United States Court of Appeals For the First Circuit

No. 22-1601

UNITED STATES,

Appellee,

v.

RAYMOND LILLY,

Defendant, Appellant.

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

[Hon. Nancy Torresen, U.S. District Judge]

Before

Gelpí, Lynch, and Howard, Circuit Judges.

James M. Mason and Handelman & Mason LLC on brief for appellant. Lindsay B. Feinberg, Assistant United States Attorney, and Darcie N. McElwee, United States Attorney, on brief for appellee.

April 14, 2023 LYNCH, Circuit Judge. Raymond Lilly pleaded guilty to

one count of possession of firearms by a felon under

(g)(1) and 924(a)(2).1 In this appeal, he challenges the

procedural reasonableness of his 30-month sentence, arguing that

the district court relied upon a clearly erroneous finding of fact

regarding his use of a firearm on a previous occasion. We affirm.

I.

A.

"Because this appeal follows a guilty plea, 'we draw the

facts from the plea colloquy, the unchallenged portions of the

presentence investigation report [(PSR)], . . . the transcript of

the sentencing hearing,' and the parties' sentencing memoranda and

exhibits." United States v. Ahmed,

(1st Cir. 2022)

(alteration and omission in original) (quoting United States v.

De la Cruz,

(1st Cir. 2021)).

Lilly is a convicted felon who is prohibited from

possessing firearms. At the time of the relevant events, Lilly

was thirty-six years old and lived in Dresden, Maine, with his

fifteen-year-old daughter and father.

1 References to § 924(a)(2) in this opinion are to the provision as it existed at the time of Lilly's charged conduct. The penalty provision for § 922(g) has since been amended and moved to

(a)(8). See United States v. Minor,

, 118 n.4 (1st Cir. 2023) (en banc).

- 2 - On May 16, 2020, Lilly came home and found a twenty-one-

year-old man (whom we call "Doe") in his daughter's bedroom.

Brandishing a weapon, Lilly held Doe captive in the house until

the police, who had been summoned, arrived. When the police

arrived, Lilly and Doe gave different accounts of what type of

weapon Lilly had wielded. Doe told the police that the weapon was

a shotgun; Lilly denied that it was a shotgun and instead stated

that it was a club. The police advised Doe that he might face

criminal charges but allowed him to leave.

On June 12, 2020, police returned to Lilly's home in

response to a call stating that Lilly's daughter was threatening

to harm herself. When the officers arrived at the house, they

found Lilly's daughter holding a loaded handgun. An officer was

able to retrieve the handgun. Lilly's daughter told the officers

that she had found the handgun lying on the couch. When questioned

by the police, Lilly denied ownership of the handgun and stated

that someone else had given it to his daughter years earlier. He

also told the officers that there were other firearms in the house,

but that they belonged to Lilly's father and were stored in a

secure room.

Lilly's daughter was then transported to a hospital for

medical assessment, and Lilly followed. At the hospital, Lilly

spoke further with officers and acknowledged that he knew he was

prohibited from possessing firearms. He maintained that the

- 3 - firearms were not his and that he did not have a key to the locked

room where they were kept.

Officers returned to Lilly's house and found Lilly's

father, who consented to their searching the residence. Lilly was

not present. During their search of the house, the officers

discovered three firearms in a locked bedroom: a loaded rifle, a

loaded double-barrel shotgun, and a bolt-action shotgun. Lilly's

father told the officers that Lilly had installed the locks to the

bedroom. Lilly's father further stated that he had never seen the

two shotguns, and that the rifle was his own but that he was

surprised that it was loaded. He added that he also had never

seen the loaded handgun that the officers had retrieved from

Lilly's daughter earlier that day.

Later that day, an officer pulled Lilly over for driving

with a suspended license. The officer asked Lilly about the

firearms, and Lilly again maintained that he did not have a key to

the locked bedroom where the rifle and shotguns were stored. Lilly

was then arrested and charged under state law with possession of

a firearm by a prohibited person. In Lilly's possession at the

time of his arrest was a set of keys, which proved to match the

locks to the room where the firearms had been located.

B.

In April 2021, Doe testified before a grand jury

concerning the May 16, 2020 incident. He reiterated his previous

- 4 - statement to the police, attesting that Lilly had held him captive

with a shotgun. He also identified, in a photograph, the shotgun

that he claimed Lilly had wielded during the incident.

