user" at the time of his offenses. 2 Espinoza also gestures at an argument that because he did not physically possess the guns sold in May 2018, the only question is whether he was an unlawful user for the purposes of the June 27, 2018 offense. Any such argument is waived for lack of development.

- 5 - We consider Espinoza's two arguments in turn.

A.

Espinoza insists that a section 2K2.1(a)(4)(B)

sentencing enhancement "cannot be based on a defendant's

statements alone where no independent evidence in the record

established he was a long-term drug user." In so claiming,

Espinoza relies on our decision in United States v. Tanco-Baez,

where we held that a defendant's "uncorroborated admission" to

long-term drug use did not suffice to support his criminal

conviction under

(g)(3).

(1st Cir.

2019).

The government contends that Espinoza did not air this

theory below and has waived it on appeal by failing to recognize

that plain error review applies. Espinoza in reply invokes

precedent indicating that "a defendant's objection need not be

framed with exquisite precision" in order "[t]o preserve a claim

of procedural sentencing error for appellate review." United

States v. Rivera-Berríos,

(1st Cir. 2020).

Although Espinoza is correct as a general matter, we also have

explained that a defendant's objection must be "sufficiently

See United States v. Zannino,

(1st Cir. 1990) ("It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel's work."). We assume without deciding that it is permissible to frame the sentencing inquiry as whether Espinoza was a prohibited person at the time of either of his two offenses.

- 6 - specific to call the district court's attention to the asserted

[procedural] error."

(quoting United States v. Soto-Soto,

, 448 n.1 (1st Cir. 2017)). Below, Espinoza argued only

that his statements as memorialized in the PSR did not satisfy

Caparotta's three-part test. This argument did not fairly preserve

the distinct claim that uncorroborated admissions cannot provide

the sole basis for a section 2K2.1(a)(4)(B) enhancement. So we

tend to agree that Espinoza waived that latter claim on appeal by

failing to address the governing standard of plain error review in

his opening brief. See United States v. Pabon,

, 33–

34 (1st Cir. 2016); United States v. Mayendía-Blanco,

(1st Cir. 2018).

Nevertheless, the simpler point is that Espinoza's

argument on appeal demonstrates no plain error. An appellant

cannot establish plain error using "case law absent clear and

binding precedent." United States v. Marcano,

(1st Cir. 2008) (per curiam) (citing United States v. Caraballo–

Rodriguez,

(1st Cir. 2007)). Espinoza fails to

locate any such precedent on the relevant issue. He hinges his

argument entirely on a case concerning the quality and quantum of

proof necessary to support a finding of guilt beyond a reasonable

doubt. See Tanco-Baez,

. This case, by contrast,

involves a sentencing enhancement to be supported by a

preponderance of the evidence. See Damon,

. Given

- 7 - that substantial difference, Tanco-Baez cannot establish plain

error in this case.

B.

We turn next to the question whether the particular

statements attributed to Espinoza support a section 2K2.1(a)(4)(B)

enhancement in this case. Because Espinoza preserved this claim

below, we review the district court's unlawful-user finding for

abuse of discretion. United States v. García-Pérez,

(1st Cir. 2021). In so doing, we review questions of law de

novo and questions of fact for clear error.

"[W]hen there

are two plausible views of the record, the sentencing court's

adoption of one such view cannot be clearly erroneous." United

States v. St. Cyr,

(1st Cir. 1992). On the other

hand, if the court below improperly calculated Espinoza's

Guidelines sentencing range, it committed a "significant

procedural error" that constitutes an abuse of discretion. Gall

v. United States,

(2007).

The PSR's translated summary of Espinoza's relevant

statements reads as follows: "As reported and since age 20 until

arrest, [Espinoza] smokes one or two joints daily of marihuana,

seven days a week. He smokes marihuana because it helps him sleep.

- 8 - However, he mentioned that he could spend weeks without smoking

marihuana."3

The district court read this summary as containing two

"direct[ly] contradict[ory]" assertions: That Espinoza used

marijuana every day without interruption to get to sleep, or that

his use could be interrupted by some uncertain number of weeks.

Explaining that it would "decide which [statement] to believe or

not believe," the district court chose the first assertion. On

that basis, it then deemed Espinoza to have been an unlawful user

at the time of his offenses. Whatever might be said about the

permissibility of that choice in a vacuum, we conclude that here,

it was clearly erroneous given other, undisputed evidence in the

record.

That other evidence is Espinoza's post-arrest drug test,

which was negative for controlled substances. Espinoza contends

-- apparently without dispute from the government -- that

urinalysis tests like the one he underwent can detect cannabinoids

for many weeks after their use. Espinoza does not seem to have

invoked any specific figure below, and it is enough for our

purposes to conclude that the negative drug test rendered the

district court's finding of continuous daily use clearly

erroneous. Put simply, the district court's sentencing rationale

3 The PSR indicated that Espinoza "suffers . . . from insomnia."

- 9 - (that Espinoza used marijuana every single night) was not

"plausible" in light of the negative drug test. St. Cyr,

.4

The government maintains that Espinoza's drug test --

conducted roughly six months after the last charged offense --

"sheds no information as to whether Espinoza used drugs

contemporaneously with the offense." We do not agree. The test

was conducted at the time of Espinoza's arrest, before he spoke

with probation. So its probative force in construing Espinoza's

statement to probation is not diminished by the passage of time

between the charged conduct and the test. This is not to say that

the test proves non-use at the time of Espinoza's offenses. But

it does substantiate Espinoza's claim that he could abstain from

smoking marijuana for periods of time, because it shows that he in

fact did so. As a result, it clearly refutes the contention that

Espinoza's description of his drug use proves uninterrupted

nightly use. And without that reading, the sole rationale offered

by the district court for finding the requisite temporal nexus

disappears.

