United States v. Espinoza-Roque

26 F.4th 32

UNITED STATES of America, Appellee,

v.José ESPINOZA-ROQUE, Defendant, Appellant.

No. 20-1214

United States Court of Appeals, First Circuit.

February 15, 2022

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.

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

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 18 U.S.C. §§ 922(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 18 U.S.C. § 922(g). U.S.S.G. § 2K2.1 app. n.3. In turn, 18 U.S.C. § 922(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 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, 676 F.3d 213, 216 (1st Cir. 2012) (quoting United States v. Marceau, 554 F.3d 24, 30 (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, 595 F.3d 395, 399 (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." 18 U.S.C. § 922(g)(3) (emphasis added); see also United States v. Augustin, 376 F.3d 135, 138 (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, 554 F.3d at 30.

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 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

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 18 U.S.C. § 922(g)(3). 942 F.3d 7, 25 (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, 968 F.3d 130, 134 (1st Cir. 2020). Although Espinoza is correct as a general matter, we also have explained that a defendant's objection must be "sufficiently specific to call the district court's attention to the asserted [procedural] error." Id. (quoting United States v. Soto-Soto, 855 F.3d 445, 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, 819 F.3d 26, 33–34 (1st Cir. 2016) ; United States v. Mayendía-Blanco, 905 F.3d 26, 32 (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, 525 F.3d 72, 74 (1st Cir. 2008) (per curiam) (citing United States v. Caraballo–Rodriguez, 480 F.3d 62, 70 (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, 942 F.3d at 15. This case, by contrast, involves a sentencing enhancement to be supported by a preponderance of the evidence. See Damon, 595 F.3d at 399. Given 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, 9 F.4th 48, 52 (1st Cir. 2021). In so doing, we review questions of law de novo and questions of fact for clear error. Id. "[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, 977 F.2d 698, 706 (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, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (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. 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 (that Espinoza used marijuana every single night) was not "plausible" in light of the negative drug test. St. Cyr, 977 F.2d at 706.⁴

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...