US v. Nunez

Filing

OPINION issued by Jeffrey R. Howard, Chief Appellate Judge; Bruce M. Selya, Appellate Judge and David J. Barron, Appellate Judge. Published. [15-2412]

Case: 15-2412

Document: 00117135692

Page: 1

Date Filed: 03/29/2017

Entry ID: 6080026

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

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SELYA, Circuit Judge.

Date Filed: 03/29/2017

Entry ID: 6080026

The sentencing court — ruling on

the basis of circumstantial evidence — attributed constructive
possession of six Molotov cocktails to defendant-appellant Oscar
Nuñez.

That

appellant’s

finding

guideline

fueled

a

sentencing

substantial
range

materially to his 82-month sentence.

(GSR)

increase
and

in

the

contributed

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

finding was not clearly erroneous.

constructive

possession

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,

595 F.3d 42, 45 (1st Cir. 2010); United States v. Dietz, 950 F.2d
50, 51 (1st Cir. 1991).
around Bangor, Maine.

The appellant trafficked in drugs in and

In the course of that nefarious enterprise,

he briefly employed David Ireland as his driver.

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After Ireland

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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

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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.
§§

922(g)(1),

information

924(a)(2).

setting

forth

Following
that

his

charge,

See 18 U.S.C.

guilty
the

plea

district

sentenced him to an 82-month term of immurement.1

to

an

court

This timely

appeal ensued.
Our review of a criminal sentence typically engenders a
two-step process.

See United States v. Ruiz-Huertas, 792 F.3d

223, 226 (1st Cir.), cert. denied, 136 S. Ct. 258 (2015); United
States v. Martin, 520 F.3d 87, 92 (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, 520 F.3d at 92.

Second, we consider any

attack on the substantive reasonableness of the sentence.

See id.

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

1

At the time of his federal sentencing, the appellant had
not yet been sentenced on the related state charges.
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calculation of the applicable guideline range.

Entry ID: 6080026

To this end, the

court made a series of determinations that yielded a GSR of 120150 months.

That range, which was capped at 120 months by virtue

of the maximum sentence allowed under the statute of conviction,
see 18 U.S.C. § 924(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 id. § 921(a); 26 U.S.C. § 5845; 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 twolevel "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.
Cir. 2011).

See United States v. Paneto, 661 F.3d 709, 715 (1st
Where, as here, a claim of error addressed to the

sentencing court’s factfinding was preserved below, appellate
review is for clear error.
18, 21 (1st Cir. 2012).

See United States v. Leahy, 668 F.3d
Clear-error review is demanding: this

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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, 604 F.3d 1,

6 (1st Cir. 2010) (alteration in original) (quoting Cumpiano v.
Banco Santander P.R., 902 F.2d 148, 152 (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,

606 F.3d 11, 14 (1st Cir. 2010); United States v. Santos, 357 F.3d
136, 142 (1st Cir. 2004); United States v. McDonald, 121 F.3d 7,
9-10 (1st Cir. 1997).
Against
finding.3

This is such a case.2

this

backdrop,

we

turn

to

the

challenged

It is common ground that possession can be either actual

or constructive.

See United States v. Maldonado-García, 446 F.3d

227, 231 (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, 136 S. Ct. 1338, 1346 (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.").
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has "immediate, hands-on physical possession" of the items in
question.

United States v. Gobbi, 471 F.3d 302, 309 (1st Cir.

2006) (quoting United States v. Zavala Maldonado, 23 F.3d 4, 6
(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, 446 F.3d at 231.

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,
982

F.2d

675,

678

(1st

Cir.

1993).

Moreover,

constructive

possession may be found based wholly on circumstantial evidence.
See United States v. Ridolfi, 768 F.3d 57, 62 (1st Cir. 2014).
In
evidence

this

point

instance,

convincingly

several
to

pieces

the

possession of the Molotov cocktails.

of

appellant’s

circumstantial
constructive

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

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exercises dominion and control over his own abode is deemed to
possess the objects found therein.

See McDonald, 121 F.3d at 10.

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, 23 F.3d at 7.

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, 121 F.3d at 10, 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, 133 S. Ct. 1409,

1415 (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, 466 U.S. 170, 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

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contraband.

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Zavala Maldonado, 23 F.3d at 7; see United States v.

Vargas, 945 F.2d 426, 429 (1st Cir. 1991).
The

particular
district

placement
court’s

of

the

finding

Molotov
of

cocktails

buttresses

the

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, 768 F.3d at 62; United States v. Marek, 548

F.3d 147, 153 (1st Cir. 2008); United States v. Spinney, 65 F.3d
231, 237 (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.

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Regardless of who actually put

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the

Document: 00117135692

items

under

the

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Date Filed: 03/29/2017

the

of

deck,

inference

the

Entry ID: 6080026

appellant's

knowledge is strong; and the combination of knowledge and access
bolsters

the

district

court's

finding

that

constructively possessed the Molotov cocktails.

the

appellant

See Maldonado-

García, 446 F.3d at 231.
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, 554 F.3d 24, 32 (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, 966 F.2d 707, 712 (1st Cir. 1992) ("[F]actfinders may draw
reasonable

inferences

perceptions

and

from

the

understandings

of

inclinations of human beings.").

evidence
the

based

habits,

on

shared

practices,

and

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, 905 F.2d 499, 508 (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").

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We need go no further. For the reasons elucidated above,
the appellant's sentence is

Affirmed.

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