A federal grand jury returned an indictment against

Lilly on August 4, 2021, on one count of possession of firearms by

a felon under

(g)(1) and 924(a)(2). Lilly pleaded

guilty on January 25, 2022, and a sentencing hearing was held on

July 28, 2022. In accordance with the PSR, the district court

calculated a Total Offense Level of 15,2 which, given Lilly's

Criminal History Category of III, corresponded to a Guidelines

Sentencing Range (GSR) of 24-30 months. Lilly did not object to

this GSR.

The district court then heard argument from the

government, which recommended a 30-month sentence, and Lilly's

counsel, who requested a 24-month sentence. The court also stated

that it had received the parties' sentencing memoranda, the PSR,

police reports, victim impact statements, and Doe's grand jury

testimony. Having "carefully reviewed" these documents, the

2 Lilly's base offense level was 14. See U.S. Sent'g Guidelines Manual § 2K2.1(a)(6)(A) (U.S. Sent'g Comm'n 2021). The district court applied a two-level enhancement because the offense involved four firearms, see id. § 2K2.1(b)(1)(A); a two-level enhancement for obstruction of justice, see id. § 3C1.1; and a three-level reduction for acceptance of responsibility, see id. § 3E1.1.

- 5 - district court sentenced Lilly to 30 months of imprisonment

followed by 3 years of supervised release.

In explaining its decision to fix the sentence at 30

months, the district court considered the factors enumerated in

(a), highlighting various facts about the offense and

Lilly's past conduct.3 As part of its analysis, the court made a

factual finding by a "preponderance of the evidence" that during

the incident involving Doe on March 16, 2020, Lilly had wielded a

firearm, not a club. Consistent with the PSR's recommendation,

the court did not apply an enhancement for possession of a firearm

in connection with another felony offense, see U.S. Sent'g

Guidelines Manual § 2K2.1(b)(6)(B) (U.S. Sent'g Comm'n 2021),

finding that Lilly "had a right at that point in time to hold [Doe]

at gunpoint until the police came." Nevertheless, and over Lilly's

objection, the court found the "facts [to be] aggravating" and

thus took the incident into account in determining "where in the

[G]uidelines [it] should be sentencing."

Lilly timely appealed.

3 For example, in discussing the nature and circumstances of the offense and Lilly's history and characteristics, see

(a)(1), the court referenced the number of firearms and the fact that one of the firearms had been readily accessible to Lilly's minor daughter; discussed Lilly's prior criminal history, including a previous gun possession conviction and violations of terms of supervised release; and cited victim impact statements that explained that Lilly had neglected his daughter in various ways.

- 6 - II.

"We review preserved challenges to a sentencing's

procedural reasonableness under 'a multifaceted abuse-of-

discretion standard whereby we afford de novo review to the

sentencing court's interpretation and application of the

sentencing guidelines, assay the court's factfinding for clear

error, and evaluate its judgment calls for abuse of discretion.'"

United States v. Rivera-Ruiz,

(1st Cir. 2022)

(quoting United States v. Mendoza-Maisonet,

(1st

Cir. 2020) (internal quotation marks omitted)). "[P]rocedural

errors include 'selecting a sentence based on clearly erroneous

facts,' such as where factual findings are 'based solely on

unreliable evidence [and therefore] cannot be established by a

preponderance' of the evidence, as they must."

(second

alteration in original) (citations omitted) (first quoting United

States v. Díaz-Rivera,

(1st Cir. 2020); and then

quoting United States v. Castillo-Torres,

(1st Cir.

2021)). The requirement that a sentencing court base its factual

findings on reliable evidence applies regardless of whether the

court imposes a within-Guidelines sentence or departs or varies

from the Guidelines. See

; Castillo-Torres,

. To find clear error in the sentencing court's factual

findings, "an inquiring court [must] form[] a strong, unyielding

belief that a mistake has been made." Rivera-Ruiz, 43 F.4th at

- 7 - 181 (internal quotation marks omitted) (quoting Mendoza-Maisonet,

).

Lilly argues that that the district court's "cho[ice] to

believe the word of [Doe] over . . . Lilly when it came to

whether . . . Lilly pointed a gun at [Doe]" on March 16, 2020,

amounted to clear error. Doe's statement that Lilly had brandished

a shotgun, Lilly contends, was unreliable for two reasons: first,

because Doe lied about certain aspects of Doe's relationship with

Lilly's daughter, and second, because Lilly told the police that

Lilly had wielded a club, not a shotgun.

