United States v. Reyes-Torres, No. 18-2170

979 F.3d 1

UNITED STATES of America, Appellee,

v.Jan Emmanuel REYES-TORRES, Defendant, Appellant.

No. 18-2170

United States Court of Appeals, First Circuit.

October 27, 2020

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.

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

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 18 U.S.C. §§ 922(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 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, P.R. Laws Ann. tit. 24, § 2404, 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 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-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 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 18 U.S.C. § 3553(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 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 machine gun ... 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 18 U.S.C. § 3553(a) factors, particularly given the dangerous nature and characteristics of the machine gun with numerous rounds and the 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, 713 F.3d 82, 92 (11th Cir. 2013), the court held that "[b]ecause the machine gun 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-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...