4 The government appears to suggest that Espinoza raises this argument for the first time on appeal. But the government stops short of arguing that plain error review governs the claim. And for good reason: Espinoza clearly alleged below that "his negative [drug] test upon his arrest" precluded an unlawful-user finding under Caparotta.

- 10 - In sum, we are "left with the definite and firm

conviction that a mistake [was] committed" below when the district

court concluded that Espinoza used marijuana every night without

exception. United States v. U.S. Gypsum Co.,

(1948). A sentencing enhancement may not rest on a conclusion

belied by undisputed facts. Accordingly, the district court

clearly erred when it chose to "not believe" Espinoza's

substantiated claim that he could go without smoking marijuana.

C.

Having thus found clear error in the sole rationale

offered by the district court for finding the requisite temporal

nexus, we turn to the government's fallback argument that

Espinoza's statements to probation still admit enough to support

a finding of temporal nexus even if they do not establish

uninterrupted nightly use. Although not expressly framed as such,

the argument sounds in harmless error. So we inquire whether "'the

district court would have imposed the same sentence' even without

[its] error." United States v. Tavares,

(1st Cir.

2013) (quoting Williams v. United States,

(1992)).

The government does not argue that a temporal nexus would

exist even if Espinoza had not used marijuana for some uncertain

number of weeks prior to his offenses. Nor does it contend that

we should replace Caparotta's "unlawful user" definition with that

- 11 - of

, which provides that "[a]n inference of

current use may be drawn from evidence of . . . a pattern of use

or possession that reasonably covers the present time."

The government instead contends that the unlawful-user

enhancement should stand because the record indicates that nightly

marijuana use was Espinoza's customary norm, and it is therefore

unlikely that Espinoza happened to be in periods of abstention at

the time of both charged offenses (which occurred roughly a month

apart). The district court never adopted this rationale. To the

contrary, it is fair to conclude that the court implicitly rejected

it. Below, the government did not urge the court to disregard

Espinoza's contention that he could abstain from smoking for weeks

at a time. Rather, the government summarily adopted probation's

proposed BOL, which it recognized was calculated "on the basis of

the statements that [Espinoza] made to the probation officer." In

other words, the government directed the district court to consider

Espinoza's PSR statement as a whole, presumably believing it

supported an unlawful-user enhancement. But the court evidently

did not agree -- otherwise, why would the court (apparently sua

sponte) have proceeded "to decide which [statement] to believe or

not believe"?5

5 We frequently rely on implicit findings of the district courts in reviewing rather cryptic sentencing explanations. See, e.g., United States v. Butler-Acevedo,

(1st Cir. 2011) ("Given this record, we cannot say that the district court

- 12 - We agree that, at least on this record, evidence of long-

time regular use interrupted by periods of abstention is

insufficient to carry the government's burden to invoke the

enhancement. As an initial matter, the government's probabilistic

reasoning is not as airtight as the government seems to assume.

See, e.g., Charles Nesson, The Evidence or the Event? On Judicial

Proof and the Acceptability of Verdicts,

,

1378–79 (1985) (discussing the "Blue Bus" problem, which posits

that a plaintiff cannot proceed to trial on evidence showing an

80% likelihood that he was injured by a Blue Bus Company vehicle

as opposed to some other bus). Moreover, if one could infer a

temporal nexus from regular use interrupted by some uncertain

period of time, Caparotta's temporal nexus requirement would in

cases like this be largely subsumed by its "regular use"

requirement.

Ultimately, the government bears the burden of proving

qualifying drug use. Damon,

. The foregoing

analysis leads us to conclude that the government's scant proof --

failed to consider [the defendant's] history and characteristics, even though it did not explicitly refer to these factors."); United States v. Fey,

(1st Cir. 2016) (explaining that if a sentencing court "does not explicitly" explain its imposition of a special condition, "we will attempt to 'infer the court's reasoning from the record'") (quoting Pabon,

)). And in this instance, the option of remanding to confirm our reading of the court's implicit finding is unavailable because the sentencing judge has regrettably passed away.

- 13 - minus the court's clear error in construing Espinoza's statements

to probation -- does not show by a preponderance of the evidence

that Espinoza was unlawfully using marijuana "proximate[ly] to or

contemporaneous[ly] with" his firearm offenses. Caparotta,

(quoting Marceau,

). As a result, "[w]e

cannot say that the district court's" clearly erroneous sentencing

rationale "'did not affect the . . . selection of the sentence

imposed.'" United States v. Castillo-Torres,

(1st

Cir. 2021) (second alteration in original) (quoting Tavares, 705

F.3d at 26–27). In other words, the court's error was not

harmless.

So we will remand for resentencing. See Tavares,

.

III.

In its brief, the government offered no response to

Espinoza's request to limit the factual record on remand -- a

request that is consistent with our past practice and recognition

that "no party -- including the government -- is entitled to an

unlimited number of opportunities to seek the sentence it desires."

United States v. Román-Huertas,

(1st Cir. 2017)

(alteration omitted) (quoting United States v. Ramos-González,

(1st Cir. 2015)).

- 14 - We therefore reverse the "prohibited person" enhancement

and remand for resentencing without that enhancement.6

6 This disposition eliminates the need to address Espinoza's claim that the district court plainly erred under Rehaif v. United States,

(2019), when it applied the section 2K2.1(a)(4)(B) enhancement without finding that Espinoza knew of his status as an unlawful drug user.

- 15 -