There was no clear error in the district court's finding,

by a "preponderance of the evidence," that Lilly "actually

[wielded] a gun during" the May 16, 2020 incident. On the

contrary, the district court had ample reason to credit Doe's

account of the incident over Lilly's.

First, Lilly's argument necessarily fails under our

precedent in United States v. Williams,

(1st Cir.

1993), because the district court supportably found Doe's grand

jury testimony more credible than Lilly's self-serving statements

to the police. See

(permitting a sentencing court to

rely on grand jury testimony when it has "adequate indicia of

reliability"); see also United States v. Ayala,

(1st Cir. 2008) (unpublished decision) ("[T]he [sentencing]

court was entitled to rely, in part, on hearsay evidence, including

- 8 - grand jury testimony . . . ."); U.S. Sent'g Guidelines Manual

§ 6A1.3(a) ("In resolving any dispute concerning a factor

important to the sentencing determination, the court may consider

relevant information without regard to its admissibility under the

rules of evidence applicable at trial, provided that the

information has sufficient indicia of reliability to support its

probable accuracy.").

Doe's sworn testimony to the grand jury reiterated his

statement to the police after the May 16, 2020 incident that Lilly

had wielded a shotgun. Doe attested that Lilly had "slammed the

door open" with a "[s]hotgun" that had a "muzzle break," and that

Lilly "had his left hand on the barrel and his right hand near the

trigger, and . . . was pointing [the shotgun] probably a foot away

from [Doe's] face." Further, Doe identified the shotgun in a

photograph during the grand jury proceedings. This detailed

testimony, which was "given under oath, subject to the penalties

of perjury, in a formal grand jury proceeding," Williams,

, is a far cry from the "uncorroborated, unsworn hearsay

with no other marks of reliability" that has concerned this court

in other contexts, Rivera-Ruiz,

(quoting

Castillo-Torres,

); see, e.g.,

(noting

that "records of a defendant's prior arrests or criminal charges

not resulting in conviction cannot themselves be relied upon at

sentencing absent a finding that the underlying misconduct

- 9 - actually occurred");

(rejecting the sentencing court's

reliance on administrative complaints that "merely provided the

alleged offense underlying the[] complaints, their date[s], and

that their 'circumstances . . . remain[ed] unknown'");

Castillo-Torres,

(rejecting the sentencing court's

reliance on a criminal complaint that lacked "indicia of

trustworthiness" (quoting United States v. Colón-Maldonado,

(1st Cir. 2020))). And Lilly's contention that Doe

lied about certain aspects of Doe's relationship with Lilly's

daughter, even if true, is insufficient to demonstrate that the

district court clearly erred in crediting Doe's statements about

the shotgun.

Even beyond Doe's grand jury testimony, the district

court carefully explained why it "had good reason not to believe"

Lilly's statement that he had wielded a club. The court commented

that Lilly had access to shotguns in the house and had a motive to

lie to the officers because he was "keenly aware that he was not

supposed to possess a firearm." The court also noted that after

the June 12, 2020 incident, Lilly falsely told officers that the

shotguns belonged to his father and that Lilly did not have access

to the locked bedroom where the firearms were kept. The former

statement was later contradicted by Lilly's father, who stated

that he had never seen the shotguns; the latter statement was

belied by the fact that upon arresting Lilly, officers discovered

- 10 - a set of keys that matched the locks to the bedroom. Further, as

the district court recounted, Lilly pressured his daughter to lie

to police about the firearms, leading to an enhancement for

obstruction of justice. In Facebook Messenger messages sent in

July 2021, Lilly told his daughter to "tell them I never had access

to the guns," "never touched them," and "did not have a key to

that room"; exhorted her to "stick to that story"; and instructed

her to "delete [her] messages." The district court supportably

found that given this "dishonesty to the police about the firearms"

in relation to the June 12, 2020 incident, it was "likely that

[Lilly] was doing the same thing on the night in question with

[Doe] because he knew he . . . couldn't possess a firearm."

Accordingly, the district court did not clearly err in

finding that Lilly lied about wielding a club and instead crediting

Doe's statement that Lilly had brandished a shotgun. Cf. United

States v. Cates,

(1st Cir. 2018) ("[C]redibility

determinations are part of the sentencing court's basic

armamentarium." (quoting United States v. Bernier,

(1st Cir. 2011))). Lilly's challenge to the procedural

reasonableness of his sentence fails, and his sentence is affirmed.

- 11 -